Legal Framework and Practices
relating toTransportation Accidents in Japan
November 30, 2015

YAMASHITA, Terutoshi
DIRECTOR

UNAFEICharacteristics
A. Investigative power of prosecutors F. No punitive damages in civil cases
and the police
B. No private/police prosecution
G. No immunity and plea bargaining
No grand jury or preliminary
hearing
H. Beyond-a-reasonable-doubt
C. Discretionary power to drop cases
standard for initiating prosecution
D. Prosecution Review Commission
E. Tried by professional judges(except lay judge system in criminalcases since 2009)

I. Prohibition of hearsay evidencein criminal cases
J. Appeal against fact-finding(including acquittal) andsentencing
2History
Marine Accidents

Aircraft Accidents Railway Accidents

1897

Established
Disciplinary Action Tribunal of Seamen(Ministry of Communications)

1949(Jun.)

established JMAIA

Japan Marine Accident Inquiry
Agency (Ministry of Transport)

joined ICAO

1953

International Civil Aviation Organization

established AAIC

1973 (Jan.)
2001 (Jan.)
2001 (Oct.)

Ad hoc Committee

Aircraft Accidents Investigation Commission

MLIT:

Ministry of Land, Infrastructure, Transport and Tourism)

established ARAIC

Aircraft and Railway Accidents Investigation
Commission

established JTSB

2008 (Oct.)Japan Transport Safety Board

Japan Marine Accident Tribunal

3Expected Nature
1.
2.

IndependenceFairness

From the final report of May 2011 of theexpert group meeting organized by theConsumer Affairs Agency
http://www.caa.go.jp/safety/pdf/matome.pdf

3.

Comprehensiveness4.

Expertise4

Organization
JTSB Chairperson (1), Members (12 )Secretariat

178 persons in total(74 for regional offices) http://www.mlit.go.jp/jtsb/english.html
as of 2015

Director General
Deputy Director General
Aircraft Accident Investigators (22)Railway Accident Investigators (15)Marine Accidents Investigators (24)Regional Investigators (44)
Director for Management
General Affairs Division

5Function
1.

Administrative Organ with Independence

2.

Missionhttp://www.mlit.go.jp/jtsb/english.html

a. Preventing reoccurrence of accidents
b. Mitigating the damage caused by accidents
c. Improving transportation safety

3.

Main Duties
a. Investigation of aircraft, railway and marine accidents
b. Providing recommendations or opinions to relevant people
c. Research and study on relevant issues

4.

Other Characteristics
a. Expert group of science, technology, etc.
b. Investigation shall not be construed as encompassing
criminal investigation

6

Crime of Negligence (Main Provisions)
Penal CodeArt. 209

Causing Injury through Negligence

Fine (¥300,000 or less)

Art. 210

Causing Death through Negligence

Fine (¥500,000 or less)

Art. 211 Causing Death or Injury throughNegligence in the Pursuit of Social Activities

5 years’ imprisonment or lessor Fine (¥1,000.000 or less)

Art. 129 Endangering Traffic through Negligence
Fine (¥300,000 or less)(1) Endangering the passage of a train, tram or vessel,
or overturning or destroying a train or tram, or capsizing, sinking, or destroying a vessel(2) Committing (1) through professional conduct
3 years’ Imprisonment without work or lessor fine (¥500,000 or less)

Act on Punishment of Acts Endangering Aviation
Art. 6(1) Endangering aviation, crashing, capsizing, sinking or destroying of an aircraft underway
through negligence
Fine (¥100,000 or less)(2) Committing (1) through professional conduct
Up to 3 years’ imprisonment without work or less7or fine (¥200,000 or less)Statistics (2001 - 2014)。
Defendants Tried for Railway
Accidents

3,9%Contested cases:
6 defendants

4,11%
28,80%

Suspended Execution of Sentence
Imprisonment
Acuitted(Dismissal)

Aircraft Accidents Tried:
4 Defendants for 3 cases (1 for acquitted)

8Friction between Administrative and Criminal
Investigation

PoliceProsecutorExpertise Responding to Systemic Accidents

Different Purposes and Methods

Chilling Effect of Criminal Investigation

Contribution to Safe Transportation

International Standards and Recommended Practices

The United States’ Legal Framework
Misunderstanding or Distrust?

9Differences between Administrative andCriminal Investigation
1. Administrative Investigation

Systemic Accident

Identifying the causes of an accident and any factors surrounding thecauses for preventing future accidents
Potential or probable causes and factors aretaken into consideration

2. Criminal Investigation
Collecting evidence which connects to a person causing an accident
in order to prove a crime for criminal punishment
Human Error

Proof beyond a reasonable doubt. Potential or
probable causes and factors are likely to be ignored
10Which Investigation Comes First?
1.

Administrative Investigation
The U.S.: NTSB (National Transportation Safety Board)2.

Criminal Investigation
France: Its Legal System (investigative judges)3.

Cooperation and Coordination
Japan: Agreement on Implementation between both agencies
11Memorandum between The NPA and JTSBJapanese version: http://www.mlit.go.jp/jtsb/fukuchiyama/kensyou/fu04-shiryou6-1-20091207.pdf

1.
2.

JTSB’s investigation shall not conflict with the police
investigation.
The JTSB seeks police opinion in advance.

3.

The JTSB cooperates with requests for expert opinionsfrom the police.

4.

The police cooperate with requests from the JTSB.

5.

Details for smooth and harmonious investigation are
subject to discussion.
12Key Points of Detailed Arrangements
Japanese version: http://www.mlit.go.jp/jtsb/fukuchiyama/kensyou/fu04-shiryou6-1-20091207.pdf

1.

Preservation of Accident Site

2.

Examination of Accident Site

3.

Examination of Corpses

4.

Interviewing and Questioning

5.

Seizing and Maintaining Evidence
13Non-Disclosure of Records for
Administrative Investigation
1.

Chilling Effect

2.

ICAO Annex 13. – 5.12
http://www.fzt.hawhamburg.de/pers/Scholz/dglr/hh/text_2013_11_07_ICAO_Annex13_AircraftAccidentAndIncidentInvestigation.pdf#search='ICAO+Annex+13

3.

Admissibility of Records as Evidence in Court

4.

Admissibility of Final Reports of the JTSB

5.

Practices
14

ICAO Annex 13 - 5.12
Non-disclosure of records
5.12 The State conducting the investigation of an accident or incident shall not makethe following records available for purposes other than accident or incident
investigation, unless the appropriate authority for the administration of justice in that
State determines that their disclosure outweighs the adverse domestic andinternational impact such action may have on that or any future investigations:a) all statements taken from persons by the investigation authorities in the course of
their investigation;b) all communications between persons having been involved in the operation of theaircraft;c) medical or private information regarding persons involved in the accident orincident;d) cockpit voice recordings and transcripts from such recordings;e) recordings and transcriptions of recordings from air traffic control units;f) cockpit airborne image recordings and any part or transcripts from such recordings;andg) opinions expressed in the analysis of information, including flight recorder
15information.

ICAO Annex 13 - 5.12.1
Non-disclosure of records
5.12.1 These records shall be included in the final report or its appendices only
when pertinent to the analysis of the accident or incident. Parts of the records not
relevant to the analysis shall not be disclosed.
Note 1.— Information contained in the records listed above, which includes
information given voluntarily by persons interviewed during the investigation of an
accident or incident, could be utilized inappropriately for subsequent disciplinary,civil, administrative and criminal proceedings. If such information is distributed, itmay, in the future, no longer be openly disclosed to investigators. Lack of accessto such information would impede the investigation process and seriously affectflight safety.
Note 2.— Attachment E contains legal guidance for the protection of informationfrom safety data collection and processing systems.
16

Notification of Difference on
ICAO Annex 13 – 5.12 (Japan)
The Criminal Procedure Code and the Civil Procedure Code of Japan donot, when the appropriate authority for the administration of justice makes“records” (Annex 13 5.12) available in judicial procedures, require the appropriate
authority for the administration of justice to determine that the disclosure of these“records” outweighs the adverse domestic and international impact such action
may have on that or any future investigation.
However, the Japanese Accident Investigation Authority does not disclose
these records collected for itself for purposes other than accident or incident
investigation without a decision or an order of a court.
Besides, a Memorandum and Arrangements have been made between
the Japanese Accident Investigation Authority and the Japanese Police, on thebasis of which activities such as seizure of related material evidence, questioning
related people etc., are coordinated so that the procedures of accident
investigation and crime investigation will be conducted without hindrance when
they complete.
17

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 a particular transportation situation
C. Misconduct through professional negligence within thescope of regular professional duty.

18

Attitudes on Negligence
To err is human, to forgive, divine.
Alexander Pope
1688 ～ 1744
Pictures are from https://www.wikipedia.org/(From the Analects)子(曰 )過而不改 是謂過矣To err and not change one’s ways,
this is what it is to err.

19
Confucius B.C..551 ～479

감사합니다

THANK YOU

Mt. Fuji