JAPAN Law and Practice Contributed by: Junichi Ikeda, Takayuki Fujii, Satoyuki Nakano and Tomoaki Kitaguchi, Nagashima Ohno & Tsunematsu
2.14 Rules for Payment of Costs in Product Liability Claims Court Costs In principle, the court costs are borne by the los - ing party. In the case of a partial defeat, the court determines, at its own discretion, the burden of the court costs on each party. However, depend - ing on the circumstances, the court can have one of the parties bear all the court costs. Court costs include, among other things, filing fees, travel expenses, daily allowances, accom - modation costs, expenses for the preparation and submission of documents and the fees of any court-designated expert witnesses. Court costs do not include costs relating to party- appointed expert witnesses, which are borne by each party, although they may be recovered as part of the damages. Legal Costs Court costs do not include legal costs, which are borne by each party, in principle. However, in practice, part of the prevailing party’s legal costs can be awarded as part of the damages (generally 10% of the damages) for claims under the Product Liability Act and tort claims based on the Civil Code. For breach of contract claims, the legal costs cannot be included as part of the damages awarded to the prevailing party. 2.15 Available Funding in Product Liability Claims There is no explicit provision permitting or pro - hibiting litigation funding. There are some pro - visions that relate to the legitimacy of litigation funding. Under the Trust Act, no trust is allowed to be created for the primary purpose of having another person conduct any procedural act. Under the Attorney Act, no person may engage in the business of obtaining the rights of oth -
the manufacturer of that other product; and the manufacturer and other relevant parties are not negligent with respect to the occurrence of the defect. Furthermore, the manufacturer and other rel - evant parties are not liable where a defect in the product could not have been discovered given the state of scientific or technical knowledge at the time when it was delivered. As the “state of scientific or technical knowledge” is generally interpreted as the highest level of scientific or technical knowledge available when the prod - uct was manufactured, it is very difficult to suc - cessfully use this defence (there is currently no precedent in which the defence has been suc - cessfully applied). Other general defences, such as comparative negligence and extinguished prescription (time barring), are also available. 2.13 The Impact of Regulatory Compliance on Product Liability Claims Adherence to regulatory requirements is a rel - evant consideration in product liability cases. Various regulations concerning the safety of products are implemented under a variety of laws, such as the CPSA, the Road Trucking Vehi - cle Act, the FSA, the Pharmaceutical Affairs Act and the Building Standards Act. Since the pur - pose and objective of these regulations is only to establish minimum safety standards, and where this differs from the purpose and objective of the Product Liability Act, it is commonly understood that conformity or non-conformity with these regulations (including voluntary regulations con - cerning the safety of products) will be regarded as nothing more than one of the factors to be taken into account in product liability cases.
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