Q: What is the Role of "Design and Construction Supervision" (Sekkei-Koji Kanri) in Japanese Building Projects?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

In Japanese building projects, the distinct yet interconnected functions of "Design" (設計 – sekkei) and "Construction Supervision" (工事監理 – kōji kanri) are fundamental to ensuring a building's quality, safety, and compliance with both contractual agreements and legal regulations. These roles are primarily undertaken by licensed architects (建築士 – kenchikushi), who bear significant professional and legal responsibilities. Understanding these functions is crucial for anyone involved in the Japanese construction sector, including foreign companies undertaking development projects or engaging local architectural services.

I. Defining "Design" (Sekkei) and "Construction Supervision" (Kōji Kanri) in the Japanese Context

The Architects Act (建築士法 – Kenchikushi Hō) provides the legal definitions and framework for these roles.

A. Design (Sekkei)

Under the Architects Act (Article 2(6)), "design" refers to the creation of "design documents" (設計図書 – sekkei tosho) under one's own responsibility. Design documents include drawings (excluding as-built drawings and similar) and specifications necessary for the execution of construction work (Architects Act, Article 2(6); Building Standards Act, Article 2(xii)).

In practice, architectural design is generally divided into two main phases:

  1. Basic Design (基本設計 – Kihon Sekkei): This initial phase involves understanding the client's requirements and site conditions, conducting preliminary studies on legal constraints and utility services, formulating a basic design policy, preparing basic design documents (e.g., conceptual drawings, outlines), and estimating preliminary construction costs.
  2. Implementation Design (実施設計 – Jisshi Sekkei): Based on the approved basic design, this phase involves developing detailed design documents that enable the contractor to accurately execute the construction work and for proper cost estimation. This includes detailed architectural, structural, and mechanical/electrical/plumbing (MEP) drawings and specifications.

The design documents are critical as they form the primary basis for the construction contract and for verifying conformity during and after construction. The hierarchy of design documents, in case of discrepancies, is often stipulated in contracts, with items like Q&A responses and specific instructions potentially taking precedence over general drawings or standard specifications.

B. Construction Supervision (Kōji Kanri)

"Construction supervision" is legally defined as verifying, under one's own responsibility, whether construction work is being carried out in accordance with the design documents (Architects Act, Article 2(8)).

Key aspects of kōji kanri include:

  • Verification against Design Documents: The core task is to check if the actual construction work aligns with the approved plans and specifications.
  • Reporting: If non-conforming work is found, the supervisor has a duty to instruct the contractor to rectify it. If the contractor fails to comply, the supervisor must report this to the client (Architects Act, Article 18(3)). Upon completion of supervision, a final report must be submitted to the client (Architects Act, Article 20(3)).
  • Distinction from Construction Management (Sekō Kanri): It's important to distinguish kōji kanri (supervision by the architect/supervisor, often on behalf of the client) from sekō kanri (construction management by the contractor, focusing on execution, quality control, safety, and progress from the contractor's side). While related, their perspectives and legal responsibilities differ. Kōji kanri is an oversight function ensuring adherence to design intent and contractual quality.

Standard duties of a construction supervisor typically involve explaining the supervision policy, thoroughly understanding the design documents, reviewing shop drawings and construction plans submitted by the contractor, conducting site inspections to verify conformity, and reporting the results.

II. The Role and Responsibilities of Architects (Kenchikushi)

Licensed architects are central to both design and construction supervision in Japan.

A. Qualifications and Monopoly

The Architects Act establishes different classes of architects:

  • First-Class Architect (一級建築士 – Ikkyū Kenchikushi): Qualified to design and supervise all types of buildings without limitation on scale or structure.
  • Second-Class Architect (二級建築士 – Nikyū Kenchikushi): Qualified for smaller-scale buildings, with limitations on height, floor area, and structural type (e.g., typically up to certain sizes for wooden, steel, or concrete structures).
  • Wooden Building Architect (木造建築士 – Mokuzō Kenchikushi): Specialized in wooden buildings of limited scale.

For most building projects, particularly those of a certain scale or complexity, design and supervision must be carried out by an architect holding the appropriate class of license (Architects Act, Articles 3, 3-2, 3-3). Furthermore, the Building Standards Act (Article 5-4(4)) mandates that a building owner appoint a construction supervisor (who must generally be a qualified architect) when undertaking construction work. This system grants architects a professional monopoly over these critical functions to ensure buildings meet legal and safety standards.

B. Statutory Duties under the Architects Act

The Architects Act imposes numerous duties on individual architects, including:

  • Duty of Sincere Practice (誠実義務 – Seijitsu Gimu): To maintain dignity, be proficient in laws and practices related to their work, and perform duties fairly and sincerely to contribute to the improvement of building quality (Article 2-2).
  • Compliance with Laws and Client Explanation: To ensure designs comply with relevant laws and ordinances, and to endeavor to provide appropriate explanations of the design content to the client (Article 18(1), (2)).
  • Prohibition of Nominal Lending (Meigi-gashi): Architects must not allow others to use their name/license to conduct architectural services (Article 21-2). The Supreme Court decision of November 14, 2003 (Minshu 57-10-1561), held an architect liable in tort to building purchasers for damages caused by defects when the architect had merely lent their name for a project without actual involvement, emphasizing that such acts undermine the regulatory system designed to ensure building safety.
  • Documentation and Sealing: To affix their name and registered seal to design documents for which they are responsible (Article 20(1)).
  • Safety Verification: If structural safety is confirmed through structural calculations, a certificate to that effect must be issued to the client (Article 20(2)). For certain large or complex buildings, structural design must be performed by or confirmed by a First-Class Architect specialized in structural design (構造設計一級建築士 - kōzō sekkei ikkyū kenchikushi). Similar rules apply to MEP design for large buildings, requiring involvement of a specialized MEP First-Class Architect (設備設計一級建築士 - setsubi sekkei ikkyū kenchikushi) (Articles 20-2, 20-3).
  • Construction Supervision Duties: As mentioned, to give notice to the contractor if work does not conform to design documents, and if the contractor fails to comply, to report to the client (Article 18(3)).
  • Continuing Professional Development: To strive to maintain and improve the knowledge and skills necessary for design and supervision (Article 22(1)), and to undergo periodic refresher courses (Article 22-2).

C. Architectural Design Firms (Kenchikushi Jimusho)

Architects or corporations wishing to offer architectural design and/or supervision services for remuneration must register as an "Architectural Design Firm" with the relevant prefectural governor (Architects Act, Article 23(1)). These firms also have statutory obligations:

  • Appointment of a Managing Architect (管理建築士 – Kanri Kenchikushi): Each firm must appoint a full-time architect with at least three years of professional experience who has completed a managing architect course to oversee the firm's technical operations (Article 24(2)).
  • Prohibition of Nominal Lending (Firm Level): Firms cannot allow others to operate an architectural business under their registered name (Article 24-2).
  • Restrictions on Subcontracting: Design or supervision work entrusted to the firm cannot be further subcontracted to anyone other than another registered architectural firm, even with the client's consent (Article 24-3).
  • Record Keeping and Document Retention: Firms must maintain books and records related to their services, and retain design documents for 15 years (Article 24-4; Architects Act Enforcement Regulations, Article 21(5)).
  • Client Disclosures: Before concluding a design/supervision contract, the firm must provide the prospective client with a written explanation of important matters regarding the contract and its performance, including fees and scope of services (Article 24-7). A written contract detailing specific matters must also be delivered upon conclusion of the agreement (Article 24-8).

Architects and their firms can face significant legal liability for failures in design or construction supervision.

A. Contractual Liability (Keiyaku Sekinin)

This liability arises directly from the design and/or construction supervision contract with the client. If the architect fails to perform their duties with the contractually agreed or professionally expected level of skill and care (breach of the duty of care of a good manager – 善管注意義務, zenkan chūi gimu), leading to defects or other losses for the client, they can be held liable for breach of contract. This could involve damages to cover repair costs, diminution in property value, or other consequential losses.

B. Tort Liability (Fuhō Kōi Sekinin)

Architects can also be liable in tort, not only to their direct client but also to third parties (such as subsequent purchasers of a building or individuals injured due to a building collapse) if their negligent design or supervision results in a building that lacks basic safety and causes harm. The Supreme Court ruling of July 6, 2007 (Minshu 61-5-1769), established that designers, contractors, and supervisors owe a duty of care to residents and others to ensure a building does not lack fundamental safety. A breach of this duty resulting in damage can lead to tort liability, provided there are no special circumstances (e.g., the third party was aware of the defect when purchasing). The earlier Supreme Court case on nominal lending (November 14, 2003) also affirmed tort liability towards building purchasers who suffered damages due to defects resulting from the architect's failure to properly supervise after lending their name.

C. Key Areas of Liability

Liability often arises from:

  • Design Errors: Mistakes in structural calculations, selection of inappropriate materials, designs that do not comply with the Building Standards Act or other regulations, or designs that lead to functional problems (e.g., persistent leaks, inadequate insulation).
  • Inadequate Construction Supervision: Failure to diligently check that the contractor's work conforms to the design documents and specifications, overlooking deviations from proper construction methods, or failing to identify and ensure correction of defective workmanship.
  • Failure to Report: Neglecting the duty to report significant non-conformities or defects to the client, thereby preventing timely corrective action.

IV. Comparison with the Role of Architects/Engineers (A/E) in the United States

While there are overlaps, some differences exist between the Japanese kenchikushi's role in design and kōji kanri and the typical role of an Architect/Engineer (A/E) in the U.S.:

  • Scope of "Supervision": The term kōji kanri in Japan traditionally implies a more direct and continuous verification of on-site work against design documents than the typical "construction administration" or "site observation" role of a U.S. A/E. While a U.S. A/E observes progress and conformance to design intent, the Japanese kōji kanrisha is statutorily tasked with "confirming" work is done "as per the design documents."
  • Contractual Relationships: In Japan, the client often has separate contracts with the architect (for design and supervision) and the contractor. In the U.S., while this is also common, design-build and construction management at-risk models introduce different dynamics.
  • Liability Standards: While both systems are based on professional negligence (failure to meet the ordinary standard of care), the specific statutory duties laid out in Japan's Architects Act create a distinct regulatory layer.
  • Professional Liability Insurance: While architects in both countries carry professional liability insurance, the market, typical coverage, and claims history can differ.

V. Practical Implications for Foreign Companies

For foreign companies undertaking projects in Japan:

  • Engage Qualified Professionals: Due diligence in selecting a licensed and reputable Japanese architectural firm with relevant experience is paramount.
  • Clear Contracts: Ensure that contracts for design and construction supervision clearly define the scope of services, responsibilities, deliverables, and lines of communication. Understand the standard duties implied by Japanese law.
  • Understand the Supervisor's Role: Recognize that the kōji kanrisha is not a project manager in the U.S. sense but an independent professional verifying compliance on behalf of the client's interest in achieving a building per design and legal standards.

Conclusion

The functions of design (sekkei) and construction supervision (kōji kanri), predominantly performed by licensed architects, are integral to the Japanese construction process. These roles are heavily regulated by the Architects Act and are essential for ensuring that buildings are not only aesthetically and functionally sound but also structurally safe and compliant with the extensive requirements of the Building Standards Act. Architects in Japan carry substantial legal and professional responsibilities, and their diligent performance is a key factor in the successful realization of any building project. Foreign entities must appreciate this framework to effectively manage their construction endeavors in Japan.