JAPAN Law and Practice Contributed by: Shinya Tago, Atsushi Fukasawa, Hiroshi Iida and Landry Guesdon, Iwata Godo Law Offices
information may be subject to criminal sanctions, including imprisonment of up to five years. Surrender Under the PC If the perpetrator of a crime denounces themselves before being exposed as a suspect by an investiga - tive authority, their punishment may be reduced. This rule also applies with respect to a crime that cannot be prosecuted without a criminal complaint, and to a person who turns themselves in to a person who has the right to make a criminal complaint (Article 42 of the PC). Leniency Under the AMA Cartels and bid-rigging are caught by Articles 3 and 6 of the AMA, which prohibit unreasonable restraints of trade. The AMA leniency programme operates as a sys - tem whereby administrative surcharges are waived or reduced on the condition that the enterprises that have been involved in cartels or bid-rigging voluntarily report these activities to the JFTC. The sooner they report their activities to the JFTC before it initiates an investigation, the more surcharges they will be exempt from. Under the current system, the following applies. • All enterprises can co-operate in the JFTC’s inves - tigations voluntarily. • Before an investigation starts: (a) the first enterprise to report its involvement in a cartel to the JFTC is entitled to full exemption from administrative surcharges; (b) the second enterprise that reports a violation is entitled to a 20% reduction in administrative surcharges; (c) the third, fourth and fifth enterprises that report a violation are entitled to a 10% reduction in administrative surcharges; and (d) the sixth and any other enterprises that report a violation are entitled to a 5% reduction in administrative surcharges. • After a dawn raid takes place and within 20 days thereafter, enterprises that report a violation are entitled to: (a) a 10% reduction in administrative surcharges, provided not more than five applicants applied before and after the dawn raid – the number of
eligible beneficiaries is limited to three after the dawn raid; or (b) a 5% reduction in administrative surcharges. A further discount rate may apply according to the degree of co-operation with the investigation, at a rate depending on the timing of the application. Enterpris - es reporting a violation before a dawn raid are entitled to a reduction in administrative surcharges of up to 40%, while those applying thereafter are only entitled to a reduction of up to 20%. JFTC Guidelines clarify how the JFTC assesses an applicant’s level of co-operation. When more than one enterprise of the same group commits an infringement, group enterprises can file a single joint application, in which case the same leniency status/pecking order is granted to all group enterprises named as applicants on the form. To be eligible for a reduction, applicants must not be involved in illegal activities after the JFTC has com - menced its investigation. Other Co-Operation or Self-Disclosure The administrative authorities, prosecutors or courts may also consider co-operation and self-disclosure as a factor to reduce or control (as applicable) adminis - trative dispositions, surcharges, criminal charges or punishment. 4.4 Whistle-Blower Protection The Whistle-Blower Protection Act (WPA) provides that a business operator is not authorised to dismiss or treat a worker (including retired employees and officers) unfavourably based on the worker’s whistle- blowing, nor to claim damages against them for dam - age suffered by the business operator because of the worker’s whistle-blowing, where: • it is made to a prescribed reporting destination about a reportable fact (ie, any prescribed crimi - nal act, a prescribed act for which a civil fine can be imposed or an act subject to an administrative disposition under which the violation is punish - able or for which a fine may be imposed) that has
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