EDITOR’S

ISSUE 64-15
Legal Focus
73
“
Punitive damages are not available under
the laws of Japan; only compensatory damages are
available under the laws of Japan, and these are
calculated based upon the actual injuries sustained or
damage incurred by the aggrieved party
How is the compensation that is awarded to
claimants in product liability lawsuits, typically
calculated? Can a dissatisfied party appeal a
decision made in a product liability lawsuit?
The types of damages recoverable under
a product liability lawsuit include those
recoverable for harm to life, body or property.
Damages for mental suffering are also
recoverable. On the other hand, punitive
damages are not available under the laws
of Japan; only compensatory damages
are available under the laws of Japan, and
these are calculated based upon the actual
injuries sustained or damage incurred by the
aggrieved party.
If a product liability lawsuit is filed and heard
in a district court, as the court of first instance,
and one of the parties thereto is dissatisfied
with the judgment rendered by the court,
such party can appeal against such judgment
to the high court through Koso appeal. If a
party to the Koso appeal is dissatisfied with the
judgment rendered by the high court, such
party can file Jokoku appeal against such
judgment to the Supreme Court on limited
grounds. Such party can also file a petition to
the Supreme Court for “acceptance of Jokoku
appeal” (i.e., to hear the Jokoku appeal) on
the basis that the case involves an important
issue relating to the interpretation of the law.
The Supreme Court has discretion to accept
or deny such petition.
What options are available to the claimants
in product liability lawsuits, when there are
multiple people injured by the same product?
Does Japanese law allow for class actions?
Recovery of Property Damage of Consumer
(the “Collective Recovery Act”) introduced
“opt-in consumer collective actions.” Under
the Collective Recovery Act, only certified
consumer organizations can bring such optin
consumer collective actions.
However,
the scope of such collective actions neither
includes claims concerning the Product
Liability Law of Japan (the “PLL”) nor those
concerning product defect related torts.
Consequently, individuals who have sustained
injuries or incurred damage due to a defective
product who wish to initiate a joint action with
other persons who similarly have been injured
by or have incurred damage from the same
defective product, are constrained to file
parallel product liability lawsuits against the
same defendant manufacturer, and not a
class action.
What consequences can companies, or
individuals within a company, expect to
encounter if they are found to be criminally
negligent? In what circumstances would this
happen?
“
If a person dies or is physically injured as a
result of a defective product manufactured
by a company, the company’s officers and
employees who are responsible for ensuring
the safety of such product may face criminal
charges under Article 211 of the Penal Code.
Contact Details:
They may be punished by imprisonment with or
without labor for not more than five (5) years or
by a fine of not more than JPY1,000,000. Even
if a product was not defective at the time
when it was first introduced to the market, but
it later became defective due to an act by
a third party, such as an improper alteration
of the product, the officer or employee of
the manufacturer who was in position to
ensure product safety may be subject to a
criminal charge on the basis of a failure to
take remedial measures under the said Article
211, depending on the circumstances. To
avoid this possibility from arising, the proper
and timely implementation of a recall or
other remedial measures is indispensable. The
criminal charge mentioned above under the
said Article 211 only applies to an individual,
not company.
Who has the burden of proof in product liability
lawsuits?
The person who sustains injury or incurs damage
and seeks compensation for damages has the
burden of proof in product liability lawsuits.
While the PLL reduces the burden of proof on
the part of consumer who sustains injury or
incurs damage due to a defect in a product
by holding a manufacturer strictly liable for
injuries and damages caused by its defective
product (that is, manufacturer’s negligence
need not be proved), a consumer still has the
burden of proof concerning his damages and
causation, together with proving the existence
of the defect in a product. Recognising that
establishing the defect and causation is
sometimes quite difficult, in some cases, the
courts have lessened the plaintiff’s burden
of proof by allowing for an inference of the
defect or causation from certain indirect facts
that the plaintiff adduces. LM
Junichi Ikeda, Partner at Nagashima Ohno & Tsunematsu
JP Tower, 2-7-2 Marunouchi, Chiyoda-ku, Tokyo 100-7036, Japan
Tel: +81-3-6889-7163 | Fax: +81-3-6889-8163
Email: junichi_ikeda@noandt.com
The recently enacted Act on Special
Provisions of Civil Procedure for Collective
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