Report No. 85
Japan.- Liability under the Civil Code-Conditions of civil liability.- In Japan, the basic provision of the Japanese Civil Code regulating tortious liability is Article 709, which provides:
"A person who, wilfully or negligently, has injured the right of another is bound to compensate him for the damage which has arisen therefrom."1
Article 722(2) of the Civil Code of Japan, dealing with the plaintiffs negligence, provides:2-
"If there has been fault on the injured party, the court may take it into account in determining the amount of compensation for damages."
This is the civil-law rule of comparative negligence; fault on the part or the injured party does not necessarily extinguish the wrongdoer's liability, but only reduces the damages he must pay. Thus if a pedestrian or a cyclist who was injured by an automobile was himself at fault, the damages are reduced according to the degree of fault of the parties and at the discretion of the court. When two automobiles collide, reciprocal liabilities generally arise.
The court then reduces the amount of damages owed to each party under the principle of comparative negligence, and the difference is paid by the party owing the larger amount. These computations are often difficult to make and may, in some cases, hinder or prevent settlement out of court. When a driver is employed by a taxi company, a trucking company, or an individual, the employer is ordinarily liable for injury caused by the employee, assuming that the latter would be held liable under Article 709. Article 715(1) of the Japanese Civil Code prescribes the employer's liability in these terms:3
"A person who employs another for the purpose of any undertaking is bound to compensate for damages which his employee has inflicted on a third party in the execution of this undertaking. Provided, however, that this does not apply if the employer has exercised adequate care in the selection of the employee and the superintendence of the undertaking, or if the damage would have arisen even though adequate care had been exercised."
Literally, this provision exempts an employer from liability if he can prove that his selection and supervision of the driver were faultless; but the courts have long refused to allow such proof. The employer who has paid such compensation may demand reimbursement from the employee, however, under Article 715(3), although often he does not do so.
1. Von Mehren (Ed.) Law in japan, (1963), p. 401.
2. Von Mehren (Ed.) Law in japan, (1963), pp. 401, 402.
3. Von Mehren (Ed.) Law in Japan, (1963), p. 402.