Do We Always Need a Lawyer (Bengoshi) for Japanese Civil Litigation? Understanding the Principle of Lawyer Representation and the Role of Judicial Scriveners (Shiho-shoshi)

Japanese Attorney at Law - Bengoshi L.L.

04 Jun 2025 • 7 min read

When legal disputes escalate to court proceedings in Japan, one of the initial practical questions for any party, particularly a foreign company, is whether legal representation by a qualified professional is mandatory or merely advisable. Japan's system, while allowing for self-representation, operates under a general "Principle of Lawyer Representation" (bengoshi dairi no gensoku – 弁護士代理の原則), especially in higher courts. However, exceptions exist, most notably in the context of Summary Court proceedings, where other forms of representation, including by certified judicial scriveners (nintei shihō shoshi – 認定司法書士), are permitted.

This article explores the rules governing legal representation in Japanese civil litigation, the scope of self-representation, the specific circumstances under which non-lawyers may act as agents, and the evolving role of judicial scriveners in the Japanese justice system.

The General Rule: The Principle of Lawyer Representation (CCP Art. 54)

Article 54, paragraph 1 of the Japanese Code of Civil Procedure (CCP) states that, unless a party chooses to conduct litigation themselves (self-representation), no person other than a qualified lawyer (bengoshi – 弁護士) may act as a litigation agent. This principle primarily applies to proceedings in Japan's District Courts (chihō saibansho – 地方裁判所), High Courts (kōtō saibansho – 高等裁判所), and the Supreme Court.

The rationale behind this principle is twofold:

Protection of the Party's Interests: Litigation involves complex legal and procedural rules. Requiring representation by qualified lawyers, who possess the necessary legal expertise and ethical obligations, is seen as a way to safeguard the rights and interests of the parties involved.
Smooth and Proper Conduct of Proceedings: The involvement of legal professionals who understand court procedures and rules of evidence is believed to contribute to the efficient and orderly progression of lawsuits.

Important Clarification: Not a "Compulsory Lawyer System" (Bengoshi Kyōsei Shugi)

It is crucial to understand that this "Principle of Lawyer Representation" does not mean that parties are forced to have a lawyer in Japan for most civil cases. The Japanese system does not broadly adopt what is known in some other jurisdictions as a "compulsory lawyer system" (bengoshi kyōsei shugi – 弁護士強制主義), where representation by a lawyer is mandatory for nearly all court appearances.

Self-Representation (Honnin Soshō) in Japanese Courts

Parties in Japan, whether individuals or legal entities (acting through their authorized representatives, such as company directors), generally have the right to conduct their own litigation without appointing an agent. This is known as honnin soshō (本人訴訟 – litigation by the principal party).

Prevalence: Self-representation is quite common in Summary Courts (kan'i saibansho – 簡易裁判所), which handle civil claims of a relatively lower monetary value (currently up to JPY 1.4 million for ordinary procedures) and operate with somewhat simplified procedures. In District Courts and higher courts, while honnin soshō is still permissible, the increased complexity of cases and procedures means that parties, especially corporations, are more likely to engage legal counsel.
Challenges: Litigants choosing self-representation, particularly in more complex cases or higher courts, face the significant challenge of navigating intricate procedural rules, constructing legally sound arguments, and effectively presenting evidence without formal legal training.

Exceptions to Lawyer-Only Representation: The Summary Court Context

The Summary Court system in Japan is designed to be more accessible for minor civil disputes. It is in this context that the main exceptions to the lawyer-only representation rule for agents are found:

A. Representation by Non-Lawyers with Court Permission (Kyoka Dairi – 許可代理) (CCP Art. 54(1) proviso)

Specifically for proceedings in Summary Courts only, Article 54, paragraph 1, proviso of the CCP allows the court to grant permission for a person who is not a lawyer to act as a litigation agent.

Conditions: This permission is not automatic. The court will typically consider whether the proposed non-lawyer agent has a specific relationship with the party (e.g., a family member, an employee of a small company) and whether they are deemed capable of adequately representing the party's interests in that particular case.
Case-by-Case Basis: The decision to grant permission is made by the Summary Court on a case-by-case basis, considering all circumstances.

B. Certified Judicial Scriveners (Nintei Shihō Shoshi – 認定司法書士) (Judicial Scrivener Act Art. 3)

A more significant and formalized exception involves "certified judicial scriveners."

Background of Judicial Scriveners (Shihō Shoshi – 司法書士): Judicial scriveners are established legal professionals in Japan, traditionally specializing in the preparation of documents for submission to courts, public prosecutors' offices, and Legal Affairs Bureaus. Their work has historically focused on areas like real estate registration, company incorporation, and drafting certain court-related documents.
Expansion of Role (2002 Amendment): A crucial amendment to the Judicial Scrivener Act in 2002 expanded the potential role of these professionals by granting certain qualified judicial scriveners the right to act as litigation agents in Summary Court proceedings.
"Certified" Judicial Scriveners: To undertake litigation agency, a judicial scrivener must undergo specified additional training focused on litigation practice and pass a capacity certification examination administered by the Minister of Justice. Only those who meet these requirements become "certified judicial scriveners" (nintei shihō shoshi).
Scope of Agency in Summary Court: These certified judicial scriveners are authorized to represent parties in civil litigation before Summary Courts, provided the value of the subject matter of the suit does not exceed JPY 1.4 million (the jurisdictional monetary cap for Summary Courts). This includes representing parties in Japan's Small Claims Litigation procedure (shōgaku soshō tetsuzuki).
Other Authorized Activities: Certified judicial scriveners can also represent parties in certain alternative dispute resolution (ADR) procedures, such as out-of-court settlement negotiations concerning civil disputes that would fall within the Summary Court's monetary jurisdiction if litigated (Judicial Scrivener Act Art. 3(1)(vii)). Furthermore, they can act as agents in specific enforcement proceedings related to Summary Court judgments, such as the "small claims bond execution" procedure.

The introduction of litigation agency for certified judicial scriveners was intended to improve access to justice for minor disputes by providing an alternative to bengoshi representation in the Summary Court context.

The Role and Powers of Appointed Litigation Agents

Whether a litigation agent is a bengoshi or, in the Summary Court context, a non-lawyer with court permission or a certified judicial scrivener, their powers and duties within the litigation are largely governed by the CCP.

General Authority (CCP Art. 55): Once validly appointed, a litigation agent is generally vested with broad authority to perform all necessary litigation acts in the specific case for which they are mandated. This includes filing pleadings and motions, making oral arguments, presenting evidence, and receiving court documents on behalf of their principal. This comprehensive grant of authority is based on trust in the agent's capacity (especially for lawyers) and the need for procedural stability.
Requirement for Special Authorization (CCP Art. 55(2)): Despite this general authority, certain procedural acts are considered so critical to the party's substantive rights or the ultimate disposition of the case that they require separate, explicit authorization from the principal. These acts, listed in Article 55, paragraph 2, include:
- Filing a counterclaim (hanso – 反訴).
- Withdrawing the lawsuit (uttae no torisage – 訴えの取下げ) or an appeal.
- Reaching a judicial settlement (soshōjō no wakai – 訴訟上の和解).
- Waiving the claim (seikyū no hōki – 請求の放棄) or admitting the claim (seikyū no nindaku – 請求の認諾).
- Filing an appeal to a higher court.
  This requirement ensures that the party principal retains ultimate control over decisions that fundamentally alter or conclude their rights in the litigation.
Continuity of Representation (CCP Art. 58): The authority of a litigation agent is generally not extinguished by events such as the death of the principal, the dissolution of a corporate principal through merger, or the principal's loss of litigation capacity. Furthermore, if a party who has appointed a litigation agent dies, the court proceedings are generally not suspended (as they might be if the party were self-represented) because the agent can continue to act, now for the successor in interest (CCP Art. 124(2)).

Other Forms of Representation and Assistance

Beyond appointed litigation agents, other forms of representation or assistance exist:

Statutory Agents (Hōtei Dairinin – 法定代理人): For parties who inherently lack litigation capacity (e.g., minors are represented by their parents; adult wards by their guardians) or for legal entities (e.g., a company is represented by its directors), their statutory agents conduct litigation on their behalf.
Agents by Operation of Law (Hōrei ni yoru Soshō Dairinin – 法令による訴訟代理人): As mentioned, certain official or managerial positions (e.g., a company's general manager concerning its business operations, or a ship's captain for matters related to the voyage) inherently carry the authority to act as a litigation agent for specific types of disputes related to their duties. Government officials designated by the Minister of Justice or the head of a relevant administrative agency may also act as litigation agents for the state or that agency.
Paralegals (Hōritsu Jimu Shokuin – 法律事務職員): Paralegals in Japanese law firms, similar to their counterparts in the U.S. and other jurisdictions, play a crucial supportive role. They assist bengoshi with case preparation, legal research, document management, client communication, and other tasks. However, they are not authorized to independently represent parties in court or provide legal advice directly to clients in a representative capacity. Their work is performed under the supervision and responsibility of a qualified bengoshi.

Practical Considerations for U.S. Companies

For U.S. companies involved in or contemplating litigation in Japan:

District Court and Higher Levels: If litigation is in a District Court, High Court, or the Supreme Court, and the company chooses not to have an internal representative (like a Japan branch manager or director) conduct honnin soshō (which itself is rare for significant corporate litigation), then representation must be by a Japanese-qualified lawyer (bengoshi). Foreign lawyers who are not admitted to practice in Japan as bengoshi (even if registered as gaikokuho jimu bengoshi – 外国法事務弁護士, who can advise on foreign law) generally cannot appear in Japanese courts as litigation agents for Japanese law matters.
Summary Court Options: For claims falling within the Summary Court's jurisdiction (up to JPY 1.4 million), a U.S. company could theoretically be represented by an employee based in Japan (with specific court permission under CCP Art. 54(1) proviso) or by a certified judicial scrivener. However, given the potential complexities of cross-border elements, language barriers, and the strategic implications even in smaller cases, engaging a bengoshi is often the most prudent course, even for Summary Court matters involving international business.
Choosing Representation: The decision of who should represent the company involves balancing factors such as the monetary value of the claim, the complexity of the legal and factual issues, the specific expertise required, and cost considerations. While alternatives to bengoshi representation exist in limited contexts, the depth of legal training, strategic litigation experience, and broader advisory capacity of a bengoshi are invaluable for significant or intricate disputes.

Conclusion

Japan's civil justice system, while upholding the right of parties to represent themselves, generally channels formal litigation agency through qualified lawyers (bengoshi), particularly in the higher courts. This "Principle of Lawyer Representation" aims to ensure competent advocacy and the orderly conduct of proceedings. The Summary Court system offers greater flexibility, allowing for representation by non-lawyers with court approval and, notably, by certified judicial scriveners for smaller monetary claims, thereby enhancing access to justice for such disputes.

For any business, domestic or foreign, understanding these rules is a fundamental aspect of engaging with the Japanese legal system. While self-representation or alternative agency might be technically possible in certain limited scenarios, the complexities of Japanese law and procedure, especially for U.S. companies unfamiliar with the system, often make professional representation by an experienced bengoshi the most effective way to protect and advance their interests in court.