When a Person Dies Due to a Tort in Japan, Can Their Heirs Claim Damages?

The death of an individual due to a tortious act raises profound legal questions, particularly concerning the rights of surviving family members to seek compensation. Under Japanese law, while the general principle is that an heir inherits the property rights of the deceased, including outstanding claims for damages, the specifics become complex when the tort itself is the cause of death—an area known as "life infringement" (生命侵害 - seimei shingai). This article explores how Japanese jurisprudence addresses whether and how heirs can claim damages in such circumstances.

Inheritance of Damage Claims in General

As a starting point, if an individual suffers a non-fatal injury due to a tort and incurs medical expenses, loses income, and endures pain and suffering, any valid claim for these damages that existed at the time of their subsequent death (whether from the injury or an unrelated cause) is generally considered an asset of their estate. As such, this claim can be inherited by their legal heirs.

Japanese law treats claims for damages as monetary claims. In cases of joint inheritance, these are typically considered divisible claims, meaning each heir inherits a portion according to their statutory share, although heirs can agree to a different distribution through an inheritance division agreement (遺産分割協議 - isan bunkatsu kyōgi).

A particular scenario arises if a tort victim, having suffered an injury, passes away from an unrelated cause before a judgment on their injury-related claim is finalized. In such instances, how is the claim for lost earnings due to the initial injury treated? Japanese case law, through what is often termed the "continuation theory" (継続説 - keizoku setsu), generally holds that the lost earnings claim, as established at the time of the tort for the anticipated period of disability from that injury, is not automatically cut short by the subsequent, unrelated death. This principle applies unless the later death was objectively foreseeable at the time of the initial tortious act (e.g., Supreme Court, April 25, 1996, Minshu 50-5-1221; Supreme Court, May 31, 1996, Minshu 50-6-1323). The rationale is that the right to compensation for the full anticipated loss from the injury vested at the time of the tort and should not be diminished by a fortuitous later event.

The Central Challenge: Inheriting Claims Arising from Life Infringement Itself

The core legal difficulty emerges when the tort directly causes the victim's death. A fundamental legal principle is that a deceased person can no longer be a subject of rights. This gives rise to a logical conundrum: how can a claim for damages for one's own death (i.e., for life infringement) first accrue to the deceased individual at the moment of or after their death, and then subsequently be inherited by their heirs? This is particularly problematic in cases of instantaneous death.

The legal debate and judicial solutions to this issue have evolved differently for pecuniary (economic) damages and non-pecuniary damages (consolation money or isharyō).

A. Pecuniary Damages for Life Infringement: The Path to Inheritability

This category typically includes the deceased's lost future income that they would have earned had they lived a normal lifespan, as well as funeral expenses.

1. Early Judicial and Scholarly Views (Inheritance Denial Theory - 相続否定説): In the early period following the enactment of the Civil Code, the prevailing view was that a claim for pecuniary damages arising directly from the act of causing death could not be inherited. The reasoning was that the right to such damages, if it existed, would only arise at or after the point of death, at which time the victim was no longer a legal person capable of acquiring rights. Under this view, heirs could only claim for their own direct losses resulting from the death, such as the loss of financial support if they were dependents.
2. The Shift to the "Inheritance Affirmation Theory" (相続肯定説 - Sōzoku Kōtei Setsu): Over time, particularly from the Taisho (1912-1926) and early Showa (1926-1989) eras, both academic opinion and judicial practice began to shift towards affirming the inheritability of these claims. A key driver for this change was the perceived injustice of a system where a tortfeasor causing "mere" injury could be liable for substantial damages (which would be inheritable if the victim later died), while a tortfeasor causing death (a more severe outcome) might escape liability for the deceased's own lost future, if that claim was deemed non-inheritable.To overcome the logical hurdle, various theoretical constructs were proposed by scholars:Japanese courts, embracing the underlying policy of ensuring compensation, came to consistently adopt the inheritance affirmation theory for pecuniary damages resulting from life infringement. This applies whether death is instantaneous or follows a period of injury (e.g., Taishin-in, February 16, 1926, Minshu 5-150, which explicitly employed the time lag theory in a case of instantaneous death).
   • Time Lag Theory (時間的間隔説 - Jikanteki Kankaku Setsu): This theory posited a conceptual, albeit minimal, interval between the fatal injury and the actual cessation of legal personality, during which the claim for damages (including for the impending loss of life) could accrue to the victim and thus become part of their estate.
   • Personality Succession Theory (人格承継説 - Jinkaku Shōkei Setsu): This viewed the infringement of life as an infringement of the victim's "legal personality," with the claim for this infringement then passing to the heirs as successors to that personality.
   • Extreme Concept Theory (極限概念説 - Kyokugen Gainen Setsu): This treated death as the ultimate and most extreme form of bodily injury, thereby allowing for the application of inheritance rules similar to those for non-fatal injuries.
3. Critiques of the Inheritance Affirmation Model: Despite its judicial acceptance, the inheritance affirmation theory for pecuniary damages has faced persistent criticism:
   • The "time lag" in instantaneous death cases is often seen as a legal fiction.
   • It can lead to the "laughing heir" (笑う相続人 - warau sōzokunin) scenario, where distant relatives who suffered no actual emotional or financial loss due to the death might inherit substantial sums based purely on succession laws.
   • Conversely, it may fail to adequately protect individuals who were genuinely dependent on the deceased but are not legal heirs (e.g., de facto spouses or children).
   • It can produce paradoxical outcomes, such as very elderly parents inheriting the full lost future income (calculated to retirement age) of a very young deceased child, which bears little relation to any actual dependency.
4. The Rise of the "Inherent Damages Theory" (固有損害説 - Koyū Songai Setsu): In response to these critiques, a significant academic counter-theory argues that the claim for pecuniary loss due to life infringement should not be seen as accruing to the deceased and then inherited. Instead, this theory focuses on the inherent, personal damages suffered directly by the survivors (typically close family members) as a result of the death.
   This approach can manifest in various ways, such as focusing on the survivors' loss of financial support (扶養侵害説 - fuyō shingai setsu) they would have received from the deceased, or a broader impairment of their family livelihood (生活利益侵害説 - seikatsu rieki shingai setsu). Proponents argue this model more accurately reflects the actual losses experienced and avoids the theoretical contortions of the inheritance model.
5. Current Judicial Stance on Pecuniary Damages: Notwithstanding ongoing academic debate, Japanese courts firmly maintain the inheritance affirmation theory as the primary basis for awarding pecuniary damages for life infringement when heirs bring such claims. This provides a framework for calculating substantial damages based on the deceased's projected lost earnings. However, this does not necessarily preclude survivors from also pleading their own inherent damages, such as loss of support, and courts have recognized such claims in specific contexts (e.g., a de facto spouse's claim for loss of support was affirmed by the Supreme Court on April 6, 1993, Minshu 47-6-4505). The prevailing judicial approach ensures that when heirs claim based on inheritance of the deceased's losses, that framework is upheld.

B. Non-Pecuniary Damages (Consolation Money - Isharyō) for Life Infringement

The question of inheriting a claim for isharyō (consolation money for mental suffering) due to the victim's own death presents a different set of considerations, primarily due to the existence of Article 711 of the Civil Code.

1. Article 711 and Survivors' Own Claims for Isharyō: Article 711 explicitly grants certain close relatives of the deceased—namely parents, spouse, and children—the right to claim their own isharyō for the mental suffering they personally endured as a result of the victim's death. Judicial interpretation has extended the scope of claimants under Article 711 to include individuals in relationships functionally equivalent to those listed, such as de facto spouses or siblings who acted in a parental capacity (e.g., Supreme Court, December 17, 1974, Minshu 28-10-2040). This also applies where the victim suffers severe injury short of death but the relatives experience mental suffering comparable to that from a death (e.g., Supreme Court, August 5, 1958, Minshu 12-12-1901, concerning severe facial disfigurement of a child).
2. The Debate: Is Inheritance of the Deceased's Own Isharyō Necessary? Given that Article 711 already provides a direct path for close relatives to claim isharyō for their own suffering, some argue that it is unnecessary and logically problematic to also allow for the inheritance of the deceased's purported claim for isharyō for their own death.
3. Evolution of Judicial Precedent on Inheriting the Deceased's Isharyō:The Supreme Court provided several reasons for this landmark decision:
   • Early View: Courts initially denied the inheritability of the deceased's own isharyō claim, viewing it as a highly personal right that extinguished upon death.
   • Intermediate View ("Expression of Intent" Requirement): Later, courts began to allow inheritance if the victim, before dying, had expressed an intention to claim isharyō (e.g., Taishin-in, June 5, 1919, Minroku 25-962; the Zannen Zannen—"Regrettable, Regrettable"—case, Taishin-in, May 30, 1927, Shinbun 2702-5). The rationale was that such an expression transformed the personal right into a monetary claim, which could then be inherited. This approach, however, was criticized for creating arbitrary distinctions based on the victim's final words and for its inapplicability in cases of instantaneous death or where the victim died unconscious, as well as for creating an inconsistency with the established inheritability of pecuniary damage claims.
   • Current Supreme Court Position (Landmark Grand Bench Decision): In a pivotal judgment involving a traffic accident victim who died without regaining consciousness (Supreme Court, Grand Bench, November 1, 1967, Minshu 21-9-2249), the Supreme Court fundamentally changed its stance. It held that the deceased's own claim for isharyō for the infringement of their life does arise and is inheritable by their heirs, just like claims for pecuniary damages, without requiring any prior expression of intent by the victim.
• The Civil Code does not, in principle, differentiate between pecuniary and non-pecuniary damages regarding their inheritability.
• While the interest protected by isharyō (life, freedom from pain) is personal to the victim, the resulting claim for monetary compensation (isharyō) is itself a property right (a monetary claim) and, as such, should be inheritable unless there is a specific legal basis to deny it.
• The survivors' direct claim for isharyō under Article 711 and the deceased's claim for isharyō (which is then inherited) are seen as addressing different infringed interests (the survivors' own grief versus the victim's loss of life and associated suffering) and can therefore co-exist.
• Not all legal heirs of a deceased victim are necessarily entitled to claim under Article 711. Denying the inheritability of the deceased's own isharyō claim could leave some heirs without this form of compensation.
4. Continuing Academic Discussion: Despite this clear Supreme Court precedent, many legal scholars in Japan remain critical of the concept of inheriting the deceased's isharyō claim for their own death. They often argue that Article 711 provides an adequate and more theoretically sound basis for compensating close family members for their non-pecuniary losses, avoiding the logical difficulties associated with a right accruing to a deceased person.

Conclusion

When a person dies due to a tort in Japan, the legal framework allows their heirs to claim damages, but the precise nature and basis of these claims have been the subject of considerable legal evolution and debate. For pecuniary damages, such as the deceased's lost future income, Japanese courts have firmly adopted the "inheritance affirmation theory," allowing heirs to inherit the deceased's claim, despite theoretical arguments favoring an "inherent damages" approach focused on the survivors' own losses.

For non-pecuniary damages (isharyō), while Article 711 of the Civil Code grants close relatives a direct right to claim for their own mental suffering, the Supreme Court has also affirmed that the deceased's own claim for isharyō relating to their life infringement is inheritable by their heirs. This judicial stance aims to ensure comprehensive compensation and prevent a situation where causing death results in lesser overall liability for the tortfeasor compared to causing serious non-fatal injury.

Navigating these principles requires careful attention to the specific facts of the case, the nature of the damages claimed, and the evolving interpretations by Japanese courts and legal scholars.