Transactions of the Japan Academy
Online ISSN : 2424-1903
Print ISSN : 0388-0036
ISSN-L : 0388-0036
Volume 49 , Issue 3
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  • Ichiro KATO
    1995 Volume 49 Issue 3 Pages 105-120
    Published: 1995
    Released: June 22, 2007
    JOURNALS FREE ACCESS
    1. The Product Liability Law of Japan was enacted.
    In Japan, the legislation of the Product Liability has been long discussed, since Greenman v. Yuba Power Products, Inc. in California had first established the strict liability of defective products in 1963 in the United States.
    The first draft proposal of the Product Liability Law was published by a study group guided by Professors Sakae Wagatsuma and Kazuo Shinomiya in 1975. Recently after the EC had issued the Council Directive on the Liability of Defective Products in 1985 and European countries followed it thereafter, several draft proposals were published in Japan by academic and citizen groups as well as political parties. They almost followed the first draft proposal by Wagatsuma and Shinomiya.
    In the Government, the Social Policy Council dealing with people's daily life under the Economic Planning Agency started deliberation of the product liability in 1990 aiming at its legislation.
    The consumer groups and the academic world pushed such legislation. On the other side, industries, economic world and MITI were originally against such legislation, but gradually changed their posture. They feared of American experiences of the product liability, but tolerated EC type legislation. The MITI and other ministries, which have jurisdiction over industries in general and especially over pharmaceutical, food or so, together supported EC type legislation.
    The Social Policy Council published its final report at the end of 1993, which recommended such legislation summarizing deliberation so far.
    On the other hand, the Legislative Council under the Ministry of Justice joined them from the viewpoint to modify the negligence principle of Article 709 of the Civil Code towards no-fault (strict) liability as for defective products.
    Following above deliberations in ministries, the Government proposed the new Law of Product Liability to the Diet in April 1994.
    After approval of the Diet, the Product Liability Law was enacted on July 1, 1994 and will be enforced after one year.
    2. The Feature of the Product Liability Law
    The Law is composed of only 6 articles. It prescribes the principle of no-fault liability of defective products. The manufacturer shall be liable for damages caused by defective products.
    Its most discussed issue was so-called risk of development. The Law exempts liability when the manufacturer proves that the state of knowledge at that time was not such as to enable the existence of the defect in the product to be discovered. It adopted the EC type exemption in order not to hinder development of new products.
    The other point was the presumption clause of defect and causation. The Law did not adopt it similar to the EC Directive. The court is expected to apply de facto presumption (res ipsa loquitur in Anglo-American law) in necessary cases.
    The effect of the Law is not realized before its enforcement. However, I expect that the injured consumer will be easier to prove defect of product than negligence of the manufacturer and to recover damages. The Law will protect and improve the interest of consumer.
    On the other hand, in Japan I do not mind the difficulties of product liability and the crisis of liability insurance in the United States, because the backgrounds of the tort law process are quite different between both countries.
    In Japan, we do not have jury system, contingent fee practice, punitive damages and class action, which promoted enlargement of the product liability and higher damages in the United States.
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