The Descent of Civil Execution Institutions in Japan

Frank G. Bennett, Jr.

 

 

I.     Introduction

II.    The Early Execution Establishment

III.   Problems Observed in 1954

IV.   Modeling Incentives

V.    The Problem in 1954

VI.   Impact of the 1966 Legislation

V.    Conclusion

 

I.      Introduction

The weakness of civil enforcement in Japan has been a persistent talking point since Professor Haley published his classic articles on the subject in 1978 and 1982.^[1] Nonetheless, it has not been until Japan’s serious economic downturn in the 1990s that scholars writing in English have begun substantiating Professor Haley’s claim in detail, and working through its implications. And not a moment too soon, one might add, since Japan is now undertaking reforms that will seriously alter Japan’s enforcement landscape over the next decade.

Apart from the task of confirming that enforcement is in fact weak in at least some fields of civil justice in Japan, there are two aspects to the scholarly endeavor. One is to identify the side effects of weak enforcement in a systematic way. The other is to explain the underlying cause of the weakness itself. The first task has been joined by Professors Milhaupt and West,^[2] in a recent study which sets out to prove the proposition that organized crime “firms” within society compete with state institutions for the supply of enforcement and dispute resolution services. In other words, when courts and their agents are weak (as in Japan), the demand for the enforcement services of underworld gangs will be strong. The article is based on statistical evidence from postwar Japan, but the authors’ point is directed, particularly, at countries undergoing the transition from a directed to a market-oriented economic model. Their advice is straightforward: a smart reformer will adopt a strategy of co-option, encouraging underworld gangs to serve the state system of enforcement, before he will attempt to suppress them outright through the force of criminal sanctions.

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