Haftung für Handlungen von Familienmitgliedern

Neue Entwicklungen im japanischen Recht

Abstract

In Japanese law the liability of a person under a duty of supervision has been understood as a kind of strict liability with mainly the liability of parents for acts of their children being at issue. This tendency, however, seems to change following two recent decisions of the supreme court. In one case parents were not held liable because the damage was not in concreto foreseeable. The other decision regarded the liability of family members for a person suffering from dementia, and it seems from the judgment that there is no one who owes a duty of supervision by law in such cases.

Although the scope of these decisions is limited due to the peculiarities of the facts of both cases, they clearly show the necessity to fundamentally re-think the liability of family members of a person without capacity to be held liable in tort. As regards the reasons for acknowledging liability, the element of controllability of the source of dangerousness as well as the enjoyment of advantages play an essential role. These elements justify holding family members liable for acts of a person without capacity to be held liable in tort even though they did not take over supervision or care of that person. As for the standard of liability, however, it is hardly possible to justify strict liability without resorting to the controversial reasoning of insurability.