LEGAL FRAMEWORK AND PRACTICES RELATING TO
TRANSPORTATION ACCIDENTS IN JAPAN 1
30 November 2015
YAMASHITA, Terutoshi (Mr.)
Director of UNAFEICONTENTS
I. INTRODUCTION ....................................................................................................... 1
II. A BRIEF HISTORY OF LEGAL FRAMEWORK DEVELOPMENT .............................. 3
A.
Marine Accidents ............................................................................................... 3
B.

Aircraft and Railway Accidents ........................................................................ 5C.
An Ideal Accident Investigation Organization ................................................. 6
III. ORGANIZATION AND DUTIES OF THE JAPAN....................................................... 8A.
Organization ...................................................................................................... 8B.
The JTSB’s Roles .............................................................................................. 9
IV. THE PENAL CODE AND CRIMINAL INVESTIGATION ........................................... 10
A.
Substantive Penal Law relating to Transportation Accidents ....................... 10
B.

Friction between Investigations ..................................................................... 12C.

Which Investigation Should Come First? ...................................................... 13D.
The Memorandum between the NPA and the JTSB ....................................... 15
V. ISSUES ON NON-DISCLOSURE OF RECORDS USED FOR ................................. 17A.
The Chilling Effect of Criminal Liability ......................................................... 17
B.

Admissibility of Evidence in Criminal Trials .................................................. 18

C.
Admissibility of Evaluations in the Final Report ........................................... 20
VI. POSSIBLE SOLUTIONS ......................................................................................... 21VII. CONCLUSION ......................................................................................................... 23

I.

INTRODUCTION

This paper provides Japan’s experience in dealing with transportation
accidents which normally involve scientific and technological issues, complicatedand controversial issues, as well as accidents that cause great damage to people,
property and the environment, from the perspective of Japan’s legal system andpractices. Identifying the causes of such cases contributes to establishingcountermeasures and preventing future accidents. In doing so, there are several
approaches: administrative investigation, administrative disciplinary action andcriminal punishment.
1

The views expressed in this paper are solely those of the author, and are neither those of thegovernment of Japan nor other official entities, including UNAFEI.

1

Before discussing the relevant issues, I would like to point out somecharacteristics of the Japanese justice system in order to avoid possible
misunderstanding. This is because academics and practitioners tend to view legal
issues from the perspective of their own legal systems and practices. To someextent, this habit cannot be helped, but it often leads to misunderstanding. In
particular, points “A.”, “E.”, “D.” and “I.” below are different from the Korean justicesystem.
[Appendix, slide No. 2]
A. Public prosecutors have the authority to conduct investigations in cases referredby the police as well as to initiate investigations by themselves. Prosecutors
and the police both have the power to conduct investigation, unlike the Koreansystem in which prosecutors have the investigative authority and direct police
investigation from the perspective of legal theory.
B. Japan does not have a system of private or police prosecution, nor does it have
grand juries or preliminary hearings conducted by judges.
C. Public prosecutors have discretion to drop cases even when the evidence issufficient to secure a conviction.
Although this disposition is called“suspension of prosecution”, in practice it is identical to non-prosecution. Many
factors are taken into account, especially compensation to victims and thepossibility of the suspect’s rehabilitation without formal punishment.
D. Instead of private prosecution, the Prosecution Review Commission, which
consists of ordinary citizens, reviews prosecutors’ non-prosecution decisions,and the Commission has the authority to bring such cases to the court under
specific conditions.2
E. All cases (criminal, civil and administrative) are handled by professional judges3;
serious cases are tried by a three-judge panel and others by a single judge.
One exception is the recent adoption of the lay judge system in 2009, which
added lay judges to the panels of judges who handle certain serious “criminalcases”.
F. No punitive damages in civil cases are allowed because they contradict with theJapanese legal system as a whole, specifically from the perspective of the
distinction between criminal liability and civil liability.
G. Neither immunity nor plea-bargaining is allowed.
H. The standard of proof at criminal trial is “beyond a reasonable doubt.”“Preponderance of evidence” is not enough to convict. Moreover, prosecutors
bear the burden of proving all material elements of the crime, including bothactus reus and mens rea. In practice, prosecutors are very careful to ensure2
3

See section V.B., below.
However, this was not the case for the period from 1928 to 1943.

2

that the evidence meets this standard before they decide to prosecute
I. Hearsay evidence is not admissible in criminal cases in principle. A statement
before a prosecutor or a police officer may be admissible under rigid conditions
concerning necessity and credibility. In civil cases, the hearsay rule is notapplied, so the credibility of any statements and evidence becomes an important
issue.
J. Each party is entitled to appeal to a higher court to contest fact-finding, thejudgement (including acquittal) and sentencing.

II.

A BRIEF HISTORY OF LEGAL FRAMEWORKDEVELOPMENT

A country’s legal or justice system is rooted in its own culture, tradition andsocial environment. A Japanese saying from the 1880s, “A legal system in one
country is the result from its own history . . .”, is correct in this sense. Althoughmany countries have adopted global standards in certain fields, developed unified
law enforcement strategies and share many common values, the legal and justicefields still face many challenges in doing so. However, due to the rapid
development of transportation, science, technology, information andcommunications technology, etc., serious cases resulting in significant andunexpected damage take place, and the causes of these tragedies are
unprecedented to society, including law enforcement officers, in size and scope.
Thus, law enforcement and judicial officers have to manage such cases byconsidering legal frameworks recognized in the international community. Likeother countries, the Japanese legal framework responding to transportation
accidents also has gradually developed by learning through past experiences.
[Appendix, slide 3]
A. Marine Accidents
In most countries, technology has resulted in mass transportation,
developing from vessels to railways to aircraft. The history of the Japanese legal
system relating to transportation accidents started in dealing with marine accidents.
In this field, Japan experienced three stages to date.
1. 1897 – 1947
The Act on Disciplinary Action of Seamen was the first law in this field, which
stipulated both substantive provisions of seamen’s negligence and misconduct andprocedural provisions for disciplinary action against seamen. Based on the3

provisions of the Act, the Disciplinary Action Tribunal4 of Seamen was establishedin 1897, which was under the Ministry of Communications (Teishinsho). Since
vessels played a key role in transportation, illegal conduct or misconduct of seamencaused great harm to society. The Act and the tribunal system, however, aimed
mainly to reprimand seamen with little attention to the prevention of future
accidents. This legal system lasted for 50 years until the end of the World War II.
In 1935, the International Convention for the Safety of Life at Sea of 1929 (SOLAS5)
came into effect in Japan after the enactment of the Ship Safety Act in 1933.
2. 1947 – 2008
Taking advantage of the present Constitution (which entered into force in1947), the Act and the tribunal system mentioned above were replaced with theMarine Accident Inquiry Act in accordance with related acts such as the National
Government Organization Act (1948) and the Department of Transportation
Establishment Act. The Japan Marine Accident Inquiry Agency (JMAIA) wasestablished in 1949 as an internal organ of the Ministry of Transportation (MOT,
Unyusho).
JMAIA had two general functions: an administrative function as agovernmental regulatory body, and a quasi-judicial function when administrative
action was to be taken against seamen. Its proceedings were similar to criminal
court proceedings to some extent.
The latter function, in regard of thequasi-judicial function, was tied to the previous act, but its procedures weresignificantly reformed. The new procedures included prudent reforms such as
requiring marine investigators to file documents as a condition for convening a
tribunal, securing the right for the accused, that is, the examinee, to hire acounselor, provided for examination of evidence at an open hearing, required theverdict to be based on the evidence, etc.
All of these reforms were similar tocriminal court proceedings to some extent. This quasi-judicial system wasadopted because marine accidents occur for multiple and complicated reasons,such as natural conditions, scientific and technological issues, professional
negligence of seamen, etc.
The system was designed to ensure careful
determination of the causes of marine accidents and to ensure that appropriate
administrative action was taken against the examinee.
4

The word “tribunal” in this paper is used for quasi-judicial organs other than ordinary courts,
adjudicatory bodies deemed as administrative courts. The present Japanese Constitution does
not allow any “special courts” established outside of the ordinary court system (the judiciary).
Full judicial power is vested in the Supreme Court and in such inferior courts as are establishedby law.
5
See International Maritime Organization (IMO) website:
http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/International-Convention-for-the-Safety-of-Life-at-Sea-%28SOLAS%29%2c-1974.aspx

4

In cases where disciplinary action was taken against an examinee, theexaminee was entitled to appeal to the high tribunal in Tokyo. If the examinee
disagreed with the ruling of the higher tribunal, the examinee had the right to appeal
to the Tokyo High Court of the judiciary, and then to the Supreme Court. This was
because Article 76(2) of the Constitution states that “No extraordinary tribunal shallbe established, nor shall any organ or agency of the Executive be given final
judicial power”. JMAIA was an organ of the Executive, meaning that its decision
could not be final.
However, the main purpose of inquiring into the causes of marine accidents
is to prevent similar accidents in the future by proposing recommendations,irrespective of professional negligence of seamen. A criticism arose in the early
2000s, that is, JMAIA’s authority to impose administrative sanctions might haveconflicted with identifying the true causes of marine accidents.
3. 2008 to Date
The JMAIA’s dual nature lasted until the establishment of the Japan
Transport Safety Board (JTSB) in 2008, which has taken over the administrative
function of JMAIA. At the same time, the Japan Marine Accident Tribunal (JMAT),
newly established under the Ministry of Land, Infrastructure, Transport and Tourism(MLIT), has succeeded merely to the quasi-judicial nature of JMAIA. In the same
year (2008), the International Maritime Organization (IMO) adopted a resolution(effective in January 2010), as authorized by the SOLAS Convention, to include theCasualty Investigation Code (separating the regulatory function and the disciplinary
function). JMAT is now “to perform a disciplinary action on a marine technician, asmall craft operator, or a pilot who causes a marine accident intentionally or
negligently in the course of duties, thereby contributing to [the prevention of]occurrences of such accidents”. (Act on Marine Accident Inquiry article 1).
Under the new system of JMAT, the previous high tribunal was abolished sothat in cases where an examinee disagrees with JMAT’s decision, the examinee
has the right to appeal to the Tokyo High Court of the judiciary, and then to theSupreme Court.
B. Aircraft and Railway Accidents
Japan experienced several railway accidents involving many victims since
1922, but Japan dealt with such accidents by formulating ad hoc inquiry committees.
On the other hand, the legal system dealing with aircraft accidents has developed.
Although the legal system responding to marine and aircraft accidents is often
discussed in the international community, railway accidents, in contrast, aregenerally domestic issues. This difference may contribute to the development of5

the legal system in dealing with aircraft accidents. In fact, in the marine field, the
SOLAS Convention of 1948 contained provisions relating to inquiries into marine
accidents; JMAIA was established in the following year. In the aircraft field, Japanjoined the International Civil Aviation Organization (ICAO) in 1953, which had its
basis in the Convention on International Civil Aviation, known as the “Chicago
Convention”.
However, the actual trigger to establish the legal system responding to such
accidents was the occurrence of two tragic aircraft accidents in July 1971.6 These
accidents were investigated by ad hoc committees to probe into the causes. In
response to the ad hoc committees’ reports and public opinion, which strongly
proposed setting up an appropriate system for inquiring into the causes of aircraft
accidents and preventing such accidents, the Aircraft Accidents Investigation
Commission (AAIC) was established in 1974, following the enactment of the Act on
the Establishment of the Aircraft Accidents Investigation Commission of 1973.
In 2001, the AAIC was reorganized as the Aircraft and Railway Accidents
Investigation Commission (ARAIC), expanding its scope to include the investigationof railway accidents. This was again because of the occurrence of major railway
accidents in 1991, 2000 and 2005.7
After the derailment of a JR-West passenger train on the Fukuchiyama Linein April 2005, a supplementary Diet resolution in the 2006 amendment of the related
laws expanded ARAIC’s authority to investigate causes of accidents and propose
recommendations for the purpose of mitigating harm caused by aircraft and railway
accidents, as well as strengthening the investigative power of business operators.
Finally, the JTSB, which merged ARAIC with the cause-identification part of JMAIA,
was established in 2008 as mentioned above.8
C. An Ideal Accident Investigation Organization[Appendix, slide No.4]
Apart from transportation accident investigation, an expert group meetingorganized by the Consumer Affairs Agency discussed and submitted its final reportin May 2011 on the ideal characteristics of an accident investigation organization.
6(1) Crash of a Toa Domestic Airlines aircraft into Mt. Yokotsudake, north of Hakodate, involving
68 fatalities, and(2) Mid-air collision between an All Nippon Airways aircraft and a Self-Defense Force aircraft in
Shizuku-ishi Town, Iwate Prefecture, involving 162 fatalities.
7(1) the collision between a Shigaraki Kougen Railway passenger train and a West Japan
Railway (JR-West) passenger train, involving 42 fatalities and 628 injuries in May 1991,(2) Derailment and collision of Teito Rapid Transit Authority passenger trains on the Hibiya
Subway Line, involving five fatalities and 64 injuries in March 2000, and(3) Derailment of a JR-West passenger train on the Fukuchiyama Line, involving 107 fatalities
and 562 injuries in April 2005.
8
Supra, at II.A.3.

6

The final report9 concluded as follows:
1. Purpose of an Accident Investigation
The purpose of an accident investigation is to prevent future accidents. The
outcome of an accident investigation is not restricted to solutions and measuresfor preventing reoccurrence of the accident under investigation. In order toprevent accidents in a broader sense and establish a safer society, theorganization should find various ways and means by taking a long-term
perspective.
The report of an accident investigation and the investigative organization
itself must obtain the public trust. In this regard, the implicit “consent” ofsociety, including the victims, must be respected. Thus, the organization mustbe “independent”, “fair”, “comprehensive” and must possess “expertise” in order
to conduct a reliable accident investigation.
2. Expected Naturea. An independent accident investigation is one in which an organization cancomplete its investigation and make decisions without any influence from theconsideration of purposes other than prevention of future accidents. Other
typical purposes are to seek legal liability in criminal, administrative and civil
proceedings and to regulate and supervise markets and business activities.
Since some regulations by agencies concerned may cause or prevent an
accident, it is important to exclude any influence from the actions of suchagencies. On the other hand, collaborative investigation with other agencies
has the advantage of being speedy and efficient in the course of the accident
investigation. Thus, with consideration of characteristics in various fields, andof the advantage of the collaboration with concerned agencies, theindependence of an accident investigation organization must be upheld andmaintained.
b. Ensuring fairness in an accident investigation requires its system, organizationand practices to be impartial from any bias of the parties, other organizations
and individuals. It is also important that they appear impartial in the eyes of the
public.
c. Comprehensiveness in accident investigation means that any type of accident
should be dealt with by appropriate experts.

9

The Japanese version is available at: http://www.caa.go.jp/safety/pdf/matome.pdf

7

d. Expertise in accident investigation means that an organization must have highly
specialized knowledge and skills. In order to do so, legal authorities as well as
sufficient human, material and economic resources should be provided. The
expertise includes not only specific fields but also those relating to collection
and analysis—both quantitative and qualitative—of information or human factors,
and the expertise of coordination and management.

III.

ORGANIZATION AND DUTIES OF THE JAPANTRANSPORT SAFETY BORD (JTSB)10

A. Organization
The previous organs like JMAIA. AAIC and ARAIC were all internalorganizations of the MOT or MLIT, but the JTSB is an external organ under MLIT
pursuant to paragraph (2) of Article 3 of the National Government Organization Act.
As shown in the Act for Establishment of the Japan Transport Safety Board (JTSB
Establishment Act 11 ), the JTSB is organizationally affiliated with MLIT, butfunctionally independent from the influence of MLIT.
1. Appointment of the Chairperson and Members[Appendix, slide No.5]
The JTSB chairperson and members appointed by MLIT with the consent ofboth Houses of the Diet among persons found to be able to make a scientific andfair judgment to carry out the affairs under the jurisdiction of the JTSB. (Article 8)
The JTSB has nearly 180 members in total throughout Japan.
2. Director for Management
A newly established position is the Director for Management, who is
responsible for planning and policymaking concerning the implementation of
investigations, liaising and coordinating with relevant governmental institutions,training staff, statistical research and analysis of accidents, international
cooperation, and providing assistance to victims and their families.
3. Other Authorities Considered as Enhancing Its IndependenceFirst, the JTSB is authorized to promulgate rules to enforce laws or cabinet
orders with regard to affairs under its jurisdiction or pursuant to a special delegation
by law or cabinet order. (JTSB Establishment Act, article 16). This authority was
10

JTSB website: http://www.mlit.go.jp/jtsb/english.html for section III and part of II.B.
Japanese Law Translation website: http://www.japaneselawtranslation.go.jp/?re=02
The JTSB Establishment Act is available in English at:
http://www.japaneselawtranslation.go.jp/law/detail/?printID=&ft=2&re=01&dn=1&yo=%E9%81%8
B%E8%BC%B8%E5%AE%89%E5%85%A8%E5%A7%94%E5%93%A1%E4%BC%9A%E8%A8%AD%E7%BD%AE%E6%B3%95&ia=03&x=47&y=19&ky=&page=1&vm=02
118

not given to the previous organs like JMAIA, AAIC and ARAIC.
Second, the power of appointing the secretariat personnel has beentransferred from the Minister (MLIT) to the Chairperson of the JTSB.
Third, ARAIC merely made recommendations to the Minister (MLIT) because
it was an internal organ of MLIT. However, the JTSB can make recommendations
not only to the Minister but also directly to parties relevant to the cause12 of an
accident. The JTSB may require the parties relevant to the cause to reportmeasures which have been taken based on the recommendations.
B. The JTSB’s Roles

1. Mission[Appendix, slide No.6]
The JTSB contributes to preventing the occurrence of accidents andmitigating the damage caused by accidents, thus improving transport safety whileraising public awareness, and thereby protecting lives. These are to be achievedby accomplishing appropriate accident investigations which thoroughly unveil thecauses of accidents, damages and those incidental to them, and urging theimplementation of necessary policies and measures through the issuance of safety
recommendations and opinions or provision of safety information. Since the mainrole is to prevent future accidents, it is natural for the JTSB to issue an investigation
report covering the causes of accidents, safety recommendations and opinions, etc.
to the public.
2. Main Duties
a. The JTSB conducts investigations to determine the causes of aircraft, railway
and marine accidents, serious incidents 13 and damage caused by theaccidents.
b. Based on the findings of the accident investigations, the JTSB provides
recommendations or opinions to heads of relevant administrative organs orparties relevant to the causes, concerning the measures to be taken to preventthe recurrence of accidents and to mitigate damage caused by the accidents.
c. The JTSB conducts research and studies in order to fulfill the above duties.
3. Characteristics of JTSB InvestigationsFirst, JTSB members and staff are experts familiar with science, technology
12

The word “persons relevant to the cause” means that the parties related to the accidents or
those who caused the damages.
13
The word “Serious incidents” (In the case of marine, “Incidents”) are situations deemed to bear
the risk of accidents occurring, which do not involve actual victims and damages.

9and other relevant professional skills such as aeronautical engineering, mechanicalengineering, operation and maintenance of aircraft, maneuvering of aircraft, railway
engineering, safety engineering, electrical engineering, maneuvering of ships,
marine engineering, naval architecture, ergonomics, railway operation, structural
engineering, legislation, etc.
Second, JTSB investigations are expected to thoroughly uncover any causesof a transportation accident in a scientific manner for the purpose of preventing
reoccurrence of accidents, so that even “the incidents” (see note 13) are subject to
JTSB investigation. The investigations are not conducted for the purpose of
imposing any sanction on concerned persons. The JTSB Establishment Act statesthat the authority of dispositions14 prescribed in the Act shall not be construed asencompassing criminal investigation. [JTSB Establishment Act article 18(5)]Criminal investigation of transport accidents if necessary is conducted byrelevant authorities, typically the police and public prosecutors. Below, thedifferences and relations between the JTSB investigation (administrative
procedure) and criminal procedure will be addressed.

IV.

THE PENAL CODE AND CRIMINAL INVESTIGATION

A. Substantive Penal Law relating to Transportation Accidents[Appendix, slide No.7]
In cases where transportation accidents result in the death/injury of a victim
or certain dangerous transportation situations, criminal investigations start if theaccidents are committed through negligence in the pursuit of social activities (ThePenal Code, article 21115). The phrase “pursuit of social activities” is an English
14

The “dispositions” prescribed in the JTSB Establishment Act article 18(2): The Board may,when it finds it necessary to conduct the investigation of an Accident, etc., take the dispositions
listed in the following items:(i)-(iii) To take reports from the people concerned with Aircraft Accidents, etc…
(iv) To enter the site of an Accident, etc., offices of users of the aircraft, …… and any other placethat is deemed necessary and examine any aircraft, … documents or other articles relevant to theAccident, etc. (hereinafter referred to as " relevant material"), and interrogate any people
concerned…
(v) To request the appearance of the people concerned and question them.
(vi) To request to produce any relevant material, to the owner, holder or custodian and/or takecustody of the produced materials.
(vii) To order the owner, holder or custodian of any relevant material to preserve it or prohibit
him/her from relocating it.
(viii) To prohibit people from entering the site of the Accident, etc., except for those who enter thesite on official duty, or are permitted to enter it by the Board.
15
The Penal Code was enacted in 1907. The Penal Code article 211: A person who fails to
exercise due care required in driving a vehicle and thereby causes the death or injury of anothershall be punished by imprisonment with or without work for not more than 5 years or a fine of not
more than 1,000,000 yen; provided, however, that the person may be exculpated in the light of10

translation of the definition of “Gyomujo” (which literally means “business”), which
has been legally interpreted as activities which may endanger the life or body ofanother person and which are continued or intended to continue. In short, this isnormally known as professional negligence in other countries. The Japanese
Penal Code states that crimes of intent are generally punishable unless a crime ofnegligence is specifically prescribed in an Act. The Japanese Penal Codeprescribes several provisions of criminal negligence, such as Penal Code, article 211
Causing injury/death through negligence in the pursuit of social activities(meaning professional negligence) is punishable by no more than five years’
imprisonment with/without work or 1,000,000 yen (US$8,330)
 Penal Code, article 129(2)Endangering railway or marine traffic through professional negligence ispunishable by no more than three years’ imprisonment without work or 300,000
yen (US$2,500)
 Act on Punishment of Acts to Endanger Aviation, article 6
Endangering aviation, etc. through professional negligence is punishable by no
more than three years’ imprisonment without work or 200,000 yen (US$1,660).
Causing injury/death through vehicular negligence is punished like
professional negligence under the Penal Code, but now it is stipulated in a different
act.
Once a marine, railway or aviation transportation accident occurs, the police
start an investigation because a crime of negligence by someone is easilysuspected. The accident site should be protected and examined, and necessary
evidence should be collected immediately and maintained safely until theinvestigation is complete. The JTSB also needs to start an administrative
investigation of the transportation accident and has to collect evidence andmaintain a proper chain of custody. Since both investigations need the same orsimilar examination of the accident site and evidence, determining whichinvestigation should come first, or the relationship between them, is subject todiscussion.
The numbers of criminal cases by type of transportation accident which were
disposed from 2001 to 2014 and reported to relevant authorities are shown in the[Appendix, slide No.8]. The number is not significant in comparison with theannual average number of prosecutions initiated throughout Japan, which is around
100,000. However, comparing the conviction rate among all contested cases withthat of contested transportation accident cases, the former is around three per

circumstances if the injury is minor.

11

cent16, but the latter is between 33.3 to 50 per cent. This indicates difficulties inproving criminal liability in transportation accident cases.
B. Friction between Investigations[Appendix, slides No.9 and 10]
Recently, some experts and academics familiar with scientific andtechnological issues tend to insist that the administrative investigation be prioritizedand naturally come first before starting a criminal investigation. The main reasonsare below:
1. Transportation accidents take places because of various, complicated, multiple,
scientific and technological causes, which are known as “systemic accidents” or“organizational accidents”. There are various factors mutually influenced, suchas management, software, hardware, environment and liveware (meaning
operators, etc.) relating to transportation systems. The police have insufficientknowledge or skills to identify causes of such a systemic accident in a scientificmanner.
2. Although the criminal investigation also needs to identify the causes of atransport accident, its purpose is to identify a suspect for imposing punishment,so that criminal investigation tends to pursue human error in the course of
his/her duties. However, administrative investigation pays attention to any
causes of an accident as well as all circumstances surrounding the causes andaccident to be taken into consideration for the purpose of preventing future
accidents. In short, even if a potential or probable cause exists, it is taken into
consideration for improving transportation systems, but such a cause is ignoredby criminal investigators because it is useless for proving a case at criminal trial.
3. Criminal investigation has a “chilling effect” on administrative investigations
because the persons involved in an accident have the right to remain silent; thennecessary information will not be discovered during the administrative
investigation. As a result, identifying causes and preventing accidents often
cannot be achieved.
4. Criminal investigation and punishment for criminal negligence does not preventthe reoccurrence of accidents.

16

From the “Overview of Criminal Cases” by the Supreme Court, which appeared in the monthly
magazine “Hoso Jiho”: Acquittal Rate among contested cases tried at first instance.

125. Prioritizing criminal investigation is against the spirit of ICAO Annex 1317 – 3.1
stating that “The sole objective of the investigation of an accident or incident
shall be the prevention of accidents and incidents” and ICAO Annex 13 – 5.12
requiring “non-disclosure of records”18 of the administrative investigation.
6. In the United States, for example administrative investigation conducted by the
National Transportation Safety Board (NTSB 19) is prioritized and almost no
criminal investigation or prosecution is undertaken in the case of transportation
accidents.
Those who support the prioritization of administrative investigation(hereinafter “AI supporters”) emphasize the significance of preventing accidents forthe safety of society, and seem to be prejudiced against and distrust criminal
investigation and its effects. In contrast, those who support the prioritization of
criminal investigation (hereinafter the “CI supporters”) explain the necessity ofcriminal investigation from the viewpoint of the Japanese legal system andpractices as well as public opinion in general. In Japan, the police are required to
conduct investigations if criminal negligence possibly occurred. In fact, the police
have been a capable organ to deal with transportation accidents in terms of having
the human resources necessary to conduct large-scale investigations. The police
have around 280,000 police officers throughout Japan, while the JTSB has nearly
180 staff members. Ordinary Japanese citizens also expect that the police
conduct investigations effectively, even after the establishment of the AAIC.
However, the expectation seems to come from their belief that the police can reveal
the causes of an accident and contribute to preventing accidents.

C. Which Investigation Should Come First?
[Appendix, slide No.11]
ICAO Annex 13–5.1 states in Note 1 that “The investigation of a serious
accident does not exclude other already existing types of investigation of incidents(serious or not) by other organizations.”
So, the next question is whichinvestigation is prioritized. There are three options for solving this issue:
1. Administrative investigation is to be conducted prior to the criminal investigation.
17

The formal name: Annex 13 to the Convention on International Civil Aviation (the Chicago
Convention) “AIRCRAFT ACCIDENT AND INCIDENT INVESTIGATION” Tenth Edition, asInternational Standards and Recommended Practices (SARPs)
http://www.fzt.haw-hamburg.de/pers/Scholz/dglr/hh/text_2013_11_07_ICAO_Annex13_AircraftAc
cidentAndIncidentInvestigation.pdf#search='ICAO+Annex+13'
18
See section V, below, for details.
19
NTSB website: http://www.ntsb.gov/Pages/default.aspx

13

2. Criminal investigation is to be conducted prior to the administrative
investigation.
3. Both investigations are to be conducted concurrently but in a cooperative
manner.
Based on my understanding, as far as the NTSB in the United States isconcerned, administrative investigation is prioritized, that is, “option 1” is adopted.
Once a transportation accident within the jurisdiction of the NTSB occurs, the roleof the police is to preserve the accident site and evidence until the NTSB starts its
investigation. After a thorough investigation by the NTSB is conducted in ascientific manner, the NTSB issues an accident investigation report that identifies
the causes of the accident, considers how to prevent future accidents, and provides
recommendations for establishing a safer transportation system. If a person issuspected to have caused the accident deliberately or through gross negligence inthe course of his/her duty, there is a possibility for criminal investigation andprosecution.
In contrast, the French system prioritizes criminal investigation, that is,“option 2” is adopted. France has several organs responsible for transportation
accidents such as the BEA20 for inspecting causes of transportation accidents,
which is part of the IGAC, and the DGAC for deciding administrative action. On
the other hand, the GTA is a special judicial police unit in charge of conducting
criminal investigation in the field of aircraft accidents. Under the French justicesystem, investigative judges21 or prosecutors have the authority to investigate any
crime, including those causing injury or death through professional negligence.
Once criminal investigation starts at the direction of an investigative judge,
administrative investigators need the approval from the investigative judge to
conduct their investigation. Since the French criminal justice system is aninquisitorial system, investigative authorities, including investigative judges, play a
key role during the investigation stage.22

20

BEA: Bureau-Enquetes-Accident, IGAC: Inspection Generale de l’Aviation Civille et de laMeteo, DGAC: Direction Generale de l’Aviation Civille, GTA: Gendarmedrie des Transports
Aeriens
21
The “Investigative judge” and “investigating/examining judge” who preside at a preliminary
hearing in court are interchangeably used.
22
Source for this paragraph: “FRENCH LEGAL SYSTEM FOR SAFETY CONCERNING
AVIATION ACCIDENT – IMPLICATION FOR JAPAN” by Mr. FUNAKI Takahisa and Mr.
MARUYAMA Akio issued in 2004 (only the Japanese version is available)
http://shakai-gijutsu.org/vol2/2_303.pdf
In the crash of the German Wings 9525 in March 2015, its cause was released based on the flightand voice recorders and other circumstantial evidence by the Marceille Prosecution (France), notby BEA, and the release was two days after the crash. This shows that criminal investigators areengaged at the early stage of such accidents.

14

However, Japan adopts the third approach, which respects both investigative
authorities and encourages coordination between the administrative and criminal
investigations. Although the criminal investigation is conducted for the purpose ofidentifying a suspect for punishment at the last stage, if any, which is different fromthe administrative investigation purpose of securing safe transportation systems,
both need to collect material evidence and analyze reports and other documentary
evidence, such as witness statements, in order to identify causes of atransportation accident. Considering that the legal framework of Japan gives
investigative authority to two organizations from different perspectives, it should beunderstood that neither of the two is prioritized. It cannot be denied that criminal
investigation tends to analyze evidence from the viewpoint of who caused theaccident, paying less attention to other systematic causes. Needless to say,conducting two investigations independently is a duplication of effort and a waste oftime and human resources. Criminal investigation needs expert witnesses toclarify scientific and technical issues, but there is a high possibility that such
experts are members of the JTSB or that they support the process of administrative
investigation. As stated above, the Japanese people expect criminal investigationby the police, and the police have responded to this expectation to some extent.
Coordination between both investigations is the most effective and efficient, andthis has been done on the basis of a Memorandum23 on the Implementation of the
JTSB Establishment Act between the National Police Agency (NPA) and the JTSB,
which was originally concluded with the previous organ, the AAIC, in 1972.
D. The Memorandum between the NPA and the JTSB
[Appendix, slide No.12]
1.

2.

3.

4.

The contents of the Memorandum are:
The dispositions24 (meaning the means of administrative investigation) by the
JTSB authorized in the JTSB Establishment Act shall not be conflict with theactivities of the criminal investigative agencies.
JTSB officers who perform the above dispositions shall seek the opinion of acriminal investigative agency and shall not interfere with the criminal
investigation, except when conducting such dispositions will not conflict with thecriminal investigation.
In cases where an expert opinion on an aircraft accident is sought from the
JTSB by a criminal investigative agency, the JTSB shall cooperate in giving anexpert opinion as much as possible unless a certain difficulty exists.
In cases where a request is made to the criminal investigation agency from the23

The Japanese version of the Memorandum and its details are available on the MLIT website :http://www.mlit.go.jp/jtsb/fukuchiyama/kensyou/fu04-shiryou6-1-20091207.pdf
24
See III.B.3, note 14.

15

JTSB, the criminal investigative agency shall cooperate in dealing with therequest as much as possible unless a certain difficulty exists.
5. Detailed Arrangements of this Memorandum for implementing smooth andharmonious investigations are subject to further discussions by the NPA and the
JTSB.
The NPA and the JTSB coordinate in various ways, based on the following
principles:i.
Preservation of the Accident Site
[Appendix, slide No.13]
i-a. The police, in principle, shall preserve an accident site. However, in the casewhere the JTSB arrives at the site prior to the arrival of the police, the JTSB
shall preserve the site until the police arrive and hand the duty for thepreservation over to the police officer in charge.
i-b. The police and the JTSB shall discuss the scope and means of preserving thearea at all times and shall make every effort to protect the site.
ii.
Examination of the Accident Site and Evidenceii-a. With regard to the examination of the accident site and evidence, respective
officers in charge of the police and the JTSB shall discuss the date, scope,means and methods of examination in advance. During the examination,
both agencies shall make every effort to perform their respective duties
through continuous discussions.
ii-b. When an accident site is being investigated and evidence is being collected byeither of the two agencies, the other agency is entitled to join the investigation.
iii.
Examination of a Corpse
When the police conduct an examination of a corpse and the cause of death isdeemed to be related to a transportation accident, the police shall, uponrequest, allow the JTSB to examine the corpse.
iv.
Interview or Questioning
When witnesses are interviewed at the accident site, respective officers incharge of the police and the JTSB shall discuss the targets and order of theinterviews in advance. The police shall provide the JTSB with the immediate
opportunity to interview the crew and staff of an aircraft, train or vessel.
v.

Seizing and Maintaining Evidence
v-a. The evidence relating to a transportation accident which should be seized by
the police, and the JTSB shall be treated in accordance with the provisions of
the Code of Criminal Procedure (CCP) unless both agencies agree otherwise.
v-b. The police shall immediately request the JTSB provide an expert opinion aboutflight and voice recorders etc. and also transfer evidence to the JTSB if the16evidence is necessary or appropriate to be in the custody of the JTSB.
v-c. As for evidence found outside of the accident site, although the police and the
JTSB shall discuss and decide the action to be taken, the police shall first
seize the evidence pursuant to the CCP and then transfer the evidence to the
JTSB if necessary.
vi.
Miscellaneous
In cases where the police and the JTSB conduct investigations, each agencies
shall immediately inform the other of the names and position of officers incharge as well as the means for contacting each other, unless the accident did
not cause death or injury.
AI supporters still criticize the phrases of the Memorandum and detailed
Arrangements in which the criminal investigation seems prioritized. Another main
criticism addresses CCP article 47, stating that “No document relating to the trial
shall be made public prior to the commencement of the trial; provided however, that
this shall not apply when it is necessary for the public interest or other reasons, andwhen the court believes it to be appropriate”. For that reason, prosecutors who
are authorized to maintain the documents and evidence do not share them, evenwith the JTSB. This is true to some extent. Prosecutors tend not to share theevidence because of the sensitivity of the privacy of the people concerned.
However, the latter part of CCP article 47 states that the documents and evidence
can be shared if doing so is in the public interest. Since the necessity ofadministrative investigation normally meets this requirement, prosecutors are
expected to disclose the evidence and records to administrative investigators.
Nonetheless, the idea of the coordination between the police and the JTSB is wellunderstood among investigators in charge at both agencies, and, in practice,coordination has been done without many problems.

V.

ISSUES ON NON-DISCLOSURE OF RECORDS USED FOR
ADMINISTRATIVE INVESTIGATION

A. The Chilling Effect of Criminal Liability[Appendix, slide No.14]
The JTSB is responsible for identifying causes, examining evidence,
interviewing persons concerned, etc., and then publishing an investigation reportwhich contains factual determinations and recommendations for preventing
accidents and ensuring safe transportation. The next question is whether or not
the analysis of causes, the evaluation of evidence, objective records, statements
17and the administrative investigation report can be used for other purposes such as
criminal investigation, prosecution and trial as well as civil disputes in court oradministrative action against an individual.
AI supporters oppose such usage, especially for criminal investigation andtrial. For example, Annex 13 of the ICAO prohibits the public release ofinvestigation records, such as witness statements, medical information, cockpit
voice recordings and transcripts, etc.25 This is because if the JTSB’s analyses,
findings and reports are admissible in criminal trials, persons involved intransportation accidents will hesitate to cooperate with administrative investigations.
As a result, identifying causes, preventing future accidents and enhancing safe
transportation will not be achieved. In short, AI supporters stress that this “chilling
effect” must be avoided.
B. Admissibility of Evidence in Criminal Trials
The chilling effect mentioned above not only applies to criminal
investigations and trials but also to civil disputes and administrative sanctions.
The latter cases are not taken into consideration by AI supporters due to the small
number of such cases, the well-developed nature of the insurance system, and thelack of punitive damages in the Japanese civil system. Despite of the small
number of criminal cases tried for transportation accidents, criminal cases are
deemed as problematic for AI supporters because suspects and defendants areoften viewed as criminals by Japanese society (as opposed to the legal system,
which respects the presumption of innocence). CI supporters have to be careful
about the impact that the chilling effect may have on the administrative
investigation, but this does not mean that there is an absolute prohibition against
using records and reports made during administrative investigations. Even Annex
13 of the ICAO contains a provision stating that records should not be disclosed“unless the appropriate authority for the administration of justice in that State
determines that their disclosure outweighs the adverse domestic and international
impact such action may have on that or any future investigations.”26 Moreover,eliminating the chilling effect is essentially an offer of blanket immunity from any
legal liability. Society is unlikely to consent to such immunity, especially from theperspectives of the victims and their families.
Under the Japanese criminal justice system, victims, their families and eventhird parties are entitled to make accusations. Upon receiving such accusations,criminal investigation agencies must start investigations.
Even if a public

25
26

ICAO Annex 13 – 5.12; see also [Appendix, slides 15 and 16].
Ibid.

18

prosecutor decides not to prosecute a case, the Prosecution Review Commission 27
has the authority to bring such cases to the court under specific conditions.
The Prosecution Review Commission (Inquest of Prosecution) was
introduced in 1948, and it is a safeguard against malpractice and inappropriate
practices in deciding not to prosecute cases based on both suspension ofprosecution and other reasons such as the insufficiency of the evidence.28 The
Commission is an independent organ consisting of 11 ordinary citizens selected bylot. The Commission is located in the same building as the district court, and its
secretariat normally consists of a court clerk transferred under a periodic rotating
system. Under a 2009 amendment to the law establishing the Commission, if theCommission twice rules that a case should be prosecuted, a designated private
attorney who exercises the powers of a prosecutor is required to prosecute thecase even if prosecutors refuse to do so. However, such cases are extremely rare.
Only 11 persons/cases were brought to court, and only two persons/cases resulted
in findings of guilt (one of which is on appeal) over the last six years.
Ultimately, complete eradication of the chilling effect is unrealistic. The key
point is determining how we can harmonize administrative and criminal
investigations. In Japan, in practice, no records or documents other than the final
report of the JTSB will be provided to the criminal investigative authorities.
Although the Memorandum between the NPA and JTSB states that the JTSB shallprovide the police with an expert opinion29, such expert opinions are the same as
those expressed in the final report of the JTSB, which is published by the JTSB.
So, it is meaningless to prohibit the usage of the final report/expert opinion in thecriminal trial, especially concerning the findings of fact. A court precedent
concluded that the final report is admissible in a criminal trial and that “ICAO Annex
13 - 5.12 regulates the disclosure of records which are not public; ICAO does not
regulate the admissibility of the records already published”, although the reasoningof the court precedents may not be persuasive for AI supporters.
For your reference, Japan submitted a “Notification of Difference”30 to ICAO
and its members on Annex 13 – 5.12 when Japan joined ICAO, and again recently
in 2008.31

27

See section I.D, above.
See section II.E, above.
29
See Memorandum No.3 in section IV.D, above.
30
According to the “Foreword” of the ICAO Annex 13, Contracting States are required to notify
the Organization of any differences between their national regulations and practices and theInternational standards contained in this Annex and any members thereto.
31
The contents in [Appendix, slides 17]
However, Japan did not submit the Notification of Difference for 14 years before 2008.
28

19

C. Admissibility of Evaluations in the Final Report
The final report of the JTSB cites statements of persons interviewed in orderto clarify relevant issues. AI supporters are still worried that judges and criminal
courts may rely on or be biased by the statements of persons interviewed byadministrative investigators as well as the evaluation and analysis in the final report
made by experts specialized in a particular field. The final report contains various
issues which may contribute to preventing future accidents and safe transportation.
From the viewpoint of AI supporters, the final report may affect judges’ fact-finding
and determinations of criminal liability of a defendant.
However, this comes from a misunderstanding of the rules of evidence,
specifically the prohibition of hearsay evidence in criminal cases. The statementsin the final report are hearsay evidence. In principle, hearsay evidence is notadmissible in criminal cases. A statement before a prosecutor or a police officer
may be admissible under rigid conditions concerning necessity and credibility32;
statements before an administrative investigator are also not admissible.
Moreover, judges are sufficiently qualified in distinguishing factual matters andanalysis so that the anxiety of the AI supporters is not a significant issue. In fact,even the final report of the administrative investigation, which suggested thepossibility of professional negligence of a person concerned, was admitted in acriminal trial, and the court found defendants not guilty in some cases in Japan.
These cases are direct evidence that judges do not rely on or are not biased by the
analyses and statements contained in the final report. On the contrary, in civil andadministrative disputes, court procedures do not have the hearsay rule so that the
final report of the JTSB will be evidence for the court’s judgement. AI supporters
do not find significant problems in such situations because the chilling effect is verysmall.
In the United States, it seems that only the factual conclusions in the reports
are admissible as evidence at trial. Based on my understanding, the differences
come from whether cases are tried by juries or professional judges. Under the jury
system, strict evidence rules must be followed because ordinary citizens tend to
rely on or can be easily biased by expert testimony, hearsay statements, etc.
For your reference, in a contested case in Japan, where the defendant(aircraft pilot) and his defense counsel objected to admission into evidence of the
final report of the JTSB as a whole, the prosecution and defense counsel agreed tomake a document in writing which contained only factual matters as documentary
evidence. Then that portion of the report was admitted by the court pursuant to
the CCP article 327.33 As a result, even the final report of the JTSB itself is not
32
33

See section I. E and I, above.
CCP article 327: The court may, when the public prosecutor and the accused or his/her

20submitted at the criminal trial unless the defense stipulates to it as evidence at thecriminal trial.

VI.

POSSIBLE SOLUTIONS

CI supporters are well aware of the importance of administrative
investigation, the purpose of which is to identify causes, analyze records, interview
persons and make recommendations to prevent accidents and enhance the safetyof transportation. On the other hand, criminal investigators are also required to
conduct investigation by law, and they are strongly expected to do so by and on
behalf of the victims. Japanese society tends to pursue criminal liability of theaccused even for criminal negligence. Criminal professional negligence in atransportation accident is no exception to this.
[Appendix, slide No.18]
The concrete cases that come to mind may be different among those who
discuss these issues. But when law is applied in any of these cases, there arethree types of negligence.
A. Misconduct because of the lack of basic professional knowledge
B. Misconduct or malpractice due to a misunderstanding of how to deal with aparticular transportation situation
C. Misconduct through professional negligence within the scope of regularprofessional duty.
Categories “A” and “B” (the lack of professional knowledge andmisunderstanding) are normally classified as criminal negligence in Japan, and also
category “C” (professional negligence within the scope of duty) tends to beconsidered criminal negligence in Japan. However, the “scope of duty” aspect oftype “C” negligence is particularly important because it should provide somemeasure of protection to persons who act negligently but do so while engaging in
activities that are generally within the person’s job description. This is contrast to
negligent conduct that is outside the scope of duty, which is less excusable and thelaw is less willing to protect. When discussing this issue, AI supporters have type“C” in mind, while victims and CI supporters have types “A” and “B” in mind. AI
supporters would not insist on protecting such persons from criminal investigation,and then the question becomes whether a criminal investigation is necessary forcounsel have agreed to write down the contents of a statement that contain the contents of acertain document or a certain statement that a witness would testify to at the trial and havesubmitted such written statement to the court, use it as evidence without examining the original or
the witness. However, the probative value of the document may be challenged regardless.

21

accidents involving professional negligence within the scope of duty.
A possible solution is that prosecutors should only be permitted to prosecutecases in which type “A” and “B” negligence is found. This may mitigate the chilling
effect of criminal prosecutions that would discourage witnesses from providing
information to investigators. Of course, since such negligence may be found by
evaluating all evidence after or during the criminal investigation, criminal
investigation must be allowed in transportation accident cases, even if the requisite
negligence is not initially found by administrative investigators.
Another possible solution is that the filing of such cases is only made upon
the accusation from the administrative investigation agency, which means that theadministrative agency must take the initiative to commence prosecution.
Both solutions are ideas for a new legal framework, and are difficult to adopt
in the present Japanese legal system. The former measure could be adopted inpractice, since Japanese prosecutors have discretionary power to decide whether
to prosecute a case or not. However, you may never forget that the Prosecution
Review Commission34 can make decisions otherwise.
As victims and their relatives in Japan sometimes have strong desire to
pursue criminal and civil liability of a person who allegedly caused an accident, it isimportant for us to sincerely make every effort to satisfy this retributive emotion inorder to promote the prioritization of administrative investigation and avoid legal
liability of the person concerned so as to ensure safe public transportation in the
future. This is the reason that the JTSB states that its mission is to mitigate thedamage caused to the victims by the accident.
The retributive thoughts of the public in Korea seem similar to the victim
outrage commonly experienced in Japan. On the other hand, unlike the Japanese
legal system, considering that the Korean legal system does not have theProsecution Review commission, and that the scope of the Korean prosecutorial
authority is stronger than the Japanese prosecution in terms of investigative power,
which may fall in between the approaches of the Japanese system and the Frenchsystem, perhaps the Korean legal system can find another solution to these kinds ofaccidents.

34

See section V. B, above.

22

VII.

CONCLUSION[Appendix, slide No.19]
Alexander Pope once wrote, “To err is human, to forgive, divine”, meaningthat we should try hard to forgive others because all people are human and makemistakes. Drawing on this reasoning, AI supporters would argue that human error
cannot be eradicated, and for that reason, we should find solutions by building asafer system even if human beings engaged in misconduct through professional
negligence, not by punishing such misconduct and human error.
However, Pope’s saying is also used as an excuse when people makemistakes, even if they were caused through gross negligence. This may be thereason that CI supporters and victims have a different perspective than that of AI
supporters.
The latter generally understand the perspective of the former, but if the latteris involved in such an accident, it would be difficult to forgive the person who
caused the accident. This phenomenon may BE similar to the “not in my backyard”(NIMBY) mentality, which is also difficult to solve. It is, however, true that people
act divinely when they forgive. In addition, East Asian countries embrace thewords of Confucius: “To err and not change one’s ways, this is what it is to err.”
We can see a common idea therein, which is that a simple human error does notdeserve blame or punishment.
In order to establish better systems, we should pay attention to all
circumstances surrounding the accident including civil compensation, insurance
and administrative sanctions, rather than focusing on conflicts between
administrative and criminal investigation.

23