JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
under Article 47 (1), items 3 and 4 of the AMA. The investigators may therefore inspect any place within the business, including the legal department, provided they reasonably consider the search necessary to investigate the alleged violation. The investigators are also entitled to seize any materials they reasonably think are relevant to the alleged conduct. In order to avoid interfering with business operations, investigators conduct - ing administrative inspections tend to obtain electronic information by means of copying it from PCs instead of confiscating laptops or local servers. However, during criminal investigations, actual devices will be seized. Interviews with officers or employees responsi - ble for the alleged violation usually take place during dawn raids. In practice, these interviews are normally conducted on a voluntary basis. Accordingly, using the reference materials for companies regarding administrative investi - gation procedures for alleged antitrust cases, investigators should first explain to the inter - viewees that the interview is conducted on a voluntary basis and then obtain their consent prior to starting the interview. It is worth bearing in mind that, if interviewees do not co-operate with a voluntary interview, an interrogation procedure could be ordered under Article 47 (1) of the AMA. The interrogation is conducted by issuing an order to the officers or employees of the company being investigated. Any testifying persons who make a false state - ment or fail to make a statement during the inter - rogation procedure could be subject to punish - ment under Article 94 of the AMA. After the dawn raids, companies under investi - gation may ask the JFTC to allow them to make
copies of documents provided to them by sub - mitting a request form with an order for submis - sion of materials to the relevant division of the JFTC. During dawn raids, investigators may also use their discretion to grant a company’s request to make copies of documents seized by them, provided that: • the investigators determine that the docu - ments are necessary for the daily business of the company being investigated; and • making copies of the documents will not affect the smooth implementation of the on- site inspection. 2.3 Spoliation of Evidence Once the JFTC’s investigation starts, the com - pany and the employees being investigated are under an obligation not to refuse, obstruct or evade the JFTC’s inspection. Spoliation of potentially relevant information may constitute a violation of the AMA. Any breach of these obli - gations may result in sanctions such as: • one year’s imprisonment or fines of up to JPY3 million for individual violators under Article 94 of the AMA; or • fines of up to JPY200 million for an employer of an individual violator under Article 95 of the AMA. In addition to the obligations under the AMA, spoliation of evidence that is relevant to the car - tel conduct of others, including the company they belong to, may be considered to constitute spoliation of evidence under Article 104 of the Criminal Code. 2.4 Role of Counsel Officers or employees subject to an interview or interrogation have the right to speak to counsel before or after the interview. However, lawyers,
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