介绍:
III. Comparison with Other Compensation Systems
It may be useful to conclude this paper addressing the compensation for the victims of the tsunami of March 3, 2011 and the subsequent nuclear incident at Fukushima by briefly putting the Japanese compensation system in an international perspective. Of course time does not permit a full fledged comparative analysis, 627 but it may be interesting to briefly sketch to what extent the compensation system in Japan is in line with certain international trends or deviating from them. This may also provide an occasion to ask the question to what extent the compensation system in Japan may provide international lessons for other legal systems struggling with the financial compensation for victims of catastrophes or the compensation for victims of nuclear accidents.
A. Compensation for Victims of Natural Disasters
As far as the compensation of victims of natural disasters is concerned, four types of compensation systems can be loosely distinguished. 628 This brief survey considers insurance policies for terrorism as well. The low-frequency, high-magnitude nature of terrorist attacks demonstrates a risk level analogous to nuclear disasters for the purpose of comparing compensation systems.
1. A first possibility is to rely on liability and social security already in place and implement no further regulatory measures. Such an approach is largely followed in some European legal systems like Germany, Italy and Sweden. 629
2. A second approach is to mandate that first party insurance coverage be extended to damages caused by a variety of natural disasters. This approach is used in France. 630 A similar system is being discussed in Belgium and the Netherlands. 631
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3. A third possibility is to create a compensation fund for victims that would provide partial compensation. A disaster fund like that exists in Austria to respond to terrorist attacks. 632
4. A fourth option is to develop public-private partnerships, whereby the state intervenes to facilitate private insurance. These models are typically found in the U.S.; examples include the California Earthquake Authority ("CEA") and the National Flood Insurance Plan ("NFIP") for Flooding. 633
Looking at international trends one could hold that the first system-liability law-is rarely used for natural catastrophes for the simple reason that there is usually no liable tortfeasor that can be easily identified and sued. The second model-an extension of mandatory disaster coverage in addition to first party insurance backed up with reinsurance by the state-is increasingly popular. 634 This model has substantial support in academic literature 635 and is becoming increasingly popular at the policy level in a number of countries, including the United States. 636 Mandatory disaster coverage is advocated since, as a result of a variety of behavioral biases, victims do not typically purchase disaster coverage even if it would increase their expected utility. 637 The role of government is also changing. In the past, governments would rather provide ad hoc compensation to victims of catastrophes. 638 This model is, however, increasingly [*208] criticized as it would lead to a so-called moral hazard, by providing perverse incentives to victims not to seek insurance coverage. 639
How does the compensation for victims of earthquakes in Japan compare with these international tendencies? Japan seems to rely largely on insurance solutions, which allow substantial flexibility. Earthquake insurance can be obtained via traditional insurance companies, with reinsurance by JER. 640 There is also limited intervention by the government in the reinsurance of the earthquake risk. 641 In addition, earthquake insurance for households is also possible via Kyosai. 642
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