Throughout the human history, when a person violates a social order and causes damage to others, law takes some sort of sanction against it. Over time, criminal liability and civil liability became differentiated; and criminal law and tort law began to separate their functions. The basic function of tort law is to compensate for damages. As for the types of damages, common law countries have nominal damages and punitive damages. But in Japan, we do not have these. In Japan, the term “damages” refers exclusively to compensatory damages. Compensatory damages can be first divided into economic damages and non-economic damages. Economic damages are divided into two categories: positive damages (damnum emergens) and lost profits (lucrum cessans). In Japan, the heir can claim to have inherited damages of lost profits and non-economic damages from the decedent.
In Japanese judicial practice, it seems that the calculation of damages is categorized and standardized by referring to the Red Book, which is based on the practice of the Tokyo District Court. The Red Book is not a law nor a court rule. It is rather a guideline, so, with a reasonable explanation, judges can deviate from this. Each case is unique and must be judged according to its individuality. It is the judge’s conscience that will stand in the end.
1. The Bürgerliches Gesetzbuch (BGB) (German Civil Code).
2. Code civil (French Civil Code).
3. Judgement of the Supreme Court of the second petty bench, Date of judgement (decision) 1997.07.11, Case number 1993 (o) 1762.
4. Torts: Doctrine and Process/Donald H. Beskind & Doriane Lambelet Coleman (2017), Duke University Press.
5. Black’s Law Dictionary, 11th ed.
6. Official name of Red Book is “Civil Traffic Accident Litigation; Standards for Calculating Damages (2022) / Japan Federation of Bar Associations Traffic Accident Consultation Center Tokyo Branch”.
7. Judgement of the Supreme Court of the third petty bench, Date of judgement (decision) 1964.06.24, Case number 1961 (o) 413.
8. Judgement of the Supreme Court of the second petty bench, Date of judgement (decision) 1974.07.19, Case number 1969 (o) 594.
9. Civil Code of Japan.
10. Civil Code II (3rd ed.) / Takashi Uchida (2011), The University of Tokyo Press.
11. Civil Code 2 (3rd ed.) / Sakae Wagatsuma, Toru Arizumi, Takeshi Kawai (2009), Keiso Shobo.
12. Tort Law (2nd ed.) / Yoshio Shiomi (2011), Shinzan Co.
13. Torts / Yoshio Hirai (2006), Kobundo.
14. Tort law (5th ed.) / Ryoichi Yoshimura (2017), Yuhikaku.
15. New Modern Damages Law Course 6 / Takao Yamada (Editorial Representative) (1998), Nippon Hyoron Co.
16. Traffic Accident Litigation (Revised Edition), Legal Progressive Series/ Kunio Sakuma & Kazuhiro Yagi (eds.) (2014), Seirin Shoin.
17. Civil Traffic Accident Litigation; Standards for Calculating Damages (2022) / Japan Federation of Bar Associations Traffic Accident Consultation Center Tokyo Branch.
18. Tort Law (8th ed.), Law Express / Emily Finch & Stefan Fafinski (2021), Pearson Education Limited.
19. American Tort Law / Norio Higuchi (2009), Kobundo.
20. Deliktsrecht (German Tort Law) / Erwin Deutsch & Hans-Jurgen Ahrens, Translated by Michitaro Urakawa (2008), Nippon Hyoron Co.
21. French Civil Code / Atsushi Omura (2010), Shinzan Co.
22. Aspect of Contemporary German-French Civil Liability Law / Taro Nakahara (Editor) (2020), Syoujihoumu.