Civil product liability claims are determined by professional judges in national courts. No jury system exists for civil litigation in Japan.24
Alternative dispute resolution (ADR) procedures also play an important role in resolving civil product liability claims in Japan. Some industries have established their own ‘product liability centres’ intended to resolve civil product liability claims through ADR, such as the Electric Home Appliances PL Centre and the Automotive Dispute Resolution Centre. In addition, the National Consumer Affairs Centre of Japan manages an ADR procedure that deals with product liability matters.
ii Burden of proof
During civil proceedings, plaintiffs must prove each required element of a product liability claim. With respect to the issue of how much proof is necessary for the judges to be persuaded (the degree of proof), the Supreme Court of Japan defined the required degree of proof in Miura v. Japan, a medical malpractice case.25 In that case, the Supreme Court found causation of a patient’s injury resulted from the negligence of a doctor based on the following standard:
Proving causation in litigation, unlike proving causation in the natural sciences (which permits no doubt at any point), requires proof of a high degree of probability that certain facts have induced the occurrence of a specific result by taking into necessary and sufficient account that the judge has been persuaded of the truthfulness to a degree where an average person would have no doubt.
It is difficult to express the required degree of persuasion using a numerical formula, given the standard of ‘proof of a high degree of probability’. The Japanese standard is generally considered to be higher than a preponderance of evidence, but less than beyond a reasonable doubt.
If a claim is brought under the PL Act, the defendant may be exempt from liability if the defendant successfully proves that the defect in the product could not have been discovered given the state of scientific or technical knowledge at the time the product was delivered (the ‘development risk’ or ‘state of the art’ defence).26 Furthermore, where the product is used as a component of or ingredient for another finished product, a manufacturer of the component or ingredient that is named as a defendant may be exempt from liability if the defendant successfully proves that the defect occurred primarily owing to compliance with instructions that were given by the manufacturer of the finished product, and that the defendant was not negligent with respect to the occurrence of the defect.27
In addition, the PL Act provides for the following limitations on the period after which a claim under the PL Act will be extinguished:
- if the victim does not exercise his or her claim within three years (five years, if there was harm to life or body) of the time when he or she (or his or her legal representative) becomes aware of the damage and the party liable for the damages; or
- 10 years have elapsed from the time the product was delivered. In cases involving damage caused by substances that become harmful to human health when they accumulate in the body, or damage whose symptoms appear after a certain latent period, this 10-year period is calculated from the time when the damage occurred.28
As with tort claims under the CC, the prescriptive period is three years (five years, if there was harm to life or body) from the time the victim (or his or her legal representative) becomes aware of the damage and the identity of the perpetrator.29 A tort claim also cannot be brought when 20 years (or more) have elapsed from the time of the tortious act.30
Plaintiffs’ own negligence may be considered upon the determination of the amount of damages, and can be asserted in defending a product liability claim as a defence of comparative negligence, either under the PL Act or as a tort claim under the CC.31
Compliance with applicable regulations is considered one of the important factors in determining whether there is a defect in a product; however, non-compliance or compliance with applicable regulations, by itself, will not automatically give rise to or preclude liability.32
A majority of US states recognise the ‘learned intermediary doctrine’, which states that a manufacturer of prescription medications and devices is released of its duty to warn users of the risks associated with its products upon warning the prescribing physician of the proper use and risks of the manufacturer’s product. The Supreme Court of Japan, in re Iressa, in denying the existence of defective instructions or warnings, stated that ‘it was known at least among physicians engaged in anti-cancer therapy targeting lung cancer that when interstitial pneumonia occurred owing to the administration of these drugs, including anti-cancer drugs, it could be fatal’.33 This ruling of the Supreme Court is arguably similar to the ‘learned intermediary doctrine’ referenced above, in that the Court considered the knowledge of the addressee of the information in determining whether a defect existed in the instructions or warnings for the product.
iv Personal jurisdictionNo specific provision for product liability claims
The Japanese Code of Civil Procedure, Law No. 109 of 1996 (CCP), contains a set of rules for domestic and international jurisdiction applicable to litigation in Japanese courts, but does not include an express provision for product liability claims. Under the prevalent view, product liability claims are classified as tort claims for purposes of determining jurisdiction. With respect to international jurisdiction over tort claims, the CCP provides that the Japanese court has jurisdiction if the tort took place in Japan, unless the claim involves a wrongful act committed in a foreign country where the resulting damage occurred in Japan and the occurrence of such a result in Japan was ordinarily unforeseeable.34 Jurisdiction over international product liability claims will be determined pursuant to this provision. The stream-of-commerce doctrine, discussed in US courts, was not introduced when the CCP was revised to include international jurisdiction provisions in 2011.35
The place where the tort took place
This phrase generally includes both the place where the wrongful act occurred and the place where the result occurred. The place of the wrongful act includes the place where the product was manufactured. Unless an advertisement on the internet constitutes part of the wrongful act, the advertisement itself does not constitute a basis for the jurisdiction of Japanese courts. On some occasions, allowing international jurisdiction at the place where the result of the tort occurred will cause substantial difficulties for the defendants. In such circumstances, it is likely that Japanese courts will not exercise international jurisdiction over the defendants, as an exception to the general rule.36
The CCP has a set of provisions providing procedures for the examination of court-appointed experts. Where the issues to be determined by judges are highly specialised and difficult, the court can appoint experts to assist the judges with fact-finding.37 The court may order the expert to provide his or her opinion to the court in writing or orally. When an expert provides his or her opinion orally, the court may give both parties an opportunity to examine the expert, for purposes of impeaching an unfavourable opinion or to restore the credibility of a favourable opinion.
In Japanese practice, parties to litigation frequently find their own private experts and have them author expert opinions addressed to the court. The parties may also request to examine experts before the court. Technically, these private experts are classified as ‘witnesses’ rather than ‘experts’ under the CCP because they are not appointed by judges. However, these private experts also perform an important role.
The court may request assistance from experts not only for fact-finding purposes, but also to clarify issues and to increase the efficiency of proceedings. To enable the court to obtain such assistance, the court may appoint an expert commissioner in the proceedings.38
No extensive discovery system (as exists in the United States) exists in Japan; only limited document production requests are permitted. The Japanese discovery system, as explained below, is far from being an effective tool for litigants to request useful evidence from the other party or third parties.
Request for document production order
A party may request that the court issue a document production order (DPO) against the other party or third parties. The CCP provides that the possessors of documents shall not refuse to produce the relevant documents in the following circumstances:
- where the possessor, as a party, has cited the document in his or her arguments in the action; the party applying for the DPO was otherwise entitled by law to possess or inspect the document; the document was executed for the benefit of the petitioner; or the document was executed with respect to a legal relationship between the petitioner and the possessor; and
- the document does not fall under any exemptions provided in the CCP.39
The exemptions provided for in b above are as follows:
- document containing information with respect to which the possessor would have the right to refuse to testify, because the information is self-incriminating or incriminating to one’s family;
- document containing a secret relating to a public officer’s duties;
- document containing professional secrets, including documents obtained by lawyers and doctors through performance of their duties;
- document containing technical secrets or secrets useful for occupations;
- document held by the possessor exclusively for his or her own use; and
- document relating to criminal proceedings or juvenile delinquency proceedings.
Courts may decide not to examine documentary evidence if they deem it to be unnecessary,40 and courts meticulously scrutinise the necessity for issuing a DPO. If the court finds that the fact that the party is seeking to establish through a DPO is unnecessary for resolution of the dispute, the court will decline to issue the DPO. Japanese evidence law on civil cases does not have strict rules on admissibility of evidence. Therefore, in contrast with procedures in the United States, the court may admit evidence even if there is a danger that the evidence in question is unfairly prejudicial, confusing or misleading to the judges. Thus, whether a judge orders a DPO regarding ‘other similar incidents’ of a product defect, for example, depends on the judge’s interpretation of the ‘necessity’ of such evidence to deciding the issues in the current case.
Before a lawsuit is instituted, or while the lawsuit is pending, a party may inquire of the opponent to request information regarding matters necessary for preparing allegations or proof.41 This system is analogous to the US interrogatory system, but in practice this process is not frequently used in Japan.
No system for taking the depositions of parties, witnesses or experts exists in Japan.
Evidence preservation proceedings
A party (petitioner) may request that the court issue an order to preserve the evidence, if the petitioner provides prima facie evidence that circumstances exist in which it will be difficult to examine evidence, including circumstances where the other party may spoil evidence.42 The order is granted pursuant to an ex parte hearing requested by the petitioner, and the other party is notified of such an order only several hours before the judge implements the preservation order, which may avoid the other party spoiling the relevant evidence.
When multiple entities are involved in a product liability case, the entities are jointly and severally liable for liability under the PL Act or in tort. A named defendant that has compensated the victim in excess of the damages that the defendant is required to bear may seek reimbursement from other entities. The portion of the burden that should be borne by each entity is determined on a case-by-case basis, considering the fair burden of damages and taking into account various circumstances such as the situation in which the act occurred and the connection between the act and the damage.43
Under Japanese law, the successor of an entity, for example, by way of merger, will be liable for its predecessor’s liability.
viii Mass tort actions
In Japan, there is no legislation creating a US-style class action for mass torts. In practice, plaintiffs bringing mass tort actions have been solicited through announcements on the internet and by other methods.
In 2013, a new law relating to collective actions relating to consumer contracts was promulgated, which came in force in 2016: the Act on Special Measures Concerning Civil Court Proceedings for the Collective Redress for Property Damage Incurred by Consumers, Law No. 96 of 2013 (the Collective Redress Act). This Act provides for two-stage proceedings: during the first stage, a certified qualified consumer entity files a lawsuit and, if the defendant loses at the first stage, either entirely or in part, the certified qualified consumer entity files a second stage proceeding, to which individual consumers may opt-in to confirm their individual damages. This Act permits collective claims to be brought against business operators for recovery of damages suffered by consumers relating to consumer contracts. A plaintiff consumer generally must have privity of contract with the business operator for the relevant claims to be eligible under this system. Therefore, it is difficult to use this collective redress system to sue a manufacturer for product liability claims, where manufacturers usually lack a direct contractual relationship with consumers. Furthermore, lost profits, personal injury, and pain and suffering are expressly excluded from the scope of claims that can be brought under the Collective Redress Act.44 Therefore, in the context of this publication, the Collective Redress Act is relevant only when, for example, many consumers purchased defective products from a retailer, and the consumers collectively claim return of the purchase price of the product from the retailer. If the retailer loses the case, the retailer will seek reimbursement (for the damages paid) from the manufacturer responsible for the defect in a separate, regular lawsuit. Since the Collective Redress Act entered into force, only four collective redress cases (against a total of five defendants) have been filed as of 31 December 2020, none of which is related to product defects.
Recovery of economic damages, including lost profits and non-economic damages such as pain and suffering, is permitted in product liability cases under Japanese law, regardless of whether the claim is brought in breach of contract, tort, or under the PL Act. The remedy for damages is monetary compensation.45 The amount of damages is determined by the judge because no jury system exists in Japan. There is no law limiting the amount of damages that may be ordered. However, Japanese law does not allow punitive damages. Punitive damages awarded in foreign litigation or arbitration will not be recognised in Japan because they infringe upon public policy in Japan.46
The PL Act limits its application to claims for damage arising from an infringement of life, body or property caused by a defect in a product. However, damages that occur only with respect to the defective product may be claimed only if they are aggregated with the other types of recoverable damages described above.47
Criminal liability is explained in Section III.