JAPAN Law and Practice Contributed by: Junichi Ikeda, Takayuki Fujii, Satoyuki Nakano and Tomoaki Kitaguchi, Nagashima Ohno & Tsunematsu
will have a technical adviser participate in the proceedings in the first place when it is clear that both parties are against it. The court may have a technical adviser give an explanation of the technical matters, in writing or orally. When a technical adviser submits the explanation in writing, that document is sent to both parties (Article 34-3 of the Rules of Civil Pro - cedure), and both parties may state their opin - ions of the explanation of the technical adviser (Article 34-5 of the Rules of Civil Procedure). The explanation of an expert is not treated as evi - dence, but it is pointed out that the court may base its judgment on such explanation if both parties so agree. Under the Act Partially Amend - ing the Code of Civil Procedure mentioned in 2.7 Rules for Disclosure of Documents in Product Liability Cases , a technical adviser may give an explanation in an electronic file, etc. 2.9 Burden of Proof in Product Liability Cases In principle, a party that benefits from the legal consequences bears the burden of proof of the facts that give rise to such consequences. Tort A plaintiff who claims compensation for dam - ages suffered in product liability cases in a tort bears the burden of proving the facts that gave rise to the plaintiff’s right to seek damages in a tort under Article 709 of the Civil Code, includ - ing: • the violation of the plaintiff’s right or legally protected interest by the defendant; • an intentional or negligent act by the defend - ant; • the occurrence of damage and the amount of damages claimed; and
• a causal relationship between the violation and the damage. Product Liability A plaintiff in product liability cases who seeks a benefit from the occurrence of the legal effect of the Product Liability Act bears the burden of proving the facts that gave rise to the plaintiff’s right of claim under the Product Safety Act, including: • the existence of a defect in the product; • the occurrence of damage and the amount of damages claimed by the plaintiff; and • a causal relationship between the defect and the damage. Even if the plaintiff proves the foregoing facts, the defendant may be relieved of liability by proving the following facts, which constitute exemptions of liability under the Product Safety Act: • the defect in the product could not have been discovered given the state of scientific or technical knowledge at the time when the manufacturer delivered the product (see 2.12 Defences to Product Liability Claims ); or • where the product of the defendant is used as a component or raw material of another product and the defect occurred primarily as a result of compliance with the instructions concerning the design given by the manu - facturer of that other product, and where the manufacturer, etc, has not been negligent with respect to the occurrence of that defect. Contract Law A plaintiff who seeks compensation for loss or damage suffered in product liability cases, as a contractual liability, bears the burden of proof of the following facts, which constitute the right to claim such compensation:
165 CHAMBERS.COM
Powered by FlippingBook