JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
nal sanctions are then imposed by the court, as explained in 4.6 Issuing Criminal Indictments . On the other hand, in practice, administrative sanctions are the primary enforcement tool of the AMA, rather than criminal ones, and the JFTC has the authority to impose administrative sanctions, including a cease-and-desist order and a surcharge payment order on cartel viola - tors directly. However, under the current system introduced in April 2015, the JFTC can only issue these orders after holding hearings that provide the parties being investigated with the opportu - nity to present their opinions in line with Article 49 of the AMA. Another limitation on a surcharge payment order is that the JFTC does not have any discretion regarding whether it should order a surcharge payment order and how much sur - charge it should impose on offenders. Where the JFTC finds that there has been a car - tel (ie, an “unreasonable restraint of trade” ) and a certain amount of turnover in connection with the cartel, the JFTC must order the payment of a surcharge. The amount of the surcharge is also automatically calculated based on a statutory formula under the AMA. However, it should be noted that the JFTC has a certain amount of discretion on how much sur - charge it could impose on offenders based on the extent of their co-operation with the JFTC in the investigation according to the leniency policy. 5.2 Plea Bargaining/Settlement Both a plea bargaining procedure and a com - mitment system were introduced in 2018. The Criminal Procedure Law was amended in 2016 and plea bargaining in the case of certain types of crimes, including cartel conduct, came into force on 1 June 2018 as a result. According to
the amendment to the Criminal Procedure Law, if an officer or employee presents evidence and testimony against other offenders in a cartel case, prosecutors may agree not to indict the officer or employee, provided that these persons agree with the conditions specified by the pros - ecutor and their attorney’s consent is given. In terms of the introduction of a commitment system, the amendment to the AMA came into effect on 30 December 2018, along with the modified version of the Trans-Pacific Partnership Agreement (the “TPP 11” ). However, this com - mitment system does not apply to cases relat - ing to certain types of “unreasonable restraint of trade” (ie, “hardcore” cartels) and Japan does not currently have a commitment system like settlement when it comes to cartels. 5.3 Effect of Liability Being Established Following a Supreme Court decision in Novem - ber 1975, a decision by the JFTC does not have any legally binding effect on the civil courts. Aa a result, any contract that does not comply with the AMA is not necessarily deemed to be void. It is generally accepted in Japan that, where local public agencies go through bidding processes, the agreement between local public agencies and the parties awarded the contract sets out that the infringers will be barred from bidding on contracts for several months if any bid rig - ging is found. In addition, it is written into the agreement that infringers must pay a certain amount of dam - ages (eg, 10% of the value of the contract) as a penalty in this type of event. 5.4 Sanctions and Penalties in Criminal Proceedings As mentioned in 1.2 Regulatory/Enforcement Agencies and Penalties , companies and indi -
191 CHAMBERS.COM
Powered by FlippingBook