Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 3.2: The Supreme Court of Japan and online pharmacies
It is a well-known fact that the Supreme Court of Japan has developed a conservative and restrained constitutional jurisprudence. The Supreme Court of Japan is often reluctant to strike down statutes passed by the Diet, or Japan’s national legislature, on constitutional grounds. But this does not mean that the Supreme Court of Japan categorically avoids judgments that might have a significant impact on society. Indeed, the Supreme Court of Japan has handed down a number of judgments with far-reaching social implications. Its decisions on consumer lending are a classic example. In these decisions, the Supreme Court of Japan allowed millions of consumers to claim refunds for excessive interest payments, thereby causing the collapse and subsequent widespread reorganization of the consumer lending business. However, the Supreme Court of Japan has rendered other judgments with significant social implications. One such judgment, the focus of this chapter, overturned the ban on online sales of over-the-counter drugs, which radically liberalized the online sale of drugs. This chapter describes the background for that decision and lays out the statutory and regulatory framework for the regulation of pharmacy and online sales of drugs. It then traces the history of litigation against a ban on online sales of drugs and examines the basic reasoning of the judgment of the Supreme Court of Japan. Finally, this chapter explores the judgment’s social and political implications, illustrating the Supreme Court of Japan’s willingness, in some cases, to change the course of society and politics through its judgments.
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