JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
2. Enforcement 2.1 White-Collar Enforcement Authorities Two main types of authorities are involved in the inves - tigation and prosecution of white-collar offences and the enforcement of sanctions. The enforcement pow - ers of prosecutors and administrative authorities exist in parallel without hierarchy. However, the prosecutors generally wait for the administrative authorities to file an accusation before prosecuting violations of admin - istrative laws and requesting sanctions. Authorities With Powers Over Criminal Cases The police and the public prosecutor’s office have powers over criminal cases. They have the power to conduct compulsory investigations but often make enquiries or interview suspects on a voluntary basis. On top of the principal sentence for a criminal offence, the courts may confiscate the proceeds of crime or collect the cash equivalent. Certain drug-related pro - ceeds are subject to mandatory forfeiture or collec - tion. The prosecutor’s office has special investigation departments in Tokyo, Osaka and Nagoya, and the police have special divisions, although there is no spe - cial court for white-collar crimes. Authorities With Powers Under Administrative Laws and Regulations Ministries and agencies have authority under admin - istrative laws and regulations. White-collar crimes are often dealt with by the finan - cial authorities, which have regulatory authority over financial institutions (including banks, insurance and securities companies) to ask questions, conduct site inspections and order the submission of reports and materials. They generally conduct investigations into financial institutions on a voluntary basis to compel them to improve their business procedures in accord - ance with applicable laws and administrative guid - ance. The Financial Services Agency of Japan (FSA) is responsible for ensuring the stability of the financial system, protecting investors and carrying out sur - veillance over securities transactions. The Securities and Exchange Surveillance Commission (SESC) is entrusted by the FSA with daily market surveillance,
inspections of securities firms, inspections of disclo - sure documents and related activities. The Japan Fair Trade Commission (JFTC) is also important as an administrative authority with respect to white-collar offences and cases involving AMA infringements. Various ministries and agencies deal with money laun - dering, including the National Police Agency, the FSA, the Ministry of Finance and the Ministry of Justice. The CAA has general regulatory authority over mis - leading labelling. The competent authorities for indi - vidual laws regulating labelling and advertising in specific fields (eg, under the Pharmaceuticals and Medical Devices Act) are also regulatory authorities. For violations of administrative regulations, penalties are often prescribed instead of administrative sanc - tions. When the administrative authorities believe a crime has been committed with respect to the laws and regulations under their jurisdiction, they must press charges through the investigative authorities. Administrative Sanctions Non-compliance with administrative regulations may give rise to administrative sanctions, including: • cancellation of an entity’s business licence; • suspension of all or part of a business; • business improvement and reporting; and • administrative fines ( karyo ) or surcharges ( kachokin ). Public Policy or Political Pressure The political neutrality of Japan’s law enforcement authorities is relatively well maintained. However, under democratic principles and based on internal policies, the possibility of selective case handling can - not be ruled out. 2.2 Initiating an Investigation In general, the authorities mentioned in 2.1 White-Col- lar Enforcement Authorities have discretion to initi - ate an investigation. No specific law generally deals with the initiation of investigations, even though the AMA requires the authorities to initiate an investigation
147 CHAMBERS.COM
Powered by FlippingBook