介绍:
Table 9: Compensation Support by Nuclear Damage Compensation Facilitation Corporation 579
This Act established a mutual support "pooling system" to provide coverage for nuclear liability after the Fukushima accident. 580 Some scholars advocate pooling as a useful instrument to finance the compensation of catastrophic losses while preserving preventive incentives. 581 The mutual support system established in Japan has some characteristics different from the practice in other jurisdictions. In both Germany and the U.S., where resource pooling between nuclear operators has been established, pooling is done before accidents happen. 582 However, the ex post system established in Japan cannot create incentives among operators to monitor each other. Unlike the American and German regimes, under the Japanese system the Corporation is not only financed by nuclear operators, but also by government compensation bonds and government- guaranteed bonds. 583 If those funds are financed without a market price, this system will look more like a bailout of TEPCO than a pooling system to prevent and compensate for future damage.
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TEPCO and the Corporation have submitted a special business plan to the government and the plan was approved on November 4, 2011. 584 According to this plan, the Corporation will deliver 1 billion yen (12.8 million USD), less the amount available through indemnity agreement to help TEPCO to compensate victims in the fiscal year 2011. 585 As a price, TEPCO needs to cut costs of 2.5 trillion yen (32 billion USD) over the following ten years. 586 As of today, TEPCO has spent 158 billion yen as "provisional compensation" to the nuclear victims, and the permanent compensation will be even higher. 587 To promote the compensation to victims, the Corporation transferred 560 billion yen (7.2 billion USD) to TEPCO on November 4, 2011 and another 120 billion yen (1.5 billion USD) pursuant to the indemnity agreement on November 22, 2011. 588 This financial assistance given under the special business plan does not contain the costs of decontamination and decommissioning of the nuclear reactors. 589
The need for further assistance may be increased according to the progress of compensation payouts and a reasonable estimate of decontamination expenses. The approved special business plan is only intended to be an emergency measure; a more comprehensive special business plan is being prepared. 590 To ensure the full compensation, the Japanese government has decided to issue government bonds of 2 trillion yen (26 billion USD) to help TEPCO to pay compensation, and is considering approving a supplementary budget of 3 trillion yen (38 billion USD). 591 This plan has been heavily criticized. Some think that if the government support is not registered as a loan on TEPCO's balance sheet, the tax payers will ultimately bear the risk; there is also concern about nuclear safety, which may be compromised as a means for cutting costs for TEPCO in the following years. 592 Others doubt whether TEPCO should continue to exist at all. 593
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E. Evaluation
The Japanese system for compensation of nuclear damage has a few striking features which also result from the fact that Japan did not join any international conventions. 594 The imposition of a strict liability regime for nuclear accidents is certainly in line with suggestions in literature. 595 However, it is clear that the main goal of the Act on Compensation for Nuclear Damage was, as the Act states, to reconcile the interests of potential victims with the interests of the nuclear industry. 596 There is a long tradition of interconnections between industry and bureaucracy in Japan, and as a result the nuclear industry has been successful in implementing its wishes through the legislature. 597
1. Learning from Fukushima: Unlimited Liability and Problems with Channeling
The unlimited liability of the nuclear power plant operator is undoubtedly a positive feature of the compensation system in Japan. International conventions and many national laws often have caps on the liability of operators, which functionally qualify as a type of subsidy. 598 However, the extent to which unlimited liability truly leads to a full externalization of nuclear accident costs is not clear. In a recent article, Mark Ramseyer is very critical, believing that earthquakes are so common in Japan that TEPCO decided to build its reactor at the site which is vulnerable to earthquake risks because it knew it "would not pay the full cost of a melt-down anyway." 599 He holds that a nuclear operator is, under the Japanese system, able to externalize liability since liability will reach a de facto cap at the value of its assets. 600
One particular striking aspect of the Fukushima case is that TEPCO had apparently placed its back-up generators in the basement [*203] under the turbine building; as a result, the plant would be without a cooling system in case of a tsunami or flood. 601 It may not immediately be clear to what extent this can be blamed either on TEPCO itself as operator or on General Electric, who designed the Fukushima plant. 602 If the wrongful placement was due to negligence on the side of General Electric, a painful aspect of the nuclear liability regime in Japan, but also worldwide, becomes clear: the channeling of liability. According to the Japanese Act on Compensation, only the operator of the nuclear power plant can be held liable, thus excluding liability of other potential parties that contributed to the risk-in this particular case, perhaps General Electric. 603
This channeling of liability has been largely criticized in the literature. 604 The economists argue that nuclear suppliers, transporters and other parties should also be responsible for nuclear damage. 605 Since some of these parties-transporters in particular-may have serious risks of insolvency, a proposal was made to make operators, suppliers, and transporters jointly and severally liable. 606 Under such a proposal, the insolvency problem would be alleviated and other parties would have incentives for mutual monitoring. 607
2. Inefficiencies Resulting from Corporate Limited Liability and Private Interests
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