JAPAN Trends and Developments Contributed by: Masanobu Hara and Masashi Kobayashi, TMI Associates
In the event of a defect in the updated software In the case of autonomous vehicles, an accident may occur due to a defect in the contents of an update when the software installed in the vehicle is updated after sale. However, based on the PLA, the time of delivery of the vehicle, which is the “product” , consti - tutes one criterion for judging defects, so the PLA may not be applied to updates made after the time of delivery. Under the PLA, it is therefore difficult to determine responsibility for defects introduced at the time of the software update. Furthermore, it is difficult to impose product liability on autonomous vehicle manufacturers, etc, under the interpretation of the current law, specifically in the event of an accident caused by a defect in the software update performed after the delivery of the autonomous vehicle. There - fore, whether the business operator or engineer who has done the update will be liable for the tort under Article 709 of the Civil Code, rather than according to the product liability theory, is being considered. However, among judicial precedents, there is a case in which a product manufacturer was found responsible under tort liability on the grounds that it failed to fulfil the following obligations in relation to a case in which there were many acci - dents resulting in death or injury (Tokyo District Court, 21 December 2012 – The hanreijiho No 2196, p 32): • the obligation to notify the owners and users, etc, of the product of the risk of accidents and to stop using the product in order to avoid accidents; and • the obligation to carry out simultaneous inspection and collection immediately.
driving is realised, even in part, it is assumed that the manufacturers of autonomous vehicles will become involved. In Japan, as elsewhere, there are discussions on how to determine the nature of responsibil - ity (civil and criminal) among the various entities involved in putting autonomous vehicles on the road. The Ministry of Land, Infrastructure, Trans - port and Tourism (MLIT) compiled the Report of the Study Group on Liability for Autonomous Driving (March 2018), and subsequently, another study group published a report entitled Study on the Civil Responsibility and Social Acceptability of Autonomous Driving. In the above-mentioned study group, discus - sions were held on the assumption that an acci - dent would occur due to a software failure in the autonomous operation system. If the cause of the accident was a defect in the software in the autonomous operation system, since the soft - ware itself is intangible and therefore not “prod- uct” , there would be no product liability for the software manufacturer. However, because an autonomous vehicle or the relevant part that is embedded within the software is “product” , the autonomous vehicle manufacturer or relevant part manufacturer will be liable if the autono - mous vehicle or relevant part itself is evaluated as containing a defect. In this case, the software manufacturer is not held accountable for product liability but may be liable under the victim under tort theory in Section 709 of the Civil Code. In addition, the software manufacturer and the autonomous vehicle manufacturer will need to co-ordinate regarding, for example, claims for compensation or for accepting responsibility for the default.
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