JAPAN Trends and Developments Contributed by: Masayuki Atsumi and Yuhei Sakao, Miura & Partners
Under the UCPA, offering, promising or giving bribes to foreign officials in order to obtain an improper busi - ness advantage in the conduct of international busi - ness is prohibited (Article 18), and “the principle of territorial jurisdiction” is adopted. Therefore, in cases where any actions constituting bribery have been committed in Japan, or the results of bribery have affected Japan, the person committing the bribery is punishable for bribery of a foreign public official, regardless of their nationality. The “principle of nation - ality” is also adopted, so that Japanese persons who bribe a foreign official outside Japan are also punish - able for bribery of a foreign public official. Recommendations of the OECD Convention The WGB is responsible for overseeing and promot - ing the implementation of the OECD Convention and conducts peer reviews among the parties to the Con - vention. It has conducted peer reviews of Japan on four occasions and published the results in the form of an “Assessment Report” with recommendations for Japan. On 27 June 2019, the WGB published its fourth review report on Japan. It expressed its concern about Japan’s attitude towards investigation of bribery of foreign public officials, as follows. • Twenty years after the Convention came into force, the WGB remains concerned that Japan has still not given full effect to its foreign bribery prevention measures. • Overall, Japan has only detected 46 allegations of foreign bribery, half of which the WGB brought to Japan’s attention. Japan has investigated 30 of the 46 known allegations, resulting in the conviction of 12 individuals and two legal persons in five foreign bribery cases. These numbers are particularly low given the size of Japan’s economy and the high- risk regions and sectors in which its companies operate. • The police and the prosecution have shown a lack proactivity in their foreign bribery investigations. • The role of the Ministry of Justice (MOJ) in trans - mitting or clarifying certain allegations may have contributed to unnecessary delays (from one to nine years) in the opening of investigations. The
WGB remains concerned by the police’s continued lack of involvement in foreign bribery cases. In addition, the report made 17 recommendations, in particular urging Japan to submit a written report within one year addressing the following key recom - mendations. • Take urgent steps to further extend the statute of limitations on foreign bribery to an appropri - ate period, to ensure the effective prosecution of foreign bribery or to introduce the possibility of suspending the limitation period during the investi - gation with the aim of achieving the same goal. • Enact legislation to substantially increase the statu - tory maximum fine for natural persons convicted of foreign bribery. • Urgently review its legislation to ensure that Japan has jurisdiction over foreign bribery offences, including when bribes by Japanese companies operating abroad are paid by non-Japanese employees. • Raise the statutory maximum or provide alternative grounds to impose higher fines (eg, the amount of the bribe given or the unlawful benefit obtained) to ensure that the fine imposed will be effective, proportionate, and dissuasive, even in large-scale corruption cases. Amendment of the UCPA in 2023 In response to the above recommendations of the OECD, the Working Group on Bribery of Foreign Pub - lic Officials of the Subcommittee on Unfair Competi - tion Prevention of the Intellectual Property Section of the Industrial Structure Council of METI released the Report on Strengthening Disciplinary Rules for the Crime of Bribery of Foreign Public Officials in March 2023. The report proposed the following four amend - ments to the UCPA: • introduction of sanctions against natural persons; • introduction of sanctions against legal persons; • establishment of a statute of limitations for pros - ecution; and • clarification of applicable jurisdiction (punishment of foreign crimes) over corporations.
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