Preparing for Trial in Japan: The Role and Effect of Preparatory Proceedings for Oral Argument

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Effective trial preparation is fundamental to achieving a just and efficient resolution in any civil litigation system. In Japan, while the core principle of "Party Presentation" (Benron Shugi) places the primary responsibility on litigants to present their factual allegations and evidence, the Code of Civil Procedure (CCP) provides robust mechanisms to ensure that this presentation is focused, organized, and leads to an efficient trial. A key component of this framework is a set of procedures designed to clarify and narrow the issues and evidence before the main oral arguments and intensive evidence examination commence. Among these, the "Preparatory Proceedings for Oral Argument" (benron junbi tetsuzuki) stands out as a crucial and frequently utilized stage.

Historically, Japanese civil procedure faced challenges with protracted and sometimes unfocused trial proceedings. Older forms of preparatory procedures were often underutilized, potentially leading to inefficiencies. Recognizing this, the comprehensive reforms to the CCP (effective from 1998) significantly revamped and strengthened the preparatory phases of litigation, with a clear emphasis on early issue-sorting and effective case management.

The Imperative of Organizing Issues and Evidence

Under the principle of Party Presentation, the court's decision is based on the facts alleged by the parties and the evidence they submit. Without a structured process to identify what is truly in dispute and what evidence is relevant to those disputed points, litigation can become diffuse, leading to unnecessary delays and increased costs. The modern Japanese CCP therefore provides several tools to facilitate this organization:

  • Preparatory Proceedings for Oral Argument (Benron Junbi Tetsuzuki - CCP Articles 168-174): This is the most commonly used formal procedure for issue and evidence organization. It involves focused discussions and actions under the guidance of the court, typically held before intensive witness examination begins.
  • Preparatory Oral Arguments (Junbi-teki Kōtō Benron - CCP Articles 164-167): These are formal oral argument sessions specifically dedicated to organizing issues and evidence. Unlike benron junbi tetsuzuki, they are held in open court and follow the full formalities of oral argument. They might be chosen when public scrutiny of the issue-sorting process is deemed important or when limited witness examination needs to be integrated directly into the preparatory phase.
  • Preparatory Proceedings by Means of Documents (Shomen ni yoru Junbi Tetsuzuki - CCP Articles 175-178): This procedure relies primarily on the exchange of written briefs between the parties to clarify issues. It can be supplemented by court sessions conducted via telephone or video conferencing, making it suitable for cases where parties or their counsel are geographically dispersed or where the issues can be effectively narrowed through written submissions alone.

This article will focus primarily on the most prevalent of these: the Preparatory Proceedings for Oral Argument.

Preparatory Proceedings for Oral Argument (Benron Junbi Tetsuzuki): A Detailed Look

The benron junbi tetsuzuki is designed to be a flexible yet structured phase aimed at streamlining the litigation process.

Purpose and Initiation

The core purpose of these proceedings is to clearly identify the factual and legal points of contention between the parties (the issues or sōten) and to organize the evidence that will be relevant to resolving these disputed issues. This allows for subsequent oral argument and evidence examination (particularly witness testimony) to be concentrated on what truly matters, thereby enhancing efficiency and predictability.

Under CCP Article 168, the court may, when it deems it necessary for organizing the issues and evidence, refer the case to preparatory proceedings. Importantly, before doing so, the court must hear the opinions of the parties. While party consent is not an absolute requirement for initiating these proceedings, this consultation ensures that the parties' perspectives on the utility and timing of such a phase are considered.

Nature and Conduct of the Proceedings (CCP Article 169)

  • Distinction from Formal Oral Argument: Benron junbi tetsuzuki are not considered formal "oral arguments" (kōtō benron). This has several implications, most notably regarding publicity.
  • Non-Public by Default: Unlike formal court hearings, these preparatory proceedings are not held in open court by default. This non-public nature is intended to foster a more conducive environment for frank, open, and productive discussions among the parties and the judge(s), free from the constraints and formalities of a public courtroom. The aim is to encourage candid exchanges that can efficiently identify core disagreements and potential areas of consensus.
  • Party Participation: Both parties (and/or their attorneys, if appointed) have the absolute right to attend all sessions of the preparatory proceedings.
  • Permitted Observers: While not public, the court has the discretion to permit observation by individuals it deems appropriate. Furthermore, a party may request the court to permit specific individuals to observe the proceedings.
  • Setting: These proceedings are often conducted in a setting less formal than a traditional courtroom, such as a judicial conference room, with parties and the judge(s) typically seated around a table. This further encourages direct dialogue.

Procedural Rules and Key Activities (CCP Article 170)

While less formal, benron junbi tetsuzuki are still governed by important procedural rules. CCP Article 170(5) stipulates that many of the provisions concerning formal oral arguments apply mutatis mutandis (with necessary modifications). This includes rules regarding the court's direction of proceedings, the binding effect of judicial admissions made during these proceedings, and the court's power to clarify (shakumeiken).

The key activities undertaken during preparatory proceedings include:

  • Clarification of Allegations and Evidence: Parties elaborate on their factual allegations and defenses, and explain the relevance of the evidence they intend to submit.
  • Submission and Exchange of Preparatory Documents: Parties exchange detailed briefs (junbi shomen) that set out their arguments, factual assertions, and responses to the opponent's points, often with references to supporting exhibits.
  • Identifying Disputed vs. Undisputed Facts: Through discussion and review of submissions, the court and parties work to pinpoint which factual allegations are genuinely in dispute and which are admitted or not contested. This narrows the scope of necessary proof.
  • Organizing Evidence: Parties identify the specific evidence (documents, witnesses, expert opinions) they intend to rely on for each disputed issue. The court may discuss the order and method of examining this evidence.
  • Documentary Evidence Review: CCP Article 170(2) explicitly permits the court to conduct the examination of documentary evidence (shosho shirabe) during preparatory proceedings. This is a vital feature, as it allows the court and parties to assess the content and probative value of key documents early on, which can significantly inform the identification of remaining issues and the need for witness testimony.
  • Use of Technology: To accommodate parties or representatives who may find it difficult to attend in person (e.g., due to geographical distance), CCP Article 170(3) and (4) allow for participation via telephone or video conferencing systems, provided at least one party (or the court) is physically present, or with appropriate consents if all are remote.
  • Conduct by a Single Judge: Even in cases assigned to a three-judge panel, these preparatory proceedings can be conducted by a single commissioned judge (jumei saibankan) or an authorized judge (jokyō saibankan) delegated by the panel. This allows for more focused and continuous management of the preparatory phase.

Conclusion of Preparatory Proceedings

When the court considers that the issues and evidence have been sufficiently clarified and organized, it will conclude the preparatory proceedings. Two important steps mark this conclusion:

  1. Confirmation of Issues for Subsequent Examination (CCP Art. 165(1), applied via Art. 170(5)): The court must, in collaboration with the parties, confirm the facts that are to be proven through subsequent evidence examination (primarily witness testimony and party examinations). This confirmed list of disputed factual issues forms the definitive roadmap for the ensuing trial phase.
  2. Statement of Results in Oral Argument (CCP Art. 173): After the preparatory proceedings are concluded, the parties must state the results of these proceedings in a session of formal oral argument. This is a crucial step that formally brings the outcomes of the (often non-public) preparatory discussions into the open court record, thereby satisfying the principles of directness (chokusetsu shugi - where the court bases its decision on materials directly presented to it) and publicity. The Rules of Court for Civil Procedure (Article 89) further specify that the confirmed issues for proof should be made clear at this stage.

Effects of Concluding Preparatory Proceedings: Restrictions on Later Submissions

The conclusion of preparatory proceedings, particularly when coupled with the formal confirmation of disputed issues, has significant consequences for the subsequent introduction of new arguments or evidence. The CCP aims to encourage parties to present all their relevant material during the preparatory phase.

The Duty to Explain Late Submissions (CCP Art. 174, applying Art. 167):
If, after preparatory proceedings have been concluded and the issues for proof have been confirmed, a party attempts to introduce a new means of offense or defense (i.e., new factual allegations or evidence not previously raised or identified), the opposing party may request that the submitting party explain to the court the reasons why that new material could not have been submitted during the preparatory proceedings.

This is not an absolute prohibition on late submissions but rather imposes a procedural hurdle. The submitting party must justify the delay. The legislative intent behind this "duty to explain" was to strike a balance. While some had advocated for a stricter preclusive effect (a "loss of right" or shikkenkō) for matters not raised during preparatory proceedings, the adopted approach is more moderate. It aims to deter strategic withholding or negligent omission of arguments and evidence without unduly penalizing parties for genuinely unforeseeable developments.

Consequences of an Unsatisfactory Explanation:
If the explanation provided for the late submission is deemed unsatisfactory by the court—for example, if it suggests that the party intentionally withheld the material or was grossly negligent in failing to present it earlier—the court may then consider rejecting the late submission under CCP Article 157(1) (the general provision for rejecting untimely means of offense or defense). Rejection under Article 157(1) would also require a finding that admitting the late submission would cause significant delay to the conclusion of the litigation. Thus, the failure to provide a good reason under Article 174/167 feeds into the "culpability" assessment for the purposes of Article 157(1).

Judicial practice indicates a willingness to utilize Article 157(1) to reject late submissions that emerge without good cause after intensive preparatory proceedings have already defined the contours of the dispute. The Tokyo District Court decision of September 29, 1999 (Hanrei Times No. 1028, p. 298), for example, involved considerations of rejecting late submissions in light of concluded preparatory efforts.

A Special Issue: Admissibility of Statements Made During Preparatory Proceedings

Given the less formal and more dialogue-driven nature of benron junbi tetsuzuki, a question arises: if a party makes an informal statement or concession during these proceedings which they later retract or which seems to contradict their formal written submissions, can the opposing party introduce a record of that informal statement as evidence in subsequent formal oral arguments (e.g., to impeach the party's credibility or argue an admission)?

Allowing such a practice could have a significant "chilling effect" on the candor and openness essential for effective preparatory proceedings. If every exploratory remark or tentative concession could be weaponized later, parties and their counsel would become excessively guarded, likely reverting to purely formal written exchanges and thereby defeating the purpose of this interactive preparatory phase.

The Tokyo District Court, in a decision on November 29, 2000 (Hanrei Times No. 1086, p. 162), addressed this issue. It held that attempting to use verbatim records of discussions from preparatory proceedings, where a party's position might have appeared to shift or evolve during exploratory dialogue, as formal evidence to attack that party's credibility in subsequent oral arguments was improper. The court reasoned that such tactics were "unfair, akin to tripping up the opponent based on isolated utterances (katakoto sekigo)," and would fundamentally undermine the intended free and vigorous debate necessary for organizing issues and achieving a deeper mutual understanding of the case. The court effectively found such evidence to lack admissibility or at least significant probative value for that specific purpose, thereby protecting the integrity of the preparatory discussion environment.

This judicial approach signals a policy of encouraging open and candid participation in preparatory proceedings. It is important to note, however, that this likely pertains more to informal, exploratory discussions. Formal judicial admissions (saiban-jō no jihaku) that are clearly made and recorded as such during preparatory proceedings would generally retain their binding effect, as many of the rules of oral argument, including those relating to admissions (CCP Article 179), are applied mutatis mutandis.

Conclusion

Preparatory Proceedings for Oral Argument (benron junbi tetsuzuki) represent a cornerstone of modern case management in Japanese civil litigation. They provide a crucial, judge-guided forum for parties to collaboratively clarify disputed issues, organize evidence, and streamline the case before it proceeds to more intensive (and expensive) phases of evidence examination, such as witness testimony. By fostering early and focused engagement with the core points of contention, these proceedings aim to make the subsequent trial process more efficient, predictable, and ultimately, more conducive to a just resolution.

The conclusion of these preparatory stages carries significant procedural weight, most notably by creating an expectation that all primary means of offense and defense will have been presented. While not an absolute bar, the introduction of new arguments or evidence thereafter requires a cogent explanation for the delay, failing which the court has the discretion to reject such late submissions if they are culpable and would cause significant delay. For litigants, active, diligent, and comprehensive participation in benron junbi tetsuzuki is therefore not just advisable but essential for effectively shaping the course of their case in a Japanese court.