介绍:
2. Inefficiencies Resulting from Corporate Limited Liability and Private Interests
Examining the TEPCO case, one can argue that the non-capped liability in the Japanese system cannot guarantee efficient deterrence by itself. Though the Act on Compensation does not set a cap on the potential liability of nuclear operators, the corporate structure only exposes them to risk up to the value of their assets. 608 In this situation, a financial guarantee is important to ensure efficient deterrence. In Japan, the required financial security is set at 120 billion yen. 609 This amount is provided through a combination of liability insurance, for which the operator [*204] will pay a premium, and an indemnity agreement with government, for which a fee will be paid as well. 610
Compensation under this indemnity agreement is not a mere subsidy. However, the indemnity fee charged for government coverage is certainly not market-based. On the contrary, the fee is fixed, and therefore not risk-related. 611 Moreover, though the operator remains liable beyond the insured amount of 120 billion yen (except when the incident would be qualified as a natural disaster of an exceptional character) the exposure to liability of the operator is de facto limited to its assets. 612 Beyond that amount, Japanese law provides that government may use its discretionary powers to "take measures," meaning that it will intervene to compensate victims. In that case a lack of full internalization of the accident costs remains a problem. 613 This still raises the question to what extent a nuclear operator like TEPCO is fully liable for accident costs and to what extent liability rules do provide adequate incentives for taking preventive measures with a view to cost internalization.
A critical analysis of the development of the nuclear industry shows that poor safety controls in the nuclear industry in Japan can be explained from a private interest perspective. As discussed earlier, since nuclear operators are protected under the principle of limited liability in corporate law, they only have to pay for the potential losses up to their own assets. 614 Thus TEPCO has chosen to prioritize political considerations in siting reactors over geologic ones, and built their reactors at sites vulnerable to earthquake risks. 615
The question can then be asked why government has allowed such a choice of site and failed to order a more tsunami-resistant construction and renovation. The bureaucrats and politicians are supposed to serve the public interest and guarantee better nuclear safety. 616 However, this is not always the case. Bureaucrats are self-interested. Nuclear regulation is an intangible good for the public, who need better nuclear controls for their own safety, but deregulation is a visible, targeted, and tangible private good for the nuclear industry. Thus the nuclear industry has more incentives than the public to lobby for lax oversight. 617 Considering the inefficiency of [*205] limited liability under private ownership of nuclearinstallations, government ownership might be an alternative. However, literature also shows that government ownership may not be ideal for guaranteeing nuclear safety, as a result of the influence of regulated electricity prices, "Not In My Back Yard" attitudes and the progressive tax regime. 618
Though government and bureaucrats failed to produce efficient regulation of the nuclear industry, one may still argue that the independent judges can play a role in barring construction projects at tectonic fault lines, or granting the victims sufficient compensation to create better deterrent incentives for nuclear operators. However, this has not been the case. For example, several challenges have been filed regarding a variety of activities involving the Fukushima nuclear plants since its construction. 619 In the 1970s, local challenges were made against a landfill license granted to fill in part of a nearby bay, and against the reactor license. 620 Area residents also petitioned to shut the reactor down in 1989 after the cooling system in one of the Daini reactors failed. 621 However, all the claims were dismissed for lack of standing or because the judges deemed the plant safe enough. 622 There are similar dismissals in cases involving other nuclear power plants in Japan. 623
In addition to claims aimed at ending the operation of nuclear reactors, as discussed above, compensation claims are quite often, unsuccessful. 624 This failure may partly be explained by the difficulties presented by the tort system, like problems establishing causation due to scientific uncertainties or the remoteness between certain kinds of damage and the nuclear accident. However, a private interest analysis shows that like bureaucrats, judges also seek to protect and advance their own interests. 625 The cabinet can ensure favorable judgments for them through the nomination of corporate-friendly judges to the supreme court and through manipulation of the judicial promotion system. 626 This may be another explanation for the nuclear-friendly judgments in Japan.
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III. Comparison with Other Compensation Systems
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