JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
Safe Harbours and Insider Trading Certain transactions that are not considered to under - mine the fairness and credibility of a securities market are exempt from the FIEA insider trading regulations, including: • over-the-counter or negotiated transactions conducted between specific persons who have unpublished material information pertaining to a listed company; • the acquisition of shares through the exercise of share options; and • transactions based on contracts or plans made before becoming aware of material information. 4.3 Plea Agreements, Co-Operation, Self- Disclosure and Leniency Plea Agreements The plea bargaining system allows a suspect and a defendant to enter into negotiations with prosecutors in the presence and with the consent of their attor - neys. Evidence of criminal conduct by, or testimony on the criminal conduct of, third parties (individuals or companies) can be provided in return for: • the absence or withdrawal of prosecution; • the limitation or change of facts or offences to be prosecuted; or • the setting of a specific sentence required by the prosecutor, etc. The system covers white-collar crimes such as fraud, bribery, embezzlement and antitrust offences, as well as certain offences relating to taxation and trading in financial products and instruments. There are various ways in which an individual or a company can co-operate with prosecutors in relation to third-party suspects, including: • assisting with the collection of evidence; • responding truthfully to interrogation; and • providing full disclosure of information in the authorities’ investigation or in a court trial. To prevent a co-operating party from providing false information on a third-party suspect in the hope of receiving a reduced penalty, the provision of false
However, very few court cases have involved exemp - tions. 4.2 De Minimis There are no exempt industries or sectors for the crimes described in 1.1 Criminal Offences . Bribery of Domestic Officials There is no definition of a bribe in the PC, but it is gen - erally interpreted as an advantage given to a public official to influence the performance of their duties. A bribe is not limited to a monetary or property ben - efit, and can include the satisfaction of a demand or desire of the official. Gifts, travel, meals, entertainment or free lease of property are generally viewed as an advantage. Gifts, gratuities, etc, within the scope of social cour - tesy are not deemed to be bribes, although the criteria are unclear. Bribery of Foreign Officials The UCPA does not expressly allow small facilitation payments. There is no clear “safe harbour” rule for such small payments under the UCPA or the METI guidelines on bribery of foreign officials; provided the prerequisite “to obtain illicit gains in business with regard to international commercial transactions” is satisfied, such payment will constitute a bribe under the UCPA. However, the following acts are less likely to be regarded as bribery: • providing promotional products for general dis - tribution (eg, calendars and widely distributed souvenirs); • providing sweets and drinks at business meetings; • the use of company cars when foreign officials visit the company on business when necessary for transportation purposes; • providing inexpensive seasonal gifts according to local customs; and • providing travel and meal expenses based on the company’s own standards in accordance with local laws and regulations, when the inspection of a factory and laboratory is needed, and where their display is not sufficient to gain understanding of a company’s products, services and quality.
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