JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
tences, punishments in similar cases have so far not significantly varied in Japan. While this is not explicitly stated in Japanese law, if it can be demonstrated that the company had estab - lished an appropriate system to prevent the violation of laws or has made remediation efforts, such actions might influence the amount of any fine. As part of the sentencing procedure, after examining the evidence, the prosecutors must state their opin - ion, including the sentence, and the defendants and their attorneys can also state their opinions (Article 293 of the CCP). The court is not bound by these opin - ions, but in practice a more lenient sentence than that suggested by the prosecutor is often handed down. There are no rules or guidelines governing the assess - ment of penalties if a deferred prosecution agreement, non-prosecution agreement or plea agreement is reached. 1.7 Damages and Compensation Civil Remedies Victims of white-collar offences may seek remedies if the offender’s actions constitute a tort under the Civil Code (Article 709). Proceedings are generally initiated before the district court as the court of first instance, depending on the severity of the matter (otherwise, the summary court for petty claims). Civil proceed - ings are conducted separately from white-collar crime cases. The Crime Victims Protection Act allows victims to inspect and copy case records after the first trial date until the conclusion of the case, unless the request is not justified. Theoretically, contractual liability and unjust enrichment can be pursued as civil remedies, but when the issue is whether a white-collar crime has been committed, it is usually sufficient to seek tortious liability. However, there are cases in which contractual liability should be pursued owing to the statute of limitations. Remission Scheme Against Organised Crime Property directly damaged by a crime and seized will generally be returned by the court or prosecutor’s office after conclusion of the criminal case. However,
it is difficult to return property that cannot be identified as belonging to the victim or others. In principle, property extorted from a victim as a result of a crime or property derived therefrom is not confis - cated (Article 19-2 of the PC; Article 13 of the APOC). However, when the nature of the crime makes it dif - ficult to exercise the right to claim against the offender (eg, when committed by organised crime), or when it is difficult to exercise the right to claim owing to dis - guised or concealed facts, confiscation of the stolen property is permitted. Under a restitution order system concerning the con - fiscation of the proceeds of crime and the collection of equivalent sums, the prosecutor’s office can conduct procedures to issue remission payments to victims, etc, from confiscated or forcibly collected property, based on the Act on Issuance of Remission Payments Using Stolen and Misappropriated Property. When a current deposit account used for criminal pur - poses is frozen, the Deposit Insurance Corporation of Japan and the bank where such deposit account is opened may take the initiative of distributing the funds from such account to the victims (Act on Payment of Damage Recovery Benefits From Funds in Deposit Accounts Used for Crime). Class Actions US-style class actions are not available in Japan. However, certain consumer organisations certified by the Prime Minister (the Secretary-General of the Con - sumer Affairs Agency (CAA)) may file actions against business operators to request injunctions to end or prevent violations of the Consumer Contract Act com - mitted by business operators against many unspeci - fied individuals. Organisations that are specifically certified are entitled to file actions for the “confirmation of common obliga - tions” and take judicial action to ascertain the rights of such consumers. However, they cannot represent consumers without their individual consent.
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