JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
1. Criminal Law 1.1 Criminal Offences
Corporate Fraud Offences The main offences relevant to white-collar crime include the following. • Fraud (Article 246 of the PC) – ie, defrauding some - one and causing such person to deliver property. Many types of fraudulent acts qualify as crimes. Attempts are punishable. • Theft (Article 235 of the PC) – ie, stealing property. Withdrawing money from ATMs using an illegally obtained cash card is a crime. Attempts are pun - ishable. • General breach of trust and special breach of trust (Article 247 of the PC) committed by an individual responsible for the affairs of another for the pur - pose of promoting their own interest or the interest of third parties, or inflicting damage on someone or on someone’s property in breach of their duties. Certain forms of misconduct committed by offic - ers and employees of financial institutions may constitute a breach of trust. When committed by directors, etc, such conduct may be a “special breach of trust” (Article 960 of the CA). Attempts are punishable. • Misappropriation (embezzlement during business activities) (Article 253 of the PC) – ie, embezzle - ment by one person of the property of another in the course of business. Certain forms of miscon - duct by officers and employees of financial institu - tions may constitute such a crime. • Misconduct in relation to securities transactions (Article 197 of the FIEA) – ie, the use of illegal means that can involve making false statements on important matters, spreading rumours and using fraudulent means, or other similar acts in relation to securities transactions. Companies can also be punished. Attempts are not punishable. • Infringement of trade secrets (Article 21 of the Unfair Competition Prevention Act) – obtaining trade secrets through fraudulent acts to make wrongful gains and other related misconduct can constitute an offence. Certain attempts are punish - able. • Unauthorised computer access (Articles 2–4 and 11 of the Act on Prohibition of Unauthor - ised Computer Access (APUCA)) – unauthorised computer access using another person’s ID and password without the permission of the administra -
Japanese law does not classify offences as mis - demeanours and crimes, although there is a Minor Offences Act. The main piece of legislation is the Penal Code (PC), but many statutes include criminal sanctions. The constituent elements of a crime are that: • the act needs to correspond to the statutory defini - tion of a crime; and • the person who committed the act must have had the intention to commit a crime or acted negli - gently. A crime must also be “illegal” – ie, excluding self- defence, emergency or other justifiable acts. Attempted offences are only punished if there is a provision punishing attempts for that specific crime. Legislation The main laws and regulations relevant to white-collar crime are as follows. • The PC contains provisions on white-collar crime, including fraud, misappropriation, breach of trust and theft as basic categories of related crimes. • The Companies Act (CA) contains provisions on special breaches of trust (a specific category of crime related to corporate fraud) committed by directors and other specified corporate officers. • The Financial Instruments and Exchange Act (FIEA) includes provisions on: (a) the requirements for the proper disclosure of corporate affairs and the prohibition of miscon - duct in relation to securities transactions; (b) breaches of these rules (special civil law); and (c) administrative dispositions and criminal pun - ishment. • The Act on the Punishment of Organised Crime and the Control of Criminal Proceeds (APOC) contains provisions on special categories of crimes regarding organised crime and the concealment, receipt and confiscation of the proceeds of crimes.
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