„The Japanese hesitate longer than Germans before going to court"

Toss together a pile of statutes to foster prevention and avoid a possible run in with the law? Or would it be better to let the lawyer negotiate a satisfactory settlement if the damage has already been done? The legal framework greatly influences the social conditions in any society. An international research group has begun comparing the legal cultures in Germany and Japan.

Photo: AA+W/Fotolia

„We prefer to prevent damages," says Prof. Dr. Alexander Bruns. The department director for the Institute for German and Foreign Law of Civil Procedure at the University of Freiburg describes the fundamental overall societal consensus upon which German law is based. „We try to take countermeasures through preventative regulations to avoid undesirable developments." The most common methods are statutes and preliminary injunctions.

Prevention versus freedom

The notion of prevention, however, does not carry the same weight equally through all legal cultures. In the United States, for instance, the predominant attitude is that the freedom of the individual should not be hindered at the outset. „People let things take their course more and focus instead on reactionary measures – on restitution and penalties when the damage has been done."

While the plaintiff in Germany mostly appears in court with the intention of receiving his or her rightful claim, in other countries it is more about achieving a profitable settlement. One need only think of the well-known class action lawsuits in the United States that, in European terms, demand exorbitant penalty sums. Enter the VW automaker's emissions scandal.

In countries such as the US, class-action lawsuits with exorbitant penalty sums are the name of the game – as it was recently with the VW automaker’s emissions scandal. Photo: Industrial View/Fotolia

Issues from the legal instruments
Bruns is exploring the differences in legal culture using Germany and Japan as examples. He is one of the initiators and masterminds behind the legal studies project „Social Governance by Law: Substantive Standards and Procedural Enforcement" – a cooperation between the University of Freiburg and Nagoya University in Japan.

The international research group's first symposium took place in Freiburg in September 2016. Researchers discussed topics from the preventative legal standpoint; for instance, they examined the question about injunctive actions to stop illegal activities on corporate executive boards.

More consumer protection

„I recall, for instance, a suit between the former board spokesman and chairman of the German Bank, Rolf Breuer and the media mogul Leo Kirch," says Bruns. In the case, which dragged on for twelve years, Breuer was accused of having expressed something in an interview that led to the Kirch Group's demise. It is a classic example of how a company may have a vested interest in imposing an injunction on board members to prevent their saying or doing ruinous things to the business. By way of a Japanese example, they have a tendency at present to strengthen consumer protection in the form of group or representative action.
Similar to Germany, Japan places great meaning on preventative legal protection in patent law. During a second symposium that is being planned in Nagoya this year, reactive regulations in particular will be illuminated.

Japan, whose legal system was built at the beginning of the 20th century using Germany and France as role models, became increasingly under US influence after World War II in terms of its legal practice. Contemporary Japan has a „hybrid" legal culture in which civil lawsuits are settled much more often than in Germany. „The Japanese hesitate much longer than Germans before going to court. The Japanese prefer to find an amicable solution in order to avoid losing face," explains the legal scholar.

Determining one's own viewpoint

The result is that in Japan – similarly, but not nearly as massively as in the US – much fewer lawsuits land before a judge. While less than one percent of all compensation proceedings are decided by a federal court, the courts have the final word in the majority of civil lawsuits in Germany. Japan lands somewhere in the middle between the two.
The project has a significant societal relevance, says Bruns: „The legal framework greatly influences the social conditions in any society based on the rule of law." That, in turn, has a direct impact on the economy. For Germany the comparison between law practices with other strong economic nations is important for determining the country's own viewpoint and for formulating its self-understanding. He makes it possible to analyze the mechanisms behind one's own laws with the intention of developing standards to determine which combination of preventative and reactive regulations are necessary to shape the legal system in order to reach certain goals.

Verena Adt

Cooperation between Freiburg and Nagoya

Since the beginning of 2015, this project has been promoted by the mutual research groups from the Freiburg Institute for Advanced Studies (FRIAS) and its Japanese counterpart, the Institute for Advanced Research (IAR) from Nagoya University. About a dozen researchers from both countries are participating in the project, which has been supported by about 60.000 Euro in fundings. Prof. Dr. Alexander Bruns is in charge of the German side of the cooperation while Prof. Dr. Masabumi Suzuki is responsible for the Japanese side.

More information about the cooperation