Trials in Japan: How Does "Concentrated Evidence Examination" (集中証拠調べ - Shuchu Shoko Shirabe) Work, and How Do Judges Ultimately Reach a Decision?

Once the preliminary stages of a Japanese civil lawsuit have meticulously defined the disputed issues and organized the anticipated evidence, the litigation transitions into its most determinative phase: the examination of evidence. This is where the claims and defenses, until now primarily articulated on paper and in preparatory hearings, are put to the test. The Japanese system has evolved to conduct this phase with a strong emphasis on efficiency and focused inquiry, culminating in the judges' formation of conviction (shinsho keisei) and the rendering of a judgment. A central feature of this modern approach is "Concentrated Evidence Examination" (Shuchu Shoko Shirabe - 集中証拠調べ).

Foundations: Objects of Proof and Evidentiary Principles

Before delving into the mechanics of evidence examination, it's essential to understand what needs to be proven. The primary objects of proof are the disputed "main facts" (shuyo jijitsu - 主要事実), which are the essential factual elements constituting a party's claim or defense. Beyond these, "indirect facts" (kansetsu jijitsu - 間接事実), which allow inferences to be drawn about the main facts, and "auxiliary facts" (hojo jijitsu - 補助事実), which bear on the credibility or probative value of evidence, may also become subjects of proof.

The burden of proof (rissho sekinin - 立証責任) generally rests with the party who asserts a particular fact that forms the basis of their legal position. For example, a plaintiff claiming breach of contract must prove the contract's existence, its terms, the defendant's breach, and the resulting damages.

Documentary Evidence (Shosho - 書証): The Paper Trail Under Scrutiny

Documentary evidence forms a cornerstone of most civil litigation in Japan. The process for handling such evidence is well-defined.

Submission and Identification

Parties typically offer documentary evidence by submitting the documents themselves to the court. In some cases, a party may petition the court to order the opposing party or a third party to produce specific documents. When submitting documents, parties are usually required to provide an "evidentiary explanation" (shoko setsumei-sho - 証拠説明書), which details the document's title, purported creator, date, and, crucially, the specific facts it is intended to prove (its "relevance" or "probative purpose" - risshu shushi 立証趣旨).

Ensuring Authenticity (Seiritsu no Shinsei - 成立の真正)

For a document to be admitted and considered for its content, its authenticity of formation must be established. This means proving that the document was actually created by the person or entity purported to be its author.

• A key principle in establishing authenticity is the "two-stage presumption" (nidan no suitei - 二段の推定). If a document bears a person's private seal (a common practice in Japan) or signature, and it is proven or admitted that the seal impression or signature is genuinely theirs, then the document as a whole is presumed to have been authentically created by that person. The burden then shifts to the opposing party to rebut this presumption.
• Official documents (those created by public officials in the course of their duties) are generally presumed to be authentic.
• The court retains the ultimate authority to assess a document's authenticity, even if the opposing party does not contest it or formally admits it. Such an admission regarding authenticity does not bind the court.

Examination by the Court

Judges meticulously examine the submitted documentary evidence, considering not only its content but also its form, physical characteristics (e.g., paper quality, ink, signs of alteration), and overall context to determine its probative value.

Oral Evidence (Jinsho - 人証): Testimony in Court

While documents provide a static record, oral testimony from witnesses and the parties themselves brings a dynamic human element to the fact-finding process.

A. Witness Examination (Shonin Jinmon - 証人尋問)

When a party believes that an individual possesses information relevant to the disputed facts, they may apply to the court to have that individual examined as a witness.

• Application and Court Approval: The application must specify the witness, the matters they are expected to testify about, and why their testimony is necessary. The court decides whether to approve the witness, considering the relevance and necessity of the proposed testimony in light of the arranged issues.
• Oath-Taking: Generally, witnesses must testify under oath. Before taking the oath, the presiding judge explains its meaning and warns the witness of the legal penalties for perjury (false testimony under oath).
• Order of Examination: The typical sequence involves:
  1. Direct examination (shu-jinmon - 主尋問) by the party who called the witness.
  2. Cross-examination (hantai-jinmon - 反対尋問) by the opposing party.
  3. Re-direct examination (sai-shu-jinmon - 再主尋問) by the initial party, limited to matters raised during cross-examination.
  4. Supplementary questions (hoju-jinmon - 補充尋問) by the presiding judge or associate judges, if deemed necessary for clarification.
• Rules for Questioning: There are rules governing the types of questions that can be asked. For instance, leading questions are generally impermissible during direct examination but often allowed during cross-examination. Questions that are insulting, irrelevant, repetitive, or designed to confuse the witness may be disallowed by the court, either on its own initiative or upon objection from the opposing party.

B. Party Examination (Tojisha Jinmon - 当事者尋問)

The plaintiffs and defendants themselves (or, in the case of a corporation, its legal representative such as a representative director) can also be examined regarding their knowledge of the facts in dispute.

• Similar Procedures: The process largely mirrors that of witness examination, including the sequence of direct, cross, and re-direct examination.
• Oath: Parties can also be examined under oath.
• Consequences of False Statements: A significant distinction lies in the consequence of false testimony. While a witness committing perjury faces criminal penalties, a party found to have knowingly made false statements under oath during party examination is subject to a non-penal administrative fine (秩序罰 - chitsujo-batsu) rather than criminal prosecution for perjury. This reflects the party's inherent interest in the outcome of the litigation.

The Hallmark of Modern Japanese Trials: "Concentrated Evidence Examination" (Shuchu Shoko Shirabe - 集中証拠調べ)

Perhaps the most distinctive feature of modern evidence examination in Japanese civil trials is the strong emphasis on "Concentrated Evidence Examination."

Rationale and Evolution

This approach was systemically promoted to overcome the perceived inefficiencies of older practices, sometimes referred to as "scattered hearings" (samidare-shiki shinri - 五月雨式審理), where witness examinations might be spread out over many months with long intervals between hearings. Such protracted schedules could dull the court's memory of testimony, require repeated re-reading of records, and unnecessarily lengthen the overall trial period.

Shuchu Shoko Shirabe aims to have all or most of the key oral evidence (particularly witness and party examinations) presented intensively over a condensed timeframe—often a single full day or a few consecutive days.

Objectives and Advantages

The shift towards concentrated evidence examination offers several benefits:

• Enhanced Efficiency: It significantly reduces the "dead time" between hearings and streamlines the overall process.
• Improved Judicial Understanding and Memory: It allows judges to absorb and compare testimonies while the details are still fresh in their minds, leading to a more holistic and immediate understanding of the evidence. This is particularly important as the same judges who hear the evidence will decide the case.
• Better Fact-Finding: The intensive and often back-to-back nature of examinations can highlight inconsistencies more effectively and allow for a more dynamic assessment of credibility. It also facilitates the possibility of direct confrontation (taishitsu - 対質) between witnesses if deemed necessary.

Prerequisites for Success

The successful implementation of concentrated evidence examination heavily relies on the thoroughness of the preceding "Arrangement of Issues and Evidence" phase. Only when the disputed facts are clearly identified, and the relevance of each witness is established, can their examination be effectively focused and scheduled within a concentrated period.

The Pivotal Role of Written Statements (Chinjutsu-sho - 陳述書)

In contemporary practice, "Written Statements" play a crucial role in facilitating concentrated evidence examination. These are detailed statements prepared and submitted by witnesses or parties before their scheduled oral testimony.

• Function:
  • They often serve as the de facto direct examination. The witness, when appearing in court, will typically confirm the authenticity and content of their submitted chinjutsu-sho. This allows the in-court oral examination to proceed more quickly to cross-examination and specific points of clarification.
  • They provide comprehensive advance disclosure of the witness's intended testimony to the opposing party and the court, allowing for more focused and effective preparation for cross-examination.
  • They assist the court in understanding the expected flow of testimony, managing time for the concentrated hearing, and identifying key areas for scrutiny.
  • These written statements are formally submitted as a type of documentary evidence and form part of the court record.

The Culmination: Judicial Conviction (Shinsho Keisei - 心証形成) and Decision-Making

After all the evidence has been presented and examined, the judges engage in the process of forming their "conviction" or "inner belief" regarding the truth of the disputed facts.

The Principle of Free Evaluation of Evidence (Jiyu Shinsho Shugi - 自由心証主義)

Article 247 of the Code of Civil Procedure enshrines the principle of free evaluation of evidence. This means that judges are not bound by formalistic or pre-determined rules regarding the probative weight of different types of evidence (e.g., that one type of evidence is inherently superior to another). Instead, they are to assess the probative value of all evidence submitted based on their own judgment and conscience, derived from the entire course of the proceedings.

Boundaries of Discretion

This freedom, however, is not arbitrary. The judicial conviction must be formed based on:

• Logic and Experience: The judges' reasoning and factual findings must be rational, consistent with established rules of logic, and accord with general human experience and empirical principles.
• The "Entirety of Oral Arguments" (Benron no Zenshushi - 弁論の全趣旨): This broad concept means that judges consider not only the formally admitted evidence but also everything that has transpired during the oral arguments and preparatory proceedings. This includes the demeanor of witnesses and parties, the timeliness and manner of submissions, any inconsistencies in a party's assertions over time, and even a party's cooperativeness (or lack thereof) during the proceedings.

The Judgment (Hanketsu - 判決)

The litigation concludes with the court's judgment, which is based on the facts as found by the judges and the application of the relevant legal provisions to those facts. A judgment in Japan typically includes:

• The main ruling (the operative part, e.g., ordering payment, dismissing the claim).
• A section detailing the facts as found by the court (jijitsu-nintei - 事実認定).
• The reasons for the decision, explaining how the court evaluated the evidence, what facts it determined to be true, and how it applied the law to those facts to reach its conclusion. This reasoning is crucial for the parties to understand the basis of the decision and for any appellate review.

A Note on Recording Testimony

Modern Japanese court practice increasingly utilizes audio recordings for witness and party testimonies, especially in cases where concentrated evidence examination is conducted. As per Rule 68 of the Rules of Civil Procedure, such recordings can substitute for, or supplement, the traditional written summary in the court record (調書 - chosho). This allows judges to accurately recall the nuances of oral statements when deliberating and drafting the judgment, further contributing to the accuracy of the fact-finding process.

Conclusion: A Structured Path to Adjudication

Evidence examination in Japanese civil litigation, particularly with the advent and refinement of Concentrated Evidence Examination, represents a highly structured and intensive process. It is designed to ensure that facts are ascertained efficiently and fairly, relying on thorough preparation by the parties, the strategic use of both documentary and oral evidence (often front-loaded through detailed written statements), and ultimately, the judges' holistic and reasoned evaluation of all materials and interactions presented throughout the trial. This meticulous approach aims to deliver decisions that are not only legally sound but also grounded in a deeply considered understanding of the evidence.