The Japanese Court's "Right/Duty to Clarify" (Shakumeiken): How Proactive Are Judges in Fact-Finding?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

The image of a judge in an adversarial legal system often oscillates between that of a passive umpire, merely enforcing rules as parties battle, and a more engaged participant seeking to uncover the truth. In Japanese civil litigation, the "Right of Clarification" (釈明権 - shakumeiken), and in certain circumstances, "Duty of Clarification" (釈明義務 - shakumei-gimu), bestows upon judges a distinctive role that significantly influences how proactive they are in the proceedings, particularly concerning the clarification of facts and legal arguments.

This article explores the nature of shakumeiken, the extent to which Japanese judges actively engage with the substance of a case, the inherent limitations of this power, and its strategic implications for litigants.

I. Understanding Shakumeiken: The Court's Power and Duty to Clarify

The primary legal bases for shakumeiken are found in Japan's Code of Civil Procedure (CCP) (民事訴訟法 - Minji Soshō Hō):

  • Article 149 (Presiding Judge's Right of Clarification, etc.): Grants the presiding judge the power to question parties concerning factual or legal matters to clarify the litigation relationship, or to encourage them to produce evidence. It also allows the judge to request parties to express their opinions on matters necessary for preparing for the examination of evidence.
  • Article 150 (Clarification by Panel, etc.): Allows associate judges of a panel to take similar actions after notifying the presiding judge.
  • Article 151 (Measures for Clarification): Empowers the court to take various measures for the purpose of clarifying the litigation relationship, including examining evidence ex officio for clarification purposes.

The rationale behind shakumeiken is multifaceted:

  1. Ensuring Clarity: To make the parties' allegations, evidence, and legal positions clear and unambiguous, facilitating a focused and efficient trial.
  2. Supplementing Party Presentation: To give parties an opportunity to supplement or correct their arguments or evidence where they are insufficient, unclear, or inconsistent, thereby preventing a judgment based on mere technical shortcomings. This acts as a corrective mechanism to the strictness of the Principle of Party Presentation (benron-shugi).
  3. Facilitating Just Outcomes: Ultimately, to enable the court to render a proper and just judgment based on an accurate understanding of the facts and relevant legal issues.

B. Scope of Clarification: What Can Judges Do?

The exercise of shakumeiken can take various forms:

  • Questioning Parties: Asking direct questions to parties or their counsel regarding:
    • Ambiguous or vague factual allegations (e.g., "What specifically do you mean by X?").
    • The legal basis for a claim or defense if it is unclear.
    • The relevance or meaning of submitted evidence.
  • Pointing out Inconsistencies: Highlighting contradictions within a party's own submissions or between their allegations and the evidence.
  • Prompting for Evidence (Suggesting, Not Ordering): While judges generally cannot order evidence ex officio under the Third Thesis of benron-shugi (Principle of Party Presentation), they can, as part of clarification, inquire if a party possesses or intends to submit evidence on a particular (already pleaded) point if it seems crucial and is currently lacking (e.g., "Do you have any documents that support your assertion regarding the date of X?"). This is a suggestion or an encouragement, not a command to produce specific unoffered evidence.
  • Encouraging Specificity: Urging parties to be more precise in their claims, defenses, or factual narratives.

C. Shakumei-gimu: When Does the Power Become a Duty?

While Article 149 CCP frames shakumeiken as a "right" or "power" (権能 - kennō) of the judge, case law and prevailing legal theory recognize that in certain circumstances, this power can transform into a "duty" (義務 - gimu).

  • Preventing Unjust Outcomes: A duty to clarify typically arises when a party's allegations or presentation of their case is so unclear, ambiguous, or apparently incomplete that, if left unclarified, it would likely lead to that party suffering an unjust adverse judgment, despite potentially having a meritorious case or defense. This is especially so if the point can be easily clarified.
  • Supreme Court Precedent: A leading Supreme Court Grand Bench judgment (June 30, 1965, Minshū Vol. 19, No. 4, Page 1089) established that if a party's assertions are unclear, it is unlawful for a court to render a "surprise judgment" (fuiuchi hanketsu) against that party without first attempting to clarify their position through the exercise of shakumeiken. Failure to fulfill this duty can be grounds for reversal on appeal.
  • Example: If a plaintiff's legal theory for a claim is ambiguously pleaded, and several interpretations are possible, some of which might be viable and others not, the court may have a duty to ask the plaintiff to specify which legal basis they are relying on (e.g., Supreme Court, July 17, 1998, Minshū Vol. 52, No. 5, Page 1325, which discussed the court's role when a plaintiff's claim could be construed under different legal theories for damages).

II. Measures for Clarification: CCP Article 151

To facilitate clarification, CCP Article 151 allows the court to take specific measures, either on its own motion or upon a party's request, if deemed necessary:

  1. Ordering the appearance of a party in person or their statutory agent.
  2. Requesting the submission of document explanations, lists of evidence, or timelines.
  3. Commissioning expert opinions, conducting inspections, or ordering translations of documents.
  4. Examining evidence ex officio specifically for clarification purposes (釈明のための証拠調べ - shakumei no tame no shōko shirabe). This is a notable exception to the general prohibition on ex officio evidence examination, but its purpose is limited to clarifying the existing litigation relationship, not to independently unearth new facts for substantive judgment.

These measures underscore the court's ability to actively manage the clarification process.

III. The Fine Line: Limits of Shakumeiken

The exercise of shakumeiken is not unbounded. It must operate within carefully defined limits to avoid undermining other fundamental procedural principles.

A. Respect for Party Presentation (Benron-Shugi)

Shakumeiken is intended to supplement and refine, not supplant, the Principle of Party Presentation. Therefore:

  • No Introduction of New Claims/Defenses: Judges cannot use shakumeiken to suggest entirely new legal claims or defenses that the parties themselves have not raised.
  • No Alleging Principal Facts for Parties: The court cannot take on the role of alleging the core factual elements of a party's case.
  • The "Instructive Clarification" (Kyōjiteki Shakumei) Trap: The line between permissibly clarifying an existing ambiguous allegation and impermissibly "instructing" a party on what new facts or legal theories they should argue can be very fine. Overtly guiding a party towards a winning argument not previously contemplated by them is generally considered an overreach of shakumeiken. The focus should be on making the existing case clearer, not on building a new one for a party.

B. Maintaining Judicial Impartiality

The exercise of shakumeiken must always be, and appear to be, impartial. Judges must avoid questioning or prompting parties in a way that could be perceived as favoring one side or betraying a premature judgment. The goal is to clarify for the court's understanding, not to assist one party in outmaneuvering the other.

C. Avoiding "Surprise Judgments" (Fuiuchi Hanketsu)

As noted, a key function of shakumeiken is to ensure that parties are aware of the issues the court considers material and have an opportunity to address them. If a court bases its judgment on a point that was unclear or seemed peripheral, and which it failed to clarify, the losing party might argue they were subjected to a "surprise judgment."

IV. How Proactive Are Japanese Judges in Fact-Finding?: A Comparative Perspective

A. More Than a Passive Umpire

Compared to the traditional Anglo-American image of a judge as a largely passive umpire in an adversarial contest, Japanese judges exercising shakumeiken tend to be more interactively engaged with the substance of the parties' arguments and evidence during hearings. They actively seek to ensure they understand the case thoroughly.

B. Context of a Judge-Only System (No Civil Jury)

In Japan, professional judges are the sole triers of fact in civil cases (there is no civil jury system). This places the entire responsibility for understanding complex facts and rendering a reasoned judgment on them. This structure may inherently incentivize judges to use shakumeiken to ensure they have a complete and clear picture before making findings.

C. Contrast with U.S. Judicial Case Management

While U.S. judges certainly engage in pre-trial case management and can ask questions during trial, shakumeiken often involves a more direct and substantive dialogue with parties during oral arguments about the coherence and sufficiency of their asserted facts and legal theories. It's less about scheduling and discovery cut-offs and more about the logical structure of the case itself.

D. Not an Inquisitorial System

Despite this level of engagement, it's crucial to understand that Japanese civil procedure remains fundamentally adversarial. The primary responsibility for identifying claims, alleging facts, and producing evidence still rests with the parties. Shakumeiken is a tool to make that adversarial process work more effectively and justly; it does not transform the system into an inquisitorial one where the judge is the primary investigator of facts.

V. Strategic Implications for Litigants

The existence and active use of shakumeiken have significant strategic implications:

  1. Expect Judicial Questioning: Parties should anticipate that judges will likely ask questions, particularly if pleadings or oral presentations are unclear, inconsistent, or seem to omit obviously relevant points (within the scope of what has been pleaded).
  2. Treat Clarification as an Opportunity: Judicial questions should generally be viewed as an opportunity to strengthen one's case by providing clearer explanations, reinforcing key arguments, or correcting any judicial misapprehensions.
  3. Clarity and Precision are Paramount: The best way to manage shakumeiken is to present one's case with utmost clarity, precision, and logical consistency from the outset. Well-drafted pleadings and thoroughly prepared oral arguments can minimize the need for extensive clarification and create a favorable impression. Attempting to be deliberately vague in pleadings to see how the court reacts is a risky strategy.
  4. Gauge the Judge's Focus: The nature and direction of a judge's questions during shakumeiken can provide valuable clues as to which issues the judge considers particularly important, unresolved, or problematic.
  5. Respond Effectively and Respectfully: Answers to the judge's questions should be direct, responsive, and, where appropriate, supported by reference to existing evidence or an offer to submit further clarifying material if permissible.
  6. Recognize the Limits: While counsel should cooperate with legitimate clarification efforts, they must also be mindful of the limits of shakumeiken. If judicial questioning appears to cross into impermissible instruction or displays bias, counsel needs to consider how to address this appropriately and tactfully, perhaps by respectfully reasserting their pleaded position or seeking clarification on the scope of the court's inquiry.

VI. Conclusion

The Right and Duty of Clarification (shakumeiken and shakumei-gimu) is a distinctive and integral feature of Japanese civil procedure. It reflects a nuanced approach that seeks to balance the foundational principles of party autonomy and party presentation with the court's overarching responsibility to achieve a just resolution based on a clear and accurate understanding of the dispute.

This results in a judiciary that is often more interactively involved in probing the substance of the case during hearings than might be typical in some other adversarial jurisdictions. For international businesses and their legal counsel, appreciating the active role Japanese judges can play through shakumeiken—and understanding its purpose and limits—is essential for effectively preparing and presenting their case and for engaging constructively with the court throughout the litigation process.