THE CRISIS OF ROAD TRAFFIC
FATALITIES IN JAPAN: IS LAW
THE ANSWER?
Nadine Courmadias, Deakin University
Outline of presentation
2
Introduction
Crisis
Legal Reforms
Evidence of Impact of Law Reform
Is Law the Answer?
Other Reforms
Conclusion
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
The Crisis
3
Motor vehicle crashes have been described as a global epidemic.
More than 1.2 million people die in motor vehicle crashes each year
world wide.
More than 7,000 people die annually as a result of motor vehicle
crashes in Japan.
Driving while under the influence of alcohol is the leading cause of
motor vehicle crash fatalities in both developed and developing
countries
Alcohol is the single most important personal risk factor for drivers.
A number of studies have shown that deterring drink driving is an
important way to reduce motor vehicle crash fatalities and injuries.
There is a demonstrable need for social change in this area, world
wide.
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Legal Reforms
4
Japan has recently strengthened its already strict
laws in order to reduce the number of alcohol
related road fatalities.
Japan’s Road Traffic Act was significantly amended
in 2002 and 2007.
These reforms lowered the legal blood alcohol
content limit, increased the penalties for offenders
and strengthened/introduced accessorial offences.
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Legal Reforms: The Driver
5
shukiobi-unten
those driving a motor vehicle with a blood alcohol limit of 0.03 or
higher
maximum sentence - up to 3 years imprisonment or a fine not
exceeding 500,000 yen
sakeyoi-unten
more seriously drunk, blood alcohol limit of .08 or higher
maximum sentence - up to 5 years imprisonment or a fine not
exceeding 1,000,000 yen
Administrative penalties - points, revocation, suspension etc.
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Legal Reforms: Accessories
6
Offence to provide a vehicle to someone who could be
under influence of alcohol
Offence to provide alcohol to someone likely to drive
penalty same as that given to driver
2 years/0.3M yen – 3 years/0.5M yen
Offence to ride as a passenger in a vehicle operated
by a person likely to be intoxicated
2 years/0.3M yen – 3 years/0.5M yen
in 2008 Sendai passenger fined 250,000 yen for allowing
a friend to drive while intoxicated
accident killed 3 students, injured 15, driver serving 20
years in prison
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Legal Reforms: Criminal Code
7
Article 208-2 Kiken unten chisi zai
Dangerous driving causing death
up
to 25 years imprisonment
not really used for drink driving (rear ending SUV after
drinking lots not ‘dangerous driving – although killed 3
children)*
Article 211-2 Gyomujo kashitsu chisi-zai
Negligent Driving Resulting in Death or Injury
maximum
7 years imprisonment / fine 1M yen
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Evidence of Impact of Law Reform
8
Is the Law Working? Statistics say yes:
National Police Agency reported 30% decrease in
road toll deaths in year following the 2002 drink
driving law reforms
Road toll deaths dropped by a further 35% after
the 2007 reforms
2008 newspaper article reports that current alcohol
related road fatalities represent a quarter of the
pre-reform statistics
But will this continue?
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Is Law the Answer?
9
The rational choice theory of offending suggests that offenders are active decision
makers who factor a large number of variables into the decision whether or not to
commit an offence
a cost benefit analysis – is the punishment (possible jail, large fines) worth the reward (the
convenience of driving home without the expense of a taxi and inconvenience of retrieving
my car tomorrow)?
supported by the number of international studies that have demonstrated that the strict
enforcement of drink driving laws with severe sanctions serves as an effective deterrent
and will result in changed community norms and changes in motorists’ behaviours.
On the other hand, many offenders commit crimes in response to adverse social
situations or opportunities, and a number of studies in fact show that recidivism rates
do not vary significantly regardless of the punishment inflicted.
core group of repeat offenders (usually alcoholics) who continue drinking and driving even
after losing their licenses. 2007 prison survey found 10% of inmates who committed
offences while drunk said they drove after drinking on a daily basis and 21% said they
did so two or three times a week.
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Other Reforms?
10
Installation of devices that prevent the engine from
starting when it detects alcohol in the air exhaled
from the driver?
Further educational initiatives to work with
alcoholics and other offenders and to educate
children about the dangers of drinking and driving?
Civil suits?
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Conclusion
11
In relation to drink driving at least, it appears that the
law has been very successfully used to drive important
and universally beneficial social change in Japan.
Studies have shown dramatic reductions in the road toll
as a result of the legal reforms in Japan.
Whether this will continue remains to be seen.
Formal law is an important and essential part of the
answer to this crisis but it is only a part – other
measures also need to be given serious attention in
Japan and elsewhere.
ANJeL-7 Crisis and the Law Conference Tokyo 14 February 2009
Addressing Crises for Consumers:
Safety versus Convenience
regarding Money Transfers,
Consumer Credit and Konnyaku
Jelly – For Whom the Bill Tolls?
Souichirou Kozuka
Sophia University
The Rise of Consumer Law?
• Law making in consumer protection has
increased in number & accelerated in speed.
Consumer group suit introduced in 2006
Interest rate regulation amended in 2006
Financial Products and Exchanges Act in 2006
General recall added to under Consumer Products
Safety Act in 2006.
Regulation of excessive sales under Law on Specific
Commercial Transacions in 2008
Responsibility of seller by installments in 2008
Policy Behind the Law Making
• Does this trend really mean that
consumer interests are taken
seriously?
• Partly, yes (because of the single
constituency system).
• Or, maybe a shield for the
government in case of an accident.
Outline of the Argument
• Do regulators truly think of consumer
interests?
• If yes, there must be discussions over
“what is consumer interests”?
• Otherwise there will tend to be
overregulation (against consumers’
true interests).
What is “Consumer Interest”?
• Excess demand
leading to more resort
to illegal lenders?
• Demand curve as
generated by lenders
• Need for market
analysis before law
reform
Consumers’ Interest of Being Served
• In the case of consumer credit, not
convincing.
• BUT generally, consumers benefit from
being served better, cheaper and more
suitably.
• It is realised by market forces, not through
the protection.
Discussions over Money Transfer
Regulation
• In 2007, FSA started discussions over the
settlement / money transfer systems.
• “New type of services” included payment
at convenience stores and pay-for-delivery
by courier service operators.
• New regulation was intended to address
the insolvency risk of service providers.
• “New services” threatened to be killed?
Advocating Consumer Benefit
• METI advocated consumer benefit in
convenient services.
• As long as the insolvency risk is on the
recipient company, no harm to consumers.
• In fact, few complaints were heard.
• Why FSA wanted regulation? – power to
step in and investigate once trouble arises.
The case of Konnyaku Jelly
• Some infants and
aged choked to
death.
• 17 accidents were
reported in 14
years.
• Most recently in
July 2008.
Prompt Reaction by the Gov’t
• Minister Noda
summoned the
largest
manufacturer
(without any
statutory basis).
• Manufacture was
forced to stop.
New Law was Drafted
• New law on “Products safety” was drafted.
• Catch-all recall order by the government
against “grave accident” caused by lack of
“consumer products safety.”
• An order by the government restricting
trade in goods lacking consumer products
safety.
The Story did not End There …
• Many supports for manufacturer on the Internet.
• Sales resumed a few months later with a
new warning sign.
Who Wanted the Regulation?
• No statute regulates the shape of products.
• “Gap of regulation”: METI not in charge of
food; MAFF not in charge of dangerous
design.
• However, no one cared about voices on the
Internet.
• The issue forgotten: what do consumers
really want?
Has the Regulation been Successful?
• In the end, intended regulation not favoured by
the public has not come true.
• FSA gave up extending regulation over
convenience store payment / courier service.
• Consumer Product Safety Act still pending
before the Diet.
• Consumers’ benefit is not analysed theoretically
or by the legislator but appears to be effective in
the legislative process.
Where does Japan Stand?
• “Consumers” is no longer ignored.
• Legislation protecting consumers is taken
seriously.
• Protection is easily considered; benefits
from the market tend to be overlooked.
• However, regulation against consumer
benefits does not succeed after all.
Does the introduction of an
Ombudsman improve
administrative
environmental decisionmaking processes?
:Australia and Japan Compared
7th ANJeL Conference 2009:
Environmental Law Session
Mahito SHINDO (MU-CEL)
Significance
• Access to Justice in Environmental Decision-making
Processes:
Important for securing transparency of
environmental decision-making processes
(Aarhus Convention Art.9)
Crucial for realising good environmental
governance
• The Ombudsman is not directly mentioned in Aarhus
Convention as a mechanisms of access to justice.
Also, the role of the Ombudsman in this area has
not been well researched yet.
• Still, the Ombudsman has potential to expand
access to justice for the public to seek for a better
environmental decision-making process.
Arguments
• The Ombudsman can expand
assessment targets, which the public
can bring into the mechanisms of
access to justice.
• The Ombudsman has enough
effectiveness as a mechanism of
access to justice.
• The Ombudsman has better
accessibility compared with other
mechanisms.
Subject of Evaluation
• The elements of functionality to be
examined are:
1) Assessment targets,
2) Effectiveness,
3) Accessibility
• The Jurisdictions and Mechanisms to
be examined are:
A) Commonwealth Ombudsman
(Australia)
B) Administrative remedies (Japan)
C) The courts (Japan)
Evaluation Criteria
• 1) Assessment targets
a) Range of subjects
i) Types of subjects
ii) Aspects of assessment
• 2) Effectiveness
a) Influence of resolutions
i) Legally binding power
ii) Follow-up functions
• 3) Accessibility
a) Burdens in procedures
i) Burden of investigation
ii) Burden of proof
b) Standing:
i) Range of claimants
ii) Time limit
b) Proceeding Speed:
i) Time to conclusion
b) Costs
i) Fee
ii) Financial support
1) Assessment targets
a) Ranges of subjects
b) Standing
Types of
subjects
Aspects of
assessment
Range of
claimants
Time limit to
bring cases
The
Ombudsman
(AUS)
Systemic
problems
through cases
Procedure
(+ rationale)
&
Substantive
No limitation
12 months
From the day
knew the
action
Administrativ
e Remedies
(JPN)
Individual
cases
Procedure
&
Substantive
Concrete Legal
interest /actual
damage
PI Group：
：○
60 days
From the day
knew the
action
The Courts
(JPN)
Individual
cases
Procedure
&
(Substantive)
Concrete Legal
interest /actual
damage
PI Group：
：×
6 months
From the day
knew the
action
1) Assessment targets (Findings)
• Commonwealth Ombudsman (AUS):
broad enough to examine a wide range of
environmental disputes.
• Administrative remedies (JPN):
relatively narrow, but can examine certain type of
environmental disputes.
• The Courts (JPN):
narrower than those of administrative remedies.
From the comparison:
the Ombudsman has the potential to expand
assessment targets.
2) Effectiveness
c) Influence of resolutions
d) Processing Speed
Legally
Follow-up
binding power functions
Average time
to conclusion
The
Ombudsman
(AUS)
No
Report to the Prime
Minister / Parliament
Report Repeatedly
90% ≤ 3 months
3% > 6 months
Administrative
Remedies:
General (JPN)
Yes
No
31% ≤ 3 months
16% = 6-12 months
40% > a year
Administrative
Remedies:
EDCC (JPN)
1/5 : Only for
damageresponsibility
adjudication
Recommendation
on Environmental
Policy to heads of
departments
85% ≤ 3 months
4% = 6-12 months
2.5% > a year
The Courts
(JPN)
Yes:
absolute power
＊Non-execution
Judgment
33% ≤ 6 months
23% = 6-12 months
44% > a year
2) Effectiveness (Findings)
• Commonwealth Ombudsman (AUS):
relatively positive
• General Administrative remedies (JPN):
difficult to judge.
• EDCC (JPN): relatively positive.
• The Courts (JPN): positive.
From the comparison:
Neither of them is perfect in all elements,
but can contribute to resolve environmental
disputes. So is the Ombudsman.
3) Accessibility
e) Burden in procedures
Burden of
Burden of Fee
investigation
proof
Financial
support
No
No Fee
No
Administrative Yes
Remedies:
General (JPN)
No
No Fee,
No
Administrative Yes
(Ex Officio
Remedies:
Examination)
EDCC (JPN)
Yes
The
Ombudsman
(AUS)
The Courts
(JPN)
No
f) Costs
Yes
(Disposition of
explanation)
(Ex Officio
Examination)
Evidence Collection ,
Lawyer
Fee,
No
Evidence Collection ,
Lawyer
Yes
Fee,
Evidence Collection ,
Lawyer,
No
3) Accessibility (Findings)
• Commonwealth Ombudsman (AUS):
quite high.
• General Administrative remedies (JPN):
the highest in Japan.
• EDCC (JPN): medium.
• The Courts (JPN): low.
From the comparison:
the Ombudsman has better accessibility
as compared to other mechanisms
Conclusion
• The Ombudsman:
has potential to expand assessment targets;
may be effective as a mechanism of access to
justice;
has relatively better accessibility compared
with other mechanisms
• Introduction of the Ombudsman into Japan
could expand and enrich the access to justice
in administrative environmental decisionmaking processes, with synergy to the other
mechanisms
Necessity of full research
• This ad-hoc comparison merely introduces
and touches the surface of a hypothesis.
• This hypothesis should be examined by further
research utilising full scale methodology of microcomparative law, which includes comparison of the
mechanisms within Australia and that of
institutional settings between Australia and Japan.
• This further research will be incorporated in this
presenter’s PhD thesis.
Trading our Way Out
of the Climate Crisis?
A comparative review
2009 ANJEL Conference
Ritsumeikan University, Tokyo Campus
Dr James Prest
Centre for Climate Law and Policy
ANU College of Law
Australian National University
Overview
Starting point = dangerous climate change
A) Australia & Japan - emissions profiles
B) Australia's emissions trading law
C) Interaction of trading with new energy laws?
D) 2 types of New Energy laws - RPS v Feed in Laws
E) Direct regulation of coal-fired electricity ?
A)
Clean energy is essential
Australia’s Greenhouse Gas inventory 2004, AGO.
Clean energy is essential
“Demand for electricity will more than double by 2050… More than
two thirds of existing electricity generation will need to be
substantially upgraded or replaced and new capacity added. The
additional capacity will need to use technology with near-zero
greenhouse gas emissions if Australia is to use technology with
near-zero greenhouse gas emissions.”
Task Group on Emissions Trading, Issues Paper, February 7, 2007
Japan & Australia compared
- Concerns about international competitiveness
- Difficulty in encouraging investment in renewable energy
Rejection of carbon tax
New coal fired plants being built
History of voluntary measures
Incentive mechanisms for solar – problems
Underexploited renewable resources
Rising interest in nuclear energy
Energy efficiency – Japan a leader
(B) Australia's Carbon
Trading Scheme
Cap-and-trade ETS.
Cap set on emissions
tradable permits issued authorising individual
polluters to emit up to the cap.
Emissions beyond cap only allowed via imported
Kyoto units.
Polluters required to give up permits to cover
emissions over a 12 month period
Failure will result in penalties (criminal or civil).
Penalty at level to ensure sufficient incentive to
comply.
Price cap proposed for first five years.
The target range for emissions reductions to be
achieved by 2020 will be from 5 per cent to 15 per
cent below 2000 levels.
White Paper, Policy Position 4.2
IPCC 4th Assessment Report
To limit warming to 2°°C
Developed countries must cut emissions
By 25 to 40%
from 1990 levels
by 2020”
Australia's 5% target
= a plan for greenhouse gases go beyond
550 parts per million (even 650 ppm),
= Runaway climate change = 3 °
warming.
= Loss of Great Barrier Reef, Kakadu wetlands
Coverage
All six Kyoto gases.
General threshold =
polluter emitting ≥25,000 t CO2-e/yr
5 main sectors:
–
–
–
–
–
energy (includes stationary energy and transport)
industrial processes,
agriculture,
LULUCF and
waste.
$3.9 billion in unconditional payments to generators
for hypothetical future loss of asset value.”“
Prof. Garnaut:
Never in the history of Australian public
finance has so much been given without
public policy purpose, by so many, to so
few,"
SMH, 20.12.08
Lost opportunity
Gives biggest polluters nearly all permits free.
This undermines the price signal.
50% of revenue raised > shielding polluters via free
permits
47% > cash subsidy to householders. (Handouts)
3% of revenue to new renewable energy /efficiency.
International linkage
Objective = lower the cost of abatement
Australian emissions may not fall
import o/s permits rather than cuts at home.
Aust total emissions =
cap + imported permits + exempt sectors
Supplementarity principle = use of flexibility
mechanisms should be supplemental to
domestic action.
(see Decision 2/CMP.1)
C) Interaction of trading with new energy
laws?
•
•
•
•
•
Will carbon trading give excuse to cut energy laws
?
“Complementary” measures OK where there are
additional market failures
Will new energy measures create extra room for
more pollution ?
Will it raise C price ?
Will it reduce the C price ?
(D) New energy laws
(1) Renewable Portfolio Standard (RPS) laws
Japan, Australia, UK :
Also known as Tradeable Green Quota or Certificate (TGQ) Laws
(2) “Feed- in” Laws
Also known as “Fixed Price” laws
Most European countries, California
May be associated with “net metering”
PLUS – Tax Measures
PLUS – Direct subsidies to investor
Price or Quantity based
instruments?
(1) Quantity instruments - RPS Law
• artificially create a market in tradeable RE certificates
•
•
Government sets Quantity of Renewables
•
harness market forces to meet the quota at minimum aggregate social cost.
Market sets the Price of Renewable energy (RE)
(2) Price instruments – “Feed-in” Law
•
•
Government sets Price for RE (renewable electricity)
the market determines the Quantity of RE
Australia's RPS Renewable Portfolio
Standard Law
Renewable Energy (Electricity) Act 2000 (Cth)
electricity retailers must buy an extra 2% of electricity from renewable sources
by 2010.
Proposed 1997 - pre Kyoto negotiations
Took 4 years to come into force: April 2001
The only mandatory scheme in a sea of voluntarism
2007: Will be expanded to 20% by 2020
Difference: RPS laws & feed in laws?
RPS – Tradeable Certificates awarded to renewable
generators – until quota is reached – who can sell
these in artificial market.
Feed in Laws – Guarantee a price to RE generators
who feed power into the grid.
Example
•
•
Normal electricity price $0.15/KWh
Renewable generator is guaranteed 3x that: $0.45/KWh
Feed-in Laws are in place in 42
jurisdictions worldwide (& growing)
1.
guaranteed premium price for RE
fed into grid
2.
Different technologies get different
prices
3.
Must connect all eligible RE
generation
4.
Guaranteed duration of premium
price
Grid upgrade obligations - don’t
fall on generator
5.
Photos: J.Prest
“the stark fact is that up to now,
there has been no experience in
Europe with a quota/TGC system
that can claim a performance with
regard to cost-efficiency, innovation,
or deployment, which is superior to
a good REFIT system”
Lauber, Volkmar (2006)
Switching to Renewable Power,
Earthscan, at 260.
Photo: J.V. Hanlon
Problems with Quota Systems
little diversity of RE generation (eg
solar PV).
no incentive to invest in
technologies other than cheapest
(eg. wind)
Don’t deliver required investment
certainty
Don’t encourage small & medium
generators
E) Direct Regulation of Coal Fired Plants ?
Photo: (c) John Ogden
Photo: (c) John Ogden
change is a real threat to our national
security; this time the weapons of mass destruction
have been unequivocally found, not least in our own
cars and power plants.
• If the public sector, despite rent-seeking and all the
rest, can fight a ferocious, years-long war based on
dubious intelligence, how much more should we able
to do for the real thing?”
•
“Climate
Ackerman, p.18.