Section 7: Supplementary Discussion: Legal Responsibilities of Researchers
(1) The authors have investigated in the previous sections the modality of and grounds for regulation when regulations are imposed on advanced science and technology. This section is concerned with general discussion about legal liability of researchers since regulations to be imposed on advanced science and technology are applicable to researchers, although this discussion is not directly related to what we have discussed so far. Even researchers, when they commit a culpable and illegal act causing damage, may be liable for damages on the grounds of non-fulfillment of obligations or torts according to the civil code, may be penalized according to the civil code, and may be charged with a disciplinary punishment according to the administrative law. Up to now, social duties and ethical responsibilities of researchers have been discussed by the Japan Academic Examination Committee and international organizations of scientists, but responsibilities of researchers have not yet been discussed as frequently within the legal framework. When looking at practical sites where research into life sciences is performed and life sciences related technology is applied, an individual frequently functions as both a medical doctor and a researcher. Both medical doctors and researchers are treated as professionals in the society. Responsibilities of the medical doctor in an individual who is also a researcher are relatively well defined and the same holds true for legal liability, whereas responsibilities of researchers are unclear.
If a researcher is blamed for any responsibility, cautious examination is required to determine if such blame can be based on the characteristics of the researcher him/herself or on other attributes that the researcher possesses, which may include not only the above-described combined functions as a medical doctor and a researcher but also their social positions such as researchers working at national testing & research institutions (national government employees), researchers working at national universities (educational public service personnel), researchers working at public testing & research institutions (local government employees), and researchers working at non-private research institutions (i.e. special positions based on applicable laws, by-laws, etc.). These attributes should be excluded when responsibilities of pure "researchers" are investigated.
In this section, the authors will investigate responsibilities of researchers firstly by focusing on a new concept of aggravated negligence which is recently discussed as "professional responsibility" in the field of civil law studies, and secondly by discussing negligence in general.
(2) At present, in the field of criminal law (including the administrative penal code), general systematic theories pertaining to responsibilities of researchers and individuals who are comparable to researchers have not yet been established. On the other hand, in the field of civil law, "theory of professional responsibility" is the focus of active discussion both inside and outside Japan. The authors will introduce the theory and evaluate the possibility of incorporating researchers into this theory to discuss responsibilities of researchers. We primarily referred to the literature listed below.
<1> Umeharu Nishijima "Basic problems related to professional liability insurance" in the book "Lecture on the currently effective laws concerning liability for damages" edited by Ryo Ariizumi
<2> Ken Kawai "Professional responsibility"
<3> "Feature: Legal principles of "professional responsibility" ? Issues to be addressed and future prospects" Horitsu-Jiho Vol. 67, No. 2
<4> "New lecture on the currently effective laws concerning liability for damages: No.3 (products liability, professional responsibility)" edited by Takuo Yamada
In the Civil Code, non-fulfillment of obligations and torts are elements constituting liability of professionals such as medical doctors. From the viewpoint of the Civil Code, professionals such as medical doctors and their clients make a contract for assignment and the professionals shall be liable for fulfilling the assignment entrusted by the contract giver under the contract concerned. According to the provisions in Article 644 of the Civil Code "the contract receiver shall bear the obligation of handling matters, with which the contract receiver is entrusted by the contract giver, with the care of a good manager according to the true aim of the contract concerned," the professionals shall have the duty accompanying with the care of a good manager. It is prescribed that the magnitude of this duty shall be determined on the basis of the ordinary citizen as the standard and may vary depending on the type of profession of the contract receiver concerned. As the society approaches one consisting of an increasing number of more specialized occupations, of having more and more accumulated knowledge, and of being highly industrial and information-oriented, many professionals and experts are born and work actively in accordance with requests made by their own clients. When, as a result of these activities, a client suffers from unexpected damage, there is a tendency towards accusing the professional concerned of strict liability. (For medical doctors, the Supreme Court adjudicated on February 16, 1961 that "the individuals who are engaged in professions involved in the management of life and health of humans shall have the obligation of taking the best care necessary from the experimental viewpoint to prevent risks, according to the nature of the profession concerned.") The theory of professional responsibility indicates that when the obligation mentioned in the judgment above is extended to jobs not involved in human life, this matter should be discussed as the liability common to all professionals. (With special regard to obligation of giving explanation and report (accountability), obligation of giving advice, and obligation of confirming investigation which lawyers, judicial scriveners, etc. should have, refer to "Analysis of key precedent cases in connection with professional responsibility" authored by Yugen Kudo (Horitsu Jiho Vol. 67, No. 2), which introduces recent precedent cases that accepted these obligations).
The idea of professional responsibility is relatively new, and no theoretical framework has yet been completed. It is generally understood that professionals have the duty of care and the duty of faithfulness. Elements required for the duty of care are divided into categories according to the types of individual professions. (Malpractice suits in particular have outlined that medical doctors shall have the duty of care.) Particular attention is paid to the duties and responsibilities that medical doctors should have: those of giving information such as informed consent and of giving advice. On the other hand, prior to establishment of professional responsibility, insurance systems for their responsibilities have already been set and have contributed to the society (although the professionals covered by these insurance systems do not always correspond to those discussed in connection with the theory of professional responsibility in this section). In addition, maintaining confidence of customers, fulfilling duties, information gap and over-concentration of information in certain sectors, and magnitude of providing public services by the profession concerned are listed as issues to be addressed. These matters are still controversial regarding whether they are incorporated into the theory of professional responsibility.
The professional responsibility substantially varies depending on country. In the UK, individuals engaged in the judicial professions and medical doctors are regarded as "professions" and they organize self-governing bodies to rule themselves. In the US, responsibilities of professionals have been long discussed and the negligence of professionals is stipulated by laws.
Regarding the definition of professionals, Nishijima's report <1> states that "the profession is a type of job that is supported by scientific or highly advanced knowledge and requires special education or training for an individual to acquire its special skills (which possess its own basic theories), and thus, the professional who has acquired the special skills is capable of taking specific activities in response to requests randomly made by individual clients among an unspecified number of ordinary citizens: the profession is therefore a job which contributes to the interests of society as a whole."
(3) Requirements for the professional are discussed inside and outside Japan, which indicates several common definitions (refer to Nishijima's report <1>).
(a) The profession for which the general principles have been established regarding its job duties and which requires long-term education and training for individuals to acquire skills based on the established theoretical knowledge;
(b) The profession for which official licenses, qualifications or certificates should be authorized;
(c) The profession for which associations of individuals engaged in the same occupation have been organized (i.e. professional bodies) and the association secures autonomy;
(d) The profession, the primary objective of which is not to gain profits but to contribute to promotion of public interests; and
(e) The profession which has autonomy and independence.
In the US, the definitions listed below are generally accepted and the requirements in these definitions are basically the same as those listed above (refer to Literature <2> "Responsibilities of professionals" according to US laws" authored by Osamu Kasai).
(a) The capabilities and skills of professionals are intellectual in nature and high-level abilities which require long-term training until one can acquire them, and the professionals use these abilities to fulfill their job duties.
(b) The contents of services provided by the professionals can be in many cases unevaluable by ordinary citizens, who are non-professionals and entrust the professionals with such matters. This gives the professionals a wider range of exercising their own discretion. On the other hand, a person who wants to entrust a specific professional with something tends to do so on the basis of not his/her own evaluation of the professional but his/her trust in the professional which precedes the evaluation.
(c) The professionals have the obligation of not only providing services for the sake of interests of the person who entrusts them with jobs but also making efforts to contributing to the social interests beyond the person's interests. The professionals are therefore requested to be highly moral. (Codes of practice issued by self-governing bodies for individual professions have greatly contributed to maintenance of high morals.)
(d) The social status of the professional has usually a long history.
In light of the above-described definitions, the representative examples of professionals in Japan are lawyers, appraisers, public notaries, certified public accountants, judicial scriveners, land and house investigators, housing land and building business managers, and registered architects. The legal principles of professionals' responsibilities are actively discussed in European and North American countries. The professionals in which these principles are considered are medical doctors in various fields, pharmacists, attorneys at law, certified public accountants, and engineers in the US; and architects, technical experts, surveyors (professionals who determine and evaluate land and houses), barristers (a type of judicial profession: lawyers who represent clients in courts), solicitors (a type of judicial profession: lawyers who represent clients in transactions), medical doctors, dentists, and chartered accountants in the UK.
(4) The professional responsibility is based on the following idea: "When you ask a layperson to do something and the layperson fails to achieve the objective, you may think that this was personally your fault since you asked the layperson. When you entrust a professional with a job and the professional fails to achieve the intended objective, however, you may feel that no excuse from the professional will be acceptable since he/she is a professional. Laypersons entrust professionals with jobs because they think that "the job concerned requires a high level of expertise and that laypersons are unable do it" or that "laypersons may do the job concerned but more satisfactory results will be obtained by the relevant professional." Accordingly, professionals are expected to display higher levels of capabilities and skills than laypersons." (Refer to Literature <4> "Basic structure of professional responsibility" authored by Kaoru Kamata.)
This concept regarding "professionals" was firstly born in European and North American countries, although this is not a totally established concept and each country has its own ideas. When looking at key foreign countries, in the US, the general ideas of professional responsibilities are being built according to the specificity of each profession through the use of precedent cases in relevant law suits and establishment of laws. It is said that the professional responsibilities are being defined in the form of standardized responsibilities in particular.
In the UK, the idea that professionals should be liable for damages is accepted on the basis of accumulated common-law cases. The UK is particularly characterized by the fact that the State will not intervene in any agreement made between the profession and the society. The principle of not controlling by the administration but of self-governing is widespread in the UK. Accordingly, the bodies of legal professions and the medical professionals have established strong self-governing frameworks, within which, in the case of the legal professions' bodies for example, systems of handling complaints, examining disciplinary acts, supervising laypersons, etc. have been set. The State has established the Law Services Act on the basis of these systems.
The professional responsibility is not only the focus of the above-described discussion regarding liability for damages but is also becoming an important issue at practical sites owing to the debut of professional liability insurance. The types of "profession" defined by the insurance are more diverse than the above-described professions. Specifically, in Japan, professional liability insurance for medical doctors was commercially available in 1963, followed by various types of professional liability insurance for architects, certified public accountant, professionals involved in the medical care field such as orthopedic care givers or judo experts, pharmacists, acupuncturists, moxa therapists, massage givers/acupressure therapists, druggists, midwives, nurses, physical therapists and paramedics, professionals involved in handling of official documentation such as patent attorneys, judicial scriveners, public notaries, land and house investigators, lawyers, licensed tax accountants, and in addition, consulting engineers, surveying engineers, travel agents, and tour conductors.
The intention of the professional liability insurance is as follows: when a professional, who is the insured, is liable for damages caused by his/her professional act, the insurance is used to help the insured cover the loss. Accordingly, the professional liability insurance performs functions of protecting the professionals and preventing the professionals' enthusiasm for research from being weakened (refer to Nishijima's report <1> above). At present, no professional liability insurance is available for researchers.
(5) In light of the above-discussed theory of professionals, the authors determined if researchers satisfy the above-listed requirements for professionals or not and found that researchers do not always satisfy these requirements. First of all, we examined the requirements listed in (3) above.
(a) Usually, researchers have received long-term education and training. This is because in reality, unless they have experienced such education and training, they will rarely be well-recognized in scientific associations or on any other relevant occasions. Accordingly, having long-term education and training is not an essential requirement for someone to become a researcher. In recent years, scientific associations of multidisciplinary fields have increased in number. In these fields, the general principles have not always been established for their job duties and researchers who have attained excellent achievements in these fields do not always have a history of research: many of those researchers have been engaged in business, which contribute to these excellent research achievements.
(b) No special licenses, qualifications or certificates are required for someone to become a researcher. The degree issued by universities is not considered to be a special qualification. Even if this degree is regarded as qualification, research can be performed without such a degree. In addition, it is not true that such degree is essential for evaluation of a researcher's work.
(c) There exist scientific associations to which relevant researchers belong. All researchers do not have to become a member of a scientific association, however. These scientific associations are not professional bodies but academic organizations providing the opportunities of communication and discussion among researchers.
(d) We can hardly say that researchers always set their objectives at promoting public interests. It is acknowledged that the driving force of researchers is curiosity and this is especially true for fundamental studies. These studies, of course, may be ultimately applied to various fields useful for society and thus contribute to expansion of human wisdom. It is true that evaluation of such indirect interests is a way of promoting fundamental studies. However, some fundamental studies do not bring about such indirect contribution to the society and considering the characteristics of research, it is hard to set such contribution as an objective of research. On the other hand, when looking at private enterprises and venture firms, we can find researchers whose objective is evidently to gain profits.
Secondly, we examined the US requirements listed in (3) above.
(e) In recent years, scientific associations involved in life sciences related fields have frequently proposed voluntary ethical rules. However, it is not always clear if the job responsibilities of researchers require high morality or not.
When examining the above-described requirements, the authors considered that the "researchers" are those who actually perform research. If the researchers are regarded as those who register themselves at scientific associations, then individual associations have own internal rules for registration. Regulating those registered individuals only for the purpose of regulating research does not have any real significance.
(6) When comparing the responsibilities and obligations of professionals with those of researchers in reality, the authors found fundamental and great differences between the two, although the magnitude of these differences very depending on the form of employment of researchers.
(i) Basically, the professionals such as medical doctors and their clients make a contract for assignment, according to which the clients entrust the professionals with jobs (sometimes they make a contract for work), whereas the researchers are employed by the national government, municipal governments, public bodies, private enterprises, and any other relevant entities. In the case of employment, the employer usually directs the employee regarding their job responsibilities. The researchers, however, in many cases have a wider range in which they are allowed to exercise their own discretion, and they frequently have the freedom of exercising own discretion to the same extent to the professionals such as medical doctors (refer to the examples described in connection with the autonomy of universities).
(ii) As described above, the researchers have the freedom of exercising their own discretion to the same extent as professionals such as medical doctors. On the other hand, the details of job responsibilities of the researchers are frequently undefined and unclear as compared to the contract for assignment which professionals such as medical doctors make with their clients. At universities and any other relevant institutions, researchers are free to choose what they study on the basis of the university's autonomy and accordingly, what they should present to the employer (which corresponds to study reports or patents if this means the obligation that should be given to the employer and which corresponds to study contents if this means the obligation that should be performed) is not set as an objective in advance and even if set, it may often be an abstract objective. At private laboratories also, study managers usually allow researchers to perform studies independently and give instructions to them as appropriate while considering the progress of their studies and their capabilities, and this is particularly true for fundamental studies. The objective of the researcher's job is therefore in many cases undefined, as compared to individuals who are engaged in ordinary jobs. (This way of management is extremely widely accepted as a study management method of allowing researchers to display their creativity.)
(iii) In the case of contract for assignment, the contract receiver has the obligation of handing over money and any other things which he/she has received for the purpose of handling the assignment, to the contract giver, and the contract receiver has the obligation of transferring any rights which he/she has obtained under his/her name for the sake of the contract giver, to the contract giver (Article 646 of the Civil Code). When the contract receiver bears expenses which are judged necessary for the purpose of handling the assignment, the contract receiver is entitled to ask the contract giver to pay back these expenses and interest incurred starting on the day of paying these expenses, to the contract giver (Article 650 of the Civil Code).
On the other hand, all results obtained by activities of a researcher within his/her working hours do not revert to the employer. Rights pertaining to patents are in many cases allocated between the employer and the researcher(s) concerned according to the method defined in advance. Study reports are contributed under the name of not the employer but the researcher(s) concerned. Names of prize winners are rarely the employer's name but mostly the researcher's name. For financing, the principles of bearing expenses are different from those applicable to the professionals such as medical doctors, as indicated by the following system: when a researcher working at a national institution attends at a scientific association's meeting to present his/her study report as an official duty, the researcher should bear expenses required for registration at the meeting, travel expenses and any other necessary expenses (note that in this case, accidents which occur in the course of executing his/her official duty are accepted but the national government still does not bear the expenses necessary for his/her enrollment at the meeting).
(7) Because of the difference in job responsibilities between the professionals and the researchers as discussed above, methods of evaluating achievements of researchers (e.g. if achievements are reflected on counter-performance or merit-rating results such as salaries, etc. or not) may substantially differ from those used for the professionals such as medical doctors. Since these methods are based on employment agreements, we cannot determine if one of the two is appropriate or not.
The researchers perform their duties on the basis of undefined job responsibilities, as described above. Accordingly, the researchers are not legally requested to have strict liability, the duty of high-level care, or the duty of faithfulness. The researchers are not legally requested to have the following obligations, either: the obligations of giving explanation and report, giving advice, and confirming investigation that are newly acknowledged as the obligations that lawyers should have; the obligations of exercising the best care, always studying hard, and recommending change of a doctor/hospital that medical doctors are expected to have.
Excellent study results are highly likely to obtain patents and to be put to practical use. Regarding the administration and the management of a private enterprise, the researchers are not aware, even if these fields are their specialty, that they are requested to have the duty of high-level care, the duty of faithfulness, the obligation of giving explanation, or the obligation of giving advice. Even if they are called for their opinion or give their advice, they do not realize that they have a legal responsibility of making such opinion or advice reflecting the administration or the management.
Nevertheless, researchers are generally considered as professionals like medical doctors and lawyers. This may be because the researchers have special characters, which result from, among others, the following facts: <1> in Japan, the researchers obtain high confidence and are neutral and public since those working at universities as well as national and public research institutions constitute the core of the researchers; <2> there exist academic associations which are self-governing bodies; <3> evaluation standards used for employment or interchange of personnel are considered to be relatively universal; and <4> since research is a special job responsibility, the special management method (i.e. the management method of allowing researchers to have an extremely wide range of exercising their own discretion, with the aim at drawing out their research abilities at maximum) is used. The authors therefore do not consider that there exist any special responsibility conditions that the researchers themselves should satisfy.