Tort Claims in Japan: How Has the Prescription Period for Damages Changed Under the Revised Civil Code?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Claims for damages arising from tortious acts (fuhō kōi - 不法行為) are a significant area of civil litigation in Japan. The time limits within which such claims must be brought – their prescription periods – have been substantially impacted by the amendments to the Japanese Civil Code, effective April 1, 2020. These reforms have not only altered the duration of certain periods but, more fundamentally, have changed the legal nature of one of the key long-stop limitations, with considerable consequences for both victims seeking redress and alleged tortfeasors defending against claims.

This article explores the landscape of prescription periods for tort claims in Japan, outlining the traditional framework and detailing the critical changes introduced by the 2020 Civil Code reform, including their practical implications.

Prescription for Tort Claims: The Framework Before the 2020 Reform

Prior to the 2020 amendments, Article 724 of the old Civil Code governed the time limits for tort claims. It established a dual-period system:

  1. The Subjective Three-Year Period: A claim for damages in tort was extinguished if not exercised within three years from the time the victim, or their legal representative, "became aware of the damage and the perpetrator" (songai oyobi kagaisha o shitta toki - 損害及び加害者を知った時から). This period was generally understood and applied as a standard extinctive prescription period (shōmetsu jikō), subject to rules of interruption and suspension, and requiring invocation by the defendant.
  2. The Objective Twenty-Year Period: The same article also stipulated that the right to claim damages would be extinguished if not exercised within twenty years from "the time of the tortious act" (fuhō kōi no toki kara - 不法行為の時から). Crucially, the Japanese Supreme Court had consistently interpreted this 20-year limitation not as a typical prescription period, but as an "exclusion period" (joseki kikan - 除斥期間) (e.g., Supreme Court judgment, December 21, 1989, Minshū Vol. 43, No. 12, p. 2209).

The characterization of the 20-year period as an exclusion period had significant ramifications:

  • Absolute Nature: It was considered an absolute bar, meaning the right was definitively lost upon its expiry.
  • No Interruption or Suspension: Unlike prescription periods, an exclusion period was generally not subject to interruption (e.g., by acknowledgment of the tort or filing a lawsuit that was later withdrawn) or suspension (e.g., for minors or due to natural disasters). The clock ran inexorably.
  • No Invocation Required: The court could apply it ex officio (on its own initiative) without the defendant needing to specifically plead it as a defense.

While providing legal certainty, this interpretation of the 20-year period as an unyielding exclusion period faced criticism, particularly in cases involving latent injuries or damages that only manifested long after the tortious act (e.g., asbestos-related diseases, pharmaceutical side effects). Victims could find their claims barred even before they reasonably could have become aware of the harm. Although courts sometimes sought equitable solutions within the confines of the law, the inflexibility of the exclusion period doctrine posed challenges.

Key Changes Under the 2020 Civil Code Reform

The 2020 Civil Code amendments addressed these concerns by making two pivotal changes to the prescription rules for tort claims.

A. The Twenty-Year Period: From an Absolute Bar to a Flexible Prescription (Amended Article 724, item 2)

The most fundamental change is the reclassification of the 20-year limitation. The amended Article 724, item 2 now explicitly states that the right to claim damages for a tort is extinguished if not exercised within twenty years from the time of the tortious act, and crucially, it specifies that this occurs "by reason of prescription" (jikō ni yotte shōmetsu suru - 時効によって消滅する).

This seemingly subtle change in wording has profound legal consequences, transforming the 20-year period from an absolute exclusion period into a standard extinctive prescription period. The implications of this reclassification are far-reaching:

  1. Invocation (En'yō) Now Required: Like other prescription periods, the defendant must now actively invoke the 20-year prescription as a defense for it to be effective. A court can no longer apply it ex officio.
  2. Subject to Renewal (Kōshin): The running of the 20-year period can now be "renewed" (the new term for what was previously "interruption"). This means actions such as:
    • An acknowledgement (shōnin) of liability by the tortfeasor.
    • A judicial demand (saiban-jō no seikyū) by the victim (e.g., filing a lawsuit, even if it's later withdrawn under certain conditions allowing for a grace period).
    • Commencement of enforcement proceedings.
      These actions can reset the 20-year clock, causing a new period to begin.
  3. Subject to Postponement of Completion (Kansei Yūyo): The completion of the 20-year prescription can now be "postponed" (the new term for what was previously "suspension" and certain aspects of interruption). This includes:
    • The six-month grace period after the termination of judicial proceedings that did not result in a final judgment confirming the right (e.g., withdrawal of a suit).
    • Postponement for minors without legal representatives, or during natural disasters, as provided by general prescription rules (Articles 158-161 of the amended Civil Code).
    • Crucially, the new mechanism for postponing prescription by a written "agreement to engage in discussions" concerning the claim (Article 151 of the amended Civil Code) also becomes potentially applicable to the 20-year tort limitation.

Rationale for the Change: This reclassification was driven by a desire to provide greater flexibility and the potential for more equitable outcomes, particularly for victims of torts with long latency periods or complex discovery issues. Treating the 20-year period as a prescription period allows for the application of general principles that can prevent its harsh application in deserving cases, aligning it more closely with the overall philosophy of the reformed prescription system.

B. Extended Subjective Prescription Period for Claims Involving Life or Body (New Article 724-2)

The second major change specifically addresses tort claims involving the most fundamental of interests: life and physical well-being. The newly established Article 724-2 creates a special, longer subjective prescription period for claims for damages arising from "a tortious act that infringes upon a person's life or body" (hito no seimei matawa shintai o gaisuru fuhō kōi ni yoru songai baishō seikyūken).

For these specific claims, the subjective prescription period – running from the time the victim or their legal representative became aware of the damage and the perpetrator – has been extended from the standard three years to five years.

Rationale for the Extension: This extension acknowledges the profound impact of torts affecting life or physical health and the often complex and emotionally challenging circumstances victims face in pursuing such claims. Providing a longer window (five years instead of three) from the point of awareness allows victims more time to understand their situation, gather evidence, seek legal counsel, and make informed decisions about litigation.

Furthermore, this change aligns the prescription period for personal injury and death claims under tort law more closely with the periods applicable if such harm arose from a breach of contract. Under the amended Civil Code (Article 167), the objective prescription period for general claims (including contractual ones) involving infringement of life or body is 20 years. Combined with the new Article 724-2, this effectively aims to create a unified framework where claims for personal injury or death are generally subject to a 5-year prescription from awareness and a 20-year prescription from the wrongful act or objective exercisability, regardless of whether the legal basis is tort or contract.

C. Subjective Prescription for Other Tort Claims (Amended Article 724, item 1)

For tort claims that do not involve the infringement of life or body (e.g., property damage, defamation, economic loss not connected to physical injury), the traditional subjective prescription period remains unchanged. Such claims are still extinguished if not exercised within three years from the time the victim or their legal representative became aware of the damage and the perpetrator (Amended Article 724, item 1).

Understanding "Awareness of Damage and Perpetrator"

The starting point for the subjective prescription period (both the 3-year and the new 5-year period) remains "the time the victim (or their legal representative) became aware of the damage and the perpetrator." The interpretation of this phrase, developed through extensive case law, is crucial. Generally, "awareness" requires:

  • Knowledge of the fact of damage.
  • Knowledge of the identity of the party legally responsible for causing the damage (the perpetrator).
  • A sufficient understanding that the damage is actionable in tort, allowing for the practical possibility of making a claim.
    The level of detail required for "awareness" can be fact-specific, but it implies more than mere suspicion; it points to a state where a reasonable person in the victim's position could realistically be expected to pursue a claim.

The application of these reformed prescription rules to torts that occurred or whose elements were fulfilled before the April 1, 2020, enforcement date is governed by transitional provisions (Supplementary Provisions of the amending act, Article 35).

  1. Regarding the 20-Year Period (Now Prescription): If, by April 1, 2020, the 20-year period from the tortious act (as interpreted under the old law, i.e., as an exclusion period) had already expired, the claim is barred according to the old rules. The new characterization as a prescription period (with possibilities of renewal/postponement) does not retroactively revive such claims.
  2. Regarding the Extended 5-Year Subjective Period for Life/Body Claims: The new 5-year subjective prescription period under Article 724-2 does not apply if the 3-year subjective prescription period under the old law (former Article 724, first part) had already completed by April 1, 2020. In such cases, the claim remains extinguished by the old 3-year limit.

These transitional rules mean that for a considerable period, legal practitioners will need to carefully assess which set of rules applies based on the timing of the tortious act and the expiry of periods under the old law.

Practical Implications of the Revised Prescription Periods

The changes to the prescription rules for tort claims have several significant practical consequences:

  • For Claimants (Victims):
    • The reclassification of the 20-year period as a prescription period is a major potential benefit. It opens the door to arguments for renewal (e.g., if the tortfeasor acknowledged liability) or postponement of completion (e.g., due to ongoing settlement negotiations under a written agreement, or if the victim was a minor without representation for a part of the period). This offers a lifeline for claims that might have been definitively barred under the old exclusion period interpretation.
    • Victims of torts involving personal injury or death now have a longer (5-year) window from the point of awareness to file their claims, providing more time for recovery, investigation, and legal preparation.
  • For Defendants (Potential Tortfeasors and their Insurers):
    • The 20-year period from the tortious act is no longer an automatic, absolute defense that the court would apply on its own. Defendants must now affirmatively plead and prove the expiry of this 20-year prescription period.
    • They must also now consider the possibility that the 20-year period might have been renewed or its completion postponed by events that were previously irrelevant to an exclusion period.
    • For personal injury or death claims, potential liability exposure from a subjective awareness standpoint is extended from 3 to 5 years.
  • Impact on Settlement Negotiations:
    • The fact that the 20-year period can now be renewed or its completion postponed (including via an "agreement to engage in discussions" under Article 151) can significantly influence the dynamics of settlement negotiations for long-latency torts. Parties may be more willing to engage in structured negotiations knowing that the prescription clock can be managed by agreement, rather than rushing to court solely to preserve a claim against the 20-year deadline.
  • Increased Complexity in Some Cases: While aiming for overall simplification, the introduction of renewal and postponement possibilities for the 20-year period, and the need to navigate transitional rules, can add layers of complexity to assessing the viability of very old tort claims.

Conclusion

The 2020 reform of the Japanese Civil Code has brought substantial changes to the prescription framework for tort claims, moving towards a system that, in certain respects, offers greater flexibility and enhanced protection for victims, particularly those suffering personal injury or death. The recharacterization of the 20-year limitation from an absolute exclusion period to a standard prescription period is a landmark shift, making it subject to invocation, renewal, and postponement. Coupled with the extended subjective period for life and body claims, these amendments require businesses and legal professionals to reassess their approach to managing tort-related risks and disputes in Japan, always considering the specific facts of each case and the evolving jurisprudence under the new regime.