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Report No. 85

Use of concepts.- Some concepts in Article 3 of the Automobile Damage Law are used in a special sense1. The term "automobile", as defined in Article 2(2) of the Road Transport Vehicle Law, includes almost every kind of motor vehicle except motor-bikes, that is, passenger cars, trucks, buses, motorcycles, and motor scooters. The "owner of an automobile or a person otherwise having the right to use an automobile, who, for his own benefit, places an automobile, in operational use" is defined as a "holder" of a motor vehicle. This term does not include an unauthorised operator, such as a thief. However, the broader language of Article 3 is less restrictive and embraces the unauthorised operator as well. But a mere "driver" engaged by an owner, since he is not operating the vehicle "for his own benefit", is not liable under Article 3 but only under Civil Code.

"Operation" is defined in Article 2(2) of the Damage Law as the ordinary use of motor vehicle without regard to whether it is used in the transportation of persons or goods. This definition is applied somewhat arbitrarily, however. If an unoccupied motor vehicle starts moving because it was improperly parked, or if a pedestrian is injured when a door of a parked vehicle is opened, an injury inflicted results from the "operation" of the vehicle. But when one driver, working on his vehicle at a service station, ignited a fire by dropping a spark that fell on a gasoline can, the injured service-station attendant was held to have no rights under the law because the accident did not result from the operation of a motor vehicle.

Article 3 covers injuries to a taxi passenger, for there are no specified injured persons who can claim recovery. As is pointed out below, however, it is disputed whether Article 3 applies to injuries suffered by passengers who are either guests or members of the holder's family. Coverage under Article 3 is limited to the damages arising from death or personal injury; accordingly, the provisions of the Civil Code govern claims for property damage. The exclusion of property-damage coverage in the law is due to the heavy economic burden on holders of motor vehicles that would result from nearly strict lability and compulsory insurance for property damage.

The holder bears the liability under Article 3. Thus, if an employer is the holder, he must prove not only the absence of fault in his employee, but also other matters such as the fault of the injured person. The liability of the driver to his employer remains under Article 715(3) of the Civil Code, if the employer can prove fault of the employee. This right of indemnification, however, comes into existence only when the total damage exceeds the amount covered by the compulsory insurance, because the insurance covers both the holder and the driver. Other matters not specifically mentioned in Article 3, such as the measure of damages and comparative negligence, are still governed by the provisions of the Civil Code (Japan).

Claims for Compensation under Chapter 8 of the Motor Vehicles Act, 1939 Back

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