Uncovering Evidence in Japan: How Can the Attorney Inquiry System (Bengoshikai Shōkai) Assist Your Case?

Japanese Attorney at Law - Bengoshi L.L.

• 10 min read

In any legal jurisdiction, the ability to effectively gather evidence is fundamental to building a strong case and achieving a favorable outcome in civil litigation. Japan, with its unique procedural landscape, offers distinct mechanisms for this purpose. While it lacks the broad, party-driven pre-trial discovery common in jurisdictions like the United States (e.g., extensive depositions, interrogatories), the Japanese system provides specific tools, one of the most notable being the Attorney Inquiry System, known as Bengoshikai Shōkai (弁護士会照会) or the "Article 23-2 Inquiry."

This article explores the critical role of evidence in Japanese civil disputes and provides an in-depth look at the Bengoshikai Shōkai system—its legal basis, operational mechanics, strategic advantages, limitations, and practical applications for businesses involved in or contemplating litigation in Japan.

The Landscape of Evidence Gathering in Japan: Core Principles

Before delving into the specifics of the attorney inquiry system, it's essential to understand the broader context of evidence gathering in Japanese civil proceedings.

  1. Primacy of Documentary Evidence: Japanese civil litigation traditionally places a very strong emphasis on documentary evidence. Written materials—contracts, correspondence, official records, ledgers, etc.—often form the backbone of a party's case. While oral testimony from witnesses and parties is certainly a feature, particularly during formal hearings, much of the court's and parties' focus during the preparatory stages revolves around the submission and analysis of documents.
  2. Attorney's Duty to Investigate: Attorneys in Japan have a professional and ethical duty to thoroughly investigate the facts relevant to their client's case. Rule 85 of the Japanese Code of Civil Procedure Rules (民事訴訟規則 - Minji Soshō Kisoku) explicitly states that parties, in order to fully present their arguments and evidence, must conduct detailed investigations concerning witnesses and other evidence in advance. This underscores the proactive role attorneys are expected to play.
  3. Prompt and Strategic Collection: The timely collection of evidence is crucial. Early identification and securing of relevant materials can significantly shape legal strategy and influence the course of negotiations or litigation. The Japanese system encourages the early presentation of key evidence, often during the preparatory proceedings (benron junbi tetsuzuki - 弁論準備手続), to help clarify disputes and streamline the process.
  4. Limited U.S.-Style Discovery: It's important for those familiar with common law systems to recognize that Japan does not have extensive pre-trial discovery mechanisms like depositions taken by parties, broad interrogatories, or wide-ranging requests for document production as a matter of course. While there are methods to request specific documents from the opposing party or third parties (such as a court order for document production - 文書提出命令, bunsho teishutsu meirei), these are generally more targeted and often subject to stricter criteria of relevance and necessity compared to the broader scope often seen in U.S. discovery.

The Attorney Inquiry System (Bengoshikai Shōkai / "Article 23-2 Inquiry"): An In-Depth Look

Against this backdrop, the Bengoshikai Shōkai system emerges as a particularly important and unique evidence-gathering tool available to attorneys in Japan.

1. Legal Basis and Purpose:
The system is established under Article 23-2 of the Attorney Act (弁護士法 - Bengoshi Hō). This provision empowers an attorney, who has accepted a case, to apply to their affiliated bar association to make necessary inquiries to public offices or public or private organizations (kōmusho matawa kōshi no団体 - 公務所又は公私の団体) to collect information pertinent to that case. The inquiry is formally issued by the bar association itself, lending it an official character.

The primary purpose of this system is to facilitate the gathering of evidence and information that an attorney needs to effectively represent their client, whether in litigation, negotiation, or other legal matters. It provides a formal channel to access information that might not be publicly available or that third parties might be reluctant to disclose directly to an attorney or their client.

2. The Mechanism of an Article 23-2 Inquiry:

The process generally involves the following steps:

  • Attorney's Application (Mōshide - 申出): The attorney prepares a written application (shōkai mōshidesho - 照会申出書) addressed to their local bar association (e.g., the Tokyo Bar Association, Osaka Bar Association). This application must detail:
    • The specific case for which the inquiry is needed.
    • The information being sought.
    • The entity to which the inquiry is to be directed (the "照会先" - shōkaisaki).
    • A clear explanation of why the requested information is necessary for the case.
  • Bar Association Review: The bar association reviews the attorney's application. This review process is crucial. The bar association assesses the necessity and appropriateness of the inquiry, ensuring that it is relevant to the case, not overly broad, does not constitute an abuse of the system (e.g., a fishing expedition or harassment), and does not unduly infringe on privacy or confidentiality.
  • Issuance of Inquiry by the Bar Association: If the application is approved, the bar association issues the formal inquiry letter under its name to the target entity. This official endorsement by the bar association adds weight to the request.
  • Response from the Target Entity: The target entity is requested to provide the information directly to the bar association or, in some cases, to the inquiring attorney.
  • Relay of Information: The bar association then relays the received information to the applicant attorney.

3. Scope of Inquiries and Target Entities:

The range of information that can be sought and the types of entities that can be approached are broad:

  • Target Entities:
    • Public Offices (Kōmusho): This includes national government ministries and agencies, local government bodies (prefectural and municipal offices), courts, prosecutors' offices, police departments, tax offices, etc.
    • Public or Private Organizations (Kōshi no Dantai): This encompasses a wide array of non-governmental entities, including private corporations, financial institutions (banks, insurance companies), hospitals, schools, and other associations.
  • Scope of Information: The information sought must be "necessary" for the case at hand. Examples include:
    • Confirmation of an individual's address or place of employment.
    • Details of bank accounts or financial transactions (often crucial for asset tracing in debt collection or enforcement, though subject to strict conditions).
    • Medical records (usually requiring patient consent or specific legal justification).
    • Corporate information not readily available through public registries.
    • Details of public utility usage (e.g., to identify occupants of a property in eviction cases).
    • Vehicle registration information.
    • Non-prosecution records from a prosecutor's office for related civil cases (e.g., in traffic accident disputes).

Strategic Advantages of the Bengoshikai Shōkai

The Article 23-2 inquiry system offers several distinct advantages for attorneys and their clients:

  1. Confidential Investigation: A key benefit is that inquiries can often be conducted without the knowledge of the opposing party in the legal dispute. This allows for discreet fact-finding and evidence gathering without prematurely revealing investigative strategies. This contrasts sharply with court-supervised evidence-gathering processes, which typically involve notice to all parties.
  2. Access to Third-Party Information: It provides a formal and often effective channel to request information from third parties who are not directly involved in the litigation and who might be hesitant or unwilling to provide information if approached informally or directly by a party or their attorney. The official imprimatur of the bar association can encourage cooperation.
  3. Broad Applicability Across Case Stages: The system is versatile and can be utilized at various stages of a legal matter:
    • Pre-litigation: To investigate facts, assess the merits of a potential claim, or identify potential defendants or assets.
    • During Litigation: To supplement evidence already obtained or to clarify specific points.
    • Post-judgment: To locate assets for the enforcement of a judgment.
  4. Relatively Low Cost (Compared to Other Formal Procedures): While there are fees associated with each inquiry, they are generally modest compared to the costs that might be involved in more complex court-ordered evidence gathering procedures, if such alternatives even exist for the specific information sought.

Despite its utility, the Bengoshikai Shōkai system is not without limitations and challenges:

  1. No Absolute Compulsory Power, Especially for Private Entities:
    While public offices are generally considered to have a strong duty to respond to bar association inquiries (unless there is a "justifiable reason" for refusal), private entities are not under the same strict legal compulsion. There are no direct statutory penalties for a private company that chooses not to respond or provides an incomplete response.
    The Supreme Court of Japan, in a judgment dated October 18, 2016 (Minshū Vol. 70, No. 7, p. 1725), addressed the nature of this duty for public entities. The Court indicated that a public office must report in response to an Article 23-2 inquiry unless there is a "justifiable reason" (seitō na riyū - 正当な理由) to refuse. Whether such a reason exists is to be determined by balancing the interests served by disclosure against the interests protected by non-disclosure (e.g., individual privacy, public safety). This ruling reinforces the expectation of cooperation from public bodies.
  2. "Justifiable Reasons" for Refusal:
    Entities, both public and private, may decline to provide information based on various grounds, including:
    • Protection of Personal Information: The Personal Information Protection Act (個人情報保護法 - Kojin Jōhō Hogo Hō) imposes strict obligations on how personal data is handled, and this is a frequently cited reason for refusal, particularly by private companies.
    • Trade Secrets and Confidential Business Information.
    • Professional Secrecy Obligations (e.g., medical confidentiality, financial institution secrecy).
    • The request being overly broad, unclear, or deemed irrelevant to the stated legal matter.
    • Concerns about potential liability for wrongful disclosure.
      Some data suggests a refusal rate of around 5%, though this can vary widely depending on the nature of the inquiry and the recipient.
  3. Associated Costs:
    Each inquiry submitted to a bar association incurs a processing fee. For example, the Tokyo Bar Association charges a fee (as of recent information, around JPY 8,000 - 10,000 per inquiry, including postage). If multiple inquiries are needed to different entities, these costs can accumulate.
  4. Time Factor:
    The process is not instantaneous. It takes time for the attorney to prepare the application, for the bar association to review and issue the inquiry, for the target entity to process the request and respond, and for the bar association to relay the response. This timeline needs to be factored into case preparation.
  5. Variability in Response Quality:
    Even when a response is provided, its utility can vary. Some entities may provide comprehensive information, while others might offer only minimal or carefully worded replies.

Maximizing the Effectiveness of an Article 23-2 Inquiry

Given these nuances, several strategies can be employed to enhance the likelihood of obtaining useful information through the Bengoshikai Shōkai system:

  1. Meticulous Drafting of the Inquiry Request (Shōkai Mōshidesho):
    This is perhaps the most critical factor. The application to the bar association must be:
    • Specific: Clearly identify the information sought. Avoid vague or overly broad requests.
    • Necessary and Relevant: Articulate precisely how the requested information is essential for the specific legal case being handled. Explain the connection between the information and the disputed issues or the attorney’s representative duties. A well-reasoned justification can persuade both the bar association to approve the inquiry and the recipient entity to cooperate.
    • Narrowly Tailored: Ensure the request is no broader than necessary to achieve its legitimate purpose, respecting privacy and confidentiality concerns.
    • Plain and Respectful Language: While a formal document, using clear and courteous language can be beneficial, especially when the inquiry is directed to a private organization that may not be familiar with the system.
  2. Preliminary Informal Contact (Case-by-Case Basis):
    In certain situations, it might be tactically advantageous for the attorney to informally contact the target entity before the official bar association inquiry is sent. This can be an opportunity to explain the system, the purpose of the forthcoming request, and address any initial concerns the entity might have. This approach can sometimes foster goodwill and lead to a more cooperative response. However, it also carries the risk of prematurely alerting the entity, which might be counterproductive if there's a concern about evidence tampering or non-cooperation. This is a judgment call for the attorney based on the specifics of the situation.
  3. Strategic Selection of Target Entities:
    Focus inquiries on entities that are most likely to possess the crucial information and are reasonably likely to respond favorably or are under a stronger obligation to do so (e.g., public offices for official records).
  4. Following Up (Appropriately):
    If a response is delayed or inadequate, the attorney can consult with the bar association about the possibility of a follow-up. The bar association might send a reminder or, if new information or clarifications justify it, permit a supplementary or revised inquiry (sai-shōkai - 再照会).

Practical Use Cases in Business Disputes

The Article 23-2 inquiry system can be invaluable in various scenarios relevant to business disputes:

  • Asset Tracing for Debt Collection/Enforcement: After obtaining a monetary judgment, if the debtor’s assets are unknown, inquiries can be made to financial institutions to identify bank accounts. While previously challenging, many major Japanese banks now respond to such inquiries (often with an "all-branch" scope) for judgment enforcement purposes, provided specific conditions are met (e.g., the judgment is attached). This has significantly enhanced the utility of the system in debt recovery.
  • Verifying Corporate Information: Requesting specific corporate records from a company that are not part of public filings, if relevant to a contractual dispute or due diligence in a contentious context.
  • Identifying Property Ownership or Encumbrances: Inquiring with land registries or other relevant bodies for detailed property information.
  • Clarifying Employment Status or Contractual Relationships: In employment disputes or commercial disagreements, confirming an individual's employment history with a company or details of past contractual dealings between entities.
  • Obtaining Official Records: Accessing specific reports or records held by government agencies that are pertinent to the dispute (e.g., permits, inspection reports).

Ethical Considerations and Responsible Use by Bengoshi

The power granted by Article 23-2 comes with significant ethical responsibilities for attorneys:

  1. Purpose Limitation: Information obtained through an inquiry must be used exclusively for the legal case for which it was approved. Any other use can lead to severe disciplinary sanctions for the attorney by the bar association.
  2. Respect for Privacy and Confidentiality: Attorneys must craft their inquiries carefully to avoid unnecessary infringement on the privacy of individuals or the confidential information of organizations. Requests should be narrowly tailored to what is genuinely required.
  3. Transparency with the Client (Where Appropriate): While the inquiry itself might be confidential from the opposing party, attorneys should generally discuss the strategy of using the inquiry system, its potential outcomes, costs, and any sensitive aspects with their own client.

Conclusion

The Bengoshikai Shōkai, or Article 23-2 Attorney Inquiry System, stands as a vital and distinctive feature of the Japanese legal landscape for evidence and information gathering. While it does not replicate the extensive discovery mechanisms found in some other countries, it provides a powerful, attorney-led channel to access crucial information from both public and private entities. Its effectiveness is maximized when attorneys employ it strategically, with meticulously drafted requests that clearly articulate necessity and relevance. For businesses navigating legal disputes in Japan, understanding that their bengoshi has access to this tool—and appreciating both its strengths and its limitations—is key to formulating a comprehensive and informed legal strategy. This system, when used responsibly and skillfully, can be instrumental in uncovering facts, supporting claims or defenses, and ultimately contributing to the just resolution of civil matters.