1. Criminal trial examining responsibility for unprecedented catastrophe

The Great East Japan Earthquake that occurred on March 11, 2011, confronted the Japanese society with a myriad of challenges. The field of criminal law, in which I specialize, is no exception. The tsunami caused by the massive earthquake off the Pacific coast of Tohoku resulted in a hydrogen gas explosion in the reactor building of the Fukushima Daiichi Nuclear Power Plant. The blast injured 13 workers at the plant and forced evacuations from nearby nursing homes and hospitals, resulting in the deaths of 44 residents and patients. Three former members of the management team of the TEPCO (Tokyo Electric Power Company) were charged with "Causing Death or Injury due to Negligence in the Pursuit of Social Activities" (the case of the TEPCO Fukushima Daiichi Nuclear Power Plant). In this case, the court of the first instance^[1] and the appellate court^[2] both ruled that the defendants were not guilty.^[3] Researchers and practitioners are likely to examine the validity of this not-guilty judgments.

In response to the judgment of the appellate court, this article aims to share the awareness of related issues for future discussion.

2. Overview of the not-guilty judgment

According to the statement in the charges, the abovementioned injuries and deaths were caused by the defendants' negligence in failing to take appropriate protective measures at the plant. How did the court reach a not-guilty judgment?

The court of first instance found that the only way to avoid this accident was to stop the operation of the plant. However, to legally mandate such measures to stop operations, there should have been predictability founded on a reliable and specific basis for the onset of the massive tsunami, which was the direct cause of the accident; the court judged that it was impossible for the defendants to predict such a disaster. The appellate court largely affirmed the judgment below on preventive measures and predictability.

In summary, both the court of first instance and appellate court concluded that the defendants were not guilty because they lacked sufficient predictability to be required to stop the plant's operations. For instance, when driving a car or performing a surgery, a driver or a doctor will likely think "I might cause a traffic accident" or "I might make a medical error." Therefore, they are required to drive or perform a surgery carefully. However, this does not mean that they should immediately refrain from driving or performing a surgery. Otherwise, it is likely to eliminate driving or medical care. In other words, a vague sense of uneasiness alone does not generate the obligation to stop driving or perform a surgery. The logic of the judgment in the TEPCO case is consistent with this idea and is common in the theory of criminal negligence.

3. Minor questions regarding the court's decision

However, the judgment is questionable on the following points.

The first point is the recognition of preventive measures. The court of first instance ruled that the necessary measures to avoid the accident were limited to stopping the operation of the plant, and the appellate court reached the same conclusion after further consideration. However, was that truly the only way to prevent the accident? Regarding this point, the designated attorney insisted on the necessity of installing a seawall, making the building watertight, and installing alternative power supply facilities on higher ground. In the first-instance judgment for the shareholder lawsuit^[4] where the defendants of the TEPCO case were additionally sued for civil negligence in their duties, at least the watertightness of buildings was recognized as a preventive measure. Although the appellate court dismissed such a measure as an afterthought, it still appears worthy of consideration.^[5]

The second aspect is the treatment of long-term evaluation^[6] for predictability judgment. According to the evaluation, in the region from the northern part of the Sanriku coast to the ocean trench near the Boso coast, there is an approximately 20% chance of an earthquake that, similar to the 1896 Meiji Sanriku earthquake, is likely to have a magnitude of approximately 8.2 and be accompanied by a tsunami, within the next 30 years. In 2008, TEPCO commissioned a parameter study based on this evaluation. According to the calculations performed in this study, the maximum tsunami water level at the plant would exceed 15 meters. Although the evaluation was important in judging the predictability of the onset of a massive tsunami, both the court of first instance and appellate court were reluctant to recognize its reliability. The denial of sufficient predictability to require the stoppage of operations was largely due to the assessment of the evaluation. However, was its reliability really so questionable? In fact, in the above mentioned first-instance judgment for the shareholder lawsuit, the court held the following: "the findings of the long-term evaluation...can be construed that it, as a scientifically reliable knowledge, mandates directors of companies that install and operate nuclear power plants to take tsunami countermeasures based on the knowledge." This may constitute a basis for a counterargument against the statements in the not-guilty judgment: "It is doubtful that the findings of the long-term evaluation were so specific and well-founded to be accepted as presenting a wave source model that required immediate measures."^[7]

The differences between criminal and civil trials cannot be ignored.^[8] Even with this in mind, the author believes that a further discussion of these points is necessary.

4. Expected safety level

Through the lens of criminal negligence liability, the case of the TEPCO Fukushima Daiichi Nuclear Power Plant highlights the question of the level of safety assurance required for supervisors of the operation and safety management of nuclear power plants.

In this regard, the court of first instance stated that "the safety of nuclear power plants against natural disasters does not mean an extremely high level of safety, such as the level at which radioactive materials in the reactor will never be released to the outside under any circumstances, or a nearly equivalent level." As indicated in the court of first instance and the appellate court, the plant followed the guidelines set by the Special Committee on Safety Goals of the Nuclear Safety Commission of Japan. If this is true, there is reason to conclude that the defendants should not be held criminally accountable because they have ensured the required safety. Alternatively, Judge Mamoru Miura filed a dissenting opinion on the judgment of the Supreme Court of Japan in the lawsuit for national compensation for evacuees of the explosion of the plant.^[9] In this case, it was asserted that the Japanese government failed to exercise its regulatory authority to prevent accidents at the nuclear plant. Miura's opinion was as follows: "Owing to publication of the Long-Term Assessment, it was possible to recognize over eight years before the Accident that the Nuclear Reactor Facilities did not conform to the Technical Standards under the laws and regulations of the time, and TEPCO had assumed the legal obligation to take appropriate measures to prevent even extremely rare disasters." If the validity of the then-rules, including those set by the Special Committee on Safety Goals, Nuclear Safety Commission of Japan, is questioned based on long-term evaluations and other circumstances, it may be possible to impose a higher level of safety assurance in the future.^[10]

Currently, nuclear power plants are being restarted throughout Japan, posing the question of how society and the (criminal) law should deal with them.

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[1] Tokyo District Court judgment, September 19, 2019, Hanrei-Jiho No. 2341／2342, page 5.
[2] Tokyo High Court judgment, January 18, 2023, cited from the Court's website.
[3] According to media reports, the designated attorney serving as the public prosecutor filed an appeal to the Supreme Court.
[4] Tokyo District Court judgment, July 13, 2022, LEX／DB25593168.
[5] Article pointing out the need for more in-depth consideration of preventive measures: Hiroyuki Yamamoto, The Asahi Shimbun (Morning Edition), Tokyo Head Office Edition, January 19, 2023, p. 2.
[6] "The Long-term Evaluation of Seismic Activity Off the Coast from Sanriku to Boso" published in 2002 by the Headquarters for Earthquake Research Promotion of the Ministry of Education, Culture, Sports, Science and Technology.
[7] In regard to the judgment of the first instance, one example of an article questioning the denial of reliability of the long-term evaluation: Hideaki Higuchi, Not-Guilty Judgment for TEPCO Management, Hanrei-Jiho No. 2431／2432 (2020), p. 60.
[8] This point was raised in articles written by Hiroshi Otsuka, The Mainichi Newspapers (Morning Edition), Tokyo Head Office Edition, January 19, 2023, p. 3, and Tomoyuki Mizuno, The Sankei Shimbun (Morning Edition), Tokyo Head Office Edition, January 19, 2023, p. 27.
[9] Supreme Court of Japan judgment, June 17, 2022, Civil Affairs Casebook, Vol. 76, No. 5, p. 955.
[10] Written works arguing the relationship between rules of conduct and negligence judgment: Hiroyuki Yamamoto, Disasters and Negligence, Atsushi Yamaguchi et al. eds., Bridging Practice and Theory: Towards Practical Issues in Criminal Law (Seibundoh, 2023) p. 83 and following.

Satoshi Tanii／Assistant Professor, Faculty of Law, Chuo University
Area of Specialization: Criminal Law

Satoshi Tanii was born in Kanagawa Prefecture in 1989.
He graduated from the Faculty of Law at the Chuo University. He completed the Master’s and Doctoral Programs in Criminal Law at the Graduate School of Law, Chuo University. He holds a PhD in Law.
After working as an Assistant Professor in the Faculty of Law, Tokyo Metropolitan University, he assumed his current position in 2021.

His research theme is the criminal negligence theory.

His main written theses include “Consideration of the Necessity of Co-principals in Negligence,” Comparative Law Review, Vol. 54, No. 3 (2020), “Period for Implementation in Cash Card Theft Involving Switching Cards,” Chuo Law Review, Vol. 129, No. 6-7 (Collection of Papers Commemorating the Retirement of Professor Yoshinori Nakanome) (2023).

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