JAPAN Law and Practice Contributed by: Shingo Yamada, Yugo Komori, Yasuhiro Akita and Takuma Inoue, Oh-Ebashi LPC & Partners
Tort The general law of tort is provided in the Civil Code. The elements necessary to establish a tort are as fol - lows: • infringement of the plaintiff’s right or legally pro - tected interest; • intention or negligence on the part of the defend - ant; • the occurrence of damage; and • a causal relationship between the infringement and the damage. Product Liability Act The Product Liability Act is a special tort law under the Civil Code. The elements necessary to establish a claim under the Product Liability Act are as follows: • the defendant is a manufacturer, etc; • the subject matter is a product; • the existence of a defect; • the occurrence of damage; and • a causal relationship between the defect and the damage. Intent or negligence of a manufacturer, etc is not required. Manufacturer, etc A manufacturer, etc, includes not only a person who manufactures the product in the course of business, but also an importer, a person who has displayed its name on the product as the manufacturer, and any other person who may be regarded as the de facto manufacturer. A manufacturer, etc, does not include a mere retailer. Product A product means movable property that has been manufactured or processed. A product does not include any intangible property (eg, software and artifi - cial intelligence), immovable property, or unprocessed movables (eg, agricultural produce, marine products and livestock products). Defect A defect means a lack of safety ordinarily expected of the product. The Product Liability Act provides the
ing needs to be made in prescribed forms. Reporting under the PMDA is also accident-based. 1.5 Penalties for Breach of Product Safety Obligations CPSA A person who sells a specified product without affixing the PSC mark, or who contravenes an order issued by the competent authority, including a labelling order, business suspension order, recall order, or corrective order, may be subject to imprisonment for up to one year, a fine of up to JPY1 million, or both. If manufacturers or importers of relevant products fail to fulfil the obligation to report serious product incidents to the regulatory authority (see 1.4 Obliga- tions to Notify Regulatory Authorities ), they are not immediately subject to penalties. The penalties may be imposed when manufacturers or importers subse - quently contravene an order to establish an internal system, and include imprisonment for up to one year, a fine of up to JPY1 million, or both. When the viola - tion is committed by a corporation, both the individual perpetrator and the corporation itself are subject to a fine of up to JPY1 million. Criminal penalties also apply for violations of recall orders or other orders under the PMDA, the RTVA and the FSA. For example, a person who contravenes a recall order or other order under the PMDA may be subject to imprisonment for up to three years, a fine of up to JPY3 million, or both; when the violation is committed by a corporation, the corporation is also subject to a fine of up to JPY100 million. A person who contravenes a recall order or other order under the RTVA may be subject to imprisonment for up to one year, a fine of up to JPY3 million, or both; where the violation is committed by a corporation, the corpora - tion is also subject to a fine of up to JPY200 million. 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law The main causes of action in product liability claims are tort, product liability and contract.
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