JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
of trade during the past ten years). For exclusion - ary-type private monopolisation: 6%. • For unfair trade practices (concerted refusal to deal, discriminatory pricing, unjust low price and resale price maintenance) corresponding to a repeat violation within ten years: 3% of sales. A rate of 1% and a different calculation method apply to abuses of superior bargaining position, for which a payment order can be imposed for the first viola - tion. Criminal sanctions may apply for private monopolisa - tion but have so far never been imposed. Enterprises face a maximum criminal fine of JPY500 million. 3.8 Consumer Criminal Law The Penal Code A person who defrauds another person of property can be punished by imprisonment of up to ten years (Article 246 of the PC). The Act on Specified Commercial Transactions The Act on Specified Commercial Transactions regu - lates transactions involving: • door-to-door, mail order and telemarketing sales; • multi-level marketing transactions; • the provision of specified continuous services; and • business opportunity sales transactions and door- to-door purchases. Taking door-to-door sales as an example, making misrepresentations about the performance or value of a product is prohibited. Violators may face busi - ness improvement, business suspension or business prohibition. They may also be subject to imprisonment of up to three years or a maximum fine of JPY3 million. The Act Against Unjustifiable Premiums and Misleading Representations The Act Against Unjustifiable Premiums and Mislead - ing Representations (AUPMR) regulates premiums and representations in connection with transactions of goods and services to ensure fair competition and protect the interests of consumers. It prohibits certain acts punishable by surcharge payment order (Article 8), including:
• representations where the quality, standard or any other content of goods or services is portrayed to consumers as being much better than that of the actual goods or services, or much better than those of other businesses, contrary to fact; and • representations by which the price or other trade terms of the goods or services could be misun - derstood by consumers to be much more favour - able than those actually offered or those of other businesses supplying the same or similar goods or services. In case of violation of a corrective order (order for action) (Article 46 of the AUPMR), the penalties are imprisonment of up to two years and/or a maximum fine of JPY3 million. A fine of up to JPY1 million may be imposed directly on a malicious enterprise mak - ing representations while being aware that they are improper, without an order for action being issued (Article 48). Cease-and-desist orders can be issued to stop misrepresentations and prevent recurrence. The administrative fine is 3% of sales made during the misrepresentation period. If the business can prove that it did not know the rep - resentation was misleading and that it has seriously considered whether it was misleading, the fine is not imposed. If the business reports the misrepresentation before an investigation is started, the fine is reduced by half. If the business makes a plan to refund con - sumers to compensate for the misrepresentation, and if the plan is approved by the CAA and implemented by the business, the fine is reduced or eliminated. 3.9 Cybercrimes, Computer Fraud and The PC prohibits the creation, provision, release, acquisition and storage of malware with the intention of applying or using such malware in the electronic device of another person. Offenders risk imprison - ment with work for up to three years or a fine of up to JPY500,000, or two years’ imprisonment with work or a fine of up to JPY300,000 for acquisition and storage (Articles 168-2 and 168-3). Protection of Company Secrets Cybercrimes and Computer Fraud For the unauthorised acquisition, use or disclosure of trade secrets (including electronically stored secrets),
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