JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
Co-Operation Evidence for criminal cases in Japan can be obtained from foreign countries based on a treaty or agree - ment regarding mutual legal assistance in criminal matters (eg, with the USA, South Korea, China, Hong Kong, the EU, Russia and Vietnam, except for cases that do not constitute a crime under the laws of these countries). For foreign countries without a treaty or agreement, co-operation occurs through diplomatic channels based on reciprocity (the Act on International Assistance in Investigation and Other Related Mat - ters). Assets derived from criminal activities can be seized abroad based on treaties or agreements and through diplomatic channels. Japan has concluded and ratified the United Nations Convention against Transnational Organized Crime, which allows for requests for assis - tance relating to organised crime between authorities in signatory countries, without going through diplo - matic channels. Administrative authorities usually share information on a bilateral and multilateral basis. Blocking Statute No statute explicitly blocks the assertion of foreign jurisdictions within Japan, but the Act on International Assistance in Investigation and Other Related Matters lists matters for which assistance is not provided. Extradition The government has entered into extradition treaties with the USA and Korea. Japan is a party to multilat - eral treaties with provisions on extradition, such as the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption. The Extradition Act allows the Minister of Justice to decide on the extradition of fugitive criminals (even voluntarily) subject to review by the Tokyo High Court, except in prescribed cases. 1.5 Corporate and Personal Liability In principle, only individuals are criminally liable under Japanese law, and most related crimes are covered by the PC without dealing with legal entities. A legal
entity can only be held criminally liable if there is a specific statutory provision (Article 8 of the PC – the dual-liability provision). A legal entity can be punished by a fine only after it has been proved that one of its officers or employees has committed a specific crime in connection with its business. While it is possible to punish legal enti - ties only without punishing individuals (provided the individual’s offence is proven), there is no clear policy. In a merger context, the criminal liability of the dis - solving company cannot be assumed by the surviving company. The parent company or group companies of a violat - ing company may be held liable only in cases such as joint tort liability under the Civil Code. Japan has no criminal liability provisions for “failure to prevent”- style offences. Administrative sanctions (eg, administrative monetary penalties) can be imposed on legal entities without a dual-liability provision (eg, under the Act on Prohi - bition of Private Monopolisation and Maintenance of Fair Trade, or Anti-Monopoly Act (AMA)). 1.6 Sentencing and Penalties The court decides the punishment within the param - eters set by statutes at its discretion, taking into con - sideration various factors, such as: • how the defendant committed the crime; • the seriousness of the damage; • the motive; • the defendant’s criminal record; • whether the defendant has compensated for the damage; and • whether the defendant is remorseful. The court may render suspended sentences if certain conditions are met – eg, if the defendant is a first- time offender and is sentenced to imprisonment of not more than three years (Chapter 4 of the PC). Although the range of parameters is wide, there are no clear guidelines or standards. However, owing in part to the availability of sufficient data on past sen -
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