Hideaki Otsuka Waseda Univ. Law School Calculation of Bodily Injury and relating issues under the Japanese Law Hideaki Otsuka Waseda Univ. Law School

Basic Classification of Insurance Contracts in JIA -Classification into 2 types- 　　"non-life insurance policy:　an insurance policy under which an insurer promises to compensate for any loss that may arise from a certain contingent event." JIA2-8 　　"life insurance policy:　an insurance policy under which an insurer promises to make a fixed insurance proceeds payment in relation to a person's survival or death.”

Supposed loss must be contained in the insured property!　 →JIA3："Only interests that can be assessed in monetary terms may be the subject matter of a non-life insurance policy.” Loss-compensation!

Property and loss Fire diminished its value!

ー ＝　LOSS

Tort claim for the damage Subrogation Insurance Company ☆The loss must be compensated just ONCE! ☆Insurance contracts never make the loss 　　　 　　compensation doubled or tripled! Payment Tort claim for the damage incendiary Owner Contractant

How about human body? Some event diminished the value

For example tort law, “somatic damage” has been accepted! This part will be the loss.

However, life insurance never adopted “loss-compensation” theory!! 　　＝ No elements can be decided on this 　　 　　　　theory…

Only two types? JIA 2-6 JIA 2-8 loss-compensation property human(life) fixed amount

JIA has divided the accident insurance contracts The accident insurance contract which purpose is compensate bodily injury will belongs to JIA 2-6(non-life). The accident insurance contract in which the insurance benefit is fixed amount will be a subspecies of life insurance.

=person who is accused to cause the accident Until 1990s in the area of traffic accidents, accident insurance contracts have not usually compensate bodily injuries of victim(insured). Just like life insurance! Insurance company Fixed amount of payment to the insured Infuring party 　=person who is accused to cause the accident Accident insurance contract Claim right for the damage victim insured

Subrogation(recovery) right However nowadays accident insurance contracts which compensate for the bodily injuries become popular. Insurance company Subrogation(recovery) right Infuring party 　=person who is accused to cause the accident Payment to the insured Accident insurance contract Claim right for the damage But Failure　Ratio 　　　　=８：２ victim insured

This type of traffic accidents often occurs… Insurance company Company calculated the damage as 700 Court calculated the damage as 1000 800 700 Accident insurance contract 200 Claim right for the damage But Failure　Ratio 　　　　=８：２ victim insured

If we accept both calculation bases… The victim(insured) first claims to the insurer and gets 700. Then he is not satisfied with total compensation and claims 300 to the injuring party. The company subrogate 560 to the injuring party based on its own calculation.

Insurance company Has to pay 860 !! Subrogate 560 800 560 140 200 300 more victim insured

If we accept only court’s calculation base… The victim(insured) first claims to the insurer and gets 700. Then he is not satisfied with total compensation and claims 300 to the injuring party. The company subrogate only 500 to the injuring party based on court’s calculation.

Insurance company Has to pay just 800 Subrogate 500 800 500 Gets 700 200 200 300 more victim insured

Profound problem! Is there one absolute calculation base for loss-compensation? *court…? If the insurance company tries to make its accident insurance contract as “loss-compensating” one and “calculate” the damage of human injuries by itself, is the company prior to the court?