This country-specific Q&A provides an overview to bribery & corruption law in Japan.
It will cover the definition of bribery, regulation, compliance, liability and enforcement as well as insight and opinion and any upcoming legal changes planned for their respective country.
This Q&A is part of the global guide. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/bribery-corruption/
What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
As general rules relevant to bribery, Chapter XXV of the Penal Code prohibits the bribery of Japanese public officials, as well as the soliciting of bribes by Japanese public officials. Also, the Act on Punishment of Public Officials’ Profiting by Exerting Influence prohibits the bribery of people who sit in an official position and their secretaries.
Japanese public officials are bound by the National Public Service Ethics Act ("Ethics Act") and the National Public Service Ethics Code ("Ethics Code"), which provide guidelines in relation to gifts, hospitality and benefits that may be accepted by public officials, as well as applicable reporting thresholds.
With regard to foreign public officials, the Unfair Competition Prevention Act (“UCPA”) prohibits the bribery of foreign officials by Japanese citizens.
Which authorities have jurisdiction to investigate and prosecute bribery in your jurisdiction?
There is no sole authority which covers all aspects of bribery offences in Japan.
The Public Prosecutors’ Office handles prosecution and investigation of the bribery offences. Investigations of bribery offences are also handled by the Police Organization.
With respect to competent governmental authorities of the relevant legislation/regulations, the National Personnel Authority is in charge of the Ethics Act and the Ethics Code. The Ministry of Economy, Trade and Industry is in charge of UCPA
How is bribery defined?
Though there is no legal definition, bribery is interpreted as an illegal profit in connection with one’s duties.
Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
In Japan, there is no legislation which directly regulates bribery of private persons. Please note however, that officials or employees of a corporation may be liable for aggravated breach of trust against the corporation under Article 960 of the Companies Act if they accept bribes.
The scope of “public official” is described in the Penal Code and other relevant legislations. It includes national and local government officials.
What are the civil consequences of bribery in your jurisdiction?
There are no general rules which describe civil consequences of bribery. If a government official accepts a bribe in violation of the Ethics Law or the Ethics Code, the official may be subject to a disciplinary action. If a corporate officer gave a government official a bribe and caused damage to the corporate, the corporate officer is liable for the damage suffered by the corporation.
What are the criminal consequences of bribery in your jurisdiction?
The penalties for conduct which violates anti-bribery laws are different depending on the type of offences. These include:
A natural person convicted of the offence of giving, offering or promising to give a bribe to a Japanese public official is subject to a penalty of up to three years imprisonment, or a fine of up to JPY 2.5 million.
A Japanese public official convicted of the offence of accepting, soliciting or promising to accept a bribe in connection with their duties is subject to a penalty of up to five years imprisonment.
Under the UCPA, a natural person convicted of the offence of bribing a foreign official is subject to a penalty of up to five years imprisonment, a fine of up to JPY 5 million, or both.
Under the UCPA, a company or corporation is subject to a penalty of a fine of up to JPY 300 million where an employee, agent, officer or director of a company or organisation breaches the anti-bribery provisions of the UCPA in connection with the corporation's business.
Does the law place any restrictions on hospitality, travel and entertainment expenses? Are there specific regulations restricting such expenses for foreign public officials?
Under the Ethics Code, public officials are basically prohibited from accepting hospitality and entertainment. Under the UCPA, a natural person is prohibited from giving hospitality and entertainment to foreign public officials.
Are political contributions regulated?
Yes. The Political Funds Control Law provides detailed regulations for political donations from individuals and corporations.
Are facilitation payments regulated? If not, what is the general approach to such payments?
Bribery regulations in Japan have no specific clauses as for facilitation payments. In practice, facilitation payments are reviewed with regard to any quid pro quo in relation to the official duty of the bribe taker.
Are there any defences available?
There are no local affirmative defences aside from the defences admitted in the FCPA.
Are compliance programs a mitigating factor to reduce/eliminate liability for bribery offences in your jurisdiction?
Compliance programs are not necessarily treated as a mitigating factor for bribery offences in Japan. Nonetheless, a compliance program may be considered as grounds for leniency in a criminal charge.
Who may be held liable for bribery? Only individuals, or also corporate entities?
Only a natural person is liable for bribery under the Penal Code. Under the UCPA, on the other hand, a corporation as well as a natural person is liable for bribery of foreign officials.
Has the government published any guidance advising how to comply with anti-corruption and bribery laws in your jurisdiction? If so, what are the elements of an effective corporate compliance program?
As for the bribery of national government officials, the Ethics Code functions as comprehensive guidance to comply with the relevant rules.
With respect to bribery of foreign officials, the METI provides “Guidelines to Prevent Bribery of Foreign Public Officials” The guidelines provide the following elements for establishing effective corporate compliance program:
- Establishment of fundamental principles;
- Establishment of internal regulations based on risk basis approach;
- Establishment of effective organizational structure in accordance with the size of corporation;
- Provision of internal educational programs;
- Establishment of regular audit system; and,
- Review of prevention framework by managements and executives in charge of compliance.
Does the law provide protection to whistle-blowers?
Yes. The Whistle-Blower Protection Act provides protection to whistle-blowers.
How common are government authority investigations into allegations of bribery?
Bribery offences under the Penal Code are frequently investigated. Offences of Bribery of foreign officials under the UCPA have been investigated occasionally.
What are the recent trends in investigations and enforcement in your jurisdiction?
There are no specific trends as for the investigations and enforcements. Current investigation and enforcement is consistent with past practice.
Is there a process of judicial review for challenging government authority action and decisions?
Administrative actions and decisions are subject to a process of judicial review.
Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?
A new plea bargaining system is to be introduced and the bribery offences are subject to the system. The system enters into force in June 2018. Under the system, a natural person or corporation will be able to enter into a plea bargain with the prosecutor, under which they agree to give information in relation to charges against or crimes of another natural person or corporation. Information related to the charge against the person or corporation itself will not be enough for them to take advantage of the system.
Currently, the new plea bargaining system is not applied to the bribery of foreign public officials. There is a likelihood, however, that the plea bargaining system will be amended to include the bribery of foreign public officials for the scope of its application.
To which international anti-corruption conventions is your country party?
Japan is a party for the following international legal frameworks:
- Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
- The United Nations Convention against Transnational Organised Crime and the United Nations Convention against Corruption.
Do you have a concept of legal privilege in your jurisdiction which applies to lawyer-led investigations? If so, please provide details on the extent of that protection.
There is no concept of legal privilege in Japan.
How much importance does your government place on tackling bribery and corruption? How do you think your jurisdiction’s approach to anti-bribery and corruption compares on an international scale?
The Japanese government in general places high importance on tackling bribery and corruption. In the “Corruption Perceptions Index”, Japan is positioned as one of the cleanest countries in the world.
Generally how serious are organisations in your country about preventing bribery and corruption?
In the trends of establishing an effective compliance system, Japanese corporations are generally tackling hard to prevent bribery offences.
What are the biggest challenges enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in your jurisdiction?
Enforcement agencies/regulators in Japan may find it difficult to meet the burden of proof of elements of bribery offences (e.g. a relationship between bribery and a duty of the bribery taker) since the Japanese judicial process imposes a strict burden of proof for prosecutors.
What do you consider will be the most significant corruption-related challenges posed to businesses in your jurisdiction over the next 18 months?
There seem no to be specific issues which businesses should pay significant attention to with regard to bribery and corruption. Relevant authorities tend to enforce bribery regulations in accordance with specific facts in each case.
How would you improve the legal framework and process for preventing, investigating and prosecuting cases of bribery and corruption?
As mentioned in No. 18 above, a new plea bargaining system is to be introduced and the bribery offences are subject to the system. Under the system, it is likely for the prosecutors to be able to meet the burden of proof and find extra evidence for bribery offences more easily by taking advantage of information obtained in the process of plea bargaining.