AN OVERVIEW OF THE JAPANESE CRIMINAL JUSTICE LEGISLATION AGAINST CORRUPTION

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1 UG DQQXDOFRQIHUHQFHRIWKH $'%2(&'$QWL&RUUXSWLRQ,QLWLDWLYHIRU$VLD AN OVERVIEW OF THE JAPANESE CRIMINAL JUSTICE LEGISLATION AGAINST CORRUPTION Professor Yuichiro TACHI United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of offenders (UNAFEI) 1. Introduction Corruption by public officials undoubtedly disrupts their integrity and neutrality in performing their official duties. It also breeds feelings of distrust and unfairness toward the national or local government among the public. As a consequence, corruption by public officials can ultimately weaken or collapse the national or local ruling government and the economic structure of a country. Corruption in varying magnitudes and types has persisted in many countries for years. It ranges from large-scale corruption involving politicians and big business or bureaucrats, at both national and local levels, to small-scale corruption by low-level government employees. It is suggested that organized crime groups are involved in many corruption cases. There is an indication that in keeping with the globalization of economic activities by various enterprises, corruption is also gaining a global dimension. In this regard, it can be noted that corruption was formerly of a domestic nature, but now is transnational in character. One of the most important tasks for the criminal justice system is to expose corruption and to punish the wrongdoers effectively. However, the covert and consensual nature of corruption obscures the ability of investigators to detect and expose them. Other obstacles include difficulty in securing the cooperation of people involved in the case during investigation and trial. In many countries, there is some concern that the current criminal justice system works properly and effectively to expose and punish corruption. Criminal justice officials are required to appeal to policy-makers to re-examine and amend domestic legal systems, if necessary, to counter the phenomena of corruption. Moreover, the management systems for personnel should be improved in many aspects, such as recruiting, improving the labor conditions of personnel, internal inspections, and disciplinary measures. It is also imperative that a code of conduct for public officials be enacted. Additionally, it is desirable to introduce an auditing system conducted by an outside organization or ombudsman. Promotion of further cooperation and coordination between the criminal justice system and other public organizations at the national and local level is also important.

2 2. Definition of Corruption The concept of corruption is very wide. There are several ways to define corruption. For instance, in the United Nations Convention against Transnational Organized Crime corruption is stipulated and defined at paragraph 1 of Article 8. It is as follows: Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) The promise, offering or giving to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties; (b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or anther person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties. In terms of the definition of public official, the paragraph 4 of Article 8 provides as follows: For the purpose of paragraph 1 of this article of this Convention, public official shall mean a public official or a person who provides a public service as defined in the domestic law and as applied in the criminal law of the State Party in which the person in question performs that function. As the above articles apparently show, the Convention defines corruption as involving the performance of duties by public officials. However, on the basis of the report of the Italian Minister of Justice at the 19th Conference of European Ministers of Justice (organized by the Council of Europe at Valletta, Malta, from 14 to 15 June 1994), the Multidisciplinary Group on Corruption (GMC, the French acronym) of the Council of Europe established the following provisional working definition of corruption. Corruption as dealt with by the Council of Europe s GMC is bribery and any other behaviour in relation to persons entrusted with responsibilities in the public or private sector which violate their duties that follow from their status as public officials, private employees, independent agents or other relationships of that kind and is aimed at obtaining undue advantages of any kind for themselves or for others. According to the above-mentioned definition, the commitment by a private employee should be included in the concept of corruption. Actually, some countries have the same policy, for instance, the Anti- Corruption Act 1997 in Malaysia has the provisions which prohibit accepting bribes by employees in the public or private sector. In Japan, the subject of accepting a bribe centers on public officials. The Penal Code only provides penalties for public officials in bribery cases. However, there are some exceptions in the special laws. The Commercial Code stipulates that a director in a private - 2 -

3 company who receives a bribe with some conditions should be punished as corruption. The Lawyers Law provides that if a private lawyer receives some money or economic benefit from opposite parties, it is corruption and he/she should be punished with imprisonment with forced labor for not more than three years. There has been much discussion regarding the extent of corruption. The narrowest concept is that only bribery is corruption. The widest concept is that corruption encompasses not only instances of bribery by public officials, but also activities whereby public officials use their professional status and power to obtain personal gains such as embezzlement, breach of trust, and tax evasion. The Chinese Penal Code uses this concept. Japanese legislation lies in the middle of the above two concepts. In the Penal Code, the abuse of authority and bribery are stipulated as corruption at Chapter 25. However, we have some exceptions in the Penal Code, for example, Article 101 provides for the crime of public officials allowing a detained person to escape and Article 138 deals with offences aggravated by customs officials. 3. Japanese Legislations against Corruption As I mentioned above, the basic law against corruption is the Penal Code. This law stipulates the crime of corruption in Chapter 25 and from Articles 193 to 198. The provisions are as follows: Article 193 Abuse of authority by public officer Article 194 Abuse of authority by special public officer Article 195 Violence and cruelty by special public officer Article 196 Aggravation of the above two Articles Article 197 Acceptance of bribes; its advance acceptance Article Bribes to third persons Article Bribery for dishonest acts; subsequent bribery Article Receiving bribes for exertion of influence Article Confiscation of bribes and collection of monetary equipment Article 198 Giving bribes Articles 193 to 196 deal with the abuse of authority and Articles 197 to 198 look at bribery. The basic provision for the abuse of authority is Article 193. It is as follows: When a public officer abuses his authority and causes a person to perform an act which he has no obligation to perform, or obstructs a person from exercising a right which he is entitled to exercise, imprisonment with or without forced labor for not more than two years shall be imposed. There are several provisions in terms of acceptance of bribes and the basic violation is the simple acceptance of a bribe, which is stated in Article 197 (1). The provision is - 3 -

4 A public officer or an arbitrator who receives, demands or contracts to receive a bribe in connection with his/her duties shall be punished with imprisonment at forced labor for not more than five years. Under article 197 (1) a public officer or an arbitrator is penalized if he/she receives, demands or contracts to receive a bribe in connection with his/her duties. An arbitrator is not clearly defined in this Code. The Supreme Court interpreted arbitrator in this Article as the official arbitrator who is assigned by the Code of Civil Procedure. A public officer is defined in article 7 (1) and it is as follows: The term public officer as used in this Code means a government official, a local government official, or a member of an assembly or committee, or other employee engaged in the performance of public duties in accordance with laws or ordinance. Although the intentional component of the offence of receiving a bribe is not expressly mentioned in this article, this element is required. Article 38 of the Penal Code provides that an act is not punishable if it is committed without criminal intent. The term in connection with his/her duties is an important element. Because it makes a distinction between normal acceptance of some presents from his/her friends etc. and illegal acceptance of a bribe. This article also requests that the public officer should have the authority or discretionary power though this element is not expressly mentioned clearly in this article. In terms of other types of bribery, there are other articles in this chapter such as doing an illegal act or failing to perform his/her duties, right to the original type of bribe which has been already mentioned. I would like to introduce other provisions against corruption apart from the Penal Code. In accordance with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1997, the Japanese government enacted legislation on September 18, 1998, in the form of amendments to the Unfair Competition Prevention Law, which came into force on February 15, The Unfair Competition Prevention Law was further amended to reflect the discussion of the OECD working group on bribery. Article 11 bis (1) of the Unfair Competition Prevention Law sets out, as follows, the offence of bribery of a foreign public official: No person shall give, offer or promise any pecuniary or other advantage, to a foreign public official, in order that the official act or refrain from acting in relation to the performance of official duties, or in order that the official, using his position, exert upon another foreign public official so as to cause him to act or refrain from acting in relation to the performance of official duties, in order to obtain or retain improper business advantage in the conduct of international business

5 Recently a new type of bribery was enacted by the Diet. It is the Law concerning the Punishment of Receiving Proprietary Interests for Exertion of Influence by Public Officials. This law was adopted on November 29, 2000 and came into force on March 1, 2001 for the purpose of prohibiting the acceptance of proprietary interests for the exertion of influence by the members of the House of Representative and the House of Councillors etc., including their secretaries. If they commit this crime, they will be punished with imprisonment with forced labor for not more than three years. Furthermore, the Horse Race Law, the Cycle Race Law, the Bankruptcy Law and the Corporate Reorganization Law etc. have their own bribery provisions. For example, the Horse Race law prohibits receiving a bribe. The provision is as follows: A jockey, a horse trainer or his/her assistant who receives, demands or contracts to receive a bribe in connection with the horse race shall be punished with imprisonment with forced labor for not more than three years. 4. Current Situation of Corruption in Japan Fig. I shows the number of persons received by public prosecutors offices for public official offences in 1998 and 1999, by category of offence. The number received in 1999 rose by 1,218 (5.8 %) from the previous year to 22,130. In terms of offence, death or bodily injury caused by professional negligence involving a motor vehicle accounted for an overwhelming majority (85.8% of total), followed by abuse of authority and forgery. The number of persons prosecuted for public official offences increased by 102 (3.8%) from the previous year to 2,791 in The prosecution rate fell 0.3 points from the previous year to 12.7%. Fig. II shows the prosecution rate for public official offences in 1998 and 1999, by category of offence. In 1999 the rate was highest for accepting bribes, followed by fraud and larceny. Among public official offences, accepting bribes has a substantial impact as it undermines the confidence of the general population in the fairness of public officials, eventually leading to a decline in their law-abiding attitudes. This type of offence is difficult to detect by its nature, as, in most cases, it is committed in secret between the parties concerned. It would therefore be inappropriate to estimate trends from single-year statistics. In this light, Fig. III shows the number of public officials cleared by the police for accepting bribes in the last ten years (including those deemed to be engaged in public duties under laws and regulation), by type of public official. For comparison, data are shown separately for the first five years from 1990 to 1994 (referred to as the first halfdecade ) and for the latter five years from 1995 to 1999 (referred to as the second halfdecade ). Persons cleared by the police numbered 368 in the first half-decade and 394 persons in the second half-decade (up by 26 from the first half). Local public officials committed the majority of the offences in both the first and second half-decades, followed by members of local assemblies (including presiding officers) and national public officials

6 In 1999, 65 public officials were cleared (82 in the previous year), including 32 local public officials (29), 18 members of local assemblies (44), 1 national public official (4), 2 officials of public corporations (1), and 12 other public officials (4). Fig IV shows the number of public officials convicted by first instance courts for accepting bribes in the five-year period from 1994 to 1998, by term of sentence. Of the public officials sentenced to imprisonment with labor in 1998, 89.4 % (84 persons) were sentenced to imprisonment of one year or more. The suspended sentence rate stood at 88.3 % in 1998, up 4.2 points from the previous year. In 1998, 11 public officials were sentenced to imprisonment with labor for limited terms without suspension of execution of sentence, including 3 persons for three years, 6 for two years or more but less than three years, and 2 for one year or more but less than two years (source: Annual Report of Judicial Statistics)

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