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(1)Trends and Developments in Product Liability Reguユations：The Japanese Experience. Abdurizaev Erkin l Introduction・・・・・・・… 一・・・… 一・・・・・・・・… 一・一一・一’・… 一… 一・・・・・… 一・一一・・・・… 182. 2 Evolution of the Product Liability Act・…・…・……………・・…・………183 2．1 Regula1ゴon before 1995 …………・……・・……・…………・…・………183. 2、2 Enact］皿ent of Product Liability Act…………………………………186 2，3Effect・fth・P・・du・t’ ki・bMty・A・t……………・………：…・・∴……199. 3ASurvey and Analysis of Landmark Cases after廿1e Enactment……189 3．1 Tokyo District Court j udgment on 22／05／2000………・……・……・190. 32 Sapporo District Court judgment on 22／11／2002・一・……………191 33 Tokyo District Co皿rt j udgment on 13／12／2002……・…………・…・192. 3．4 Nara District Court judgment on O8／10／2003………一……・……・193 3．5 Toyama D五strict Court j udgment on 20／12／2005．一∵…………・・197 3．6 Yokohama District Cou．rt judgment on 18／04／2006……・………・・199. 37 Tokyo High Court j udgment on 31／08／2006・…………・……・……199 4ConclusiorL−・・・・・・・・・・・・・…一‥・・一・∴一・一・・・・・…一・・一・一・・・・・・・・・・・・・・・・・・・・・…207. 5APP，輌1…一一・・………・………・…………・………一……・∴∵209. IS1.

(2) 横浜iiil際竃i…i斉法学第18巻第1号（2009ゴ1三9月）. 1 1ntreduction. Strict liability regulations fbr defective products have been introduced. to the Japanese Iegislature sometime in 1994． Befbre July 1995， when the Product Liabillty Act came in fbrce， there was no spec田c Iegal act regulating. manufacturer’s product liability．1｝Plaintiffs had to bring claims under the Japanese Civil Code using the theory of contractual liability or negligence，. These theories offered little help t6 injured parties−plaintiffs were at a. particular disadvantage． A review of Japanese cases decided before 1995 shows that individual plaintiff claims were more likely to be dismissed by the Japanese Courts rather than those in亘olving mass・ihjury cases． This may explain廿1e smaU number of individual product cla辻ns． Further，εd仕Lough some. Japanese Co［lrts tried to equalize oPPortunities of both Pqrties and lessen plai。雌、 b。，d，n。f p，。。￡・）血， b，n，丘t・f p・・』・tri・t・li・bihty・th・・ry w・・n・t. available unti1 the enactment of the Product Liability Act. The number of products liab田ty lawsuits狙ed in Japan has increased since the Product Liability Act went into fbrce． Significant is the fact that indiv丘duaユs. or smal groups brhlg actions based on the new Act even fbr relatiVely smaH claims．3｝Even more迦portantly， individual plaintiffs are now prevailing in their. lawsuits and obtaining j udgments against manufacturer−defendants fbr claims that would have been impossible before the enactnent of the Act As the Article l of’the Act states， the purpose of the Act is to reUeve the. injured person by setting Ibrth liab正ty of the manufacturer， etc， fbr damages whell the injury on a life， a body， or property is caused by a defect in the. producL and thereby to contribute to the stabilization and improvement of廿1e people’s 1ife an d to the sound development of the national economy． As a prelude to the study of the Japanese product Uability law， it ls useful 182.

(3) Trends and Developments in Product Liability Regulations：The Japanese Experience. to trace back the events that led to the developmentS of the law． Hencefbrth， Section I of this artjcle introduces廿1e bエ｛ef history of the development of the. Japanese produdt liab皿ty law tracing back a little bit historicaUy． Section］工. presents leg……tl analysis of some landmark cases decided by Japanese Courts on product liabd五ty． Finally，’this article concludes with Section工［［infering that. the adoption of the new Product Liab皿ty Act of Japan was more evolutionary rather than revolutionary． NB． For additional information， a table of cases can be fbund at the end of the article．. 2Evolution of the Produpt Liability Act. 2．ア」：？egU／a tion亡）θ「口rt日 1995 The J apanese legal system is a hybrid of Tokugawa tradition， European− induenced、ivil，。d，，， and・Ameri，al・−i・且uen・ed 1・w・元）Th・T・k・g・w・甘・曲n. refers to the stage of Japanese legal development that stressed Confucian ideology promoting obedience to hierarchy over the individual．5｝Under this tradition， con伍cts were resolved in favor of the whole community with little. recogni首on of individual rights． Japanese legal culture has been recognized. as a non−litigious， and some commentators cite the Tokugawa tradition as 。、e。f血， found、ti。n，。f th、t畑tu，e．G・1。、tead。f，i血er ad。pti・g、p・・du・t liability statute or creating lawS j udicially， Japan relied on other provisions and. characteristics of its existing laws and customs． The compromising nature of. the Tokugawa tradition was seen as，encouraging settlement of any claims as oPPosed to litigation involvhlg the Coul・ts．7｝. Befbre early 1990s Japanese government．did not consider Product Liability Act as a necessary policy tool due to the intense governmental regulation of l83.

(4) 横浜国際経済法学第18巻第1骨（2009年9月）. Japanese products that sought to achieve unifbrmity of product design and quality口The government considered rules and regulation as a suf丘cient and. proactive measure to protect consumers and pref巴rred judicial interference to start only after an accidenL For accidents that occurred regardleSs of the si≡［fety regUlations， the Japa皿ese courts relied on contract and tort provisions of. the CivU Code enacted in 1898．. The relevant Civil Code provisions， applied to cases involving product defects， are Articles 415，566 and 570（contract ProVisions）and Article 709｛a tort provision）、 As contract provisions；．privity is genera皿y a requirement of. Ar廿cles 415，566 and 570． Article 415 imposes liability on a seller for harm caused by its product9）This Uab趾ty is baSed on a theory of non−perlbrmance −by causing harm， the product faiied to perform as expected and theref〈）re， failed to fulfill the contract The seller， however， may be freed from UabiUty 迂he cap either prove that the def巴ct’did not exist at the丘me of sale of the product or show’ that there was no negligence on his part. In contras仁Articles 570 and 566 impose liabMty on the seHer fbr defects preseDt at the t血e of sale， regardless of faultε皿d can be considered as a fbr皿. of str▲ct liab正ty． Recovery， however， is Hmited to parties of廿1e contracL In other words， the’ privity principle is in fbrce． This article bases on廿1e warranty. of merchantabVaty ’principle With some Japanese speCMcations． This article acts to rescind the contエact and allows the c’onsumer to be reimbursed．lo） In the tort rea㎞， Article 709 does not’ specMcaEly refer to product liabdHty. cases， but rather sets the general standard fbr tort三〇us acts and reads：“A. Pθ指αコ励0盟臓e5加tenti・nally or刀egligen亡iy the right or interest t’・力ε. 脚蝿of・laIvfu1 protection Of another is bounゴto malfe eompensation foi’ dan2age arising therefroiガ．11）The wording・interest to bO worth of lawful protec目on of other person”comes from the case law．12｝It questions whether l94.

(5) Trends and Developments in Product Liability RegUlatio皿s：The Japanese Experience. the infringed interest is worthy of Iawful protection or the impact of the. harmful act on the infringed interest is not substantial． TherefOre some scholars consider Article 709 as a provision malor function of which is based on. 亡he General Clause P亘nciple−same as□1 the French Code Civil， although the. Japanese Civil Code was drafted after廿1e rnodel of the German Civ且Code（in particUlar： from the first draft of廿1e German Civil Code）．13〕. This article has been applied to product liab三lity cases， and because of its tort−origin， does not require privity of contract． Under Article 709 0f the Civil Code， plaintiff bears the burden of proof of defendanピs fault．. Furthermore， a plaintiff must prove faulピ‘beyond a reasonable doubt”as opposed to the“Preponderance of廿1e eviden．ce”standard丘）und in US． civil. cases．14｝Adefendant can disprove a claim by attacking causationl pleading unforeseeabMty， or raising so ca且ed“development risk”defense．. Even though the Product・Liability Act did not take effect until 1995， the concept of strict liabihty had aLready been embraced in a few mass−tort product liability casesl5）in Japan、 The Morinaga．D苗’1y ca§e involved twelVe. 廿lousand infants who suffered from consuming arsenic tainted milk in 1955；. 廿1e Thalidomide cases involved 63 families who sued’the go∨ernment and manufacturers of the drug in several Iawsuits fied irl 1960s for ．failure to warn of the druピs side effects． In each case， Japanese Cour亡s Iowered the plain遜s’. burden of proof to i皿fer negligence and admit statistical evidence・Later on・. as these cases captured public’s attention， Japanese government assisted in collecting necessary evidences． In 1975， the issue of product liabMty becalne one of the most．vital policy. agenda in Japan． The Japanese legisiature proposed the Bill on Products Liability（1975 Bill）．16）If adopted， this act would have imposed Iiability on. manufacturers regardless of their fault or privity． Moreover， liability would 185.

(6) 横浜国際経済法学第18巻第1号（2009年9月）. have been extended to seUers and distributors who would have the burden of proving they were not responsible fbr the defect In addition， the 1975 B近. proposed new， expanded discovery procedures and required producers to contribute to a bompensation fund that would pay fbr damage awards． The idea of a Compensation fund Was not new in Japan but rather would have been acod姐cation of past practices． The 1975 BiU was never adopted and made三nto law．17）. A1994 case involving a television set that caught firels｝shows that Japanese Courts were 40t just moving towards but have been already ready to implement a ’strict 1iabMty scheme， or at least to lessen the plaint齪s burden. of proo￡Commentators describe廿lis casb as“decided in anticipation of廿1e coming PL law．”Although plaint正f did．not prove factual causation、 the Osaka District Court assumed rn anufacturer negligence because the television set Was proven to be defective．. 22 Eア？θoカ77θη亡ofρケ1ロdt／o亡ムた≡？わ〃アむノメ1ロt. In 1994 the Act was passed primarily as a reaction to domestic and interna廿onal pressures rather than out of concern fbrとonsunユers and individua正. rights．19〕The domestic pressure arose from the 1993 elections when a new party gained control of Japan fbr the first time since World War江Prior to. 血is s雌in p・wer，血・9・vernment w・・p・・−bu・iness・and p・αreg・抽・n迦. Manufacturers had little trouble convincing the government that product li註bility laws were unnecessary because the level of regUlation insured that the likelihood of product defectS was signMcantly less than that ffound ln the United. States．2i）The new government， however、 was more．conSumerイ〕riented and advocated deregulatior1□｝Although the old party is back・in power， people’s attitude to the problem pushed it to continue’the colnmitment to consumers．as｝ 186.

(7) Trends and Developments in Product Liability Regulations：Tl肥Japanes巳Experierice. On the international frbnt， when the ECC Member States adopted Product Liability Directive in 1985， Japan became’the on正y industrialized nation without a product liability law．工n addition， Japan had long elldured ．internati皿al criticisms of its strict regulation of industry． Critics claimed the. regulation created barriers to f（）reign entry into the Japanese market because. the standards were so much higher than in other nati皿s． These criticisms， along With the ’reaization of the importance of a glob al．economY， powered the. new government’s supPort of deregUlation． Finally， on July・lst，1994 Japanese parlia皿ent enacted the Product Liability Act and it came into fbrce on JUIy lst，. 1995．This Act shall apply to the products delivered by the manufacturer， etc． after this Act con Les into force．ZO. The 1994 Act was inspired by the EC D辻e己tive and essentia皿y embraces. the same concepts．es）It also incorporates ideas found in the 1975 BiU廿1at are iti symmetry with the EC Directive．26）The 1994 AcL however， does not incorporate the 1975 Bil1’s proposal fol’expanded discovery procedures， and it relies on． the CiVi1 Code fbr matters on which the law is silentr’）Thus， although. the law now imposes liability fbr a defect regardユess of faUlt廿1e 1994 Act is silent on the issue of burden of proo￡leaving a h・eavy burden on the plaint正［to. show in preponderance that廿1e defect eXisted at the time the product left廿1e manufacturer． This burden is stiU very heavy， especially in design defect cases，. because it is almost impossible to obtain spechic infbrmation about the producL. The Product Liability Act gives the notion of the product as a“movable property［that isl manufactured or processed「．2S｝It imposes正iability on“any person who manUfactured， processed， or imported the product as business”ve）. and anyone who puts“his name， trade name， trade mark or o廿1er feature＿on the product・presenting himseif as its manufacturer”or who could be mistaken as廿1e m anufacturer． The 1994 Act does not impose liabMty on a Mere seller． ls7.

(8) 横浜国際経済法学第18巻第1号（2009年9月） Under the 1994 AcL defect is defined as a“1ack of safety that the product. ord三narily shoul（l provide、 taking into account the nature of the product. the ordinarily foreseeable manner of use of the producL the time when廿1e manufacturer， etc． delivered the product and other circurnstances Concernjng the prodUct”． Article 40f the Act alows‘」development risk”defense． It also protects component part manufacturer if he can sh．ow that the defect is a result. of compUance with request from the manufacturer of the whole product or a resUlt of／negllgen’ee On the part of the inanitfacturer of the whole productse〕. 23Effeロ亡ロf thθ Produロ亡ム砲りiiitγAct’ Predictions that there would be product liabi趾y lawsUit explosion as a result of the Product Llability Act did not corne true． At the tme of legislative. discussions industries were a丘aid of且ood of claims−based on the ・Act However， according to the official repor亡by the Japanese Cabinet O丘ice such fear was a. mere田usion． The彙st case3i）under the Ilew Act decided垣favor of plainti丘 was rendered in 1999． Thus there was n、ot any boom on the product liabMty claims．. According to也e of6cial rbport by廿1e Jap註nese Cabingt O伍ce dated July 2006，the Cabinetα丑ce reg istered 90 cases3z）related to product liabMty law si且ce 1994． It shoUld be noted that in many disputes product liabMty cl瓠ms. were mere supPlementary Ta趨er than main cause of action．. The Cabinet Of自Ce was able to include summaries of 48 judgments in the table of cases． Thek analysis shows that in 22 cases out of 48， the Courts delivered a verdiet in plaintiffs’favor， though三n some of琶1ese cases， cl…ti皿s. we艶sa餐＄fied only in parL. C。口cer蜘g the鎚ount of damages awarded， the report『mentions ab・ut 13 cases with’ sum ef cσmpenSatien over 10皿fflion Yen and in 3 cases less than 弼8.

(9) Trends and Developments in Product LiabilEty Regulations：T1肥Japanese Experience. 1mi田on・yen． In ll cases， judges applied the so caled，‘‘presumption of fact”p血ciple、ss）. which is a civil procedure technique廿1at sometimes is used in． Japan． Two. major reasons fOr adoption of this procedure in the above cases can be summarized as follows： LThe subject pfoduct was destroyed， burnt out or ruined to the point. that the condition of a product could not be examined affording. the judges no means to conclude through direct examination and eVidence if the product was the c ause of the accident. 2．In cases where the daInage was in the fbrm of personal injury， it becomes impossible to recreate the accident. Following are sonte Japanese product liability cases that can shed light on the present f］ow of litigati皿in Japan． These cases are neither an official. translati皿nor interpretation， They show the personal opinion of the author and may include some mis七akes． Appendix l includes a table of judgments which the author was able to pull together for whatever better purpose it may serve．. 3 A Survey anCi Analysis of Landmark’Cases after the. Enactment This pairt presents some of Japanese m韮estone cases in the chronological. order． It aims to give a broader understanding and trends三n the present product皿ab田ty litigation in JaPan・. 量89.

(10) 横浜圃際経済法学第ユ8巻第1号（2009年9月）. 3r Tokyo District Courtfu〔棺mθ寵ロn・22／05／2000’ （cぼ5θ物5フ. Plaintiff filed a case against a cosmetic company and its distributor claiming compensation of health damage sUffered丘om nonっil fbundation． The claims were dismissed．. The facts of the case shOw that the plain廿ff bought cosmetic product produced by the defendant and after using it， suffered red blemish、 The. pl融n雌sa唖e dβrma輌st who reco㎜ended not using cosmedcs． Patch test result showed that the cosmetic was one of the possible reasons of the aUergic reac目on on the plain廿ff’s face．. The cosmetic included warnings on the product box as well as on a bottle，. to wiピstop usage if it does not match your skin”． The product a」so included. the llst of conditions upon which manufacturer recbmmends to ter血inate，the usage of the product． Addi廿onally， a salespers加’explained tllat cosmetics. might cause some allergic reaction and asked all customers to return tlle product in case of any aHergic reaction、. Plaint正fs claim was anchored on the printed product claim， which reads： ‘‘. oroduct is nonDil type and is acceptable for oily an d delicate曲”Plaintiff’s. expert witness testified that the product hlcluded Jqj oba OiL PIainti駈also insisted. that the cosme目c was unsafe and warnings were not adequate． Defendants submitted evidence that so ca皿ed，’Jojoba oil”is just the nalne of廿1e ingredient and the chemical structure is not oil， but acid． Defendant in its. defense showed the statistics丘om which it was clear that tthere were j ust 2−3. aUergic reaction customers out of many thousands．. The Court in its judgment explained that cosmetics are unavoidably unsafe product justユike pharmaceutic…Us， It is impossible to find the fbrmula の that will match all kinds of skin that’s why it is not realionable to find cosmetlcs. 190.

(11) Trends and Developments in Product Liability Regulations：The Japanese Experience. defective just because it does not match some person’s skin． Thus the Court. found that the cosmetics were neither manufactured nor designed defectively． Concerning the warning defecL the Court fbund warnings and instructions included in the box， bottユβand parnphlet of the product adequate and sufificient Since there was no evideエ1ce showing that Jojoba o且caused the allergy， it. is of no matter whether the product with“nonoil”1abel included Jojoba oil or. not Thus， although the court established factual causation between the product a且d the damage， plaintiff was not granted decision in hgr favor．. 325日ρραロDistric亡COUt tjo〔lgment on 22／1 r／2002 （cヨ5θ脆1刀 Plaintiffs（husband and wife）were driving廿1e辻car and While overtaking the acceleration pedal went fuH gear and the brake pedal became inoperative． As a result plaintiffs crashed with a truck coming from the opposite direction．. Plaintiffs sued the car manufacturer and its dealer based on the Product Liability Act. Experts tes曲ed that the car had some defects−manufacturer admitted 廿1e defect and thus the only question left for the Court to decide was to. determine the amount of compensation．. The Defendants used“com［parative negl三gence杵as a defense claiming befbre the Cou．rt that Plaintiffs were neg且gent in driving the car that caused the crash， so tlle sum of compensation should be reduced．. The dealer ill addition claimed廿1at according to tlle Product Liab正ty Act ase且er is not a manufacturer and shoUld not be considered as a party in t］ゴs. lawsuit The Court admitted plaint瀧’claims partly． The manufacturer was fOund l91.

(12) 横浜国際経済法学第18巻第1号（2009年9月） Iiable while the dealer was confirmed as a non−manufacturer and廿1us was held unaccountable fbr the claims．. The interesting fact in this case is that the award for compensation included compensation for damages to the product itseif， regardless of廿1e provision in Article ’3 of廿1e．Product Liability Act which reads，. τぬemam虚血re焉eぬ蜘遅力e曲抽」br血mヨ8es caロsed毎噛e 励ry， when he iniui’ed someoi］e’S rre， body or prop已r加y dle defec亡加his f勧ue賠f1ρπ〕ゴLlc亡PE力た力力e」刀a1］ufacture｛f， PI廿ces5ed，. importeゴor pロ亡曲e」represelコtヨ血コOf刀副m巳etc． as d巴scrめ已ゴ」□ subsectiOiコ20r 30f sec白b刀30f才1r右ヒ1ヒ2αロ． Hc）wever，亡力e. manut7ac亡urer， etc， is no亡？iable when on！y血defective product. 舶己ifis｛famaged．. AU other claims， including compensation Ibr a moral harm， were disエnissed. 33 丁口蜘o］ワ」5緬口t Coμrt ft／dgmen亡on「3／12／2002 （cヨ5θ胞78）ロ t. Spottetゴρ∂rro t fish已nd cigUiヨtera POfsontng． Agroup of plaintiffs， custolners of a restaurant．serving spotted parrot fish， suffered a ciguatera poisoning． Plaintiffs fUed a case against the restaurant. cl…afming compensation fbr damages based on the’ Product Liabdity Act. The arnount of claims ranged丘om ￥ 150，000 to ￥1，500，000． Plaint臨. brought suf6cient evidence convincing七hat the poison was in the spotted parrot fish cooked and served by resta皿rant staff and consumed by plaint臨 in the restauranL The Court found no doubt．about a factual causation between the daエnage and the defect. Consequently， the Court fbund the restaurant owners Hable． According 192.

(13) Trends and Developments in Product Liability Regulati皿s： The Japanese Experience. to Article 20f the Product Liability Act a“product”mea皿s movable property. manufactured or processed． Based皿吐Us statutory de丘nitjon of product the Japanese legislature preempts agricultu’ral clain s． However dishes cooked from fish are within the meaning of “produCで’according to the ProductコLiabmaty Act. The spotted parrot fish was processed−it was cut and served as in a changed condition． AdditionaHy it had a price， that cuts out aH doubts and arguments r weather fish dishes are pro duct or not. The def巴dant app且ed Article 30r so caUed“development risk”defense． In．cases where A面cle 3 applies， the mallufacturer， etc． shaU not be Iiable. as a result of Article 3 if he proves that the state of scien面c or technical. knowledge at廿le time when the manufacturer， etc． delivered the product was not such as to enable the existence of tlle defect in the product to be discovered、 It is necessary to point out that廿ゴs defense is applicable only when the. best scient近c knowledge in the world did not eXist when the product was. manufactured． The court accepted that ciguatera poisoning was weU known both in the world and to the manufacturer in particular． Thus fdevelopment risk”defense was not apPUcable at this particUlar case．. The Court fbund defendant liable．. Defendant appealed the decisiolL The Tokyo High Court teduced the l sum of compensation， however， did not overrulさthe decision・. ・34 八Zヨ「召口is trict Court fudgmen亡㎝08／「0レt2003 （case Ma 24？ Plaintiff， elementary school 3「d−grade student， sued fo1’her personal. health damage and received a judgment against defendant in the amount of ￥10，376，556．The product in question is a strengthened heat｝resistant plate 193.

(14) 横浜固際経済法学第18YLs第1号（2009年9月）｛refered hereto as’‘platピ）produced and sold by defendants．. After a school lunch the plaintiff wa呂cleaning up the dishes made of strengthened heatLresistant glasis， Accidentaily， plaintiff dropped the plate． The plate broke into’ pieces and a fragtnent was trapped into the pl誼intiffs right eye、. causi皿9 heavy health damage−right eye blindness． Plaintiff Med a case against the．man ufactu．rer・and the seUer of the plate based・皿the Product LiabMty Act. and against廿ill school based on Government・CoMpensation Act The Court was then con丘onted with the fbHow幼g questions， inter alia. ・Is廿1e product defective and is there factual causa琶on between defect and darnage？．. ・・ls・there・negligence・by the．schdol staff？. ・Is there damage and its scope？. ・Is there comparative negligence of the plaintiff？. The plaintiff based his cia口ns on 2 categories of product Uab正ty−design de］℃ct a皿d marketi皿g defect In both cases the court apPlied， so caHed，‘‘risk−. utiHty balance”theory in order to五nd out if the dAnger associated with a product outS刃eighed the product「s benefits． The Court stated in its decision that even if the plates rnay conclude some. degree of risk， their usefulness exceeded the rlsk−so the product．翌≠刀@not designed defectively．. Concerning marketing defec七the court fbund that m…mual and pamphlet. advertizing product did not include slユfficient warning and indications concerning product destruction． In other words， pamphlets desc亘bing utility. of dishes included mostly advantages of the product but gave just a feW warnings， such as‘＋do not drop plates”and did not explain adequately about consequences or the degree of damage in the case of producピs destruction．. Manufacturer fa三1ed to info顯consumers｛in this particular case 194.

(15) Trends anCl Developments in Preduct Liability Regulations：The Japanese Experience. elernentary school adlninistra琶on）about aH advantages and d▲sadvantages of the product Accordingly， it breached his duty to warn adequately based on the theory of‘‘informed cholce”剖Had the Inanufacturer gave adequate notice. and／or preca曲ons on al1．possible hazards associated wi廿1 the producL the school administration声ould have had choice to use the plates or not The lack of warnings and indications ied to the conclusion that the dishes were defective due to lack of safbty that the product or【li皿arUy should provide．. Court also fbund factual causa｛ゴon between the defect and the damage． According to the CourL if school adrninistration had known about all hazards it. could have taken some ad砒ional measures to prevent廿ie accident It is necessary to mention here that there’was no glass fragment丘〕und from the eye of the plaintiff Thus this case repeats the丘rst Japanese product liab猷ty casezz）where the direct cause of the damage was not found as well．．lt ・an・b，・explained・・an・pPH・ati・n・f th・“but fo・”也・・t’y．35’ Alth・ugh血・曲・・t. cause of the damage was not jbund， there were not other possible causes｝ but for this particUlar one．. On the other hand， the Court rejected the claims against the school. administration anchored on the governrnental compensation。 SpecMcaliy： 1．. The Court found that school administra目on did not bre…］ch its duty to provide safb dishes． As men丘oned above． the school administration did not get adequate inf（〕rmation about the producL. 2．. The Court also concluded that the school administration did not』 breach its duty to warn and instruct about the hazards associated. wlth the plates again due to inadequate information from the manufacturer． 3．. Finally， t血e Court found dlat a teacher breached its duty to take. necessary measures after the acciden七However， ffom the character l95.

(16) 横浜国際経済法学第18巻第1号（2009年9月） of the darnage and because of lack of evidence that the damage increased because of late medical help， the Court did not establish factual causation betWeen the negligence of teachers and the darnage・ This j udgMent attracts attention due to s6me arguable polnts．. First is the obviousness of hazard in cases of dropping glass plates． Defendant in tltis case tried to conVince the judge that the hazard was obvious. and well−known． Concerning obviousness， the court stressed on the Iack of in丘｝rmation’about the degree of hazard， not its obviousness」王the high risk of damage is foreseeable， but is not adequately communicated to its users， a product is st皿正considered as unsafb and七hus defective・ Second is an analysis of a hypothedcal’question as to how would the Courピ. sdecision be differen七if there were adequate warniigs about the degree of the danger． Suppose pampbユets’included warnings Concerning both the hazard itself and its degree． What will it change？Even if it is just a hypothetical situat］on it is㎞portant to elucidate on this issue fbr fUture possible incidents of the sa皿e nature．. The Court might consider the product as an unavoidably unsafe and dismiss the clairns． In仕tat case’another question concerning product safety w削appear． Product safety is another important topic b uL although it is closely related to the product Uab皿ty Iaw， it is not deemed discussed in this article．. 丁毎rd， the Court found the school administrati皿not respollsible for. breach of a町duty as menti皿ed in points l and 2， above． However， ln. its judgment the Court established that the school administration had a research of apPropriate plates to use for the school lunch befbre・purchase・In. some comments the school administration received there were some notes mentioning about the extra hazard in the case of broken plates． Moreover， a lew months before this accident plaintiff had broken a piece of these plates． 196.

(17) Trends and Developme皿ts in Product LiabiIity Regulations：Tlie Japanese Experience. Fortunately nobody was hurt at that time and the school administration did not raise the big problem o直t of it This shows廿lat the school administration had known about the extra−hazardou’s ．feature of the plate．工t Was obvious and. fbreseeable． And thiaZly， the explanation given to students was given only onee before 廿1e usage of the plates． There is no suf丘cient evidence to’ show that the school. would have given warnings to students more of亡en had they known about the. extra，hazar己Thus the presence of adequate warnings by manufacturer would not have changed the school administra廿oゴs measures． As the Court ruled，廿le injury sustained was caused by an accident aエ1d any s茸1cter warnlngs. by school teachers would not have prevented it The question is why the Court apPlied different standards・judging the school adrninistration and the mallltfacturer．. 35 丁口yam・口istrわ亡0ロurt fudgmen亡oη20／72／2005 ￠a3θ脆34戊 ” Plaintiff A， a comparLY， purchased an㎞cinerator from the defendant ln order’ to burn itS industrial garbage． Plaintiff B， all employee， who operated the. incinerator， opened a special hatch to let ak go in and speed up the process. which resulted to a back丘re explosion． Plainti丘Bsuffered body burns while Plaintiff A’s property was burned out and destroyed completely． Plaintiffs claimed compensation fbr the damage・. Plaintiffs’claims were based on design and warning defect theories． Plaint迂fs claimed that defendant could have designed safer．incinerator and prevented the accident At the same time pユaintiffs insisted that defendant. failed to give adequate illstruction and warning concerning the danger of opening the hatch during an 6peration・ 197.

(18) 枇浜国際経済法学第18巻第1号（2009年9月） Plaintiffs presented evidences that defendant provided neither warnings in廿le manual nor stickers on the product itsel￡AUegedly， defendant failed to warn even oraUy during廿1e training session．. Defendant rejected all claims stating that plaint班s were professional users ’. 盾?@the incineratOr 一 they had used it fbr a few months by the time of the. accidenL Moreover， the danger was weU−knowh and obvious Thus defendant advanced the 4‘prof巳ssional uSer”and“obvious hazard”defenses．工n addition defendant insisted that during the setting−upon the machine， technicians gave some oral explanation and instructions．. The Court fbund that the design of the incinerator was not defective but held that there was a marketing defeCt due to inadequate warnings． The Court also held that the hazard was not obvious and the plaintiffs were not professionals． Origina皿y， incinerator has a strong se皿ing Point−the operation. did n6t require amy technical skills or㎞owledge， and special cer出］cate was riOt neCeSSary．. According to the Court， defendant could．foresee the possibility of misoperation， but failed to give adequate warning and instructions． Defendant was a〔加dged to compensate plain宙fs’clatms i1 fUll− this is a rare case． The rnain reason is probably that the cost of the damage was over ￥80，000，000 while Pjaintifli A only clairned ￥ 20，000，000． The Court might have. taken into account this fact as weU in awarding full compensation fbr damage based on the Pla丘lt汀s claim．・. Defendant appealed the decision；however the High Court sustained the judgment of the lower court. 198.

(19) Trends and Developments in Product Liability Regulatiens：The Japanese Experience. 3．6Yokoh日η7a OI5醐ロ亡Court fudgm已nt onア8／04／ 2006 （case rUa 377 Plaint澄lost her daughter in an accident where a wheel detached from a. moving truck． PIaint置claimed￥5，500、000 as a compensation fbr moral harm. from the manufacturer of a truck｛defendant A）and ￥160，000、000丘om the government（defendant B）． Plaintiff has entered into a settlement With the truck owner．. Plaint澄claimed that the moral damage from廿1e loss of the only daughter. is very heavy． The plaintiffs claims fbr compensati皿from the government were based on the Governmental Compensation Act According to the plaintifi：. defective design of the same kind of wheel had already been known from prevlous accidents， but government did not require manufacturer to recall defective products， hence， it should be held responsible・. The Court admitted claims against Defendant A． This is one of the rare. cases when the moral compensation is so high． However， defendant B wqs found not resPonsible．. 3．7 71ヒ）kyo HigiりCoUt fudgMen亡oη3『／08刀2006 （c●5θ他32 Heater cヨ5θ Pユaint聴：plaintiff‘‘Ft’−father，“M“一皿other of the plaintiff℃”−inj ured chUld・. Defendan七Supermarket Pl由nt池創ed a case to the First instance Court Plaint］ffs claimed that a. heater emi｛ted some poisonous chemical that caused the damage to plaintiff. ℃川scentral nerve sYstem and some other functions and as a consequence・ Plaintiffs“F’1 and‘M”sustained serious moral harm． Accordingly， plaintiffs. claimed compensation amoundng to ￥203，109，930 fbr harm to plaintiff℃”and 199.

(20) 横浜1到際経済法学第18巻第1号’（2009年9月）. ￥10，000，000fbr moral harm to each plaintiff‘“F”and“M”． Their clairns were based on Article 7090f tlle Civil Code， Article 30f the Product Liab皿ty AcL. and on廿［e廿1eory of breach of contract（impe㎡ect perfbrmance）． However，廿1eir clairns were rejected because of insufftciency of evidence．］［n other words，. the plain丘任s faUed to establish factual causation befbre the Court. Plaintiffs appealed the decision and brought some changes in their claims．. Plaintiffs modified the辻claim f（〕r compensation to the amouエ1t of￥80，000POO fbr plaintiff℃”and￥10，000，000 for each plaintiff “F”and‘‘M”．. priヨintiffs’arguments ， Any retailer of electronic products owes a duty of care−this means that it should check out the saf巳ty of prbduct in order not to hljure its users （consumers｝．. Every retailer， in order to protect consumers， has to not only check the. saf巴t夕of the producL but also to test samples of the product and make sure. that there is not any vaporized gas coming out no overheating of the guide part and so on．. The defendant could foresee廿1e defect．in t力e product and could have avoided any untoward accident or darnage under the f（）llowing circ皿lstances：. Every domestic manufacturer leaves 5 cm． safety margin between the heating part and廿1e guide part of廿1e heater． The heater in quesljon had o垣y2．5 cm． of safety margin． It was obvious that a guide part would become. overheated and probably emit hazardous gases．. Moreover， defendant received several clairns about bad smell coming out丘om the heater丘om other users． However， it did riot take any measure to verify the cause of the problem． If the defenda皿t had tested its heater，1t. cot11d have found out the emission of gases and wotlld have prevented causilg damage to the plaint正fs．. 200.

(21) Trends and D巴velopments in Product Liability Regulations：Tbe Japanese Experience. Thus， the defendant has a duty to test the heater and make sure that his. P，。du。t・i・・saf巳D血・g也・t・・ti・g Peri・d it・h・uld’h・v・・t・PP・d也・・al…f. the heaters and avoid probable damage to cons肛mers． However， the defendait has been very slack in its duty to fbresee the above−tnentioried．points and has hot taken enough care to avoid the damaging injury to Plaintiff“C杵． Based on the above prenユises， Plaintiffs state that. the defendant was negligent and sought compensation fbr damages as a consequence thereo￡. Dθ危ndant de危nses Defendant、 in its turn， rejected all the claims and stressed that every. foreign and domestic manufacturer install painted guide part to electric heater just because no one have▲n mind the possibdity．of damage by−har㎡ul chemicals． Defendant also pointed out the fact that he is a retailer a皿d has a purpose. of selling high quality goods to a customeL In this order it has its Quality Control Room， howe亘er this QCR is not a sp ecified laboratory to check har皿fUl. chemicals， which is why it is wrong to assume that P；esence of QCR makes fbreseeable the possib皿ty of harm by chemicals．. Moreover， QCR completed its duty of care by obtaining necessary certificates from the Qua且ty Control Organi乞ation．. Additionally， as was mentioned， the defendant has sold large number of tl五s kind of heater and there is not even one who llas suffered the kind of iDjury complained of Thus， the defen dant has had no ability and opportunity to foresee the possib且ity of inj ury， nor obUga目on to avoid a damaging result. The・Court・has・es勧／ished to〃「OVtti’培faロts： Plaintiff “F”is a father and plaintiff直」M”is a mother of the plaintiff℃”！rhe. Plaintiff“c”has been in good health by the day 10／Ol／2001 and attended high 201.

(22) 横浜国際経済法学第18巻第1骨（2009年9月）. school． ”． Plaintiff“F”purchased on 10／01／2001 an electric heater・modeピ‘EUPA. TSK l5302LG”from the defendant． Plalntiff‘℃”used the heater between January 27Li’ and Febr肛ary 25th’in h三s own、room．（DIInensions of the room：3・5m. by 3ユrn by 2．4m．＞The heater was located very close to plaintiffs study desE where he studied in average 4．hours a day．. Plain雌℃‘’smelled some p田nt odor emanating from the heater at the beginning， but got used to the smeU fbr sometime and did not pay atte磁on to it anymore， The heater was an electric type and， that is why， plaintiff℃”. continued using it Without ve’nt註ation． The heater manual also did not include. any caution concerning vendiatien of七he rbom during its ttsage． There Wete no instructions in ca呂e bad sfneU emlts from the heater ei仕1er．. Afew days after starting to use the heater plaint韮f‘℃”suffered some hea｝th problems and purchased cold medicine suppo甑g he caught a cold．. Afew days Iater也e plaintiff‘℃†”s suffered upset stomach and had bee且 voエnitin’ 〟@aU the血ne． The p］aintiff went to呂ee a doctor and received some. Ine｛licatioR圭br垣s upset stomach Plaiiiitiff．‘℃”’s eyes were red｛bloodshot）and. received some rne｛五cine丘om an ephthalmologis七However， pl田n齪s con〔面on continued to wor8en and at the end he got par目y paralyze止. On February 27th， wh蓋e attendhlg school pl討nt遊色lt田and was rushed to. ah・spl垣』o識ゼs diag且・sis・f・hl鵬hows pa剛sis． rnuscle・weakiiesS・and・in. gener髄is con磁on was consid㈱d as extremely ba止A査er s・me treatmenL. p瞼錐℃” sta1’ts recevery−he・coUld・m・ve垣s legs紐d肛皿呂・Plぬ描was fi・ally・rea・…d・from・the・h・sp三掘・・Maf・h 16tit after uriderg・i賠絃斑抽ent Doctors could not teH the cause of the di呂ease；but r［ientioned that the. 麹薗圭澄』lot brain斑c卓pha臨呂（且cond三畠n垣w垣cll the br壷n becomes swo韮en，. 捌、。詩y。B i漉C姻． H・w醗紬ey画d n・t’detec抽e麺s w融cau5ed 〆°. 2fi2.