Research Handbooks in Comparative Law series
Edited by Mauro Bussani and Anthony J. Sebok
Chapter 16: Tort law in Japan
The last chapter of the Book of Obligations (Chapter 5, Book 3) of the Japanese Civil Code of 1898, which is in force today, concerns the law of torts. While the Code adopts the Pandectist plan and was greatly influenced by the drafts of the BGB (Bürgerliches Gesetzbuch, German civil code of 1900), the rules laid down in the 16 articles (709–724) of the chapter include a healthy dose of French law. Also, the common law was not entirely excluded as a model (Article 716). The compilers of the Code explicitly stated that the courts adjust the law in this area to the changing society. The contribution of the courts to the development of the law has been particularly important in this branch of law. It is noteworthy that not only the Supreme Court, but also the lower courts have been creative in their judgments, and that the judges sometimes ‘deviate from the wording of statutory law rather than adhering to the literal interpretation of the statutes’. The Japanese law of torts originally comprised various elements imported from different countries. These elements comprised the texts of the Code, and were thus much elaborated upon by the courts. In this chapter, the marked characteristics of the law of torts are examined from two perspectives: the mixed nature of the law, on the one hand, and some unique developments which may constitute a certain originality of Japanese tort law in comparative aspects, on the other.
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