JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
cease-and-desist order or an administrative surcharge payment order rendered by the JFTC. 2.3 Impact of Competition Authorities In the event that a plaintiff files a follow-on damage claim based on Article 25 of the Antimonopoly Act, which may be filed only after the JFTC’s cease-and- desist order or an administrative surcharge payment order becomes irrevocable, the defendants are not permitted to deny their wilfulness or negligence for the violation of the Antimonopoly Act found by those JFTC orders. In addition, it is generally considered that the find - ings of violation of the Antimonopoly Act set forth in the JFTC orders, which became irrevocable through administrative hearing procedures or civil court pro - ceedings, create a rebuttable presumption that the Antimonopoly Act was violated. As a matter of practice, even the decisions of nation - al competition authorities in other jurisdictions could be taken into account, to some extent, by the court in charge of private antitrust cases in determining whether the Antimonopoly Act was violated, particu - larly when the facts and evidence are common to both cases. There is no mechanism for the JFTC to intervene in damages actions in court. 2.4 Proof Allocation of Burden of Proof Damages claims In seeking compensation for damages through Japa - nese civil court proceedings, the plaintiff alleging the defendant’s violation of the Antimonopoly Act bears the burden of proof to demonstrate: • the illegal conduct of the defendant; • damages; • a causal relationship between the damages and the violation; and • the negligence or wilfulness of the defendant. In a damages action under Article 25 of the Antimo - nopoly Act, the plaintiff does not need to prove the defendant’s negligence or wilfulness. With regard to
the defendant’s “negligence or wilfulness”, the burden of proof does not have a serious impact in practice, even on damages claims under Article 709 of the Civil Code, since the defendant’s conduct in viola - tion of the Antimonopoly Act normally demonstrates that the defendant was negligent in being involved in such conduct. With regard to the “illegal conduct of the defendant”, it is generally considered that findings of violation of the Antimonopoly Act by JFTC orders that have become irrevocable through administrative hearing proce - dures or civil court proceedings create a rebuttable presumption that the Antimonopoly Act was violated. Injunction In claims for injunction based on Article 24 of the Anti - monopoly Act, a plaintiff must prove that: • the defendant’s conduct falls under certain types of unfair trade practices in violation of Article 8, item 5, or Article 19 of the Antimonopoly Act; • the plaintiff’s interests are infringed or are likely to be infringed; • the plaintiff suffered, or is likely to suffer, “material” damages by such conduct; and • there is a causal relationship between the material damages and the defendant’s conduct. The plaintiff does not need to prove the defendant’s negligence or wilfulness in engaging in the conduct at issue. Recovery of unjust enrichment For an action to recover unjust enrichment based on Articles 703 and 704 of the Civil Code, the plaintiff must prove that the defendant received benefit with - out any legal cause and thereby caused loss to the plaintiff. Actions based on the invalidity of contracts violating the Antimonopoly Act For an action based on the invalidity of contracts vio - lating the Antimonopoly Act, the plaintiff will need to prove the relevant facts indicating the invalidity of the contract under Article 90 of the Civil Code.
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