JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
a wider move towards increasing the transpar - ency of administrative procedures. Before 2015, if a company wanted to challenge a cease-and-desist order and/or a surcharge payment order, it had to file an appeal before the JFTC first. The JFTC would then open an administrative hearing procedure to determine the legality of the order. Only if the company was still unsatisfied with the decision could it then file a petition for its nullification before the Tokyo High Court. Under the current system, which applies to all cases where prior notice of a cease-and-desist order and/or of a surcharge payment order was issued after 1 April 2015, challenges to the JFTC’s cease-and-desist orders and surcharge payment orders are to be heard by the commer - cial affairs division of the Tokyo District Court (Article 85, item 1 of the AMA and Articles 3 and 14 (1) of the Administrative Case Litigation Act). Although the relevant laws do not explicitly stip - ulate who has the burden of proof, it is generally believed that the JFTC bears the burden of proof with regard to facts that relate to the legality of the order. The legislative reform also provided for a pro - cedure for hearings prior to the issuance of the JFTC’s order, thereby placing a greater empha - sis on due process. In the hearings, the defend - ant has an opportunity to review and obtain copies of all evidence that support the JFTC’s prospective orders and to present their opinion in the hearings. 4.8 The Role of Experts To date, economists and other experts have not usually played a key role in cartel cases in Japan. This is because so-called “hardcore” cartels (eg, price cartels, quantity cartels and market-shar -
ing cartels) are treated as illegal per se in Japan and so the JFTC does not have much difficulty in proving infringement of the AMA. 4.9 Possibility of Multiple Proceedings In cartel cases where the JFTC has filed a crimi - nal accusation with the Public Prosecutor’s Office, it is common following an indictment for an investigation to be initiated into the same cartel infringement in administrative proceed - ings in order for a cease-and-desist order and a surcharge payment order to be issued. In these cases, the same or related facts concerning the cartel may be dealt with in different proceedings. Where appropriate, the court can decide to com - bine multiple hearings ex officio or upon request from the Public Prosecutor, the defendant or the defence counsel under Article 313 (1) of the Code of Criminal Procedure. However, the court will separate the hearings when it is necessary to protect the defendant’s rights, including when defendants have different defence policies from each other. This generally applies to administrative tri - als challenging the JFTC’s orders. Evidence obtained in one proceeding cannot be used in other proceedings unless it is requested for an investigation to take place in another proceed - ing. 5. Sanctions and Remedies in Criminal Cartel Enforcement 5.1 Imposition of Sanctions/Fines The JFTC does not have the authority to impose criminal sanctions directly. Cartel violators could be indicted by the Public Prosecutor’s Office, fol - lowing the filing by the JFTC of a criminal accu - sation with the Public Prosecutor’s Office. Crimi -
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