Transparency in the Insurance Contract Law of Japan

Deguchi and Okada (2016), p. 11.

Stempel (1994), §3.5, p. 97: Deguchi and Okada (2016), p. 12.

Civil Code [Min-Pô], Act No. 89 of 1896.

The Great Ct. of Cassation Judgment of December 12, 1915, Minroku 21-2182 [The Taishinin Taishô 4 nen 12 gatsu 24 nichi, Dai Ichi Minjibu Hanketsu, Minroku No. 21, p. 2182].

Ueyanagi (1980), pp.10–11; Ishida (1994), pp.6–7; Osawa (1996), pp. 90–91; Amari (2008), pp. 6–7; Ôtsuka, (2010), pp. 6–7.

Tokyô High Court Judgment on May 17, 1915, 2001, Shinbun No. 1011, p. 21 [Tokyô Kô Han May 17, 1915 Shinbun No. 1011, p. 21].

See, regarding the doctrine on the several theories in Japan, Kawakami (1988), pp. 46–112.

Koezuka (2016), pp. 55–66.

The aim of the Consumer Contract Act is to protect the interests of Consumers, in consideration of the disparity in the quality and quantity of information and negotiating power between Consumers and Business Operators (§1).

Consumer Contract Act [Syôhisya-Keiyaku-Hô] Act No.61 of May 12, 2000.

http://​www.​japaneselawtrans​lation.​go.​jp/​law/​detail/​?​id=​2036&​vm=​04&​re=​01.

Financial Service Agency [Kinyû-Chô]. https://​www.​fsa.​go.​jp/​en/​index.​html

Insurance Business Act [Hoken-Gyô-Hô] Act No. 105/1995.

Judgment of the Supreme Court of Japan, 2nd Petty Bench, November 10, 1995, Vo1. 49 Minji Hanreishu (Minshu) No. 9, p. 2918 is a legal case in which the Supreme Court reached a judgment based on the rule of “Contra Proferemtem”. The issue in this case is whether a common-law wife came under the “spouse” of the exemption clause in a voluntary automobile liability insurance policy. The Osaka High Court Judgment on November 29, 1991, Hanta No. 777, p. 201 made a judgment denying a claim of the plaintiff and appellant. Then the appellant for revision made an application for final appeal because a common-law wife did not come under the “spouse” based on the rule of “Contra Proferemtem”. The Supreme Court rejected the demand for revision, declaring that it was not necessary to discriminate between a legal “spouse” and a “common-law wife.”

Judgment of the Supreme Court of Japan, 2nd Petty Bench, February 20, 1987, Vo1. 41 Minji Hanreishu (Minshu) No. 1, p. 159 is a legal case in which the Supreme Court reached a judgment based on the rule of “Contra Proferemtem”, too. The issue in this case is whether the insurance company was exempted from payment of voluntary automobile liability insurance claim because the insured did not give notice of an accident within 60 days from accident day under the exclusion clause. The Sendai High Court Judgment on July 19, 1985, Vol. 20 Kôminshu No. 1, p. 60 made a judgment denying a claim of a defendant and appellant. Then the appellant for revision made an application for final appeal, the Supreme Court rejected the demand for revision, declaring that failure to observe the obligation to inform the insurance company of an accident shall not result in exemption from payment of insurance company to the insured.

“On Simplification for Terms of No-Life Insurance” [“Songaihoken-Yôgo-no- Heiika-nitsuite”].

Kanazawa (2018), pp. 37–38.

Insurance Act [Hoken-Hô] Act No. 56/2008.

Commercial Code [Shô-Hô] Act No.48/1899.

Kozuka and Lee (2008), p. 73.

Ochiai and Yamashita (2008), pp. 5–9; Hagimoto et al. (2008), p. 3; Hagimoto (2009), pp. 11–12; Amari (2009), pp. 8–16.

There were disputes over whether insurance company or insurance solicitor had the duty to explain in Variable Life Insurance Claim Lawsuit. Fukazawa (2014), pp. 36–38.

Kogayu (1996), pp. 93–94.

Hakodate District Court Judgment on March 30, 2000, Hanji No. 1720, p. 33, Hanta No. 1083, p. 164 [Hakodate Chi Han Heisei 12 nen 3 gatsu 20 nichi, Hanji No.1720, p. 33, Hanta No. 1083, p. 164].

Kuroki (2001), pp. 41–47; Deguchi (2002), pp. 179–183; Kawakami (2001), pp. 97–99; Kinoshita (2003), pp. 106–109.

However, the insurance company denies the consumer’s claims for insurance payments pursuant to the fire insurance policy with earthquake exclusion clause if the damages of their houses caused by the earthquake are applied to the earthquake exclusion clause.

This provision is same as Art. 300➀ of the Insurance Business Act.

Act on the Control of Insurance Solicitation [Hokenboshû-no-Torishimari-nikansuru-Hôritsu] Act No. 171 of 1948. This act was repealed in 1995 when the Insurance Business Act was amended. The provisions of the Act on the Control of Insurance Solicitation are incorporated in the Insurance Business Act.

As to “self determination” in the era of Big Data, Yamamoto (2017), pp. 29–34.

Supreme Court Judgment, 3rd Petty Bench, December 9, 2003, Vo1. 57 Minji Hanreishu (Minshu) No. 11, p. 1887 [Sai Han Heisei 15 nen 12 gatsu 9 nichi Vo1.57 Minji Hanreishu (Minshu) No. 11, p. 1887].

Sumida (2004), p. 117; Nishimoto (2004), p. 79; Makinori Gotô (2004), pp. 102–103; Kasai (2004), pp. 68–71; Kuroki (2004), pp. 196–200 (pp. 34–38); Isomura (2004), pp. 25–26; Iemoto (2004), pp. 33–47; Takehama (2004), pp. 117–118; Kusano (2005), pp. 136–137; Yamashita (2005), pp. 94–97; Shidahara (2006), pp. 356–379; Shimada (2005), pp. 102–104; Okada (2010), pp. 52–53; Kuroki (2010), pp. 16–17.

Act on Non-Life Insurance Rating Organization of Japan [Songaihoken-Ryouritsusansyutsu-Dantai-ni-Kansuru-Hôritsu] Act No.193/1948.

The Act regulated the act of insurance solicitation not through the provision on providing information to consumers but through the provision prohibiting falsely informing the consumers, or failing to disclose thereto any important particulars stipulated in the insurance contract.

Yasui (2010), pp. 6–12.

Policyholders Protection Corporation [Hokenkeiyakusya-Hogo-Kikô].

Consumer Contract Act [Shôhisya-Keiyaku-Hô] Act No. 61/ 2000.

Act on Sales, etc. of Financial Instruments [Kinyû-Shôhin-Hanbai-Hô] Act No. 101/2000.

Act Concerning Confirmation of Identification of Customers, etc. by Financial Institutions, etc. and Prevention of Unauthorized Use of Deposit Account, etc. [Kinyûkikannnado-niyoru-Kokyaku-nado-no-Honninkakunin-nado-oyobi-Yokinkôza–nado-no-Huseinariyô-no-Bôshi-ni-Kansuru-Hôritsu] No. 32/2002.

Act on Prevention of Transfer of Criminal Proceeds [Hanzai-ni-yoru-Shûeki-no-Iten-Bôshi-ni-kansuru-Hôritsu] Act No. 22/ 2007.

Act on the Protection of Personal Information [Kojinjôhô-ni-kansuru-Hôritsu] Act No. 57/ 2003.

Masahi Ishida, Understanding Insurance Business Act—Explanation on Amendment of Insurance Business Act in 2016; New Rule on Insurance Sale and Response on it—[Naruhodo Hokengyôhô—Heisei 26 nen Hoken-Gyôhô-Kaisei-no Kaisetsu; Hokenhanbai-no-Shin-Rû-ru-to-sono-Taiô—] p. 33 (Hoken-Mainichi-Shinbunsha, 2016).

Banking Act [Ginkô Hô] Act No. 59/ 1986.

Ishida (2016), p. 38.

Working Group on the Status of Insurance Products, Service, etc. [Hokenshôhin Sâbisu-no-Teikyô-nado-no-Arikata-ni-kansuru-wâkingu gurûpu].

The Financial System Council [Kinyû-Singikai].

“On the Status of New Insurance Products, Service and the Solicitation Rule” [“Hokenshôhin Sâbisu-oyobi-Boshû-Rûru-no-Arikata-ni-tsuite”].

WG in FSC (2015), p. 12.

See, Suzaki (2014), pp. 12–13; Ishida (2015), pp. 660–672; Yamashita (2015), pp. 83–90, pp. 93–96; Furuta (2016), pp. 87–90; Tokio Marine & Nichidô Fire Insurance Co., Ltd. (2016), pp. 441–449; Nakaide (2017), pp. 37–38.

See, Suzaki (2014), pp. 9–12; Ishida (2015), pp. 672–680; Yamashita (2015), pp. 90–96; Tokio Marine & Nichidô Fire Insurance Co., Ltd. (2016), pp. 449–452; Nakaide (2017), pp. 38–39.

The two legal problems were pointed out: (i) what is the legal nature of the Guidelines or their grounds; (ii) whether FSA was legally qualified to publish its interpretation on the new duties of providing information and ascertaining customers’ intentions in the Insurance Business Act. Deguchi (2016), pp. 132–138.

The revised Guidelines was issued in September 2017.

FSA (2017), p. 129.

FSA (2017), p. 129.

See, Kuriyama (2016), pp. 10–12; Tôyama (2016), pp. 44–46; Furuta (2016), pp. 91–94.

FSA (2017), p. 136–139.

FSA (2017), p. 139–140.

FSA (2017), p. 140–143.

FSA (2017), p. 143–146.

FSA (2016), pp. 10–11. An insurance broker is obligated to disclose commission to a costumer under Art. 297 of the Insurance Business Act, when he or she asks for it in the course of offering to make an insurance contract. Insurance agency is not obligated to disclose it. However, banks decided and declared to independently disclose commission in 2016.

FSA (2016), pp. 9–10. FSA took a policy of promoting “transparency” in financial institutions’ effort to establish and promote “fiduciary duties” as a normal duty.

See, Kuriyama (2016), pp. 13–19; Tôyama (2016), pp. 47–59; Yasuda, (2016), pp. 63–67.

Art. 548-2 of the Civil Code defines a “Standard Transaction” and “Standard Adhesive Terms and Conditions”; the former means to be the transaction that a specified person who conduct for an unspecified large number of people and that is rational for both in all or a part of the uniformed contents; the latter means to be the whole of the conditions a specified person prepared to use as contents of the contract.

See, Nakaide (2017), p. 40.

Act on Promotion of Consumer Education [Shôhisha-Kyôiku-no-Suishin-ni-kansuru-Hôritsu] Act No. 61 of 2012. “The term ‘Consumer Citizen Society’ as used in this Act means a society in which consumers actively commit themselves to the creation of a just and sustainable society with mutual respect for the individuality of each consumer, as well as the diversity of consumer lifestyles and with an awareness of how their own consumption behavior could influence social and economic trends both at home and abroad, and the global environment at present as well as over future generations”. Art. 2II.