How Actively Can Japanese Judges Intervene? Exploring the Court's 'Shakumei-Ken' (Power to Clarify)

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

Japanese civil procedure is fundamentally rooted in the Benron Shugi (Principle of Party Presentation), which places the primary responsibility on the litigating parties to present the factual allegations and supporting evidence that form the basis of their case. However, this party-driven system is not one where the judge remains entirely passive. A crucial counterpoint and complement to party presentation is the Shakumei-ken, or the "Power to Clarify," granted to the court under Article 149 of the Code of Civil Procedure (CCP). This power allows, and in some instances obliges, the judge to engage with the parties to ensure that the issues are clear and the case is adequately developed. This article explores the nature, purpose, scope, and inherent tensions of this important judicial function.

The Nature and Purpose of Shakumei-Ken

Article 149(1) of the CCP provides that "The presiding judge may, on the date for oral argument or on any other date, ask questions of a party or encourage a party to produce evidence with regard to factual or legal matters, in order to clarify the matters related to the suit." Associate judges also possess this power (Article 149(2)).

It's important to note the nuance in the term shakumei (釈明), which means "clarification." The court's role is to prompt the parties to clarify their positions, allegations, or evidence; the court itself does not step in to provide the clarification or make the case for a party. Thus, it is perhaps more accurately described as a "power to seek clarification."

While Article 149 frames Shakumei-ken as a judicial "power" or "authority," prevailing legal doctrine and established judicial practice in Japan also recognize that its exercise can, in certain circumstances, constitute a judicial "duty." Historically, before amendments to the CCP, the provision was indeed phrased more explicitly as a duty. This dual nature—as both a power and a potential duty—is key to its operation.

The primary purposes of Shakumei-ken are manifold:

  • To Supplement Party Presentation: It addresses situations where parties, perhaps due to a lack of legal expertise (especially in cases involving unrepresented litigants), oversight, or simply unclear drafting, fail to adequately present their claims or defenses, or neglect to address crucial factual or legal points.
  • To Ensure Fair and Just Outcomes: By prompting clarification or the submission of necessary information, the court aims to prevent a party from losing their case due to easily correctable procedural omissions or substantive misunderstandings, thereby promoting a result that aligns more closely with substantive justice.
  • To Facilitate Efficient and Focused Proceedings: Clarifying ambiguous allegations, identifying the true points of contention, and encouraging the submission of relevant evidence can help streamline the litigation process, making it more efficient and focused.
  • To Enhance Communication: Shakumei-ken serves as a channel for communication between the court and the parties. It allows the court to convey its understanding (or lack thereof) of the case, to highlight potential legal issues it deems relevant, and to give parties an opportunity to respond or adjust their strategies accordingly.

Interaction with Core Procedural Principles: Benron Shugi and Shobunken Shugi

The exercise of Shakumei-ken must always be understood in the context of, and in subordination to, two other fundamental principles of Japanese civil procedure: Benron Shugi (Principle of Party Presentation) and Shobunken Shugi (Principle of Party Disposition).

  • Shakumei-ken is intended to help parties fulfill their roles and responsibilities under Benron Shugi more effectively; it is not a mechanism for the court to usurp the parties' primary role in presenting their own cases.
  • Similarly, Shobunken Shugi dictates that the parties have the autonomy to define the scope of the dispute (i.e., what claims are being made and against whom) and to decide whether to continue or terminate the litigation (e.g., through withdrawal or settlement). The court generally cannot use Shakumei-ken to compel a party to assert an entirely new claim or defense that the party has no intention of raising, as this would infringe upon their dispositional autonomy.

The inherent tension lies in determining how far a court can go in prompting, suggesting, or guiding parties without overstepping into their domain or compromising the essential requirement of judicial neutrality.

Types of Clarification and Illustrative Scenarios

The exercise of Shakumei-ken can be broadly categorized, though the lines are not always sharp:

  1. Passive/Negative Clarification (Shōkyoku-teki Shakumei):
    This involves the court addressing existing ambiguities, inconsistencies, formal defects, or lack of clarity in a party's current allegations, evidence, or procedural actions. For example, if a plaintiff's statement of claim is vague about the precise legal basis of their demand, or if their factual assertions appear contradictory, the court might ask for specific details or a reconciliation of the statements. This form of clarification is widely seen as a judicial duty. Failing to address such readily apparent issues and allowing a party to suffer detriment due to mere unclear presentation could lead to a "surprise" judgment based on the court's unarticulated misunderstanding of that party's position.
  2. Active/Positive Clarification (Sekkyoku-teki Shakumei):
    This is more controversial and involves the court taking a more proactive stance. It might include:
    • Suggesting that a party consider an alternative legal theory for their claim or defense.
    • Prompting a party to allege additional facts that appear relevant based on the existing record but have not yet been formally pleaded.
    • Indicating that a particular defense (e.g., statute of limitations) might be available, even if the party has not raised it.
    • Encouraging a party to submit further evidence on a point the court deems crucial.
      Because active clarification can appear as though the court is assisting one party, its permissibility is more heavily scrutinized against the standard of judicial neutrality. The distinction between "passive" and "active" clarification, while common in discussions, is questioned by some scholars for its analytical precision, as even a "passive" query can lead a party to make "active" changes to their case. The core underlying issue is always the legitimacy and permissible limits of judicial intervention.

Let's consider some specific scenarios:

  • Clarification Regarding Amendment of Claims: (Illustrative of Case 1 in Chapter 2-9 of the reference material). Suppose Plaintiff A sues Defendant B for the return of investment money, alleging fraud in the inducement of the investment contract. The court, after initial review, has doubts about proving fraud but sees indications in the presented facts that the transaction might more appropriately be characterized as a simple loan, under which A might have a viable claim for repayment. Can or should the court prompt A to consider amending the legal basis of their claim from tort (fraud) to contract (loan)? This is a classic example of potentially "active" clarification. The general view is that such a suggestion may be permissible if the existing allegations and evidence already provide some "foothold" or "clue" (yoridokoro or tegakari) pointing towards the alternative claim, and if resolving the underlying substantive dispute through this alternative legal theory seems appropriate. However, if the party's presentation offers no such indication, for the court to spontaneously suggest an entirely new cause of action would likely be seen as overstepping.
  • Clarification Regarding Unpleaded Defenses (e.g., Statute of Limitations): (Illustrative of Case 2 in Chapter 2-9). Plaintiff C sues Defendant D for repayment of a debt. During the proceedings, the court becomes aware that, based on the timeline of events, C's claim might be barred by the statute of limitations. However, D has not raised the statute of limitations as a defense.
    This is a highly sensitive area. In Japanese law, the statute of limitations is an affirmative defense that must be explicitly invoked (en'yō) by the party seeking to benefit from it (Civil Code Art. 145). It is not something the court applies automatically. For a judge to directly prompt a defendant to raise this potentially case-dispositive defense can severely compromise the appearance, if not the reality, of judicial neutrality, as it effectively hands a victory to that party. A Supreme Court decision from December 28, 1956 (Minshū Vol. 10, No. 12, p. 1639) was negative about the court prompting such a defense. The prevailing view suggests that if there is absolutely no indication from D's conduct or statements that they are aware of or considering this defense, the court should generally refrain from directly prompting it, in order to maintain its neutral stance.
  • Clarification Regarding General Clauses (e.g., Abuse of Right, Public Order and Morals): (Illustrative of Case 3 in Chapter 2-9). Plaintiff F sues Defendant G for the removal of a building from F's land. G defends on other grounds. However, from the facts and evidence presented by both parties, the court forms a preliminary view that F's demand for removal, even if F has the underlying property right, might constitute an abuse of that right under the specific circumstances, or might be contrary to public order and morals.
    In such situations, where the applicability of broad, equitable legal principles (often termed "general clauses") is suggested by the fully developed factual record, courts generally have a duty to bring this potential legal perspective to the attention of the parties. The parties should then be given an opportunity to make arguments and present any further relevant facts concerning the application of that general clause. This is because the assessment of such principles often involves a holistic evaluation of numerous facts and competing interests. Even if a party does not explicitly plead "abuse of right" as a formal defense, if the underlying facts supporting such a conclusion are present in the record, the court may apply the doctrine after ensuring both parties have had a fair chance to address it.
  • Encouraging the Submission of Evidence (Risshō o Unagasu Shakumei): If a party has made a crucial factual allegation but has submitted insufficient (or perhaps no) evidence to support it, the court can prompt them to present relevant evidence. This is generally accepted as a means to correct simple omissions or to ensure that a potentially meritorious claim or defense does not fail merely due to an oversight in evidentiary presentation.
    However, the line can be thin. If the court goes beyond prompting for evidence on existing allegations and starts to actively suggest new lines of evidence or effectively directs a party on how they should go about proving their case, this can again raise concerns about judicial neutrality. The reference material suggests a degree of caution, opining that once parties have had a full opportunity to present their evidence, for the court to then extensively prompt one side for more, merely to meet the court's own evolving threshold of persuasion for that party, might be problematic.

The Guiding Standard: Judicial Neutrality and Necessary Clarification

The overarching principle guiding the exercise of Shakumei-ken is that the court should seek clarification on matters that are necessary for a proper, fair, and just resolution of the dispute as it has been framed by the parties, while at all times strictly maintaining its judicial neutrality.

Judicial intervention through clarification is generally seen as permissible, and often desirable, when it helps to resolve existing ambiguities in the parties' presentations, ensures that parties understand the potential legal implications of their stated positions, or prevents a manifest injustice that might arise from a readily correctable procedural oversight concerning matters clearly relevant and already suggested by the litigation record.

Conversely, intervention becomes problematic and risks exceeding the proper bounds of Shakumei-ken when it appears that the court is, in effect, constructing a case for one of the parties, suggesting entirely new claims or defenses that have no organic basis in that party's own presentation, or excessively guiding that party's evidentiary strategy in a way that favors them over their opponent.

The presence or absence of legal representation for the parties also plays a practical, though not a formal legal, role. Courts may, in practice, be somewhat more inclined to provide guidance and clarification to litigants who are unrepresented by counsel and may be unfamiliar with legal procedures and terminology. However, the fundamental principles of maintaining neutrality and respecting party autonomy remain applicable even in such cases.

Method and Scope of Clarification

The method of clarification involves the court asking questions or prompting the submission of evidence. The questions posed should be specific enough for the party to understand the point of uncertainty or the area requiring further development, but they should not be leading or framed in such a way as to suggest a particular desired answer or course of action that would compromise judicial impartiality. For instance, instead of directly asking a defendant, "Do you wish to plead the statute of limitations?", a more neutral (though still potentially suggestive, depending on the full context and prior exchanges) approach might be for the court to inquire about the specific timeline of events related to an old debt if the passage of time seems potentially relevant.

In some situations, for the clarification to be meaningful and for parties to respond effectively, the court might find it necessary to disclose, to some extent, its tentative legal view on an issue or a degree of its preliminary assessment of the facts (shinshō). This, however, must be done with extreme caution to avoid any appearance of pre-judgment or bias.

Consequences of Failure to Exercise Shakumei-Ken (Breach of Duty to Clarify)

If a court fails to exercise its Shakumei-ken in a situation where it had a clear duty to do so—particularly in cases of "passive clarification" where a party's claim or defense is dismissed due to an ambiguity or lack of clarity that the court could and should have addressed—this failure can constitute a significant procedural error. Such an error, if it is determined to have clearly affected the outcome of the judgment, can be a valid ground for appeal and may lead to the reversal of the lower court's judgment. A Supreme Court decision of July 14, 2005 (Hanrei Jihō No. 1911, p. 102) is noted in the reference material as being pertinent to the idea that a breach of the duty to clarify can be a reversible error, underscoring the importance of this judicial function.

Conclusion

The Shakumei-ken is an indispensable and characteristic feature of Japanese civil procedure. It empowers, and sometimes obliges, judges to actively engage with litigating parties to ensure the clarity, completeness, and fairness of the proceedings. It acts as a vital corrective and supplementary mechanism to the Principle of Party Presentation, aiming to prevent miscarriages of justice that might otherwise arise from procedural missteps, lack of legal expertise, or unclear articulation by the parties. However, the exercise of this power is a delicate balancing act. Judges must carefully navigate the fine line between legitimately facilitating a just and informed resolution of the dispute as presented by the parties, and improperly intruding into the parties' domain or compromising the impartiality that is fundamental to their judicial role. The precise scope and appropriate limits of this judicial power continue to be shaped by evolving judicial practice and ongoing scholarly debate, reflecting its critical and sensitive importance within the Japanese adversarial system.