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Reasons for the Petition for Appeal
[Table of Contents]
Chapter 1 Introduction
Chapter 2 The Constitution of Japan guarantees the ‘right to a fair trial … by an impartial tribunal’ under Section 1 of Article 37 [Claimant Note: The Claimant realised she had made a mistake in choosing the correct Article. It should have been Article 32 instead of Section 1 of Article 37, which is applicable to criminal cases. Therefore, in a subsequent lawsuit against the Japanese Government for damages and compensation regarding Judge Kikui, the Claimant referred to Article 32].
1. In an ‘impartial tribunal’, the right to receive a fair trial is guaranteed.
2. About a video conferencing system in accordance with law.
3. About a video conferencing system in the lawsuit.
4. About the person G who is participating as a defendant.
5. Act of tort by US Amazon (amazon.com) which is not in the Selling Policies of Amazon Japan.
6. The managing body of Amazon Japan.
7. US Amazon is not the party involved in this lawsuit and hence cannot participate; however, in actuality, it was implicated in shaping the judge’s views.
Chapter３, Article 24 (1) on the Code of Civil Procedure guarantees ‘the right that a party may challenge the judge if there are circumstances involving a judge which could prejudice the impartiality of a judicial decision’.
1. The Judge has a special relationship with a party.
2. In this lawsuit, a particular viewpoint has already been formed through a special relationship between the Judge and the party concerned that exists outside the legal procedure.
(1) With a partial and biased viewpoint, Judge Kikui commented to the Claimant (who was seeking a judgement through the legal system in the preliminary hearing held on 17 October 2023) that ‘what is the point of you suing (Amazon)’, and publicly blamed the Claimant for filing the lawsuit.
By so doing, Judge Kikui restricted the Claimant’s right, as stated in Article 32 in the Constitution of Japan, that ‘No person shall be denied the right of access to the courts’ (in cases where the rights of the people are infringed, the Court can offer them redress). This reveals an obvious fact – Judge Kikui risks making a biased judgement with regard to the lawsuit.
(2) Despite the fact that the Claimant, who is conducting the lawsuit as a pro se legal representation, had submitted the Claimant’s Briefs – which were written on a legal basis with a wealth of supporting evidence in order to avoid wasting limited legal resources in advance of the preliminary hearings, and had been reviewed by a lawyer whose services the Claimant had paid for prior to submitting them – Judge Kikui appeared to interrogate the Claimant in the preliminary hearing by saying: ‘Which one is intention and which one is negligence!’, ‘Answer in brief!’, ‘I can see there is no legal basis for the Claimant’s assertions!’, and ‘You are not answering in a straightforward way!’ Eventually, he warned the Claimant that, ‘If there is no answer to my questions from you, that is OK. However, I will treat this case as if no claim existed’.
By so doing, Judge Kikui took advantage of his legal knowledge, expertise, and experience in the field. Moreover, by using arguments which were hard for the Claimant to object to or refute, he caused her psychological distress through words and actions that went beyond the extent necessary to exercise his duty as a judge. In reality, such actions are regarded as abuses of authority in workplaces (this is called ‘power harassment’ in Japan). From these words and actions, which are far from what would be expected of a man in this position, it can be inferred that Judge Kikui had already formed his own judgement through a special arrangement made outside the proper legal procedure at the time – this being to either reject the Claimant’s claims or encourage her to withdraw the lawsuit.
In fact, a female judge, who was in charge of this lawsuit until the end of March 2024, made the following remark to Amazon at the trial on 27 October 2023: ‘The Claimant is claiming compensation for damage from the loss of the sale and consolidation money. As this is also related to the injunction of the Antimonopoly Act, it should be necessary to consider whether to refute each claim submitted by the Claimant’. She tried to conduct the lawsuit from a fair position; however, that was not in line with the expectations of Judge Kikui, the presiding judge. In the next preliminary hearing after her opinion was made, Judge Kikui took the initiative in the lawsuit, as a result of which the female judge hardly spoke in subsequent preliminary hearings and was eventually transferred to another Court.
(3) At the preliminary hearing held on 26 September 2024, the Claimant was told by Judge Kikui to ‘submit 10-page summaries of Claimant’s Brief 14 onwards’ before the next trial. Thus, at that point, the Claimant had to prepare the following;
1. Write objections for Chapter 4 onwards of the Defendant’s Brief (7) dated 30 August 2024
2. Motion to amend the complaint for the additional compensation for damages.
3. Write a claim in a Brief that the items returned from Amazon’s warehouse were in appalling condition.
Having taken this into account, the Claimant realised it would be impossible to complete everything, including the aforementioned judge’s demand, before the next trial. Therefore, she asked the judge, ‘To be able to condense 10 of the Claimant’s Briefs into 10-page summaries, are you telling me to cut my sleeping hours?’ In response, he said that should be the Claimant’s responsibility. Thus, Judge Kikui did not accept the Claimant’s objection. Claimant’s Brief 14 was the brief in which the Claimant first included her complaint about unreasonable conduct in the Court by Judge Kikui, which the Claimant could no longer tolerate. As a result of the Claimant writing down her complaint in the Brief, Judge Kikui changed his approach [Claimant Note: That is, from what he originally planned in terms of either encouraging the Claimant to withdraw the lawsuit or rejecting the Claimant’s claims] and asked Amazon to refute each claim submitted by the Claimant at this stage.
The reason why Claimant’s Brief 14 onwards became lengthy is that the conduct of legal proceedings by the female judge, who told Amazon at the beginning of the preliminary hearings that it is necessary for them to refute each claim submitted by the Claimant, had been disregarded. Instead, Judge Kikui initially told Amazon’s lawyers to ‘refute only for the claims they think they can’; consequently, they did not refute all of the claims, having taken advantage of the fact that defamations consisting of false statements (IP infringements such as counterfeits and trademark violations) that harmed the Claimant and damaged her reputation would no longer be displayed on the Seller Account after a period of 180 days.
Thus, Amazon began to refute the claims and the Claimant did the same, which is why the Claimant’s Briefs needed to be of an appropriate length. Furthermore, IP infringement claims from US Amazon continued to be made so the Claimant had to add these as well, along with the refutations of assertions made by Amazon’s lawyers. Furthermore, the Claimant included many reference materials [e.g. screen shots of Amazon Seller Forum posting] in her Briefs so the number of pages unavoidably increased. Therefore, it is not the Claimant’s fault that her Briefs needed to be lengthy.
Although Judge Kikui told the Claimant in the Court that providing 10-page summaries for each brief should be her responsibility, he did not accept her objection and failed to explain the legal reason for compelling her to do so. The Claimant, who is not a legal professional and does not know what laws exist, thought this was unacceptable. However, because the Claimant could not find out through the Internet whether Judge Kikui compelling the Claimant was a legitimate procedure in the Japanese judicial system, she could not refuse and reluctantly accepted the request to submit 10-page summaries.
With regard to the Claimant’s Briefs which the Claimant herself prepared, the Claimant wrote them respectfully by paying a legal professional for advice whenever she needed. When the Claimant investigated whether Judge Kikui’s instruction to ‘submit 10-page summaries should be the Claimant’s responsibility’ was an order based on the law, she came across information on the Internet stating that ‘a civil fine of 200,000 yen will be imposed for not complying with an order to submit a document’. Therefore, the Claimant consulted a lawyer as she was fearful of a finding for which a fine may be payable. The Claimant then learnt from the lawyer that ‘there is no set rule for the length of a Brief in both the Code of Civil Procedure and the Rules of Civil Procedure’ and that ‘the order to submit a document is a procedure to obtain evidence and is not applicable to a Brief which is simply a party’s assertion’. In addition, when the Claimant investigated whether it is very rare for a lawyer to submit such a lengthy brief, she found a brief of 40 pages written by a lawyer which was evaluated by a third party as ‘a paper with a mindset of serving the client (who is eager to win)’.
Thus, the Claimant found out the truth about the length of a brief which does not have a set rule. Nevertheless, although the Claimant understood that refusing Judge Kikui’s demand could have been a disadvantage for her as judges can form their own impression, which influences their judgement, she felt she had no choice but to refuse given the psychological distress she was experiencing and could barely accept. As a matter of fact, when US Amazon sent incessant IP infringement claims to the Claimant, while at the same time Amazon Japan kept sending the same email almost every day to the Claimant – which apologised not to her, but to a Claimant’s competitor for IP infringement claims which US Amazon had made against them [Claimant Note: Amazon Japan continually ignored the Claimant’s appeals against the false infringement claims while apologising to the competitor] – and the number of emails reached 19 in total, the Claimant had hives all over her face from the psychological distress and visited a dermatologist twice. Therefore, she had to spend her time explaining her situation in a Brief and why she could not submit 10-page summaries for each of the previous Briefs after completing Brief 14. Because bearing such a workload was not the Claimant’s responsibility, despite the assertions made by Judge Kikui, it can be said that the Claimant unnecessarily shouldered the economic burden of spending her time writing down her situation. Had she not done this, she could have spent the time engaging in her business activities, which had been interrupted by this lawsuit with Amazon.
Ordinarily, even though the length of a Brief may be substantial, Judge Kikui, who is an experienced judge, should have been able to extract the information he needed in order to make a decision. When the Claimant considered what might be the true reason for the demand to submit 10-page summaries for each Brief, she could easily imagine that the original Briefs would have been replaced with the 10-page summaries. This is because, when the original Briefs were open to the public, it was not only Judge Kikui, who the Claimant heavily criticised, but also Amazon who were faced with inconvenient truths. Therefore, it is apparent that Judge Kikui acted on behalf of a vocal party.
3. It is hard for Judge Kikui to make a fair judgement based on law
A lawyer expressed the view that judges are supposed to be ‘the ones who made decisions only in accordance with laws’ and, moreover, are ‘the ones who can only make decisions in accordance with laws’.
The Claimant also asks for Judge Kikui, who should be bound by Article 76 (3) of the Constitution of Japan which states that ‘All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws’, to exhibit the legal basis for the Claimant’s case as a guardian of laws.
Despite the fact that Judge Kikui interrogated the Claimant in a preliminary hearing by saying ‘I can see there is no legal basis for the Claimant’s assertions!’, he himself made the following assertions to the Claimant without any explanation as to their legal basis:
(1) In the issue being disputed with Amazon, which claims that the Claimant had registered brand products as ‘Brand: Non-branded’ of her own volition and that these constitute IP violations for trademark registered brands, even though Amazon instructed the Claimant to register a trademark registered brand (Signare) as ‘non-branded’, Judge Kikui stated in the Court that ‘Since Amazon says it is OK for Signare to be a ‘Brand: Non-branded’, it is OK for Signare to be ‘non-branded’.
(2) With regard to the brand ‘Cath Kidston’ for which Amazon is also a seller, the Claimant asserted that Amazon is committing violations not only by selling items which are subject to the Pharmaceutical and Medical Device Act (PMD Act) but also by registering the brand name of Cath Kidston, even though Article 4 (1) (xi) of the Trademark Act stipulates that unregistrable trademarks are those identical to, or even similar to, another person’s registered trademark. Thus, Amazon itself infringed the IP rights of Cath Kidston.
Without disclosing whether the issue of the brand name registered by Amazon is not violating any laws, Judge Kikui insisted that, contrary to what the Claimant had claimed, ‘What they had registered was just simply wrong’. This meant that, ultimately, the Claimant was unilaterally forced to accept the judge’s ruling that it is okay for the Court not to pursue this issue.
Chapter 4 Conclusion
