JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
2.4 Use of Technology in Investigations The details have not been made public, but it is understood that the tax and police authorities use AI in investigations (for digital forensics, they appear to use the services of external vendors). No laws or
to their client. In practice, attorneys are not allowed to attend the interrogation of suspects during criminal investigations. Unlawfully obtained evidence may be excluded by a court, taking into account the seriousness of the ille - gality and the necessity of preventing procedural vio - lations and solving cases. Appeals against the reten - tion or seizure of evidence can be filed with a court (Article 430 of the CCP). Attorney-client privilege is not available throughout examinations conducted by the administrative author - ities, with the exception of cartel matters under the AMA and related JFTC guidelines. In practice, the administrative authorities do not permit counsel to be present at such examinations. Power of Arrest and Detention, and Relief See Questioning Powers , above. An appeal may be filed against a detention order (Article 429 of the CCP). The period of arrest is up to 72 hours, and detention is up to 20 days. There is no right to bail before indict - ment. When indictment takes place during detention, detention continues after the indictment and can be renewed if deemed necessary by the court. The same applies to cases in which a person is detained after indictment. The defendant may be entitled to bail with limited exceptions, in particular when there is reasonable cause to suspect that the accused may conceal or destroy evidence (Article 89 of the CCP). A court can also allow a defendant to post bail on its own author - ity when it deems it appropriate (Article 90). In order to prevent defendants on bail from absconding, the CCP includes: • penalties for failure to appear; • reporting orders; • supervisor appointments; and • orders to install GPS. Not all these provisions adopted in 2023 have yet come into force.
guidelines restrict such use. 2.5 Internal Investigations Directors’ Duty of Care
There is no specific statutory obligation to conduct an internal investigation, even if there is suspicion of wrongdoing. However, a director’s duty of care to a company could prompt senior management to com - mence internal investigations. Under the Companies Act, if a director fails to investigate despite being aware of the possibility of misconduct, they may be found to be in breach of their duty to mitigate com - pany losses or damage. In addition, industry-specific regulations may indirect - ly compel a company to conduct investigations. For example, when a pharmaceutical company becomes aware of issues relating to the efficacy or safety of its pharmaceutical products, it must report the issue to the authorities and an investigation (even preliminary) must be conducted. Self-Regulated Organisations Self-regulated organisations have established their own guidelines, such as the Japan Exchange Reg - ulation (JPX-R) concerning the obligations of listed companies to try to conduct investigations when they become aware of misconduct. Reports to the FSA Most regulated firms supervised by the FSA (banks, insurance companies and securities companies) are required to file a report with the FSA when they become aware of a prescribed incident of miscon - duct, which must include a “summary of the incident”, “analysis of factors leading to occurrence”, “matters addressed” and “details of personnel action”. Data Protection and/or Labour Laws Data protection is generally not an issue as long as internal company investigations are legitimate. How - ever, according to case law, employees are not under an unlimited duty to co-operate – they must only do
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