2012.02.08

2009(A)359

Keishu Vol. 66, No. 2

Decision concerning a case wherein, with regard to an accident in which the front wheel tire, etc. of a truck fell off due to cross-cut damage to its hub while traveling and caused death or injury to pedestrians, the court found that the personnel who were in charge of quality assurance services at the company that manufactured said truck were required, based on the duty of exercising care in the pursuit of social activities, to take the necessary actions to implement improvement measures including recalls for vehicles equipped with hubs of the same type

Case charged for causing death or injury through negligence in the pursuit of social activities

Decision of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of February 2, 2009

1. With regard to an accident in which the front wheel tire, etc. of a truck fell off due to cross-cut damage to its hub while traveling and caused death or injury to pedestrians, under the factual circumstances (see the text of the judgment), such as the possibility that the poor strength of the hub could objectively be found at the time of handling a past accident that was similar to the accident in question, as well as the magnitude of such possibility and the seriousness and frequency of accidents that were expected to occur, and also the fact that the company that manufactured said truck exercised total control over accident-related information, the personnel who, at that time, were in charge of quality assurance services in the position of the manager or the relevant group leader of the company's quality assurance division, based on the duty to exercise care in the pursuit of social activities, were required to take the necessary actions to implement improvement measures including recalls with regard to vehicles equipped with hubs of the same type and prevent the subsequent occurrence of an accident of cross-cut damage to the hub caused by its poor strength. 2. With regard to an accident in which the front wheel tire, etc. of a truck fell off due to cross-cut damage to its hub while traveling and hit pedestrians, thereby causing death or injury to them, in the case where the personnel in question, based on the duty of exercising care in the pursuit of social activities, were required to take the necessary actions to implement improvement measures including recalls with regard to vehicles equipped with hubs of the same type, and it was possible for the personnel to avoid said accident by fulfilling said duty of care, if said accident is not found to have been caused by the poor strength of the hub, a causal relationship cannot be found between said accident and the personnel's breach of said duty, but under the circumstances as indicated in the judgment where said accident is found to have been caused by the poor strength of the hub, said accident is recognized as the materialization of the risk arising from the breach of said duty, and therefore there is a causal relationship between said accident and the breach of said duty. (There is a dissenting opinion concerning 1 and 2.)

(Concerning 1 and 2) First sentence of Article 211 of the Penal Code (prior to the revision by Act No. 138 of 2001) (Causing Death or Injury through Negligence in the Pursuit of Social Activities) A person who fails to exercise due care required in the pursuit of social activities and thereby causes the death or injury of another shall be punished by imprisonment with or without work for not more than five years or a fine of not more than 500,000 yen.

The final appeals are dismissed.

I. Determination concerning the reasons for final appeal The reasons for final appeal argued by the defense counsels for Accused X, KANAMORI Hitoshi and YAMADA Manabu, and those argued by the defense counsel for Accused Y, OMORI Kazushi, including the reasons alleging violation of the Constitution, are in effect assertions of unappealable violation of laws and regulations or errors in fact finding, and none of these arguments can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure. II. Determination by this court's own authority Having examined the arguments, however, we make a determination by this court's own authority as to whether or not the accused persons are guilty of the crime of causing death or injury through negligence in the pursuit of social activities. 1. According to the findings of the judgment in prior instance and of the judgment in first instance affirmed by the former, as well as the case records, the outline of the facts of the case is as follows. (1) Positions and responsibilities of the accused persons The quality assurance division of Mitsubishi Motors Corporation (hereinafter referred to as "Mitsubishi Motors") was in charge of affairs within the company such as those relating to responses and measures in terms of market quality, or more specifically, this division was engaged in (a) analyzing quality information on the company's cars, trucks, and busses entered in the written reports prepared with the designated form, which were sent from the car dealers, etc., and notifying the relevant divisions of such information after categorizing it by the "level of importance," "type of handling," etc. depending on factors including the location and details of defects in products, thereby directing those divisions to take countermeasures or implement improvement measures, and (b) holding meetings to determine whether or not individual defects require recalls or other improvement measures according to the level of importance of defect information, such as the complaint management meeting and the recall meeting (hereinafter collectively referred to as "related meetings"), and reporting the outcomes of the meetings to the person authorized to make the final decision as to the necessity to implement measures including recalls. At the time of the Chugoku JR Bus Accident, explained in (4) below, Accused X was in the position of the manager of the quality assurance division, and was engaged in the duty to supervise quality assurance services for cars manufactured by Mitsubishi Motors. He organized related meetings when serious defects affecting safety were discovered, such as cases where the structure, equipment or performance of the company's cars was likely to fail to conform to the technical standards that were required to be met under the Road Transport Vehicle Act, titled "Safety Standards for Road Transport Vehicles." Thus, Accused X served as the person responsible for the quality assurance division. At the time of the Chugoku JR Bus Accident, Accused Y was in the position of the leader of the group in charge of bus bodies and chassis within the quality assurance division of Mitsubishi Motors, and was engaged in quality assurance services, while assisting Accused X. (2) Development process of hubs at Mitsubishi Motors A front wheel hub (hereinafter referred to as a "hub") is a common part to be used for heavy vehicles such as trucks and busses, which functions to connect the front tire wheel, etc. to the axle. It falls within the category of traveling devices referred to in Article 41, item (ii) of the Road Transport Vehicle Act, and in accordance with Article 9, paragraph (1) of the Safety Standards for Road Transport Vehicles, the technical standards specified by Ordinance of the Ministry of Transport as prescribed in Article 41 of said Act, it was required to be "solid enough to ensure safe operations." Among people from car companies and in the transportation industry, a hub had been customarily referred to as something "usable for a lifetime," in that it will not be damaged until the vehicle user scraps the vehicle. In this sense, it is an important safety part that is basically not expected to be damaged, and was not included in the scope of items subject to the official car inspection or other inspections. Mitsubishi Motors designed, developed, and manufactured hubs as common parts to be used for both trucks and busses. At the time of the Seya Accident, explained in (5) below, the company dealt with seven types of hubs generally referred to as Hub A, B, C, D, D', E, and F in the chronological order, all of which had a structure wherein, if a crack appears on the flange of the hub and extends to a level where the hub was damaged due to the flange being cross-cut (hereinafter referred to as "cross-cut damage" or "damage(d) by cross-cut"), the front tire would fall off together with the tire wheel and the brake drum. The company regulations of Mitsubishi Motors, which came into effect in June 1990, prescribed a driving stress test as a method of assessing and testing the strength and durability of all hubs. However, this driving stress test was not performed at the time of development with regard to not only Hubs A to C, which had been developed prior to said regulations coming into effect, but also Hub D, which was developed after that, so the strength of these hubs was not confirmed based on any objective data. (3) Occurrence and handling of the accidents of cross-cut damage to hubs On June 21, 1992, there was an accident in which the hub (Hub B) of the left front wheel of a Mitsubishi Motors truck used by Kochi Yamahide Kyuso Yugen Kaisha was damaged by cross-cut while traveling and the left front tire fell off together with the tire wheel and brake drum (this accident shall hereinafter be referred to as the "Yamahide Accident"). Accused Y dealt with this accident as he was at that time the leader of the group in charge of truck chassis within the quality assurance division, and classified it into the category of the highest level of importance, S1 (special safety information) in terms of its handling. Since before that, for the purpose of avoiding official improvement measures including recalls, Mitsubishi Motors had divided quality information into two types, "open information" to be disclosed upon inspections, etc. by the Ministry of Transport, and "confidential information" to be kept secret, as determined by the quality assurance division, thus applying double-standard management. Accused Y treated the information on the Yamahide Accident as confidential information. With regard to this accident, a complaint management meeting was later held and investigation on the strength of the hub was conducted at the same time. However, one year after the accident, the meeting was concluded without reaching any conclusion as to the cause of the cross-cut damage to the hub. In the process of handling post-accident affairs, when requested to give an explanation to the user of the truck that caused the accident, Mitsubishi Motors treated the accident, following its in-house policy, based on one of the hypotheses set up by the design and development division that the cause of the cross-cut damage to the hub was the wear of the hub and such wear was due to the poor maintenance, etc. by the user (this hypothesis shall hereinafter be referred to as the "theory of identifying the wear as the cause of the accident"). Accordingly, no improvement measures including recalls were implemented. After that, until the Chugoku JR Bus Accident occurred as explained in (4) below, 14 accidents of cross-cut damage to hubs occurred with regard to Mitsubishi Motors trucks. Among them, seven accidents involved Hub D, which began to be mounted on Mitsubishi Motors trucks, etc. in around March 1993. These subsequent accidents included such cases where the depth of wear of the hub could not be identified because the hub was scrapped after the accident, or where the reported depth of wear was as scarce as "0.05?0.10 mm", as was the case in the second accident of cross-cut damage to the hub that occurred on June 21, 1994 (the hub (Hub A) of the right front wheel of a Mitsubishi Motors truck used by Kanehachi Unso Yugen Kaisha was damaged by cross-cut while traveling; hereinafter referred to as the "Kanehachi Accident"). And yet, Mitsubishi Motors treated all of these accidents, following its in-house policy, based on the theory of identifying the wear as the cause of the accident in the same manner as before, without holding related meetings or conducting investigation on the strength of the hubs. On these occasions, including recalls, no improvement measures were implemented, and the accident-related information was treated as confidential information. (4) Occurrence and handling of the Chugoku JR Bus Accident (the 16th accident of cross-cut damage to the hub) On June 27, 1999, the hub (Hub D) mounted on the right front wheel of a Mitsubishi Motors bus used by the Chugoku JR Bus Company was damaged by cross-cut while the bus was traveling with passengers onboard on the express highway in Hiroshima Prefecture. The right front tire fell off together with the tire wheel and the brake drum and the bus body leaned far to the right, and the driver finally managed to control and stop the bus, with the bus body partly contacting the road surface (this accident shall hereinafter be referred to as the "Chugoku JR Bus Accident"). Around June 28, Mitsubishi Motors was required by the responsible official of the Ministry of Transport who had the authority to make recommendations, etc. of improvement measures including recalls, to investigate and report the cause of the accident. Accused Y, who took charge of handling the Chugoku JR Bus Accident, treated the information on this accident as confidential information, classified this information into the category of the highest level of importance, S1, and held a meeting with the group leader and other personnel to discuss how to deal with the accident. Accused Y previously dealt with the Yamahide Accident and the Kanehachi Accident and knew the details of these past accidents, and he also knew that accidents of cross-cut damage to hubs subsequently continued to occur with regard to Mitsubishi Motors trucks because he heard the report of this fact at said meeting. Nevertheless, Accused Y decided to handle the Chugoku JR Bus Accident based on the theory of identifying the wear as the cause of the accident in the same manner as before, without conducting any in-depth investigation into the cause of the accident, and he did not take actions such as advising Accused X to hold a related meeting. Furthermore, around the mid-September 1999, Accused Y prepared a written report addressed to the responsible official of the Ministry of Transport, containing a statement that the company found no need to take any actions because there had been no similar type of accidents and the accident was not of a frequent nature. After explaining this report to Accused X and obtaining his approval, Accused Y submitted the report to the official. From that time onward, Accused Y did not take any actions at all to implement improvement measures including recalls with regard to vehicles equipped with Hub D. Immediately after the occurrence of the Chugoku JR Bus Accident, Accused X received a report of the outline of the accident from Accused Y, and was notified that accidents of cross-cut damage to hubs had previously occurred with regard to Mitsubishi Motors trucks. However, Accused X did not request Accused Y to make further detailed reports or give him concrete instructions, but having heard Accused Y's explanation, he permitted Accused Y to submit said report addressed to the responsible official of the Ministry of Transport without amendment. Thus, Accused X did not take any actions at all to implement improvement measures including recalls with regard to vehicles equipped with Hub D. (5) Circumstances of the occurrence of the Seya Accident (the 40th accident of cross-cut damage to the hub) On January 10, 2002, around 3:45 p.m., the hub (Hub D) mounted on the left front wheel of a Mitsubishi Motors heavy truck was damaged by cross-cut while the truck was traveling on the second lane of the two-lane road in Seya-ku, Yokohama City, at a speed of about 50 km per hour and the left front tire fell off together with the tire wheel and the brake drum. The left front tire that fell off crashed into a woman (aged 29), who was on the sidewalk in the left front, from the back, causing her to fall down on the road and die of basilar skull fracture, etc., and also causing two children who were with her to fall down on the road due to the shock of the crash and suffer injuries that required about seven days for complete cure (this accident shall hereinafter be referred to as the "Seya Accident"). During the period from the Chugoku JR Bus Accident until the Seya Accident, accidents of cross-cut damage to hubs frequently occurred with regard to Mitsubishi Motors trucks and busses; the Seya Accident was the 40th accident of this type and the 19th accident involving Hub D since the Yamahide Accident. 2. Given the facts described above, the judgment in first instance held that it is easily found that at the time of handling the Chugoku JR Bus Accident, the poor strength of Hub D could be suspected objectively, and based on this finding, the judgment: (a) found the possibility that the accused persons could have foreseen the consequence because, at that time, they could have fully predicted that a cross-cut damage accident would occur and cause casualties if they had left unaddressed vehicles equipped with Hub D and had them remain in operation without implementing improvement measures including recalls; (b) found the possibility that they could have avoided the consequence because if they had recalled Hub D on suspicion of its poor strength at that time, the Seya Accident, which was caused due to cross-cut damage to Hub D, is certain to have never occurred, and they could have prevented the occurrence of the accident even supposing that the cause of the Seya Accident was cross-cut damage due to wear; and (c) found their obligation to avoid the consequence because imposing the duty of care on them to avoid the consequence would not have been an excessive burden, while confirming causality. In conclusion, the judgment in first instance held the accused persons liable for negligence. The judgment in prior instance affirmed the judgment in first instance. 3. Against this conclusion, the defense counsels argue as follow: (i) there was no possibility that the accused persons could have foreseen the consequence because at the time of handling the Chugoku JR Bus Accident, it was impossible for them to suspect the poor strength of Hub D; (ii) in light of the actual authority vested in them, neither of the accused persons is deemed to have had the duty to recall Hub D as required in the context of the crime of causing death or injury through negligence in the pursuit of social activities; (iii) in view of the state of use, etc. of the vehicle that caused the Seya Accident, it cannot be said that the Seya Accident could have been avoided even where Hub D had been recalled and Hub F was mounted on said vehicle, and at the same time, sufficient proof has been provided to find that Mitsubishi Motors hubs were poor in strength, nor has the cause of the cross-cut damage to the hub of the vehicle that caused the Seya Accident been indentified, so there is no causal relationship between the inaction of the accused persons and the occurrence of the Seya Accident. (1) We first examine the issue of the possibility to foresee the consequence mentioned in (i) of the defense counsels' arguments. As described in 1. (2) above, the following circumstances are observed: (a) in the development process of Mitsubishi Motors hubs, the strength of hubs was not confirmed based on any objective data; (b) a hub is an important safety part that is basically not expected to be damaged, and it is beyond expectation that an accident could ever happen where a hub is damaged by cross-cut while traveling, but as described in 1. (3)(4) above, during the period of some seven years from the Yamahide Accident until the time of handling the Chugoku JR Bus Accident, such type of accidents had occurred quite frequently (16 accidents including the Chugoku JR Bus Accident; eight of these 16 accidents involved Hub D); and (c) Mitsubishi Motors, as its in-house procedure, classified the information on the accidents that preceded the Chugoku JR Bus Accident as important information posing the risk of the occurrence of fatal accidents, but continued to treat such information as confidential information in order to hide it from the Ministry of Transport. In light of these circumstances, it is clear that the possibility of poor strength of Mitsubishi Motors hubs could objectively be found at the time of handling the Chugoku JR Bus Accident. Accused Y, in the capacity of the group leader within the quality assurance division, directly took charge of dealing with the Chugoku JR Bus Accident and fully knew the details, etc. of this accident, and in addition, he took charge of dealing with the past two accidents of cross-cut damage to hubs, the Yamahide Accident and the Kanehachi Accident, and heard a report that the same type of accidents continued to occur frequently after these accidents. Therefore, we find that at the time of handling the Chugoku JR Bus Accident, Accused Y fully recognized the possibility of poor strength of Mitsubishi Motors hubs in light of the aforementioned circumstances, and taking into consideration the dangerous nature, etc. of the situation where the past accidents of cross-cut damage to hubs including the Chugoku JR Bus Accident occurred, he could have easily predicted that an accident of cross-cut damage to Hub D would occur and cause a fatal accident if he had left unaddressed vehicles equipped with Hub D and had them remain in operation, without implementing improvement measures including recalls. We also find that Accused X, in the capacity of the manager of the quality assurance division, at the time of handling the Chugoku JR Bus Accident, heard a report from Accused Y and knew the details of this accident as well as the fact that the same type of cross-cut damage accidents had occurred quite frequently in the past. Therefore, from his career and position, we find that at the time of handling the Chugoku JR Bus Accident, it was sufficiently possible for Accused X to foresee, in light of the dangerous nature etc. of the situation where this accident occurred, that an accident of cross-cut damage to Hub D would later occur and cause a fatal accident if he had left unaddressed vehicles equipped with Hub D and had them remain in operation, without implementing improvement measures including recalls. The defense counsels argue that in the case of the Chugoku JR Bus Accident, the Hub D that was damaged by cross-cut showed abnormal wear of 1.46 mm at the maximum and this was thought to be the cause of the accident, so at the time of handling the Chugoku JR Bus Accident, it was impossible for the accused persons to suspect the poor strength of Hub D. However, as cross-cut damage accidents had already frequently occurred by that time as mentioned above, the fact that the abnormal wear of such argued level was found with the vehicle that caused the Chugoku JR Bus Accident does not lead to the conclusion that the possibility of poor strength of Hub D could not be found objectively at that time or that neither of the accused persons could have recognized such risk. Until the Seya Accident occurred, Mitsubishi Motors had continued to handle accidents of cross-cut damage to hubs, following its in-house policy, based on the theory of identifying the wear as the cause of the accident, i.e. the cause of the cross-cut damage to the hub was the wear of the hub and such wear was due to the poor maintenance, etc. by the user. As explained in 1. (3) above, the theory of identifying the wear as the cause of the accident is nothing more than one of the hypotheses set up by the design and development division in the course of handling the Yamahide Accident, the first cross-cut damage accident, because the company was unable to identify the cause of the cross-cut damage even after conducting investigation for one year and was requested to give an explanation to the user of the truck that caused the accident. This theory lacked foundation in substance as well, in that it only focused on problems attributable to the user, such as poor maintenance and use under severe conditions, and regarded these matters as the cause of the wear although there could be various other causes of the wear. In addition, we find that in some of the accidents in question, hubs were damaged by cross-cut even when they were not deeply worn, such as in the Kanehachi Accident where the reported depth of wear of the hub was "0.05?0.10 mm." Taking these points into account, the theory of identifying the wear as the cause of the accident cannot be deemed to be so reasonable and persuasive as to consider the cross-cut damage to Hub D to be solely attributable to the user (e.g. poor maintenance), so this theory cannot be the basis for precluding the possibility of poor strength of Hub D. It is true that the case records contain an inspection result demonstrating that the design strength of Hub D conforms to the design standards of the Society of Automotive Engineers of Japan, Inc., but in light of the fact that by the time of handling the Chugoku JR Bus Accident, eight cross-cut damage accidents, including this accident, had already occurred with regard to Hub D, the existence of such inspection result does not immediately lead to precluding the possibility of poor strength of Hub D. (2) Next, we examine the issue of the possibility to avoid the consequence mentioned in (ii) of the defense counsels' arguments. In view of the magnitude of the possibility of poor strength of Mitsubishi Motors hubs at the time of handling the Chugoku JR Bus Accident and the seriousness and frequency of accidents that were expected to occur, as well as the fact that at that time, Mitsubishi Motors treated the information on the accidents of cross-cut damage to the company's hubs as confidential information and thereby exercised total control over accident-related information, it is considered that the personnel in charge of executing the business relating to improvement measures including recalls were required to take the necessary actions to implement improvement measures including recalls with regard to vehicles equipped with Hub D in light of the provisions of the Road Transport Vehicle Act concerning the recall system, and what is more, such personnel, based on the duty to exercise care under the criminal law, were required to take such actions and prevent the subsequent occurrence of an accident of cross-cut damage to Hub D caused by its poor strength. Accused Y, in light of his position as well as his responsibility, authority, etc., based on the duty to exercise care in the pursuit of social activities, was required to have the relevant divisions conduct thorough investigation into the cause of accidents, and as long as there exists the possibility of poor strength of Mitsubishi Motors hubs, to report to Accused X to that effect and advise him to carry out the procedure to implement improvement measures including recalls by holding a related meeting, while making arrangements to report the investigation results correctly at the request of the responsible official of the Ministry of Transport, and thereby to take the necessary actions to implement improvement measures including recalls to prevent the subsequent occurrence of an accident of cross-cut damage to Hub D caused by to its poor strength. Accused X, also in light of his position as well as his responsibility, authority, etc., based on the duty to exercise care in the pursuit of social activities was required to recognize the possibility of the poor strength of Mitsubishi Motors hubs by collecting further concrete reports from Accused Y and instruct him and other personnel to conduct thorough investigation into the cause of accidents, and as long as there exists the possibility of the poor strength of the company's hubs, to carry out the in-house procedure to implement improvement measures including recalls by holding a related meeting, while reporting the investigation results correctly at the request of the responsible official of the Ministry of Transport, and thereby to take the necessary actions to implement improvement measures including recalls to prevent the subsequent occurrence of an accident of cross-cut damage to Hub D caused by to its poor strength. The defense counsels argue that in consideration of matters such as the balance of power between the quality assurance division and the design and development division within Mitsubishi Motors at that time, as well as the actual state of the recall system, it was impossible for the accused persons to take the necessary actions to implement improvement measures including recalls with regard to Hub D. However, in light of their positions and respective authority, as well as the fact that at the time of the Chugoku JR Bus Accident, Mitsubishi Motors implemented improvement measures including recalls with regard to the company's products on multiple occasions, it is utterly inconceivable that it was impossible for the accused persons to fulfill the aforementioned duty of care. (3) Now, we examine the issues of obligation raised to avoid the consequence and causality mentioned in (iii) of the defense counsels' arguments. The judgment in prior instance made an evaluation of evidence to the effect that "there is no objective data sufficient to declare that the poor strength of Hub D is the general cause of accidents of cross-cut damage to the hub, nor is there any evidence sufficient to declare that the cause of the Seya Accident was the poor strength of Hub D," and based on this evaluation, it criticized the finding of fact in the judgment in first instance that it was sufficiently presumable that Mitsubishi Motors Hub D had a defect of poor strength, while stating that, "the finding as to the theory of identifying the poor strength of Hub D as the cause of the accident, which was made through the approach adopted in the judgment in prior instance, somewhat goes beyond the intended purpose." At the same time, the judgment in prior instance confirmed the possibility that the accused persons could have avoided the consequence and held them liable for negligence, holding that, "If they had recalled Hub D on suspicion of its poor strength, the Seya Accident, which was caused due to cross-cut damage to Hub D, is certain to have never occurred, and they could have prevented the occurrence of the Seya Accident even supposing that the cause of this accident was cross-cut damage due to wear, thus they can be held liable for their negligence for failing to issue a recall." The judgment in prior instance only found the possibility of the poor strength of Hub D but did not further clarify whether or not the Seya Accident was caused by to the poor strength of Hub D, holding that, "The Seya Accident was a cross-cut damage accident that occurred because the accused persons left Hub D, which was suspected of poor strength, unaddressed, without implementing improvement measures including recalls, and they could have avoided this accident if they had not left Hub D unaddressed, so even if wear is found with Hub D and the vehicle has been used in a manner that may have had something to do with said wear, these matters do not come into question, nor do they have any influence on causality." Thus, the judgment in prior instance confirmed the causal relationship between the negligence on the part of the accused persons and the Seya Accident, and concluded that the occurrence of the Seya Accident is attributable to them. In view of the facts pointed out in the judgment in prior instance that Hub F, which was developed as the substitute for Hub D, was designed by increasing the strength of Hub D, and during the period from June 1996, when Hub F was first mounted on Mitsubishi Motors vehicles until October 2006, there was only one accident of cross-cut damage to Hub F, it can surely be said that if, at the time of handling the Chugoku JR Bus Accident, the accused persons had fulfilled the aforementioned duty of care, implemented improvement measures such as recalls with regard to Hub D, and had Hub F mounted on the vehicle that caused the Seya Accident, it would have been possible for them to avoid the very occurrence of the Seya Accident of cross-cut damage to the hub, or even in case that a cross-cut damage accident eventually occurred, this would have occurred at a different time from the time when the Seya Accident actually occurred. Therefore, the possibility to avoid the consequence can at least be confirmed. However, as explained above, the duty of care imposed on the accused persons is the duty to exercise care in the pursuit of social activities to prevent the subsequent occurrence of accidents of cross-cut damage to Hub D exclusively due to its poor strength. If Hub D is not found to be poor in strength and therefore the Seya Accident is not found to have been caused by the poor strength of Hub D, the Seya Accident cannot be regarded as the materialization of the risk arising from the breach of said duty by the accused persons, so a causal relationship cannot be found between their breach of the aforementioned duty and the Seya Accident. Assuming so, the explanation given in the judgment in prior instance on this point is unreasonable. According to the judgments in first and second instances as well as the case records, the following circumstances can be observed, in addition to those mentioned in 1. (2), (3), and (4) above which existed at the time of handling of the Chugoku JR Bus Accident: (i) although a hub is an important safety part that is basically not expected to be damaged, 40 accidents occurred as a result of cross-cut damage to hubs during a period of slightly less than ten years (including the Seya Accident; in terms of Hub D, 19 accidents occurred within slightly less than six years), and in some of such accidents, hubs were not deeply worn; (ii) in the driving stress test of the strength of Hub D, performed immediately after the Seya Accident, the stress measured was 633.2 MPa on average when driving along a circle with a radius of 15 m at a speed of 25 km per hour, or 720.5 MPa on average when turning at an approximately right-angle intersection, both considerably exceeding the fatigue limit of Hub D, 432 MPa, and this test result causes one to presume deficiency in terms of poor strength; (iii) on March 24, 2004, Mitsubishi Fuso Truck and Bus Corporation, which is a spin-off company originating as the truck and bus division of Mitsubishi Motors, notified the Minister of Land, Infrastructure, and Transport of the issue of a recall of its vehicles equipped with Hub D, etc. on the grounds of poor strength in consideration of the details of the series of accidents of cross-cut damage to hubs and the inspection results thereof, while submitting the written recall notification in which, within the column titled "State of the structure, equipment or performance considered to be defective, and the cause of such defects," the company stated that, "Due to the poor strength of the front hub, a crack might appear near the joint of the flange of the hub when the vehicle repeatedly makes frequent turns while being driven . Coupled with other factors such as poor maintenance and conditions of loading, this crack could appear at an earlier stage. Therefore, if the vehicle is continually used in such state, the crack might extend, and in the worst scenario, the joint would be fractured and the wheel would fall off," thus admitting that Hub D was poor in strength. Furthermore, as explained in 3. (1) above, the theory of identifying the wear as the cause of the accident, which had been maintained by Mitsubishi Motors following its in-house policy for handling the series of accidents of cross-cut damage to hubs, cannot be regarded as being so reasonable and persuasive as to consider the cross-cut damage to Hub D to be solely attributable to the user (e.g. poor maintenance). Meanwhile, looking at the vehicle that caused the Seya Accident, the finding indicated in the judgment in first instance is affirmable from the case records, to the effect that although it is undeniable that there were problems with the improper state of maintenance, use, etc. of this vehicle, such as the neglect of the management of the tightening torque and the overloading, the state of maintenance, use, etc. of the vehicle was not so abnormal or malicious as to go beyond the level considered to be the market reality that the manufacturer of the vehicle should have ordinarily anticipated upon designing and manufacturing the vehicle. Putting all of these circumstances together, we can find that Hub D had a defect of poor strength in the design or production process, and also find that the Seya Accident occurred not only due to the problems on the part of the user of the vehicle in question but also due to the poor strength of Hub D. Given these findings, we can recognize the Seya Accident as the materialization of the risk arising from the breach of the aforementioned duty by the accused persons, who failed to take the necessary actions to implement improvement measures including recalls with regard to vehicles equipped with Hub D, so we can find a causal relationship between the accident and their breach of duty. (4) As explained above, based on the facts that the strength of Mitsubishi Motors hubs was not objectively confirmed in the development process, accidents of cross-cut damage to these hubs frequently occurred, and other realistic causes are inconceivable, we find that at the time of handling the Chugoku JR Bus Accident, Hub D was poor in strength and there was the risk of such poor strength causing fatal accidents such as the Seya Accident, and it was sufficiently possible for the accused persons to foresee this risk. Taking into consideration the seriousness and frequency of accidents that were expected to occur, as well as the fact that Mitsubishi Motors exercised total control over accident-related information, we should say that the accused persons, who took charge of quality assurance services in the position of the manager or the relevant group leader of the company's quality assurance division, based on the duty of exercising care in the pursuit of social activities, were required to take, at that time, the necessary actions to implement improvement measures including recalls with regard to vehicles equipped with Hub D to prevent the subsequent occurrence of an accident of cross-cut damage to Hub D caused by to its poor strength. As it is found that the accused persons were negligent for breaching the abovementioned duty of exercising care in the pursuit of social accidents as they failed to take any of said actions with regard to such vehicles equipped with Hub D and left these vehicles unaddressed and had them remain in operation carelessly, and as a result of their negligence, they allowed the Seya Accident to occur due to the poor strength of Hub D. In conclusion, the accused persons are found guilty of the crime of causing death or injury through negligence in the pursuit of social activities. The holdings of the court of prior instance were justifiable for its conclusion that found them guilty of this crime. 4. Therefore, according to Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices, except that there is a dissenting opinion by Justice TAHARA Mutsuo. The dissenting opinion by Justice TAHARA Mutsuo is as follows. In my view, the fundamental points at issue in this case are whether or not there is a defect in products manufactured by the industrial technology that is widely applied and whether or not it was possible for the persons concerned to foresee such defect, and therefore, in the course of the trial of the case, these points should have been fully proven from the perspective based on science and technology. However, as I examined the case records, I should say that the science and technology-based examination conducted in this case is extremely insufficient, so I cannot at all agree with the majority opinion holding, based on such insufficient evidence, that "we can find that Hub D had a defect of poor strength in the design or production process." If the poor strength of Hub D cannot be found, there would be no obligation on the part of accused persons to implement measures including recalls, so they would never be held liable for negligence. However, in light of the seriousness of the consequence of this case and the gravity of the problems in technology and development, I consider that this case should be remanded to the court of first instance for further examination as to the existence or absence of the poor strength that was derived from the design or production process of Hub D, for which improvement measures including recalls are required, even admitting that about ten years have passed since the Seya Accident and more than 12 years have passed since the Chugoku JR Bus Accident, the latter being regarded as the basis for the liability of the accused persons. And I also consider that even if said poor strength is to be found, it is necessary to have the court of first instance further examine, based on the new results of the second trial, whether or not there was negligence on the part of the accused persons, that is, whether or not they could have known the fact of the poor strength at the time after they completed the investigation on the Chugoku JR Bus Accident. In addition, as explained later, the vehicle that caused the Seya Accident seems to have been modified by its operator and used under severe conditions, so the point of causality between these facts and the Seya Accident should also be further examined. If, as a result of the trial after remand, it were not found that Hub D was so poor in strength as to require improvement measures including recalls but it were found that Mitsubishi Motors could have taken other actions, thereby avoiding the occurrence of the Seya Accident, I think that in light of the seriousness of the consequence of the case, the liability of the accused persons should be studied, including whether or not the count should be altered. I will discuss the abovementioned points separately in the sections below. I. Strength of hubs The majority opinion states that "we can find that Hub D had a defect of poor strength in the design or production process." By this statement, the majority opinion means to say that it is found that the vehicles equipped with Hub D were in such a "state where the structure, equipment or performance thereof is likely to fail to conform or fails to conform to the safety standards (hereinafter referred to as the "state of inconformity to the standards")," which was designated by the Ministry of Transport as the condition where a recall notification was required, and "the cause of such state was in the design or production process." In the following subsections, I will study whether or not it is found from the case records that Hub D was in the state of inconformity to the standards at the time after Mitsubishi Motors completed the investigation on the Chugoku JR Bus Accident. 1. Meaning of the state of inconformity to the standards (1) Circular notice concerning recall notifications Under the circular notice issued on the order of the authorized administrative agency by then Director-General of the Road Transport Bureau of the Ministry of Transport at the time of the Chugoku JR Bus Accident, entitled "Guidelines for handling notification, etc. of a recall" (Ji-Shin No. 1255-2 of November 12, 1998), it was provided that when an automobile producer, etc. finds that the automobile that it produces is in such a state where the structure, equipment or performance thereof is likely to fail to conform or fails to conform to the safety standards, and that the cause of such state was in the design or production process, the automobile producer, etc. shall submit a recall notification to the Minister of Transport promptly. According to this notice, as a matter of fact, the case where the cause of the state of inconformity to the standards is not in the "design or production process" would not be subject to a recall, and as examples of such case, the notice mentioned, among others, (i) the state of inconformity to the standards that seems to have arisen from the nonperformance of the statutory or other proper inspection and maintenance, (ii) the state of inconformity to the standards that seems to have arisen from the use beyond the ordinarily expected use limit or durable period, and (iii) the state of inconformity to the standards that seems to have arisen from any modification made without the involvement of the automobile producer, etc. Of these three examples, (iii) relates to the factor that should be studied on a case-by-case basis, whereas the factors mentioned in (i) and (ii) could be general criteria for studying whether or not Hub D was in the state of conformity to the standards. Accordingly, I will discuss these factors separately below. (2) Inspection and maintenance of hubs The majority opinion and the judgment in first instance affirmed thereby made a finding that a hub "was not included in the scope of items subject to the official car inspection or other inspections," but they did not make any finding at all as to what was then required to be subject to daily inspection and maintenance. As long as the state of inconformity to the standards that seems to have arisen from the nonperformance of the statutory or other proper inspection and maintenance is not subject to the recall notification mentioned above, in order to find that Hub D was in the state of inconformity to the standards subject to] recall notification, it must be found that such state was caused irrespective of whether or not any proper maintenance checkup was preformed for the hub. In this case in particular, considering that Mitsubishi Motors concluded in the investigation on the Yamahide Accident that "no defect would be caused as long as wheel nuts are tightened properly and the fastening power does not decline," and it also concluded as a result of the investigation on the Chugoku JR Bus Accident that this accident occurred due to the defective tightening of wheel nuts (excessively high or low tightening torque, etc.), it can be said that a positive finding would be required as to the fact that the state of inconformity to the standards of Hub D was caused irrespective of whether or not inspection was performed properly. However, from the records of this case, it is not necessarily clear what was included in the scope of items subject to the statutory inspection relating to hubs at the time of the Chugoku JR Bus Accident. In addition, although the case records contain a considerable number of articles of evidence pointing out that it is absolutely necessary to tighten the wheel nuts for fixing the hub using the proper torque (avoid tightening with an excessively high or low torque), and the part of the report on the Yamahide Accident presented an extract from the description in the instruction manual for handling automobiles manufactured and sold by Mitsubishi Motors, under the title of "Points to note when tightening wheel nuts," the "instruction manual" that had been provided for the purchasers of the company's trucks and busses equipped with hubs before the occurrence of the Chugoku JR Bus Accident has not been submitted as evidence. Furthermore, no evidence has been submitted at all to show what kind of documents and what kind of instructions Mitsubishi Motors generally distributed or provided for users and automobile maintenance business operators in relation to the handling of hubs. As mentioned above, Mitsubishi Motors concluded that the Yamahide Accident and the Chugoku JR Bus Accident were caused due to the poor maintenance, that is, the defective tightening of the wheel nuts for fixing the hubs (the point concerning recall notifications will be discussed later), and the accused persons also argue that the cause of these accidents was the poor maintenance of the hubs. Accordingly, it is considered to be essential for the trial court in charge of fact finding to examine the case and make a finding as to what was included in the scope of items subject to the statutory inspection relating to hubs and what kind of maintenance checkup of hubs users were required to perform, at the time of the Chugoku JR Bus Accident. And yet, the trial court of this case failed to fully examine these points, and therefore it cannot avoid being criticized for insufficient examination. (3) Ordinarily expected use limit or durable period Neither the majority opinion nor the judgment in first instance affirmed thereby made any concrete finding as to the use limit or durable period ordinarily expected for hubs. The accused persons argue that the accidents of fractures of hubs that had occurred before the Chugoku JR Bus Accident were caused due to the poor inspection and maintenance and the use under the severe conditions by the user beyond the ordinarily expected use limit or durable period, as mentioned in (2) above. Therefore, in order to reject their argument on the second point, the trial court should have made a concrete finding as to the use limit or durable period ordinarily expected for hubs (as for the use limit, the expected extra load for a truck, for example, beyond the statutory maximum load prescribed under the Road Transport Vehicle Act; and as for the durable period, the expected extra period beyond the statutory period of depreciation under the tax law; the point concerning the "life" of hubs will be studied separately later), and then make a finding that the use under severe conditions argued by the accused persons does not apply. Nevertheless, the trial court of this case did not make any concrete finding as to the ordinarily expected use limit or durable period, but it rejected the accused persons' argument that the accidents of fractures of hubs before the Chugoku JR Bus Accident had occurred under severe conditions, without examining whether or not each of these accident occurred under severe conditions. In this respect, I should say that the examination by the trial court was insufficient. 2. Development process of hubs (1) The manufacturing of vehicles equipped with hubs of the same type as those that have been in use since around the time of the Seya Accident until now was started at Mitsubishi Motors from around 1948?1950. Hub A, which preceded Hub D, started to be mounted on vehicles in around June 1983, but the details of its development process are not clear from the case records. According to the records, Hub B was developed for the purpose of protecting lock nuts (to prevent wheels from coming off) and started to be mounted on vehicles which were put on sale in around November 1987. Hub C was developed for the purpose of reducing cab vibrations upon braking (by increasing the rigidity of the joint of the flange) and started to be mounted on vehicles that were put on sale around December 1989. Hub D was developed for the purpose of increasing the strength of hubs in response to the occurrence of the cracking of Hub C (discussed later), and started to be mounted on vehicles which were put on sale around March 1993. Subsequently, Hub E was developed for the purpose of increasing the reserve strength and rigidity (to prevent the fretting between the wheel and the opposite surface, thereby preventing damage of bolts by fracture) and started to be mounted on vehicles which were put on sale around July 1995. Hub F was developed for the purpose of further increasing the reserve strength and started to be mounted on vehicles which were put on sale around June 1996. (2) In the general process of developing a new machine, the load that is expected to be applied to each component of the machine when the machine is in use is first calculated at the design phase, and then the necessary strength of each component is calculated by multiplying the expected load by a certain safety ratio, and based on this calculation, the materials, etc. of each component are determined. Then, a trial model is manufactured and its safety is confirmed through a test in which a load beyond the level expected upon ordinary use is applied to it, and based on the test result, the completed model is officially produced and marketed on a commercial basis. In the case where a refinement is made to part of a component that is already marketed as a machine, if the refinement is conducive to enhancing safety in design and is not expected to result in reducing safety, it is not rare that such tests as those performed when developing a new machine are omitted. (3) Presumably, when Mitsubishi Motors developed hubs, it calculated the expected load and the necessary strength by multiplying the load by the safety ratio in the design phase, as in the case of the development process of machines in general, and it set certain standards for materials, etc. that are capable of fully maintaining the necessary strength during the expected durable period of hubs, thereby developing individual hubs. However, in this case, reference materials concerning such design standards, etc. or direct evidence concerning the development process of each hub or the details, etc. of the load expected in such process have not been submitted at all. (4) Based on the case records, it has been verified that Hub D meets the design standards established by the Society of Automotive Engineers of Japan, Inc. (hereinafter referred to as the "JSAE"), as mentioned later. According to the reference materials publicly available, the JSAE is an incorporated association founded in 1947 for the purpose of "advance[ing] and develop[ing] sciences and technologies in connection with automobiles, whereby the Society will contribute to the promotion of sciences and culture, the progress of industry and economy, and improvement of the quality of life of the people," with several tens of thousands of members consisting of current automobile-related manufacturers and their employees and affiliated companies. In terms of formulation of various standards concerning automobiles, it serves as the national deliberation organization within the Technical Committee of Road Vehicles of the International Organization for Standardization (ISO). Making a start by setting eight standards for automobiles in 1961, the JSAE has established various standards so far that should provide benchmarks relating to automobiles. When the JSAE established the design standards for hubs is not clear from the records, but in view of its status in the Japanese automobile industry, it can be presumed that Mitsubishi Motors, in the development of hubs, applied the design standards that went beyond the design standards set by the JSAE (which are considered to be the minimum design standards that Japanese automobile-related manufacturers are required to meet). However, the standards set by the JSAE have not been submitted as evidence of this case, nor is there any evidence at all to show that the relevance between the JSAE standards and the standards developed by Mitsubishi Motors has ever been studied by the court of first or second instance (the case records do not give any evidence at all to show that the public prosecutor has ever studied such important standards. It is, in a sense, hard to believe that these standards have never been subject to study in the first or second instance. According to the reference materials publicly available, as of April 2010, the JSAE has about 43,000 individual members, and 54% of its regular members are those engaged in the automobile industry. If the accused persons are members of the JSAE, it is assumed that they would have naturally pointed out the JSAE standards as one of the points of their argument, but they actually did not mention this point, which implies that they do not have any scientific interest in the technical matters). (5) Wheel hubs strength testing method The majority opinion and the judgment in first instance affirmed thereby pay attention to the fact that the driving stress test for measuring the stress of a hub mounted on an actual vehicle, which was prescribed in Mitsubishi Motors' in-house regulations titled "Wheel hubs strength testing method" (put into effect in 1990; hereinafter referred to as the "1990 standard") (Exhibit Ko No. 92, submitted in the first instance), was not performed in the development of Hubs A to D, and regard this as a material fact concerning the safety of the strength of hubs. However, according to the related evidence which shows that the 1990 standard was not established on the supposition that it would be implemented in the development of hubs but was established, as its manual says (Exhibit Ko No. 92, Reference 1, the seventh sheet, submitted in the first instance), "for the purpose of achieving the reduction of the VA and weight of automobiles in the future," it is understood that said standard specifies the testing method with the aim of reducing the weight of hubs. In addition, as Hub D was designed to increase the strength by increasing the thickness of the flange (which results in increasing the weight) in order to overcome the defect in Hub C, it is found that Hub D was not subject to the 1990 standard and therefore the failure to perform the test is not associated at all with a disregard for safety relating to strength in the development process. After the Seya Accident, Mitsubishi Motors revised the "Wheel hub strength testing method" overall (established in March 2005; hereinafter referred to as the "2005 standard") (Exhibit Ben No. 2, submitted in the first instance), thereby clarifying the scope of application, the required level of strength, etc. The scope of application specified in the 2005 standard is as follows. "All front and rear wheel hubs to be mounted on all models of trucks and busses, which fall under the following cases: (i) where a new shape or new materials are used; (ii) where the existing shape or materials are used but the load applied to the hub will increase due to mounting the hub on a new model, increasing the assessed axle weight, using tires of a larger diameter, etc.; and (iii) where the shape is changed in line with the existing shape, which changes the part to be affected by the wheel assembly or input of variations during driving." The change from Hub C to Hub D is nothing more than a change of the shape in line with the existing shape. This change roughly falls under (i) above as the materials have been changed, but it was made in order to use stronger materials for Hub D than Hub C, so there was no need to perform the wheel hub strength testing method at the time of the development of Hub D even in accordance with the 2005 standard. Thus, the aforementioned finding in the majority opinion and in the judgment in first instance affirmed thereby contains errors in evaluation of evidence. 3. Life of hubs All of the majority opinion, the judgment in first instance, and the judgment in prior instance only pointed out that a hub is commonly supposed to be "usable for a lifetime," and did not conduct any concrete study on the life of hubs. However, when studying the strength of hubs from the aspect of safety thereof, it is absolutely necessary to determine how much time or distance a hub is expected to be used for traveling under how much load, as factors for setting the desired life of a hub (the statutory period of depreciation under the tax law applicable to a truck is five years, but needless to say, this cannot be applied as the life of a hub without modification because it is determined from an economic viewpoint. Still, the life of a hub is related to the expected life of an automobile as a whole which is determined in terms of the duration or travel distance while making reference to said statutory period of depreciation). The case records contain various kinds of evidence which indicate different numerical dates as the life of hubs, and also contain many articles of evidence which demonstrate that excessive load or side load has a significant influence on the life of hubs (for example, the report of the working team for the Hub D strength inspection conducted after the Seya Accident (Exhibit Ko No. 107, Reference 10, submitted in the first instance) contained data which indicate that both the pre-crack life (from the start of use of a new car until the first crack appearing on the brake drum) and the post-crack life (after the first crack appeared until the occurrence of cross-cut) under 400% loading decline to one-hundredth of the life under the standard loading, and the life which represents the period from the observance of the first crack in the wheel until the occurrence of cross-cut is about 150,000 km under 200% loading). The majority opinion stated nothing about the life of Hub D, that is, how much time or distance the hub is expected to be used for traveling under how much load. A hub is not an item that is "useable for a lifetime." This is clear from the facts that the vehicle that caused the Chugoku JR Bus Accident had a record of replacement of hubs, and that in the report submitted by Mitsubishi Motors to Chugoku JR Bus in September 1999, after the Chugoku JR Bus Accident, Mitsubishi Motors requested that the replacement of a hub should be conducted when the flange of the hub has worn to a certain degree, as one of the measures to prevent accidents of fractures of hubs. 4. Defects in hubs (1) Defects in hubs before the Yamahide Accident According to the case records, Mitsubishi Motors conducted the first in-house study on defects in hubs when it addressed the crack on 90M (correctly M is circled; Hub C) in May 1991. As a result of this study, the company reached the conclusion that the cause of the crack on the hub was excessive side load caused by the prying between two axes following the minimum turning under overloading, and it decided to deal with complaints from users individually (Exhibit Ko No. 101, Reference 7, submitted in the first instance). As a result of the abovementioned study, although the following two points were advocated as measures to prevent the recurrence of the defect, what kind of measures were actually implemented in this respect (e.g. whether the measures led to making any concrete change to design to the hub) is not clear from the case records. (i) The caution to the R-part of the flange should be clearly stated in the design manual in order to prevent the recurrence of the defect; (ii) Evaluation on overloading has been insufficient in some aspects. The evaluation criteria for overloading should be revised in the future. (2) Yamahide Accident The Yamahide Accident which occurred on June 21, 1992, was the first accident concerning the fracture of a hub. Mitsubishi Motors initially suspected defective processing as the cause of this accident, but later having conducted a detailed study and taking into consideration the result of the stress test, etc., the company made an assessment in October 1993 that the fracture of the hub was caused as a result of the series of events progressing "from the loosening of the wheel nuts, which is due to the defective tightening of the wheel nuts, to the wearing of the surface to which the hub wheel was attached, and including the combination of the decline in the fatigue strength of the hub and use under severe conditions (the excessive load upon turning)" (Exhibit Ko No. 101, Reference 16, submitted in the first instance). As its "finding," Mitsubishi Motors presented the conclusion to the effect that the company considered that "no defect would be caused as long as wheel nuts are tightened properly and the fastening power does not decline." The vehicle that caused the Yamahide Accident had traveled 531,754 km up till the point it caused the accident. In view of the fact that this vehicle had been registered for only three years and three months, its monthly average mileage reaches 13,635 km. In addition, this vehicle had a record of undergoing a modification made by increasing the chassis spring leaves (Ft: from five to six; Rr: from nine to eleven; presumably for the purpose of adjusting to the increase in load capacity) and also experiencing the fracture of the rear spring (this is supposed to be a component "usable for a lifetime") and the cracking of the disc wheel. Thus, this vehicle seems to have been traveling under extremely severe conditions. (3) Kanehachi Accident On June 21, 1994, the front wheel hub (Hub A) of a Mitsubishi Motors truck used by the Kanehachi Unso Yugen Kaisha was fractured while traveling. The total mileage of the vehicle that caused this accident was not clearly known because its meter had been replaced, but in view of the facts that this vehicle had been registered for more than seven years and it had been traveling with about 20 tons of load, Mitsubishi Motors assessed that this accident was caused due to overloading, and decided to replace the hubs with new ones for the trucks owned by Kanehachi Unso Yugen Kaisha when occasions arose. The hub of the vehicle that caused the Kanehachi Accident was later collected and inspected, and the inspection result showed that there was a burr around the hub bolt hole on the drum side and that the wear on the surface to which the disc wheel was attached was only 0.05?0.10 mm. Although the material investigation result also indicated that there was no abnormality, whether or not any inspection was conducted to identify defective processing of the hub is not clear from the case records. (4) Accidents of fractures of hubs that had occurred before the Chugoku JR Bus Accident During the period of seven years between the Yamahide Accident and the Chugoku JR Bus Accident that occurred on June 27, 1999, 14 accidents occurred due to the fracture of hubs (one for Hub A, three for Hub B, one for Hub C, seven for Hub D, and two for Hub D'). With regard to these accidents, although the mileage of the vehicles up to the point of the respective accidents is known (unknown for some of them), the state of use or maintenance of the vehicles that caused the accidents (whether or not they were used under severe conditions) is not clear from the case records (with regard to the 3rd to the 15th accidents of fractures of hubs, P, who was involved in preparing the "product information reports" as the project leader or group leader authorized to approve such reports, held the important position of investigating and dealing with accidents of fractures of truck hubs as the successor of Accused Y; and yet, when examined as a witness in the first instance, P responded from the beginning to the end that he/she remembered little about the details of such reports or the measures taken afterward, and from his/her testimony as a whole, P can be deemed to be trying to avoid his/her responsibility). During the period of two years and six months between the Chugoku JR Bus Accident and the Seya Accident, 23 accidents occurred due to fractures of hubs (21 for trucks and 2 for busses). As the issue of this case is the liability of the accused persons for their responses relating to the handling of accidents after the Chugoku JR Bus Accident, these 23 accidents should not be included in the scope of study. 5. Strength of Hub D In the investigation conducted after the Chugoku JR Bus Accident, the materials of the fractured hubs were analyzed to discover whether or not the cast iron used as hub materials had the predetermined scientific composition and mechanical properties, and the analysis result was favorable for both aspects. At the same time, the design strength of Hub D was calculated on the basis of the weight under the "Vehicle Load Standards" set by the JSAE, and it was reported that the design strength of Hub D met the JSAE design standards for all weight ranges. Thus, it can provisionally be said that Hub D meets the objective safety standards as required in terms of design, whereas there is no evidence in the case records that shows that Hub D would have been fractured even in the case where a vehicle equipped with Hub D had been used under ordinary conditions (not severe conditions) after going through proper maintenance and inspection. Nor is there any scientific data in the case records that shows that Hub D was so fragile as to cause a problem in ordinary use (the case records suggest that the public prosecutor had requested an associate professor of the Graduate School of Engineering of the University of Yamanashi to give an expert opinion regarding the design strength of Hub D and a written expert opinion was prepared as requested; however, this written expert opinion was withdrawn as evidence due to the defense counsels' dissent, and it has not been offered as evidence pursuant to Article 321, paragraph (4) of the Code of Criminal Procedure). The majority opinion held that it is clear that the possibility of poor strength of Mitsubishi Motors hubs could objectively be found at the time of handling the Chugoku JR Bus Accident, on the basis of the fact that during the period of some seven years until the time of handling the Chugoku JR Bus Accident, 16 accidents occurred due to fractures of hubs (eight of these accidents involved Hub D). However, as mentioned above, the vehicle that caused the Yamahide Accident is suspected of having been modified by its user with the intention of loading it beyond the statutory payload, and it had a record of experiencing fractures of the rear spring, which would never be fractured in ordinary operations. These facts imply that this accident was an unprecedented accident that happened to a vehicle used under extremely severe conditions. Other accidents of fractures of hubs may give rise to doubt about the strength of hubs because the details of how the vehicles were used are unknown as mentioned above. However, given the fact that the number of vehicles equipped with the hub that was recalled by Mitsubishi Fuso Truck and Bus Corporation (hereinafter referred to as "Mitsubishi Fuso") in 2004 reached more than 220,000, the numerical data on the occurrence of these accidents, namely, 16 accidents in total within seven years, slightly over two accidents as an annual average, at an annual rate of accident at 1/100,000, cannot possibly be referred to as sufficient data to objectively suspect poor strength in hubs, but rather such data would make one infer that the fracture of a hub is an abnormal event which occurs only under extremely severe conditions, such as poor maintenance or operation of the vehicle, which are not ordinarily expected. Furthermore, in the reference materials for the in-house training of Mitsubishi Fuso in 2003, Q stated that the goal that was set at the time of the development of Hub D was too low, and also made a statement in his/her examination as a witness in the first instance to the effect that Hub D was poor in strength. These statements were made following the large-scale experiment, etc. and the tightening of the standards conducted after the Seya Accident, so the issue of the possibility of the poor strength of Hub D as of 1999 should not be discussed while taking these statements into account. II. Wear theory According to the case records, Mitsubishi Motors dealt with accidents of cracks of hubs based on the hypothesis that the cracking and fracture of a hub take place through the steps that occur from the loosening of the wheel nuts, which is due to the defective tightening (excessive or insufficient tightening) of the wheel nuts, to the wearing of the surface to which the hub wheel was attached, the increase in the stress to the flange of the hub, and to cracking. As mentioned above, this hypothesis was discussed in the course of studying the hub cracking in 1991, and was adopted as the conclusion in the course of inspecting the Yamahide Accident. The judgment in first instance rejected the wear theory as a mere hypothesis and harshly reproached Mitsubishi Motors for having dealt with the subsequent hub accidents according to this theory. However, this is the most reasonable theory to scientifically explain the mechanism of cracking of a hub, and no other theory that can compete with it has been argued by the public prosecutor. Furthermore, with regard to the hub damage to a heavy truck that occurred on October 17, 2006, after the Seya Accident, Mitsubishi Fuso submitted a written report dated January 18, 2007, to the Director-General of the Engineering and Safety Department of the Road Transport Bureau of the Ministry of Land, Infrastructure, and Transport (Exhibit Ben No. 38, submitted in the first instance), in which the company explained the "cause of the fracture and cracking of the front hub," stating that, "The fracture and cracking of the front hub is caused due to the repetition of the high stress near the joint of the flange of the hub, generated by the lateral load from the tire that the hub receives when the vehicle makes a turn. This phenomenon occurs depending on factors such as the vehicle's driving conditions, mileage, load capacity, conditions for tightening of wheel nuts, the depth of wear of the flange surface of the hub and the surface to which the disc wheel is attached, the shape, size, and materials of the hub." The substance of this report is basically an extended or detailed explanation of the hypothesis that Mitsubishi Motors had adopted at the time of the Yamahide Accident, and there is no evidence to show that the Ministry of Land, Infrastructure, and Transport made any objection to it. The majority opinion poses a question to the wear theory, on the grounds that the fracture of a hub was found even when the hub was not so deeply worn, as in the case of the Kanehachi Accident where the reported depth of wear of the hub was 0.05?0.10 mm. However, nothing has been examined as evidence with regard to why a slight crack on a hub could lead to the fracture of the hub instantly, nor is there any evidence at all in the case records that shows that this point has been studied theoretically. In general terms, if the process from the slight cracking to the instant fracture of a hub occurs due to the lack of the design safety strength, the same type of accidents should have occurred more frequently because, as mentioned above, about 200,000 trucks and busses manufactured by Mitsubishi Motors are constantly used in operations. However, in reality, such type of accidents have occurred only as extremely rare cases, and this leads to the suspicion that the defective materials or defective processing of the hubs mounted on the vehicles caused these accidents, or suggests that an event that could generate an exceedingly extraordinary stress on the hub has taken place. Taking up an extraordinary case that cannot completely be accounted for by the theory of wear of hubs and precluding such case without conducting any scientific inspection (examination of evidence) is the approach that courts should not adopt, by reason of application of the reasonable empirical rule. As mentioned above, the wear theory is intended to theoretically explain the cracking of a hub and extension of the crack, and the fact that this theory holds does not necessarily prove that the safety strength of a hub is secured as they are issues on completely different levels. In this respect, I think that the majority opinion erred in regarding the wear theory as a theory designed to attribute the accident to the poor maintenance, etc. on the user's side. III. Recalls The majority opinion and the judgment in first instance found that Mitsubishi Motors admitted the poor strength of hubs, by reason of the fact that Mitsubishi Fuso submitted a written recall notification on March 24, 2004, about two years after the Seya Accident, while referring to the "poor strength of the front hub" in that notification. Against this finding, the accused persons explain that although the condition of the hub of the vehicle that caused the Seya Accident and other circumstances did not require a recall notification according to the conventional standards, the company upgraded these standards considerably, as instructed by the Ministry of Land, Infrastructure, and Transport, by (i) revising the conventional procedure for assessing a defect, in which the fracture of a hub shall be treated as a defect and the crack inspection shall be conducted by visual observation (color checking), to the new procedure, in which the cracking of a hub shall be treated as a defect and the crack inspection shall be conducted by magnetic crack detection so as to detect minute cracks at an early stage, (ii) adopting the most strict turning conditions on the market as the turning conditions applicable when assessing the actual vehicle turning stress, and (iii) upgrading the level of tightening of wheel bolts (excessive tightening) considerably as the standard of severe conditions in the market, and in relation to conformity to the new standards, the company submitted said recall notification. The accused persons also submitted Exhibit Ben No. 14 to No. 22 in the prior instance, alleging that Mitsubishi Motors considered that the Seya Accident did not meet the conditions for a recall, but it submitted the recall notification as instructed by the Ministry of Land, Infrastructure, and Transport. According to the case records, the circumstances alleged by the accused persons can provisionally be observed, and accordingly, I should say that it is inappropriate to make a finding that there was the objective possibility of poor strength of Hub D as of 1999 at a level that a recall should be issued, only because of the fact that Mitsubishi Motors admitted the poor strength of the hub in its written recall notification. Looking at the hubs involved in the accidents of fractures of hubs including the Chugoku JR Bus Accident, while focusing on those for which there are relatively numerous reference materials concerning the state of use of the hubs, it can provisionally be found that the vehicle that caused the Yamahide Accident falls under the cases not subject to a recall, (ii) and (iii), described in I. 1. (1), while the vehicle that caused the Chugoku JR Bus Accident falls under Case (i). Thus, both accidents can be regarded as accidents that are not subject to a recall. With regard to other accidents of fractures of hubs, there is no choice but to say whether or not each of them meets the conditions for a recall is unknown because the details of the state of use of the hubs are unknown as mentioned above. Therefore, it is impossible to immediately find that at the time of completing the investigation on the Chugoku JR Bus Accident, Mitsubishi Motors should have submitted a recall notification from an objective perspective. In addition, as explained below, it is suspected that vehicle that caused the Seya Accident meets the conditions for the cases not subject to a recall, (i) to (iii). IV. State of use of the vehicle that caused the Seya Accident The vehicle caused the Seya Accident is a trailer which was registered in January 1994 and had travelled 376,870 km during the period of eight years before the Seya Accident. This vehicle was improperly modified by removing the NR device, a device that controls the speed of a trailer (when this modification was made is not clear from the case records). Since 1997, this vehicle had not gone through a statutory three-month inspection. For some of the wheel nuts on this vehicle at the time of the Seya Accident, excessive or insufficient tightening was observed. At the same time, the related evidence implies that this vehicle was regularly overloaded. On the occasion of the annual inspection, the vehicle underwent the replacement of the front wheel bearing, which does not need to be performed annually if the vehicle travels in an ordinary state (Exhibit Ben No. 18, submitted in the first instance; statement of Witness R in the first instance). This fact can give rise to the suspicion that overloading had an influence even on the body of the vehicle. The above facts are sufficient to imply that the vehicle that caused the Seya Accident falls under all of Cases (i) to (iii), the abovementioned conditions for exception to recall notifications, and that this vehicle traveled under severe conditions. The majority opinions stated that, looking at the vehicle that caused the Seya Accident, the finding indicated in the judgment in first instance is affirmable from the case records, to the effect that although it is undeniable that there were problems with the improper state of maintenance, use, etc. of this vehicle, such as the neglect of the management of the tightening torque and the overloading, the state of maintenance, use, etc. of the vehicle was not so abnormal or malicious as to go beyond the level as considered to be the market reality that the manufacturer of the vehicle should have ordinarily anticipated upon designing and manufacturing the vehicle. However, nothing has been examined as evidence with regard to the degree of influence on the hub arising from the removal of the NR device or the meaning of the replacement of the front wheel bearing. Thus, said finding in the judgment in first instance should inevitably be assessed as the conclusion reached without examining this point sufficiently, and therefore it is totally unacceptable. V. Summary of the discussion on the strength of hubs As explained above, at least according to the evidence that has been examined thus far in this case, Hub D fully met the JSAE design standards at the time and there was no problem with its materials at the time when Mitsubishi Motors completed the investigation on the Chugoku JR Bus Accident, and at the same time, according to the case records, there is no objective evidence to suspect the safety strength of Hub D from a technical aspect. Consequently, I find that there is no choice but to conclude that Mitsubishi Motors did not have the obligation to submit a recall notification at that time. Furthermore, after the Yamahide Accident, Mitsubishi Motors adopted the wear theory for identifying the cause of the fracture of hubs based on the subsequent investigation and experiment results. This theory was basically supported by the large-scale experiment that was conducted after the Seya Accident, and the Ministry of Land, Infrastructure, and Transport did not make any objection to the written report that explained the cause of the fracture of hubs based on said theory. There is also no evidence in the case records that is sufficient to imply that any objection was raised against such explanation from people engaged in automobile engineering or any other parties. As mentioned above, 16 accidents had occurred due to the fractures of hubs by the time of handling the Chugoku JR Bus Accident. Among these accidents, it is clear that the Yamahide Accident occurred under severe conditions as mentioned above, and the Chugoku JR Bus Accident was suspected of having been caused due to poor maintenance as mentioned above. With regard to other accidents, the conditions in which the vehicles concerned were used are unknown, but the annual average number of accidents, i.e. slightly over two accidents occurred under the circumstances where more than 200,000 trucks and busses were traveling with Mitsubishi Motors hubs mounted thereon, is too low to suspect the poor strength of hubs in general, and this figure can rather be understood as the data sufficient to suspect that there were some individual problems with the conditions of use of the vehicles that caused those accidents of fractures of hubs. As mentioned above, the judgment in first instance put weight on the fact that the driving stress test, which was prescribed in the 1990 standard concerning the wheel hub strength testing method, was not performed in the development of hubs, and the majority opinion affirmed the view of the judgment in first instance. However, as explained in I. 2. (5), the performance of this test was not an essential requirement in the development of hubs, and the development of Hub D should be deemed to be excluded from the scope of application of the 1990 standard. Consequently, at the time when Mitsubishi Motors completed the investigation of the Chugoku JR Bus Accident, at least according to the case records, it is impossible to find that Hub D met the conditions for submitting a recall notification: "the hub is in the state of inconformity to the standards and the cause of such state was in the design or production process," and therefore I have no choice but to say that the judgment in first instance, which concluded that Hub D met said conditions, drew this conclusion based on insufficient examination. VI. Negligence on the part of the accused persons As discussed in I., according to the case records, the safety of Hub D (in terms of strength and materials) was confirmed in the process of handling the Chugoku JR Bus Accident, and based on the study regarding the Yamahide Accident, Mitsubishi Motors had treated the previous accidents of fractures of hubs as accidents that had occurred due to poor maintenance or use under severe conditions (yet, there is no sufficient evident to find that sufficient information on these matters was reported to the accused persons, so it is presumed that they did not understand the overall picture of said accidents). It is also difficult to say that there is sufficient evidence to find that the accused persons had access to such information that could make them have doubts about such manner of handling accidents adopted by Mitsubishi Motors. Therefore, I should say that it is still questionable to determine that the accused persons were negligent for having accepted said information without doubting it. VII. Causality Even supposing that, as a result of examination of evidence in the remanded trial, the court found that there was a problem with the safety (strength) of Hub D and Mitsubishi Motors had the obligation to implement general measures to cope with this problem, since the vehicle that caused the Seya Accident had undergone the modification as described in IV. and is suspected of having been used subject to poor daily inspection and maintenance and under severe conditions, it is still necessary to further study the causality between the negligence on the part of Mitsubishi Motors and the Seya Accident caused by said vehicle. VIII. Possibility of holding the accused persons liable through the alteration of the count As discussed in I. and IV., Mitsubishi Motors already knew, no later than May 1991, that the hub would crack if the vehicle continued to travel under severe conditions (overloading), and also came to know, in the process of inspecting the Yamahide Accident, that the use of the vehicle under severe conditions would lead to the fracture of a hub. Furthermore, in the course of studying the cause of the Chugoku JR Bus Accident, the company came to clearly know, based on the experimental results, that a hub would crack and then be fractured if the vehicle was used with the wheel nuts of its hub being tightened defectively (excessively high or low tightening torque, etc.) and under severe conditions. Accidents of fractures of hubs during driving could result in serious casualties, as represented by the occurrence of the Seya Accident. Especially, for this reason, in order to prevent the occurrence of such accidents, automobile manufacturers should provide appropriate information for users and automobile maintenance business operators, and instruct the former to fully conduct maintenance and management as prescribed for hubs, wheel nuts, and bolts and strictly refrain from using vehicles under severe conditions, and also instruct the latter to understand the necessity of torque control for tightening wheel nuts and examine whether or not there is a crack on a hub upon periodical inspection, respectively, and these measures should be implemented irrespective of whether or not each accident meets the conditions for submitting a recall notification. Regarding the question of whether or not providing such information and instructions can be deemed to be the legal obligation that Mitsubishi Motors should have performed at the time of handling the Chugoku JR Bus Accident, careful study should be conducted while taking the relevant evidence into account. Even supposing that, as a result of examination of evidence in the remanded trial, the court denied the obligation to submit a recall notification, which the accused persons are alleged to have had in this case, in consideration of the points discussed in I. and thereafter, if providing the aforementioned information and instructions were regarded as a legal obligation, I would say that one may question whether or not the accused persons should be liable for their default of performing this obligation. Needless to say, as this point is not included in the count of this case, it is necessary to follow the procedure to alter the count in order to allege such liability of the accused persons. IX. Conclusion As studied above, given the evidence of this case, the strength of Hub D as of 1999, for which the accused persons are alleged to have been liable, met the JSAE standards, and it can provisionally be found that the hub did not fall under the standards for submitting a recall notification at that time, so I cannot agree with the conclusion of the majority opinion finding that the accused persons had the obligation to implement improvement measures including recalls at that time. However, with regard to the safety strength of Hub D, the evidence that should have been submitted to the court have not yet been submitted as mentioned above, namely, the reference materials used when designing Hub D and the findings of the expert examination conducted by the public prosecutor in the criminal investigation stage. Furthermore, as for the JSAE, which has a significant meaning in relation to the design standards for Hub D, nothing has been clarified in terms of its organizational structure or status in the Japanese automobile industry, nor has any evidence been submitted with regard to the significance of the JSAE standards and the standard formulation procedure. If the court, with only limited evidence, makes a final decision on the criminal liability for this case which caused the grave consequence of the death of the victim and which poses a question as to the presence or absence of defects in an automobile part, an industrial component used extremely widely, it cannot avoid being criticized for insufficient examination. At the same time, even supposing that the safety strength of Hub D was not found to be in the state of inconformity to the standards, which could be the basis for finding the obligation to submit a recall notification, there is room to find that, since Mitsubishi Motors came to clearly know, in the process of handling the Chugoku JR Bus Accident, that accidents of fractures of hubs could occur due to the defective tightening of wheel nuts and use under severe conditions, the company should have made users and automobile maintenance business operators well-aware that the former should properly conduct maintenance and inspection and strictly refrain from using vehicles under severe conditions and that the latter should inspect whether or not a hub has been worn upon periodical inspection, as described in VIII. In consideration of the gravity of this case, I would say that it is necessary to quash the judgment in first instance and the judgment in second instance and remand the case to the court of first instance, for further examination as to whether or not making the parties concerned well-informed about the aforementioned matters constitutes a legal obligation, and if it does constitute a legal obligation, whether or not the accused persons should be held liable for their nonperformance thereof. From all of the points discussed above, I consider that it is appropriate to remand this case to the court of first instance. X. Closing In this case, it was revealed in the course of criminal investigation that Mitsubishi Motors carried out a systematic cover-up scheme, which a large company should not be engaged in, specifically, the company managed accident information by categorizing it as information to be disclosed upon on-site inspection by the Ministry of Land, Infrastructure, and Transport, and information to be kept confidential, and made it a rule in the manual to conceal confidential information within 10 or 30 minutes on the occasion of such inspection. It seems that this fact made the personnel in charge of the subsequent investigation and trial harbor suspicions against all reference materials submitted by Mitsubishi Motors, finally affecting the investigation and trial processes to a considerable degree. As a result, although the investigative authorities should have collected sufficient data in the investigation stage, including data used in the design stage of Hub D and scientific data on the fracture of Hub D provided by Mitsubishi Motors, and inspected such data from a scientific viewpoint, there is no evidence to show that such inspection was conducted. Also, in connection with the safety strength of Hub D, objective data should have been collected and studied before the institution of prosecution with regard to matters such as the relevance with Mitsubishi Motors design standards, the JSAE standards, comparison with competitors' products, the state of use of the vehicles that caused accidents of fractures of hubs before the Chugoku JR Bus Accident (whether or not they were used under severe conditions), and comparison between the state of general maintenance and management of hubs and the state of maintenance and management conducted for the vehicles that caused fracture accidents. And yet, it seems that prosecution was instituted without fully collecting or studying such data. Besides, this is a case to blame the accused persons for their individual liability, but the proper target of this case should have been Mitsubishi Motors' organizational liability, and from the perspective of preventing the recurrence of the same type of accidents, as well as from the perspective of maintaining and improving the technical level (because this case, which is related to accidents of fractures of core automobile parts, would have an influence on the automobile industry as a whole), Mitsubishi Motors should, as an organization, take charge of elucidating the cause and liability for the accident. Nevertheless, although at least according to the case records, it seems that Mitsubishi Motors retain the relevant reference materials due to the nature of the case, the accused persons (Mitsubishi Motors) have not submitted any evidence concerning technical matters of hubs that they should have submitted in order to illuminate the facts of this case. Furthermore, many parts of the statements made by the employees of Mitsubishi Motors as witnesses before the court suggest that they failed to properly answer questions to which they should have given reasonable answers in a normal situation. These aspects seem to have made it more difficult to elucidate this case. Furthermore, although the accused persons argue the gap between the authority vested in them under the company regulations and the authority that they actually had, it does not at all seem that sufficient examination has been conducted as to how they actually exercised their authority under the regulations or whether or not their immediate superiors should be held criminally liable for this case. In this case, prior to examination of evidence, the parties concerned should have arranged points at issue including scientific and technical matters and issues concerning organization for management, but these points have not been fully arranged, and in my eyes, this led to the consequence where examination of evidence has not even been conducted with regard to the important points in terms of science and technology, such as the design standards and the JSAE standards, and where Mitsubishi Motors' organizational liability has been clarified only to an extremely insufficient degree compared to what the accused persons claimed. It is anticipated that criminal cases in which scientific and technical matters are in dispute, and cases in which the reactions of the organizations to the relevant problems are called into question and those in charge of management of the organizations are charged for negligence, will continue to take place in the future. This case gives many lessons to learn in relation to how to cope with such cases.

Justice TERADA Itsuro Justice NASU Kohei Justice TAHARA Mutsuo Justice OKABE Kiyoko Justice OTANI Takehiko