일본의 카르타헤나법과 유전자변형생물체로 인한 손해배상

Abstract

As in the negotiations for the 「Convention on the Biological Diversity」 adopted in 1992, the need of regulating biotechnology was claimed and the provision of examining the need of the protocol was included (the Article 19, paragraph 3 of the Convention), the 「Cartagena Protocol on Biosafety to the convention on Biological Diversity」(hereinafter referred to as Biosafety Protocol)was adopted in 2000 through various working groups, etc. This Protocol was made mainly for the purpose of preparing the international frameworks such as the procedures, etc. for the import country to determine the import of the Living Modified Organism (LMO) by assessing the impacts of LMO modified by modern bio-technologies on the preservation of the biological diversity and the sustainable utilization prior to their movement which transcends the international boundaries. And, the supplementary protocol has been adopted in 2010 over 6 years ever since the international negotiation started on the Article 27「Liability and Redress」 of the Biosafety Protocol, particularly related to the liability and the redress from the damages caused by LMO, which is so called Nagoya-Kualalupur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (hereinafter referred to as Supplementary Protocol). While the Biosafety Protocol has a nature of regulating and controling the international movement of LMO, the Supplementary Protocol is deemed to establish the international normative system to compensate the damages caused by international movement of LMO. Considering such international circumstances, our country also enacted recently the 「Act on International Movement of LMO」, and currently is conducting the examination to reflect the contents of the Supplementary Protocol in the domestic legislations. Therefore, in this article, the implications and the problems in our laws shall be examined by reviewing the discussions related to the Japanese laws in the aspect of comparative law. As the discussion order, first, the Cartagena Law in Japan, which is considered as enforcement law of the Biosafety Protocol in Japan, shall be examined, secondly, the domestic discussions related to the liability and redress from the damages caused by LMO in Japan according to the contents of Supplementary Protocol shall be examined, and finally, based on them, the implications provided to our laws and problems in interpreting our laws shall be examined. Since Japan rectified the Biosafety Protocol in November, 2003, and the Biosafety Protocol has been effective domestically at the same time as the implementation of Cartagena Law in February, 2004, the Cartagena Law is deemed to be the enforcement law of the Biosafety Protocol in Japan. However, since the Cartagena Law has natures of administrative legislation in the procedural aspects related to the import and export of LMO, currently, there is no law or regulation available in the civil aspects of 「Liability and Redress」, which are the main focus of the Supplementary Protocol agreed in 2010. It is still in discussion whether this problem will be handled by interpreting the existing laws or by enacting new legislation, that is, by enacting the damage compensation law as a special law. In this article, considering the current situation in Japan, the matters related to the interpretation of the existing Japanese laws shall be examined, and based on such examinations, the implications in our laws and the interpretation problems of our laws shall be discussed.