Law – Page 9 – Mutantfrog Travelogue

What to expect from the new national gaijin cards

Yomiuri has reported that the Justice Ministry has formally proposed to scrap the locally-administered alien registration system in favor of a national system under the control of (you guessed it) the Justice Ministry. This has been in the works since last year and would have to be approved by the Diet as an amendment to the Immigration Control and Refugee Recognition Act, so don’t expect any changes overnight, but these are the changes we can apparently expect from the new system:

Benefits for foreigners

Ordinary period of stay on work/study permits will be extended from three to five years, meaning a bit less effort and expense to stay current on registration.
The “trainee” system will be renamed to something more reflective of reality, and “trainee”-class workers will get more explicit labor law protection.
Special permanent residents (zainichi Koreans) will enjoy much easier re-entry processing. Departures from Japan for up to two years will not require a re-entry permit, and a re-entry permit will allow them to stay outside the country for up to six years (currently the maximum is four). The zainichi apparently won’t be part of the new alien registration system, but will get their own certificate instead. (They still have to carry it around, though.)
Centralizing everything at the Justice Ministry will probably cut out some of the processing time lags that exist in updating alien registration information (for instance, Japan still doesn’t know how many foreigners it finished out the year with because immigration and the city halls haven’t finished striking the records of people who left for good at year’s end). It should also spare people the shuffle of having to personally notify city hall every time their immigration status or period of stay changes.

New problems for foreigners

Assuming this replaces the existing alien registration system completely, city hall will no longer have information on the city’s foreign residents, which might affect the way municipal services get distributed (hard to tell, though).
In the same vein, since everything has to go through the Immigration Bureau, updating registered information like address or employer may not be as convenient as walking into city hall. (Here’s one blogger [in Japanese] who picked up on this drawback right away.)
According to NHK, one of the motivations behind this is that the current system does not “make it a duty” to report a change of address to city hall, which makes it harder to track the foreign population in each municipality. The subtext seems to be that there will be harsher penalties for not keeping this information up to date (right now, while foreigners are supposed to keep their address updated, nothing particularly bad happens if they forget to do so).
It seems that some personal information will be taken off the face of the card and put on an IC chip inside the card. Some paranoid folks hate the idea of the Gaijin Chip, but I am actually in favor of it if it keeps this information private to a casual observer. (The flip side is that when us foreign lawyers get carded, the cop can’t see that our profession is “attorney.”)

All this said, as David Chart points out, the Justice Ministry hasn’t been too bad to “good foreigners” lately. Although the new fingerprinting system is kind of annoying, the Ministry at least had the decency to give re-entrants a separate line at Narita immigration instead of lumping them with tourists (which was part of the initial proposal, as I recall). So it isn’t too much of a stretch to expect that they will ultimately work this system in a fairly efficient manner, even if certain points raise alarm on paper.

The proposal is now in the hands of the LDP, which will have to make it into a bill for the Diet’s consideration, so theoretically anything can happen from this point.

Yakuza visibility

One of the distinctive characteristics of Japan’s yakuza, as compared with similar mafia type organizations in other countries around the world, is their sometimes incomprehensible blatantness. Where the American Mafia used to officially deny its own existence, Yamaguchi-gumi, the largest Yakuza “family”, has a sign outside their headquarters and a PR officer.

The other weekend Joe and I were in Osaka and happened to pass through the lobby of the Rihga Royal Hotel in Naka no Shima coming out of the subway and noticed that there were signs out advertising meeting places for two parties with rather unusual names: 昭成会 and 朝日会. 昭成会 (Shou-sei-kai) is obviously a reference to 昭和 (Showa) and　平成　(Heisei), the former and current Emperor/historical period of Japan, and 朝日会 (Asahi) just has a nationalistic ring but could mean almost anything. A quick mobile phone Google confirmed that 昭成会 is a known Yakuza group and Yamaguchi-gumi affiliate based in Ishikawa Prefecture. Asahi-kai is far less obvious. A few minutes of poking around just now showed a medical group and an Asahi newspaper distributor, but no obvious gangs of that name.

So basically, one confirmed Yakuza conference at the Righa Royal Hoten on January 24.

Clueless police

Pointless shaming of athletes for marijuana have made international headlines with the Phelps “scandal”, but the ongoing series of sumo related marijuana arrests here in Japan has hit a new low. According to today’s Japan Times:

Wakakirin has allegedly admitted possessing the marijuana with the intention of using it, though police said they doubted his explanation of how he smoked it.

He reportedly told investigators he hollowed out a cigar, blended the tobacco with marijuana and put the mixture back into the cigar and smoked it, but a senior prefectural police official said it isn’t normal to inhale cigars in the same way as smoking marijuana.

Really? A “senior prefectural police official” making public statements on a criminal drug investigation hasn’t heard of a blunt? Someone needs to get the Yokohama police a subscription to MTV so they can watch some hip hop videos. This would just be pure comedy if it didn’t imply that they were casting doubt on Wakakirin’s entire story in an attempt to frame him for the Japanese equivalent of “possession with intent to distribute”, whatever it may actually be called here.

Shimamoto v. United and Japan’s legal attitudes toward alcohol

One of the odder legal stories of 2008 may have been a certain lawsuit against United Airlines by a certain Yoichi Shimamoto and his wife Ayisha. FlyerTalk had a big thread on it. Here’s a quick summary of what happened:

The Shimamotos were on a United flight from Japan to the US in business class, where alcohol is free and generally quite readily dispensed. Mr. Shimamoto became thoroughly trashed on the flight, and apparently a little belligerent. After deplaning at their first stop in San Francisco, while the couple was waiting in the immigration line, they got into an altercation of some sort and Mr. Shimamoto started beating his wife in public. He was arrested for assault, tried and convicted, and sentenced to probation in California followed by deportation to Japan.

Then it gets really weird. First, Mrs. Shimamoto successfully petitioned to have Mr. Shimamoto’s probation transferred to Florida, where Mrs. Shimamoto had a house. Then, with Mr. Shimamoto safely parked somewhere around Orlando, the couple sued United in Florida for Mrs. Shimamoto’s physical injuries and Mr. Shimamoto’s legal expenses, claiming that United should not have served more alcohol to Mr. Shimamoto while he was obviously wasted out of his mind. After a couple of weeks of spirited online discussion between armchair pundits, the Shimamotos withdrew their case. Perhaps United offered a settlement of some kind–the news reports do not say.

* * *

Although the gut reaction of most is to say “Ah-ha! Frivolous American litigiousness strikes again!” it’s actually quite easy for a booze server to incur tort liability because of their drunken patrons’ malfeasance. Every US state has some sort of “dram shop act” which imposes this sort of liability. Sales to minors are pretty much universally a basis for seller liability, and sales to the visibly intoxicated can lead to liability in many states.

Extending this general concept to an airline is not that illogical, although perhaps inconsistent with the fact that airplanes don’t really fall under a particular state’s jurisdiction while in flight (although the airlines themselves, which are tied firmly to the ground, might). Another hurdle is that most international flights fall under the Warsaw Convention, which caps the carrier’s liability for physical or property damage to passengers.

Of course, the real oddity in the Shimamotos’ case is that it wasn’t just the battered wife who sued–it was also her husband, who wasn’t really hurt except to the extent that he got himself in legal trouble. Still, the question of making airlines responsible for cutting off their patrons is an interesting one, and it may someday be solved in court by a more credible group of litigants.

* * *

A few posters at FlyerTalk have raised the question of whether Japanese law (and, by extension, society) condones or even encourages the practice of passing blame to the liquor or its server.

To some extent, this idea is actually getting traction in Japanese law, at least as far as The State is concerned. Anyone who eats out regularly in Japan has probably noticed the growing number of establishments that proudly state they will not serve alcohol to customers who come by car–this is largely because Japan’s revised Road Traffic Law of 2007 makes it a criminal offense for a restaurant or bar to provide alcohol to a person “at risk of” drunk driving. Another example is serving booze to minors, a crime under the “Fuzoku Eigyo” Act (which governs the nightlife industry generally) which can land the proprietor in jail.

Civil liability between private parties is a different story, though. It’s pretty well known that Japan is not a very litigious society–depending on which expert you ask, this is either because of cultural reasons (aversion to argument) or economic reasons (filing fees in Japanese courts are based on claim amount, so big lawsuits on a marginal basis are uneconomical to file, whereas the US system of charging flat filing fees encourages outlandish claims that can be whittled down through negotiation). So it shouldn’t come as much of a surprise that suing the bar for the drunkard’s acts has been less of a question in the Land of the Rising Nama.

It does come up, though. The scariest case for the bartender must be a 2001 case in Tokyo (noted in the Japanese Wikipedia article on drunk driving) where a group of friends drank for seven hours straight, got in a car and ran over a 19-year-old girl. The driver got seven years in prison, but his friends were found civilly liable to the tune of 58 million yen for having the guy drink while they knew he was getting behind the wheel. But in a more distant commercial context, there seems to be some reluctance to extend liability like this. Take one case in Saitama last year where families of victims of a drunk driving spree demanded that the barkeep’s criminal responsibility was as great as the driver’s. The judge handed down a suspended sentence for the alcohol providers, claiming that “there is no evidence that [they] expected the driver to act so recklessly (運転者の常軌を逸した暴走行為まで予見していた証拠はない).”

What’s the conclusion? Japan has a looser attitude toward alcohol in many ways (when’s the last time you’ve been carded here?) but its system can be pretty harsh on people who completely ignore its dangers. Thankfully, Mr. Shimamoto wouldn’t have much legal support under either system: the only tangible difference between the two countries in his case is that he can actually afford to waste the court’s time in the US.

Making a future for corporate aircraft in Japan – maybe using airports you didn’t know existed

Japan has long had an aviation policy which favors airplanes as a mode of mass transit, and favors big carriers like ANA and JAL. You can view this as populist or pro-corporate, or perhaps both. But one thing is for certain: private aviation has never been able to take off here, despite all the wealth and business available to support it.

As late as the mid-90s, long-haul private jet flights had their pick of five daily slots at Narita which were shared with charter flights, making it impossible to fly in and out of Tokyo without a couple months’ notice — enough to make US biz-jet industry representatives complain to Congress. Even for domestic flights today, the flight plan must be filed with the Ministry of Land, Infrastructure and Transport a week or so before the flight, making it impossible to just jet around the country at short notice.

Another key problem is the lack of available facilities. Most huge cities around the world have airports with little or no scheduled service which can serve private planes almost exclusively: New York (Teterboro and Westchester), London (Luton and Farnborough), Paris (Le Bourget), Los Angeles (Van Nuys), Miami (Kendall) and Atlanta (DeKalb) have all gotten it right. The closest thing in Tokyo is the tiny airport in Chofu, which isn’t big enough to handle business jets and can’t be expanded due to the surrounding city area. (The situation is easier in Japan’s secondary cities, though–Osaka has the giant Yao Airport and the new Kobe Airport, and Nagoya’s old Komaki Airport offers many slots for private flights now.)

It isn’t even practical to keep a business aircraft on the ground in most parts of Japan because of high landing and parking costs. The Japanese business jet charter industry, inasmuch as it exists, largely relies on planes and crews based in Guam or other cheaper locales which are close enough to be halfway practical.

Still, Japan has an active Business Aviation Association which has been lobbying to make the government’s policies more friendly to small planes. Just last month, JBAA sent MLIT’s aviation bureau a request to upgrade Tokyo’s airports for easier use by private aircraft–mainly focusing on better facilities at Haneda and more slots at Narita.

The most interesting component of JBAA’s efforts is their proposal to upgrade of a third Tokyo airport for use by business aircraft. There has been much-publicized talk over setting up a big third airport to serve commercial traffic as well, but if the third airport’s role is downscaled a bit, more options become available. One thing you might not know about Tokyo is that it already has a ton of airports–at least ten within a couple hours’ drive of the city center. A good handful are enormous and can theoretically accommodate planes of all sizes. The only problem is that most of them are used for military/defense purposes. Here’s a Google Maps mashup I threw together to illustrate the options available.

View Larger Map

The JBAA has centered its lobbying efforts around the four largest military bases: Yokota, Kisarazu, Shimousa and Atsugi. Each is about as far from Tokyo as Narita (in the 50-90 minute range) and fairly well-situated for access by road (assuming someone who can afford a jet will at least spring for a limo to the airport).

Of course, there are problems inherent to any such proposal. These fields would have to be vacated or at least significantly ceded by defense units which seem to like their digs, and which might do more for the neighborhood economy than a collection of Learjets and Cessnas would. There’s also the ongoing presence of community protesters to consider–the same folks who forced Itami Airport to stop accepting 747s could easily derail plans to keep a vacated defense facility alive. And, of course, we live in a time when private jets often seem like an unacceptable luxury for many of the businesses which used them with reckless abandon just a couple of years ago.

My illegal post about the image rights campaign

Here is the copy of an ad promoting the “STOP! Image Rights Violations” campaign that currently stares at me during my morning commute (emphasis added):

The names and likenesses of entertainment talent and athletes are important business property. They are shared property created through the tireless efforts of the talent and athletes and the business efforts of the production companies. The rights protecting this property against unauthorized use by others are called “publicity rights.” In Japan, there have been many court cases acknowledging the importance of these rights, but since there is no clear stipulation of these rights in the law, in reality there is no end to cases of infringement.

I don’t have a ton to say about this now, except (a) you could make the case that the absence of laws explicitly protecting consumers’ rights to reuse commercial material to express themselves leads to patently pathetic violations as I have noted before (here’s hoping the Fair Use initiative passes this year); and (b) interestingly, Johnny’s Entertainment does not appear to be a member of this industry association.

As usual, Wikipedia provides concise and interesting background reading on the topic!

Who owns these bodies?

Interesting mini article from the Taipei Times a few days back.

WWII graves located

Taiwan’s representative office in Papua New Guinea has located graves that it believes to be those of Republic of China (ROC) soldiers who died in World War II while they were enslaved by the Japanese army on the Pacific island, the Ministry of Foreign Affairs said yesterday. Lee Tsung-fen (李宗芬), deputy-head of the ministry’s Department of East Asia and Pacific Affairs, said that local Chinese compatriots said the graves at Rabaul were first discovered by an Australian pilot. It is thought that more than 1,600 ROC soldiers were captured by the Japanese and sent to Papua New Guinea camp during the war. Many of the soldiers reportedly either died in the camp or on the way to it. Lee yesterday said the Ministry of National Defense would send officials to the island to ascertain the identities of those in the graves, adding that the ministry would decide whether to transport the remains back to Taiwan after consulting with the relatives of the men.

The ROC is of course the official name of the government which now runs Taiwan and its accompanying islands, but during WW2 it was one of the two governments competing for mainland China, along with the CCP, while Taiwan was a Japanese colony. Presumably these soldiers were in fact soldiers from the ROC of that time, i.e. NOT Taiwan, were were fighting against Japan and then captured as POWs. Of course, this brings up the question of who should claim these bodies. Is it today’s ROC, i.e. “Taiwan”, or the PRC, i.e. “China”? While similar questions have come up in the past regarding property disputes between the two governments, this case is complicated by the fact that much of the surviving ROC military moved to Taiwan, along with many of their relatives. Should these remains be brought to:

A: Their place of origin (China, NOT Taiwan)

B: The place held by the successor to the military and government that they fought for (Taiwan, NOT China)

C: The location of their closest living relative (could very well be either Taiwan OR China)

Japan as a model for American prison reform?

The Washington Post has a very interesting article on Senator James Webb (D – VA)’s campaign to reform US criminal justice and prisons. Webb seems to be among the few senators who actually realizes how broken the US justice system is, with its obscene incarceration rate and often stiff penalties for minor violations. This is all to his credit, and I hope he succeeds in achieving some level of reform, but this is not the part of the article that caught my attention. Here it is:

Somewhere along the meandering career path that led James Webb to the U.S. Senate, he found himself in the frigid interior of a Japanese prison.

A journalist at the time, he was working on an article about Ed Arnett, an American who had spent two years in Fuchu Prison for possession of marijuana. In a January 1984 Parade magazine piece, Webb described the harsh conditions imposed on Arnett, who had frostbite and sometimes labored in solitary confinement making paper bags.

[…]

In his article about the Japanese prisons, Webb described inmates living in unheated cells and being prohibited from possessing writing materials. Arnett’s head was shaved every two weeks, and he was forbidden to look out the window.

Still, Webb said, the United States could learn from the Japanese system. In his book, “A Time to Fight,” he wrote that the Japanese focused less on retribution. Sentences were short, and inmates often left prison with marketable job skills. Ironically, he said, the system was modeled on philosophies pioneered by Americans, who he says have since lost their way on the matter.

I must admit that I know absolutely nothing about the history of prisons in Japan, and for that matter embarrassingly little about the history of prisons in the US. How much are Japanese prisons really modeled after American theories? Certainly the Japanese court system tends to give out shorter sentences for at least certain types of crime, but is there any truth to the idea that inmates leave with job skills? I could easily imagine that an ex-con in Japan is even more stigmatized in the job market than one in the US.

American democracy at work

I mentioned earlier I have some issues with the way Japan’s voting system works, but this leave’s me speechless.

I’m sure the whole thing is legally justified and all that, but still. “I move to allocate this ballot to lizard people.” Wow.

Norms of citizenship law

I glanced at Debito’s blog earlier, in which he linked to a piece he wrote a few years back which includes the following line:

For the purposes of this essay, by “foreigners” I do not mean “Zainichis” (ethnic Korean, Chinese, Indian, etc.), born in Japan, often with Japanese as their native tongue, who would be citizens already in other developed countries.

I’m not sure why so many believe this myth. A small minority of countries (about 35 out of about 200) actually follow the doctrine of jus soli, or citizenship due to place of birth, and of those, the only ones generally considered to be “developed countries” are: (caveat: according to Wikipedia’s list)
Canada
United States
Britain (with some restrictions)
France (only upon reaching adulthood)
Australia (upon reaching the age of 10)
Ireland (with restrictions)
New Zealand (with restrictions)

And that’s it. Note that jus soli is common only in countries following the Anglo system of law, specifically former colonies of the UK (India used to have jus soli but abolished it, Pakistan still does.) Of the 26 current member states of the EU, the only ones that have jus soli citizenship are the UK, Ireland, and France. The rest of them follow the tradition of jus sanguinis or citizenship by blood, which comes out of the Germanic legal tradition that Japan based their entire modern legal code on. If one considers “developed countries” to be Australia, Canada, Europe (26 countries), Japan, South Korea, New Zealand, Singapore, Taiwan and USA, then we have 34 countries (apologies if I’ve left any off the list, but I’m going for a rough count here), of which only 7 have the jus soli legal policy that Debito described as standard in “other developed countries.”

By pointing this out I am in no way endorsing the legal quasi-limbo in which many people, such as the Zainichi but also including various stateless populations living in far worse conditions around the world, have been left due to the vagaries of jus sanguinus, but I would like to try and correct the odd misperception among Westerners in Japan (who are almost all from either Anglo law countries or France) that Japanese nationality law is in some way an aberration, when it is in fact the international norm.