530

Part  2 The tasks of tort law

I.  Compensation of the damage

7 / 68 Within the law of damages, one question is how the goal of protecting the rights of the victim, on the one hand, and the aim of not excessively limiting the rights of the injuring party on the other, can be reconciled.

A.Compensation of the damage – protection of the victim’s rights

7 / 69 Firstly, granting a claim for compensation of damage that has arisen as a result of interference by another party is the necessary minimum standard of protection for legal goods. On the other hand, any compensation that exceeds the compensation of the damage sustained is no longer in harmony with the notion of protection of rights.

B.Limitation of the injuring party’s rights by the protection of the victim – observing the injuring party’s rights

7 / 70 Secondly, the protection afforded to the victim may not excessively limit the rights of the injuring party. Therefore, the question of to what extent the limitation of the injuring party’s rights in order to protect the victim’s rights is justified arises.

II.  Deterrence and penal function

7 / 71 Both criminal and administrative law penalties are available as a means to deter people from committing unlawful actions and to punish perpetrators. It is questionable whether the law of torts, which in contrast to criminal and administrative law is a civil law area, can also be seen as a means to realise the above-mentioned purposes.

A.Actual functions

It is generally accepted that in practice the law of torts also serves to deter perpe- 7 / 72 trators and / or to penalise their conduct together with criminal law and the administrative law rules.

1.Deterrent function

Firstly, there is the possibility that the law of torts creates an incentive for poten- 7 / 73 tial injuring parties to act with care and to desist from dangerous acts in order to

avoid creating duties to compensate.

2.Penalising function

Further, the fact that liability is imposed upon the injuring party may satisfy any 7 / 74 desires on the part of the victim or society to exact revenge and to penalise the in-

juring party.

B.Deterrence and / or penalising function

The question arises whether, for the purpose of deterring the injuring party and / or 7 / 75 penalising him, it should be possible to award compensation that goes beyond

the indemnification of the damage sustained ( punitive damages ) or to award double or triple times the worth of the damage sustained ( multiple damages ).

it is too sweeping a statement to say that deterrence and punishment ought to be completely excluded from the civil law rules as this would represent too categorical a distinction between civil law and criminal and administrative law.

20Tanaka / Takeuchi, Hô no jitsugen ni okeru shijin no yakuwari [ The role of the individual in the realisation of law ] ( 1987 ) 156 ff.

7 / 78 Furthermore, if one approaches the question from a functional perspective, namely how one can better enforce compliance with the law, one would have to support imposing penalties if this deters potential perpetrators from committing damaging acts and a more effective enforcement of the law can be achieved.

7 / 79 Finally, in more recent times it has been argued against the background of the economic analysis of law that the notion of compensating the victim’s damage is not explained rationally in many instances by the applicable law of torts and thus, the main purpose of the law of torts is instead to be seen in the optimal prevention of unlawful acts21.

2.Rejection of the deterrence and penalising function

7 / 80 In contrast to the above-described view, however, in Japan the prevailing opinion is that no damages exceeding the compensation of the actual damage are to be awarded22. This is justified as follows:

7 / 81 Firstly, the Japanese Civil Code only provides for a duty to compensate in accordance with damage sustained, as is shown in the wording of art 709 CC, pursuant to which the injuring party is obliged » to compensate any damage resulting in consequence «. Further, the victim’s rights are protected by the compensation of the actual damage; there is no justified interest in obtaining compensation going beyond this. Any and all payments exceeding the compensation of damage cannot be justified simply by the fact that this would serve to penalise or deter damaging acts. The injuring party also has rights, and limiting these excessively is not admissible.

21Morita / Kozuka, Fuhô kôi-hô no mokuteki [ Aims of the law of torts ], NBL 874 ( 2008 ) 10.

22Supreme Court of 11. 7. 1997, Minshû 51–6, 2573. See further Shinomiya, Fuhô kôi [ Tort ] ( 1987 ) 267; Sawai, Tekisutobukku jimu kanri, futô ritoku, fuhô kôi [ Textbook on negotiorum gestio, unjust enrichment and tort ]3 85 ff; Shiomi, Fuhô kôi-hô I [ The law of torts I ]2 ( 2009 ) 50 ff ( which, however, wants to recognise a function of penance and / or satisfaction ). On the other hand, Kubota, Fuhô kôi to seisai [ Tort and sanction ], in: Ishida Kikuo sensei koreki kinen [ Commemorative publication for Kikuo Ishida on this 70th birthday ] ( 2000 ) 667; idem, Songai baishô [ Damages ], Jurisuto 1228 ( 2002 ) 62, proceeds on the basis that the law of torts has a penalising function and advocates realising this purpose in Japanese law via the assessment of damage.

533

Part  3 Structure of the law of torts

I.  Overview of the system of delict law in Japan

A.General rule

1.Prerequisites for liability

a.Basic prerequisites

when a minor does not possess the necessary powers of discernment to recognise that he could be accountable for his actions. Art 713 CC excludes liability when someone, due to a mental disability, is not in a state to have the capacity to recognise that his actions could make him accountable. Insofar, the subjective abilities of the specific perpetrator to recognise the legal responsibility ensuing from his actions are taken as the basis; however, liability does not depend on his ability to act in accordance with such insight.

(   2  ) Self-defence and necessity

7 / 87 Furthermore, self-defence and necessity exclude liability ( art 720 CC ).

2.Legal consequences

a.Damages

7 / 88 The Japanese Civil Code provides for damages as the legal consequence of tort.

(   1  ) Entitlement to claim

7 / 89 There are two special rules in relation to who is entitled to assert a claim for damages. The first is art 721 CC, according to which an unborn child is deemed already to have been born in respect of the right to seek compensation. Moreover, according to the second special rule in art 711 CC, certain close relatives can also seek damages for pain and suffering when the victim dies.

(   2  ) Contents of compensation

7 / 90 With respect to the content of the compensation, the following rules exist:

(  i  ) Type of compensation

7 / 91 Compensation shall be made in money ( art 722 para 1 in combination with art 417 CC ).

(  ii  ) Damage

7 / 92 The general rule in art 709 CC merely provides that the object of the compensation is » damage «. Art 710 CC, however, also provides expressly for the compensation of non-pecuniary damage.

(  iii  ) Extent and assessment of the compensation

7 / 93 With respect to the extent and assessment of the compensation, the general rule in art 709 CC merely provides that » any damage resulting in consequence « must be compensated. Art 722 para 2 CC, however, provides for a reduction of compensation when the victim acted negligently ( contributory fault ).

(   3  ) Prescripton

7 / 94 Compensation claims are barred three years after knowledge of the damage and the identity of the injuring party or at the latest 20 years after the point in time of the tort ( art 724 CC ).

b.Further legal instruments

Besides monetary damages, art 723 CC provides by way of exception for restitution 7 / 95 in kind in the case of injuries to the reputation of a person, namely by restoring

his reputation.

B.Special rules

Further, the Japanese Civil Code provides for special rules that supplement the 7 / 96 basic rule in art 709 with respect to special situations.

a.Liability due to the action of another

erating the car ( liability of the keeper of the motor vehicle, art 3 Law on securing compensation for damage caused by automobiles )24.

23Kokka baishô-hô, Law no 125 / 1947.

24Jidô-sha songai baisho hoshô-hô, Law no 97 / 1955 as amended by Law no 53 / 2013.

is important with respect to understanding Japanese tort law, the development of the debate is outlined below26.

A.Starting point

1.The rule in art 709 CC

The original version of art 709 CC when the Civil Code came into force was: » A per- 7 / 109 son who has intentionally or negligently infringed the right of another shall be li-

able to compensate any damage resulting in consequence «. The following prerequisites for liability can be inferred from this: firstly, a subjective right of another person has been infringed; secondly, the injuring party acted intentionally or negligently; and thirdly the right is infringed due to the intentional or negligent act of the injuring party, ie there is a causal relationship between the injuring party’s act and the infringement of the victim’s subjective right.

2.The interpretation of the authors of the Civil Code

According to the authors of the Civil Code, the prerequisites under art 709 CC 7 / 110 must be understood as follows27.

a.Significance of the infringement of the right as a prerequisite for liability

While the so-called old Civil Code – which was drafted before the currently valid 7 / 111 Civil Code by the French lawyer Gustave E. Boissonade, but never came into force – required like the French Code civil that someone inflict damage upon another28,

the valid Civil Code requires the infringement of a right. This is based on the concept that the field of delictual liability would be over-extended and thus its scope unclear if it was sufficient on its own that damage had been inflicted, thus also including damage that was not brought about by the infringement of a right.

26Cf Yamamoto, Fuhô kôi hôgaku no sai-kentô to aratana tenkai – kenri-ron no shiten kara [ Rethinking the law of delict dogmatic and new prospects for development – from the perspective of the rights theory ], Hôgaku Ronsô 154–4 / 5/6 ( 2004 ) 292.

27On the history of the drafting of art 709 ZG see Segawa, Minpô 709-jô ( fuhô kôi no ippan seiritsu yôken ) [ Art 709 ZG ( general prerequisites for delictual liability ) ], in: Hironaka / Hoshino ( eds ), Minpô-ten no hyakunen III [ 100 Years of the Civil Code III ] ( 1998 ) 559.

28Art 370 para 1 of the old CC was phrased as follows, drawing on the French formulation, which was based on faute and négligence: » Whoever has inflicted damage on another by negligence or fault is liable to compensate such «.

the unlawful act amounting to the tort was understood as an » act which is contrary to a statutory requirement or prohibition « and the prerequisite that there be an infringement of a right was reinterpreted as a prerequisite that someone injured another by means of an unlawful act.

2.The development of the prevailing doctrine – from infringement of a right to wrongfulness

a.The emergence of the doctrine of wrongfulness

In line with the change in the case law, legal theory also argued that the prerequi- 7 / 118 site for delictual liability was not the infringement of a right but wrongfulness31.

This was reasoned as follows.

(   1  ) Understanding of the legal system

This new doctrine was based on the following understanding of the legal system: 7 / 119 the legal system was seen as consisting of the individual positive legal rules, in particular statutory law and customary law, together. This view distinguished be-

tween laws requiring something and laws allowing something. Laws that require something are rules that make an act or omission obligatory, while laws that allow something do not simply issue requirements or prohibitions but stipulate positively that a certain act is admissible. It considered that these express legal norms also left gaps, which were to be filled in harmony with ordre public as the system of fundamental principles behind the overall legal system.

wrongful. According to this view, » infringement of a right « is only an expression for an action which is not accepted legally, ie for an action that must be evaluated as wrongful since it offends the legal system.

7 / 122 Therefore, liability should also be recognised, so the argument, even when there is no infringement of a right but the injuring party’s action is otherwise to be deemed wrongful. Thus, when there is wrongfulness in the form of an infringement of a statutory requirement or prohibition or a breach of ordre public, then liability for compensation is to be recognised even when no infringement of a right can be assumed.

b.Evaluation of wrongfulness

7 / 123 As time went on, the view that saw wrongfulness as the prerequisite for liability prevailed. It also contends that the degree of wrongfulness based on the injured interests and the degree of wrongfulness with respect to how the interfering act was carried out must both be comprehensively evaluated and the relationship between them also considered in order to establish wrongfulness32.

(   1  ) Degree of wrongfulness based on the injured interests

7 / 124 As far as the injured interests are concerned, there are gradual declinations between clearly defined rights and those rights that are still at a stage of development. There is greater wrongfulness in the case of a strong right being infringed as compared to a more weakly developed right.

(  i  ) Rights to control things in relation to one’s assets

7 / 125 Since the direct control over a thing is protected in relation to everyone else in the case of in rem rights as absolute rights, an infringement of these rights is wrongful to a very high degree. The infringement of copyright, patent rights, rights to utility models and designs or trademarks, which are likewise protected against everyone else, is also highly wrongful.

(  ii  ) Claims and rights to trade

7 / 126 In the case of claims, on the other hand, which by contrast have no exclusive effect, any infringement is only wrongful by virtue of the type and nature of the act, eg by the use of unfair means. Insofar as there is interference with the established and operating business enterprise, wrongfulness is determined on the basis of the type and nature of the interference. Although the business enterprise has an independent pecuniary value, there is nonetheless not such a clearly defined right as property, so that the type and nature of the interference is material.

32Cf Wagatsuma, Jimu kanri, futô ritoku, fuhô kôi [ Negotiorum gestio, unjust enrichment and tort ] ( 1937 ) 100 f, 125 f; Katô, Fuhô kôi [ Tort ] ( 1974 ) 35 ff, 106 ff.

7 / 132 The prerequisites for fault were understood as follows according to the earlier prevailing theory34.

a. Subjective aspect of the concept of fault

7 / 133 Negligence was understood as lack of care, requiring that the perpetrator is mentally capable of foreseeing the result of an action. This means that fault was seen as a subjective prerequisite for liability.

b. Objective aspect of the concept of fault

7 / 134 The yardstick for sufficient care, however, was the degree of care which the law requires of every member of society. Thus, whoever could have foreseen the result had he applied the care required of members of society but did not exercise this degree of care acts negligently. This represents an objective understanding of fault.

C.Confusion within the theory of the law of delicts

7 / 135 Against the background of increases in delict law proceedings in the 1960s and 1970s, the above-described traditional theory was called into question. There were heated confrontations between those who called for a departure from or adaptation of the wrongfulness theory and those who supported retaining the wrongfulness theory and making it stricter35.

33Wagatsuma, Jimu kanri, futô ritoku, fuhô kôi [ Negotiorum gestio, unjust enrichment and tort ] 126. Here a similarity to the flexible system can be discerned.

34Cf Wagatsuma, Jimu kanri, futô ritoku, fuhô kôi [ Negotiorum gestio, unjust enrichment and tort ] 103 ff; Katô, Fuhô kôi [ Tort ] 64 ff.

35Sawai, Fuhô kôi hôgaku no konmei to tenbô – ihô-sei to kashitsu [ Confusion within the dogmatic on tort and its prospect – wrongfulness and fault ], Hôgaku Seminâ 296 ( 1979 ) 72.

1.Uniform concept of fault

The view that advocated turning away from or adapting the wrongfulness theory 7 / 136 rejected wrongfulness as a prerequisite for liability and considered that wrongful-

ness was already included under fault36.

rights: for instance, not only has there been fast progress in high speed transportation, such as trains or cars, and an increase in the number of enterprises that produce hazardous substances like electricity and gas using dangerous machines

36Hirai, Saiken kakuron II Fuhô kôi [ Law of obligations Particular part II Tort ] 21 ff. More precisely on this, see idem, Songai baishô-hô no riron [ Theory of the law of damages ] ( 1971 ) 307 ff.

in the process, the social contact between individual members of society has also become more intense.

7 / 142 This has meant that the needs for protection have also risen and, in order to meet these new challenges, supporters of this view argue that it is necessary above all to focus on whether someone did not do what he was supposed to do or did something he was not supposed to do and not whether someone sufficiently exercised the will to avoid the occurrence of damage. Therefore, according to this view, it is inevitable that fault be understood as a breach of a duty of conduct.

b.Yardstick for fault

7 / 143 According to this view, fault in this sense should be determined as follows:

(   1  ) Meaning of fault

7 / 144 Fault means that the responsibility must be foreseeable and thus, there must be a breach of a recognisable duty to act in a way that the risk of damage occuring be avoided.

(   2  ) Elements to be considered – Learned-Hand formula

7 / 145 Whether there is such a duty of conduct and, if so, to what extent, must be assessed under consideration of the Learned-Hand formula, originating from US-American law, by weighing up the following elements. Firstly, there is the probability of the damage occurring ( the probability that a disadvantageous result occurs be caused by the action found to be culpable ), ie the dangerousness, and the weight of the injured interest ( the weight of the interest that will prospectively be infringed by the action ) and, secondly, the interests that will be impaired by the fulfilment of the duty of conduct. If the first two elements outweigh the third, then a duty of conduct must be recongised, so the argument.

2.Stricter application of the theory of wrongfulness and fault

7 / 146 On the other hand, others argue that the theoretical framework of the traditional doctrine – wrongfulness and fault – should be retained, albeit applied even more strictly and precisely.

a.Blameworthiness of the injuring party

7 / 147 According to this view, delictual liability is based on the blameworthiness of the injuring party. Therefore, the following two levels of possible blameworthiness are necessary for a duty to compensate to be imputed37. The first is a general, objective

37Shinomiya, Fuhô kôi [ Tort ] 276 ff; Sawai, Tekisutobukku jimu kanri, futô ritoku, fuhô kôi [ Textbook on negotiorum gestio, unjust enrichment and tort ]3 102 ff.

blameworthiness with respect to the action. This corresponds to wrongfulness. The second is an individual, subjective blameworthiness with respect to the acting party. This corresponds to fault.

b.Concept of wrongfulness and fault

3.Departure from the structure based on wrongfulness and fault

7 / 154 In contrast to the above, however, there is also a school of thought that seeks to depart from the German model of distinguishing between wrongfulness and fault. According to this view, it is not necessary to read something into art 709 CC as a prerequisite in the form of wrongfulness when this was originally alien to the Civil Code. Instead it is sufficient to take intention and / or negligence and an infringement of a right as the basis for liability, in line with the wording of the provision38.

a.Infringement of a right

7 / 155 According to this view, infringement of a right is a prerequisite that relates to the result of the damaging action. This concerns the question of what constitutes an infringed interest, that is an interest worthy of legal protection.

b.Intention and negligence

7 / 156 Intention and / or negligence, on the other hand, is a prerequisite according to this line of thought, that relates to the damaging action itself. Thus, this concerns the type and nature of the infringing action, ie the infringement of the duty of conduct.

D.Return to the liberal rights thesis

7 / 157 In more recent times there is also support for the view that takes subjective rights as the starting point to determine the prerequisites for delictual liability ( rights thesis )39.

7 / 158 This view wants to reconceive the law of delicts in the light of the constitutional law guarantee of fundamental rights. This concept is based on the following ideas.

38Hoshino, Koi, kashitsu, kenri shingai, ihô-sei [ Intention / negligence, infringement of a right, wrongfulness ], in: idem, Minpô ronshû dai-6-kann [ Collected essays on civil law vol 6 ] ( 1986 ) 307; Ikuyo / Tokumoto, Fuhô kôi-hô [ Law of torts ] ( 1993 ) 114 ff; Morishima, Fuhô kôi-hô kôgi [ Textbook on the law of torts ] ( 1987 ) 251 ff.

39Yamamoto, Kôjo ryôzoku-ron no sai-kôsei [ New conception of the theory of public order and good morals ] ( 2000 ) 270 ff; idem, Kihon-ken no hogo to fuhô kôi-hô no yakuwari [ The protection of fundamental rights and the role of the law of delicts ], Minpô kenkyû 5 ( 2008 ) 77; Shiomi, Fuhô kôi-hô I [ The law of torts I ]2 25 f.

1.Necessity for legal protection

a.Rights and legally protected interests that are the object of the law of delicts

This view is based on the idea that the rights and legally protected interests that 7 / 159 are the object of the law of delicts can be equated with the constitutional law fundamental rights. Thus, for example, property and other in rem rights, intellectual property rights and rights to claim would correspond to the pecuniary rights pro-

tected under the Constitution ( art 29 JC ). Life, bodily integrity, health, honour and reputation as well as rights to a private sphere, one’s own name and image correspond to the personality rights protected under the Constitution as well as the right to pursue happiness ( art 13 JC ). The different rights to liberty are matched to the psychological and economic rights of freedom protected by the Constitution and in the general freedom of action as well as the right to pursue happiness ( art 13 JC ).

b.Law of delicts as a system to protect fundamental rights

The law of delicts is understood in this line of thought as a system with the pur- 7 / 160 pose of protecting the above-named fundamental rights of the individual from infringements by others40.

2.Limitation of rights by protection of rights

However, if as explained above one recognises delictual liability in order to protect 7 / 161 the rights of the victim, this leads to a limitation on the rights of the injuring party.

a.Ban on excessivity

In this context not only are the rights of the injuring party recognised but there 7 / 162 is also a ban on excessive restriction by the state. Insofar as this ban on excessiv-

ity is not violated, however, protection of the fundamental rights of the victim is necessary.

b.Meaning of the principle of fault

Intention and negligence as prerequisites of the present-day law of delicts are un- 7 / 163 derstood as prerequisites for liability that have the specific aim of not excessively

restricting the rights of the injuring party. If liability was imposed on the injuring party even when he had not acted intentionally or with negligence, this would be an excessive restriction of his rights. Therefore, the principle of fault may be seen as a means to prevent such excessive burden.