PARTICIPANTS’ PAPERS
JAPAN’S CRIMINAL JUSTICE SYSTEM IN RELATION TO
CRIMES OF GIVING AND ACCEPTING BRIBES
Ayako Nakagawa*I. INTRODUCTION
My paper focuses on the crimes of giving and accepting bribes, which are typical examples of corruption.
It illustrates how the criminal justice system of Japan dealt with recent cases of large scale corruption. It
also outlines the Assen Ritoku Shobatsu Hou or the Law Punishing a Person who Gains Profit throughMediation.
II. HISTORY OF THE LAWS IMPOSING PUNISHMENT UPON ZOOSHUWAIZAI OR
THE CRIME OF GIVING AND ACCEPTING A BRIBE
A. Laws Punishing the Crime of Giving and Accepting a Bribe up to the End of World War II
The Penal Code of Japan was proclaimed in April 1907 (the 40th year of Meiji) and became effective in
October 1908. At that time, only Article 197 of the Penal Code regulated all kinds of corruption.
Subsequently, the Penal Code was revised in March 1941 (the 16th year of Showa) and its enforcement
was systematized by penalizing jutakushuuwaizai (the crime of accepting a bribe for a dishonest act), jizenn
shuuwaizai (the crime of advance acceptance of a bribe), daisannshakyouwaizai (the crime of giving a bribe toa third person) and jigo shuuwaizai (the crime of subsequent bribery).
1. Jutakushuuwaizai or the Crime of Accepting a Bribe for a Dishonest Act Committed Pursuant to an Entreaty
To begin with, the act of accepting a bribe as a reward for a dishonest act committed pursuant to an entreaty
was distinguished and penalized separately from the simple crime of accepting a bribe for a dishonest act. Prior
to the revision, all kinds of corruption were punished similarly whether or not they were performed in
response to an entreaty. Following the revision, the law now makes a distinction between the act of accepting abribe without an entreaty, which is the simple crime of accepting a bribe for a dishonest act and which is treatedin the first part of paragraph 1 of Article 197, and the act of accepting a bribe pursuant to an entreaty, which is
known as jutakushuuwaizai and is dealt with in the second part of paragraph 1 of Article 197.1
2. Jizenn Shuuwaizai or the Crime of Advance Acceptance of a Bribe
Paragraph 1 of Article 197 punishes only public officials who commit the simple crime of accepting a bribe
for a dishonest act or for accepting a bribe for a dishonest act committed pursuant to an entreaty. In order topenalize such criminal acts committed by electoral candidates or by winning candidates who have not yet beensworn into office, the crime of advance acceptance of a bribe was included in paragraph 2 of Article 197.2
3. Daisannshakyouwaizai or the Crime of Giving a Bribe to a Third Person
Instead of accepting a bribe personally, a public official may employ another method of accepting it bycausing the bribe to be offered to a third person or by demanding that the bribe be offered to a third personor by agreeing to the bribe being offered to a third person.3 Such an act endangers the integrity of the public* Judge, Osaka District Court, Japan.
1 Article 197 (Acceptance of a Bribe). A public officer or an arbitrator who receives, demands or contracts to receive a bribe inconnection with his or her duties shall be punished with imprisonment with labour for not more than five years; and when heor she agrees, at the same time, to do an act in response to an entreaty, he or she shall be punished with imprisonment withlabour for not more than seven years.
2 Article 197 (Acceptance of a Bribe; Its Advance Acceptance ), (2) When a person who is to become a public officer or an
arbitrator receives, demands or promises to receive a bribe, agreeing, in response to an entreaty, to do an act relating to theduties which he or she is to assume, imprisonment with labour for not more than five years shall be imposed upon him or her
becoming such public officer or arbitrator.
3 Article 197-2 (Bribe to a Third Person). When a public officer or arbitrator, agreeing, in response to an entreaty, to do an act
in connection with his or her duties, causes a bribe to be offered to a third person or demands or promises it to be offered tosuch a person, imprisonment with labour for not more than five years shall be imposed.

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office and jeopardizes the public trust. Article 197 did not cover cases such as these and so the law wasrevised to make up for the deficiency.
4. Kajushuuwaizai or the Crime of Bribery for a Dishonest Act (Paragraph 1 and 2 of Article 197-3) and Jigo
Shuuwaizai or the Crime of Subsequent Bribery (Paragraph 3 of Article 197-3)
Paragraph 1 of Article 197-3 retained the second part of the first paragraph of Article 197 prior to its
revision. However, the revision broadened the scope of the provision by also penalizing bribery of a third
person in paragraph 2 of Article 197-3. It also increased the punishment laid down by law.
Before the revision, a public officer could only be punished if he or she committed an illegal act or if he or
she failed to perform his or her duties after having accepted, demanded or agreed to a bribe. After therevision, however, a public official may also be punished if he or she commits an illegal act or fails to perform
his or her duties even before he or she accepts, demands or agrees to a bribe.
Paragraph 3 of Article 197-3 imposes punishment upon a former public official who accepts a bribe for the
improper performance of his or her duties or for the failure to perform such duties during his or her term ofoffice even if the acceptance takes place after the term of office. No provision punishing such acts previously
existed. This deficiency was cured by the revision.
5. Zoowaizai or the Crime of Giving a Bribe
Similar to the crime of accepting a bribe, the scope of the crime of giving a bribe was likewise expanded
and its statutory punishment increased.

B. Post-war Revisions of the Laws Dealing with the Crimes of Giving and Accepting Bribes
1. Revision of 1958 (33rd year of Showa): Penalizing Assenshuuwaizai or the Crime of Accepting a Bribefor the Exertion of Influencei) Shoden Gigoku Case (Scandal of Showa Electric and Industrial Company)
Since the 1940s, there have been some proposals for the enactment of a law that would punish the act ofaccepting a bribe for the exertion of influence. However, no such revision was carried out.
In 1948 (23rd year of Showa), however, an important case known as the Shoden Scandal occurred. It
involved the President of the Showa Electric and Industrial Company and severely affected not only
government offices but also political and business circles. This case led to the arrest and indictment of theformer Prime Minister Ashida Hitoshi. This scandal was said to have caused the collapse of the Ashidacabinet. Ashida had been Foreign Minister prior to becoming Prime Minister, and it was during his tenure as
Foreign Minister that the crime for which he was indicted took place.
On 22 October 1952 (27th year of Showa), the Tokyo District Court handed down its decision on the caseand made the following statement: “the Defendant Ashida used his strategic position as the Foreign Ministerand took advantage of the office’s status and prestige to influence other public officials in the performance of
their official duties...Therefore, his acts constitute the crime of accepting a bribe for the exertion of
influence.” In spite of opinions urgently pushing for the punishment of accepting bribes for the exertion of
influence, the law in place during that time did not penalize such acts and so there was no way to impose any
penalty. Hence, the defendants were found not guilty of the crime of accepting bribes and the reason givenby the court for the verdict was as follows: “even if the present conditions call for the punishment of the actof accepting a bribe for the exertion of influence, the legal interpretation of the provision punishing thesimple crime of giving and accepting a bribe could not be expanded so as to include acts of accepting bribes
for the exertion of influence.” It then concluded by stating: “To correct the situation, there is nothing thatcan be done except to wait for the enactment of the appropriate law.”
The verdict by the Tokyo District Court drew much public attention because it implied the need for a lawthat would penalize the act of accepting a bribe for the exertion of influence. It provided the momentum
necessary for the expression of public concern over acts of accepting bribes for the exertion of influence.
4 Article 197-4 (Receiving a Bribe for the Exertion of Influence). A public officer who receives, demands or agrees to receive a
bribe in compensation for the influence which he or she exerted or is to exert, in response to an entreaty, upon another public
officer so as to cause him or her improperly to perform or fail to perform his or her duties, shall be punished withimprisonment with labour for not more than five years.

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After much debate, the crime of accepting a bribe for the exertion of influence was included as Article 197-44
of the Penal Code in 1958 (33rd year of Showa). At the same time, the corresponding crime of giving a bribe
was also included as Article 198-2.

ii) The Criminalization of the Act of Accepting a Bribe for the Exertion of Influence
The crime of accepting a bribe for the exertion of influence is committed by a public official who accepts abribe as a reward for responding to an entreaty for him or her to cause another public official to perform
illegal acts.
The main element of this crime is the act of the public official who accepts a bribe to cause another public
official to commit improper acts. This element is not present in the other crimes related to the act ofaccepting a bribe.
2. The Revision of 1980 (55th year of Showa)i) The Lockheed Case
One of the most well-known corruption scandals in Japan is the Lockheed Case which occurred in 1976
and which involved the crime of accepting a bribe for a dishonest act. In this case, the Lockheed Corporation
employed the services of the Marubeni Corporation as its official agent in marketing its aircraft to All
Nippon Airways (ANA). The senior officers of the Marubeni Corporation sought to further the interests ofMarubeni and Lockheed by approaching the then Prime Minister Tanaka Kakue. They requested the Prime
Minister to instruct the Minister of Transportation to issue an administrative guidance that would encourage
ANA to purchase the aircraft of the Lockheed Corporation. They also asked the Prime Minister to approach
ANA directly. As a reward, he was given five hundred million yen.
On October 12, 1983, the Tokyo District Court handed down its decision and stated that: “the Prime
Minister must exercise utmost fairness in executing his official duties by virtue of the fact that he isoccupying the highest position in public office. But he has gravely betrayed the nation’s trust in theadministration of the national government by taking advantage of his authority in order to influence theexercise of a Minister’s power to give official sanction. The pathological impact of his act on society isimmense. Taking these together with the fact that the case involved an unprecedented amount of bribemoney and absent special circumstances, he must be made to suffer a severe penalty for the crime ofaccepting a bribe for a dishonest act.” The maximum punishment for the crime of accepting a bribe for adishonest act was, at that time, five years imprisonment with labour. The defendant Tanaka was given a
prison sentence of four years with labour. On 29 July 1987, the Tokyo High Court dismissed his appeal andupheld the judgment handed down by the District Court.

ii) Revision of the Penal Code: Increase in the Statutory Punishment
The Housei Shingi Kai, or the National Council for the Legal System was considering the overall revisionof the Penal Code to keep up with the changing times when the Lockheed Case was uncovered in February
1976. In August of the same year, former Prime Minister Tanaka was indicted for the crime of accepting abribe for a dishonest act, which involved an unprecedented amount of money. Various groups around thenation severely criticized the close ties between political and business circles which gave rise to such kind ofsystemic corruption. The public demanded that discipline be strictly enforced among the officials and that arepetition of such crimes be restrained.
Revision became urgent in order to respond to the public’s demand and to impose appropriate
punishment in bribery cases. Thus:(a)the maximum penalty was raised to five years of imprisonment from the original three years
for the following crimes: the simple crime of accepting a bribe, advance acceptance of a bribe,
bribe to a third person, subsequent bribery and accepting a bribe for the exertion of influence;(b)from the previous five years, the maximum statutory punishment for the crime of accepting abribe for a dishonest act was raised to seven years of imprisonment; and(c)the maximum statutory punishment for the crime of giving a bribe for the exertion of
influence was raised to three years from the previous two years of imprisonment and the fine
was raised to ¥1,000,000 from the previous amount of ¥600,000.

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Except for the crime of bribery for a dishonest act, the revision raised the maximum penalties for all
crimes involving bribery. Furthermore, it made the investigation and examination of cases involving bribery
easier by extending the prescriptive period for filing an indictment to five years from the original three
years.

III. ASSEN RITOKU SHOBATSU HOU OR THE LAW PUNISHING A PERSON WHO GAINSPROFITS THROUGH MEDIATION
A. Background of the Law and its Legislation
1. Case of Nakamura Kishiro: Accepting a Bribe for the Exertion of Influence
After the Lockheed Scandal, a number of corruption cases involving national government offices andpoliticians, as well as large-scale financial and economic crimes were exposed. From the latter half of the
1980s until the 1990s, the mass media reported large-scale scandals which involved high-ranking
government officials and prefectural governors, among others. Such cases drew much public attention.
In May 1991, a case of giving and accepting a bribe for the exertion of influence occurred. A vicepresident of Kajima, a leading general construction company, approached the incumbent Member ofParliament and former Cabinet Minister Nakamura Kishiro and asked him to speak to the chairperson of theCommission on Fair Trade to preclude criminal prosecution in a case being investigated by the Commission.
The criminal prosecution was against a dango or group organized by construction companies for the purposeof bid-rigging, which is a violation of the Anti-Monopoly Law. Nakamura Kishiro received a bribe of ten
million yen for complying with the entreaty. Thus, the crime of giving and accepting a bribe for the exertionof influence was committed. The case attracted much public attention because the said Member ofParliament was arrested when parliament was in session.
On 1 October 1997, the Tokyo District Court sentenced Nakamura Kishiro to one year and six months ofimprisonment with labour. His appeal was dismissed by the Tokyo High Court on 25 April 2001 and by theSupreme Court of Japan on 14 January 2003. The sentence of the District Court was, thus, upheld.
After this case, many opined that a politician who gains pecuniary benefit for unduly influencing abureaucrat should be held criminally liable. Due to the political situation, however, no such law was enacted.
2. A Case Involving the Crime of Accepting a Bribe for a Dishonest Act Committed by the Former
Construction Minister Nakao Eiichi
At the end of June 2000, the former Construction Minister Nakao Eiichi was found to have committed thecrime of accepting a bribe for a dishonest act. According to the facts of the case, Minister Nakao accepted abribe of 60 million yen from construction companies in connection with certain public works ordered by theformer Minister of Construction and was thus charged for the crime of accepting a bribe for a dishonest act.
On 16 October 2002, the Tokyo District Court handed down a prison sentence of two years with labour.
However, the Tokyo High Court reduced the sentence to one year and ten months of imprisonment withlabour.
This case gave rise to a great public demand for the criminalization of the act of gaining profit throughmediation. Thus, the Law Punishing a Person who Gains Profit through Mediation was enacted in 2000 andbecame effective on 1 March 2001.

B. An Outline of the Law Punishing a Person who Gains Profit through Mediation
This law covers members of the National Diet, heads of local governments and members of local
assemblies who respond to entreaties regarding sales and other contracts entered into by the national or
local governments or regarding administrative action against a particular individual. The law punishes thesepublic officials for accepting pecuniary benefits as a reward for using the power of their office to influence
the performance of official duties of another public servant. Publicly-paid secretaries of National Diet
members are also subject to the provisions of the law. The law was subsequently revised in August 2002 to
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scandals involving private secretaries of members of the National Diet have been reported, which incidents
have resulted in political distrust by the public.
1. Elements of the Crime of Gaining Profit through Mediation Committed by Public Officials (Article 1, Section 1)
a. A person in public office;b. Effected in connection with a contract entered into by the national or local government or in relation
to an administrative action taken against a particular person;c. Effected in response to an entreaty;d. Exertion of power or influence based on the authority of the person in public office;e. Influencing a public officer in the performance of his or her official duties or preventing such public
officer from performing his or her duties or influencing a public officer with regard to an official taskthat was previously completed;f. Accepting pecuniary benefits as a reward for carrying out the above acts.
2. Concrete Examples of Cases Involving the Exertion of Influence that are Subject to Punishment
Case 1: Mr. A is a member of the National Diet and belongs to Committee Y, which deals with Ministry X.
He accepts an entreaty from a certain Businessman B regarding a contract for the procurement of supplies
for Ministry X. He then tells Mr. C who is in charge of the supplies procurement of Ministry X to securesupplies from Businessman B or else he might oppose bills related to Ministry X.
Case 2: Mr. A, who is a member of the National Diet, was requested by Businessman B to mediate in acontract regarding the delivery of supplies to the Tokyo Metropolitan Government. Mr. A responds to therequest by threatening Employee C of the Tokyo Metropolitan Government that he will question theexcessive amount of subsidies being given to the Tokyo Metropolitan Government in the Committee towhich he belongs and which is in charge of subsidies given by the National Government for public works,
unless the contract is given to Businessman B.
Case 3: Mr. A, who is a member of the National Diet, accedes to the entreaty of Businessman B and tells
Officer C of Nagano Prefecture to allow Businessman B to qualify as a participant in competitive bidding.
Otherwise, he will oppose the bill partially revising the law providing special measures for the development
and promotion of the Nagano area.
Case 4: Member A of the Aichi Prefectural Assembly receives an entreaty from Businessman B for
mediation in a contract for the delivery of supplies to Nagoya City. Member A responds to the entreaty by
informing the officials of Nagoya City that, unless a contract for the delivery of supplies is entered into with
Businessman B, he will question the excessive amount being given by the Prefectural Government to
Nagoya City for public works in the Committee to which he belongs and which is in charge of the subsidies.
Case 5: Member A of the Nagano Prefectural Assembly was requested by Businessman B to mediate in acontract for the delivery of supplies to a hospital run by the national government. Member A accedes to therequest and threatens that, unless a contract for the delivery of supplies is entered into with Businessman B,
he might pose a question to the Prefectural Assembly to inquire into the existence of any irregularity in theinspection by the Nagano mayor of the structural facility of that hospital.
Case 6: The City Mayor A of Osaka City grants the request of his personal friend Mr. B to help him get a
job at the Post Office and tells Post Office Director C that the office of the mayor would possibly make an
unfavourable decision regarding the application for the construction of a new Post Office building unless Mr.
B is given employment in the Post Office.
These cases are concrete examples of instances where the power and authority of a public office ismisused for the purpose of gaining an advantage. In Case 1, influence was exerted by a member of the
National Diet over an officer of the national government. In Cases 2 and 3, influence was wielded by amember of the National Diet over a local government official. In Case 4, influence was used by a member ofa prefectural assembly over a city government official. In Cases 5 and 6, influence was exercised by amember of the local assembly and the head of the local government over a national government official.

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3. Punishments Imposed in Actual Cases upon Persons who Gained Profit through Mediationi) Decision of the Wakayama District Court dated 6 November 2002
In this case, the defendant was a member of the city council who responded to an entreaty made by his
friend who was a civil works contractor and recommended to the city that his friend be chosen in thecompetitive bidding for public works in the city. As a reward, he was given ¥500,000 in cash.
The defendant did not dispute the facts presented in the case. The court concluded that the criminal
responsibility of the defendant was serious because: (1) his acts constituted an unconscionable privatizationof public duties; (2) he exerted his influence harshly by directly going to the office in charge of the bidding
and furiously protesting to the senior officers in a loud voice; (3) his recommendation to the city was unjust
because it was made in favour of a construction company whose ability to engage in business wasquestionable, and; (4) the amount of ¥500,000 which he received is no small amount and had severely
damaged the integrity of the public office and the public trust therein.

ii) Decision of the Nagoya District Court dated 9 August 2004
The defendant in this case was a member of the council of Bisai City, Aichi Prefecture. In response to theentreaty of a civil works contractor, he used his authority to exert influence over the city employee who wasin charge of the competitive bidding for the public works in the city and obtained information regarding thecost of designing these public works projects. After the failure of the competitive bidding, the defendantused his influence to ask the aforesaid city officer to enter into a contract with the contractor even without
any bidding, in contravention of the mayor’s orders. The defendant received a reward of ¥500,000. Later, heagain exerted influence over the same city officer and instructed him to contract with the contractor without
any bidding, again in contravention of the orders of the mayor. He again received a reward of ¥500,000. It
was, thus, established that he committed the crime of accepting a bribe for the exertion of influence.
The court stated that the defendant’s criminal responsibility was serious because: (1) he colluded with acontractor and used his position as member of the city council to make a city officer commit an act of
injustice, in exchange for a cash reward; (2) the amount of cash he received was huge, being a total of¥1,000,000 and; (3) his acts destroyed the public’s trust in the office of a member of the city council and in
the duties of public servants.

IV. CONCLUSION
Cases of giving and accepting bribes are often committed covertly with knowledge being shared only by
the parties involved and, thus, are extremely concealed. For this reason, it is necessary to observe the trendof such cases over a long period of time. In Japan, cases of giving and accepting bribes have exhibited somemarked tendencies over the decades.
In the ten years prior to the revision of 1980, there was an increase in the number of persons involved in
the giving and accepting of bribes. This tendency is clearly seen in Table 1.

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Table 1: Number of persons convicted in the District court involving theacceptance of bribes (1969-1978)(persons)

250

200

150

100

50

0
1969

1970

1971

1972

1973

1974

1975

1976

1977

1978

Source: Annual Report of Judical Statistics

The number of persons convicted after the revision of 1980 is seen in Table 2. (1981-1998)

Table 2: After the revision in the law of 1980 (1981-1998)(persons)
250

200

150

100

50

0
1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998

Source: Annual Report of Judical Statistics

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Trends of bribery cases cannot be seen simply by looking at this table because of the heightened
concealment of these cases. However, since the statutory punishments became more severe, it wasobserved that both the public servants who accept bribes and the business people who give bribes tried toabstain from committing these crimes after a comparison of the benefits of committing the crime and thelosses by way of punishment and social sanctions in case of apprehension. The revision thus achieved thepreventive effect desired.
We could therefore conclude that prevention of the repeated commission of the crimes of giving andaccepting bribes is not merely a legal issue. It is also a social problem. Thus, public servants should be
reminded of the importance and value of their official duties. We should look to the Penal Code only as a lastresort.
However, as a judge, I would like to make sure that appropriate punishments are imposed in these cases.
I also expect that the National Diet would be able to enact laws that would cover other cases of corruptionthat might crop up in the future.

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