Foreigners under Japanese Delictual Liability Law
Abstract
Japan, like most countries following the Civil Law model of delictual liability, grants remedy to a broad range of civil wrongs. In particular, non-economic losses have been part of the Japanese delictual liability system since its inception in the late 19th century. Both the victim and the next-of-kin have a claim under articles 710 and 711 of the Japanese Civil Code. However, judges have considerable freedom when quantifying the damage amount, to the point they can grant almost any amount without offering justification.
In general, the Japanese system for quantifying non-economic losses in cases where the victim suffers a physical injury follows certain patterns developed via case law. While there are no legal caps imposed on the amount, there are certain soft caps that have been established by the courts.
One of these caps can be seen when the victim or the next-of-kin is a short-term stay foreigner in Japan. Lower courts have developed a standard that takes into account the “economic level” of the victim or next-of-kin’s home country. However, our research reveals that this standard is only applied to countries considered to have a lower level of economic development than Japan. This treatment contrasts with the efforts of the Japanese government to increase the number of visitors and foreign labor that come to Japan.
Often, courts that engage in this practice will offer no evidence on this disparity and seem to approach the issue as an evident matter. They also make no consideration for economic realities within the victim’s country. Some courts have rejected this approach under the basis of equality-under-the-law principle, but this appears to be a minority view.
Furthermore, Japanese courts do not apply this principle to cases dealing with Japanese nationals. This is particularly telling since, according to government reports, there is up to a 10% difference in economic development between various regions in Japan.
