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

2. 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.”

3. 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!

4. Property and loss
Fire diminished its value!

5. ー
＝　LOSS

6. 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

7. How about human body?
Some event diminished the value

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

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

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

11. 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.

12. =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

13. 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

14. 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

15. 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.

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

17. 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.

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

19. 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?