COUNTRYCOMPARATIVEGUIDES 2022

The Legal 500
Country Comparative Guides

Japan
BRIBERY & CORRUPTION
Contributing ﬁrm
Atsumi & Sakai
Makoto TakaharaPartner | makoto.takahara@aplaw.jp
Tetsuro Takeda
Partner | tetsuro.takeda@aplaw.jp
Masahito Fukuda
Partner | masahito.fukuda@aplaw.jp

This country-speciﬁc Q&A provides an overview of bribery & corruption laws and regulations applicable in Japan.
For a full list of jurisdictional Q&As visit legal500.com/guides

Atsumi& SakaiBribery & Corruption: JapanJAPAN
BRIBERY & CORRUPTION

1. What is the legal framework(legislation/regulations) governing bribery
and corruption in your jurisdiction?

The public prosecutors’ oﬃce sometimes directly
investigates and prosecutes special bribery cases thatinvolve notable people such as members of the Diet.

In Japan, bribery of domestic public oﬃcials is prohibited
mainly under the Penal Code. Under the Code, a publicoﬃcial who, in connection with his/her duties: (i)accepts, solicits, or promises to accept a bribe (Article197); (ii) causes a bribe to be given to a third party(Article 197-2); (iii) acts illegally or omits to act
appropriately after/before committing a crime under oneof the preceding two Articles (Article 197-3); or (iv)
accepts a bribe for exertion of inﬂuence on other publicoﬃcers (Article 197-4) shall be subject to criminal
liability. A person who gives, oﬀers, or promises to give a
bribe of the sort described above also shall be subject tocriminal liability. The National Public Service Ethics Act
and regulations issued thereunder provide guidelines
regarding gifts and other kinds of beneﬁts that a publicoﬃcial may receive. Members of the Diet and local
assemblies are prohibited from accepting bribes forexerting inﬂuence in relation to transactions in which agovernmental organization is a party, under the Act on
Punishment of Public Oﬃcials’ Proﬁting by Exerting
Inﬂuence (APPOPEI). The Political Fund Control Act
regulates political contributions (see answer 8). In
addition, there are other laws and regulations regulating
bribery of ‘quasi-public oﬃcials’ as well as private
persons who are performing duties relating to the public
interest, as described in Answer 4 below. Furthermore,bribery of foreign public oﬃcials is regulated under the
Unfair Competition Prevention Act (UCPA). Under the
UCPA, oﬀering, promising, or giving bribes to foreignoﬃcials in order to obtain an improper businessadvantage in the conduct of international business is
prohibited (Article 18).

3. How is bribery deﬁned?

2. Which authorities have jurisdiction toinvestigate and prosecute bribery in yourjurisdiction?
Generally, police agencies investigate bribery cases andthe public prosecutors’ oﬃce prosecutes those cases.

PDF Generated: 1-06-2022

Under court precedents, ‘bribery’ is deﬁned to be a
beneﬁt as unjust remuneration for the services of apublic oﬃcer. Such ‘beneﬁt’ is not limited to property
beneﬁts, but includes anything that satisﬁes one’s
desires or demands. Hospitality, travel, andentertainment expenses can also be deemed as bribery.

4. Does the law distinguish between
bribery of a public oﬃcial and bribery ofprivate persons? If so, how is ‘publicoﬃcial’ deﬁned? Are there diﬀerent
deﬁnitions for bribery of a public oﬃcial
and bribery of a private person?
The laws of Japan in principle distinguish between
bribery of a public oﬃcial and bribery of private persons.
A ‘public oﬃcial’ is deﬁned under the Penal Code as ‘anational or local government oﬃcial, a member of anassembly or committee, or other employee engaged in
the performance of public duties in accordance with laws
and regulations.’ In the case of a private person
performing a service related to public interest, such
person is treated as a ‘quasi-public oﬃcial’ andregulated in accordance with the same laws andregulations that are applicable to public oﬃcials,
including the Penal Code. Examples of such quasi-publicoﬃcials are oﬃcers and employees of the Bank of Japan,
national universities, state-owned enterprises, andnotaries public. Even if a private person is not
categorized as a quasi-public oﬃcial but performs aservice of a public nature, bribery of such private person
is regulated under speciﬁc laws applicable to such
person. Such laws can include, for example, theCompanies Act, the Financial Instruments and ExchangeAct, and the Bankruptcy Act. ‘Foreign Public Oﬃcer’
under Article 18 of the UCPA is deﬁned under paragraph

2/7© 2022 Legalease Ltd

Bribery & Corruption: Japan

2 of Article 18 of the Act as (i) a person engaged inpublic service for the national or local government of aforeign state, (ii) a person engaged in the businessaﬀairs of an entity established under a special foreign
law to carry out speciﬁc business aﬀairs in the public
interest, etc.

5. What are the civil consequences ofbribery in your jurisdiction?
A person who commits bribery may be subject to civil
disciplinary action under applicable laws. It is also
possible that if such person causes damage to his/herorganization by committing bribery, he/she may be liablefor damages arising from a breach of the statutory dutyof care.

6. What are the criminal consequences ofbribery in your jurisdiction?
Under the Penal Code, bribery is punishable byimprisonment for a maximum term of seven years,
together with forfeiture of such bribe or collection of anequivalent amount, depending on the circumstances. A
person who gives, oﬀers or promises to give a bribe shallbe punished by imprisonment for not more than three
years or a ﬁne not exceeding JPY 2.5 million. Under the
UCPA, the crime of bribery of a foreign public oﬃcial ispunishable by (a) imprisonment for not more than ﬁve
years or a ﬁne not exceeding JPY 5 million (or both) for
individuals involved; and (b) a ﬁne not exceeding JPY 300
million for a legal entity (when an oﬃcer, etc. of a legal
entity commits the crime in relation to the business ofthe entity).

7. Does the law place any restrictions on
hospitality, travel and entertainment
expenses? Are there speciﬁc regulations
restricting such expenses for foreign publicoﬃcials?
As explained in Answer 3, hospitality, travel andentertainment may fall within the deﬁnition of bribery
under Japanese laws. However, laws that regulate
bribery, including the Penal Code, do not set quantitativeor qualitative limitations on hospitality, travel orentertainment expenses. In addition, the National PublicService Ethics Act and regulations issued thereunderplace restrictions on national public oﬃcials regarding
hospitality, travel and entertainment. For example, suchoﬃcials may not receive entertainment or treats frominterested parties or travel (excluding business travel for
public service purposes) with interested parties.

PDF Generated: 1-06-2022

8. Are political contributions regulated?
Political contributions are regulated under the Political
Fund Control Act. Only political parties and political fundmanaging organizations appointed by political parties
are eligible to accept donations from corporations andother organizations. The total annual amount of such
donations is limited according to the size of thecorporation or organization. Individuals can makedonations to candidates for elected public oﬃce and/or
political organizations, and the total annual amount ofsuch donations is similarly limited to a certain amount.
Non-Japanese citizens and entities, and organizations inwhich the majority of members are non-Japanesecitizens or entities (with the exception of Japanese listedcompanies listed for more than ﬁve consecutive years),
are prohibited from making donations in connection withany political activity. The Political Fund Control Act
requires political organizations to report their revenues
and expenses in detail to the Ministry of General Aﬀairs
or a Local Election Management Council (depending onwhether the elections are parliamentary or local).

9. Are facilitation payments regulated? If
not, what is the general approach to suchpayments?
There is no statute that speciﬁcally addresses‘facilitation payments’ in Japan. In principle, the relevantlaws, including the Penal Code and UCPA, regulate‘facilitation payments’ as bribery if the elements of any
bribery oﬀense are met. According to the Guidelines for
the Prevention of Bribery of Foreign Public Oﬃcials (METI
Guideline; most recently revised in July, 2015) publishedby the Ministry of Economy, Trade and Industry, any
payment, whether it is for the purpose of avoiding
discriminatory disadvantages such as the above, is likely
to be considered to be the giving of money or otherbeneﬁt ‘to obtain a wrongful gain in business’ foroneself.

10. Are there any defences available?
A defendant facing bribery charges under the Penal
Code, the APPOPEI or the UCPA does not have many
defences available. A defendant can contend that all theelements constituting the oﬀence of bribery have notbeen suﬃciently proved. For example, in 1994, a court
acquitted a politician in the Recruit bribery case, rulingthat the prosecutor failed to prove that the paymentsfrom Recruit Company were made directly in return forfavours from the defendant. A person who gives a bribecannot claim coercion as defence. A defence of avertingpresent danger stipulated in Article 37 of the Penal Code3/7

© 2022 Legalease Ltd

Bribery & Corruption: Japanis considered to be available, at least theoretically, in aforeign bribery case where, for example, a foreign
government oﬃcial carrying a gun demanded a bribe inreturn for leaving the defendant’s oﬃce without making
a groundless arrest against the defendant.

guidance advising how to comply with anticorruption and bribery laws in yourjurisdiction? If so, what are the elements ofan eﬀective corporate complianceprogram?

11. Are compliance programs a mitigating
factor to reduce/eliminate liability forbribery oﬀences in your jurisdiction?

As stated in Answers 9 and 12, the METI Guidelines havebeen published with respect to anti-corruption andbribery of foreign public oﬃcials. The guidelines
articulate the details of an eﬀective corporate
compliance program. The key elements described in theguidelines are (i) the importance of the attitude andmessage from top management, (ii) a risk-based
approach, and (iii) the need to take action at a
subsidiary level based on the bribery risk.

There is no statute that explicitly provides thatcompliance programs should be considered as a
mitigating factor to reduce or eliminate criminal liability
for bribery oﬀences in Japan. According to the Code of
Criminal Procedure (CCP), prosecutors may refrain fromprosecuting an individual if prosecution is deemed
unnecessary considering the character of the suspect,
his/her age and circumstances, the gravity of theoﬀence, his/her situation after the oﬀense and so on. The
provision can be applied to corporate entities treated assuspects based on a dual liability provision. Thus, in adecision where prosecutors apply Article 248 of the CCP,
the compliance program of a corporate entity that is asuspect in an investigation may be a mitigating factor
and reduce or eliminate liability for bribery oﬀences if
the implemented programs have been eﬀectively
promoted and managed. The METI Guideline was created‘to support companies involved in internationalcommercial transactions to voluntarily take a preventive
approach to the prevention of bribery of foreign publicoﬃcials’ and contains speciﬁc information concerningcompliance programs for countering bribery of foreign
public oﬃcials.

12. Who may be held liable for bribery?
Only individuals, or also corporate entities?
As a general rule, only a natural person is criminallyliable under Japanese law. A judicial person may be held
criminally liable only when there are speciﬁc provisions
for punishment prescribed in the form of dual liability. A
dual liability provision makes judicial persons, including
corporate entities, punishable together with the natural
person who actually committed the oﬀence, unless the
judicial persons prove that they were not negligent inappointing or supervising that natural person. Article 22of the UCPA includes a dual liability provision underwhich a corporate entity may be prosecuted forviolations of Article 18 of the UCPA Act, i.e., bribery of
foreign public oﬃcials.

13. Has the government published any

PDF Generated: 1-06-2022

14. Does the law provide protection towhistle-blowers?
The Whistleblower Protection Act protects‘whistleblowers’ deﬁned as workers who have disclosed‘reportable facts’ such as a criminal act described inlaws concerning the protection of interests, including
individuals’ lives and persons, interests of the consumer,
conservation of the environment, protection of faircompetition, and protection of citizens’ lives, persons,property and other interests. The Whistleblower
Protection Act prohibits dismissal and disadvantageous
treatment, such as a demotion or reduction in salary, ofthe whistle-blower as a consequence of thewhistleblowing.

15. How common are government authority
investigations into allegations of bribery?
In recent years, the police have investigated 30-40
domestic bribery cases per year. Even though
investigations of foreign bribery cases have been rare in
Japan, authorities are now paying more attention tothem than ever before. In each of 2007, 2008, 2013,2014 and 2018, companies were investigated forviolations of the UCPA, and directors or employees wereprosecuted in every case. The 2018 case was the ﬁrst
case to be prosecuted using the new plea-bargaining
system in Japan (see Answer 16).

16. What are the recent and emerging
trends in investigations and enforcement
in your jurisdiction? Has the Covid-19
pandemic had any impact and, if so, what?
In June 2018, the Japanese version of plea-bargaining

4/7© 2022 Legalease Ltd

Bribery & Corruption: Japan

took eﬀect. Under the plea-bargaining system, a publicprosecutor may enter into an agreement with a suspect
or a defendant, including corporate entities, with theconsent of his/her defense attorney, under which theprosecutor agrees to drop or reduce criminal charges orprovide favourable treatment with respect to certain
types of crimes. This includes, but is not limited to,domestic bribery and bribery of foreign public oﬃcials
regulated by the relevant laws including the Penal Codeand the UCPA. The prosecutor has the authority todetermine whether to enter into an agreement by taking
certain factors into consideration.
Thus far, the plea-bargaining system has been applied in
two publicized criminal cases. The ﬁrst case involved apower plant manufacturer suspected of violating UCPA,
i.e., bribery of foreign public oﬃcials. The company
successfully entered into an agreement whereby theprosecutor agreed not to prosecute in exchange for fullcooperation with an investigation to prosecute the threemain individual suspects.
The second case is a high-proﬁle case involving Carlos
Ghosn and Nissan Motor Company, where subordinatesof Mr Ghosn entered into an agreement whereby theprosecutor agreed not to prosecute them in exchange
for provision of relevant information and full cooperation
with prosecution of Mr Ghosn on charges of aggravatedbreach of trust and violation of the Financial Instruments
and Exchange Act.
The third case is an embezzlement case where a coconspirator entered into an agreement whereby theprosecutor agreed to prosecute the co-conspirator in
exchange for cooperation to prosecute the former CEOof the company. At this moment, with respect to thesethree cases, detailed information regarding the terms of
the plea bargain is not available.
Under the COVID-19 pandemic, investigation authorities
tend to refrain from conducting lengthy interviews anddawn raids, which requires corporations and otherorganizations to fully and intensively cooperate withlimited human resources in an investigation.

judgment rendered by a court is appealable by the
defendant. Judgments rendered by the district courts areappealable to a high court. An appeal to a high court isallowed on the grounds of non-compliance withprocedural law, errors in fact-ﬁnding, errors inapplication of law, or inappropriate sentencing.
Judgments rendered by the high court are appealable to
the Supreme Court, which is the highest and ﬁnal court.
Even though an appeal to the Supreme Court is allowed
only on the grounds of a violation of the Constitution or aviolation of judicial precedents, the Supreme Court has
discretionary power to strike down judgments rendered
by a high court on the grounds of legal errors, errors infact-ﬁnding or inappropriate sentencing.

18. Are there any planned developments orreforms of bribery and anti-corruption laws
in your jurisdiction?
There are no speciﬁc planned developments or reformsof bribery and anti-corruption such as passing a new
statute or amendment of the relevant laws. However,the plea-bargaining system can be expected to be
applied actively in bribery cases as stated in Answer 16.

19. To which international anti-corruption
conventions is your country party?
Japan ratiﬁed the Organisation for Economic Cooperation
and Development’s (OECD) Convention on Combating
Bribery of Foreign Public Oﬃcials in International
Business Transactions (OECD Convention) in 1997. In
connection with acceding to the OECD Convention, theUCPA was amended to criminalise bribery of foreign
public oﬃcials in 1998. In addition, Japan is a signatory
to the UN Convention Against Corruption (UNCAC) that
includes provisions requiring legal measures against theacceptance of bribes by domestic public oﬃcials, andagainst bribery of domestic or foreign public oﬃcials.
The UNCAC was ratiﬁed in 2006.

17. Is there a process of judicial review forchallenging government authority action
and decisions?

20. Do you have a concept of legal
privilege in your jurisdiction which applies
to lawyer-led investigations? If so, pleaseprovide details on the extent of that
protection.

Even though public prosecutors have enormous
discretionary power to decide whether to prosecute a
bribery case, the Prosecution Review Board, which is a
judicial review panel for non-prosecution cases, canreview the decision and recommend the prosecutor toprosecute the case. After prosecution, any guilty

Japan does not have a legal concept of attorney-client
privilege that protects attorney-client communications
from the compulsory collection of evidence ingovernment authority investigations. However, attorneys
are given the right to refuse seizure or testimony andcan utilize these rights for protecting attorney-client

PDF Generated: 1-06-2022

5/7© 2022 Legalease Ltd

Bribery & Corruption: Japan

communications. More speciﬁcally, the CCP provides thatan attorney (including a foreign attorney registered inJapan) may refuse the seizure of articles containing
conﬁdential information concerning others which he/she
has been entrusted with and retains or possesses in thecourse of his/her duties, and may refuse to give
testimony in a trial on matters pertaining to conﬁdential
information concerning others which he/she came toknow through entrusted professional conduct.

21. How much importance does yourgovernment place on tackling bribery andcorruption? How do you think yourjurisdiction’s approach to anti-bribery andcorruption compares on an international
scale?
As stated in Answer 19, Japan has been required totackle bribery and corruption in compliance withinternational conventions. Under this national policy, as
stated in Answer 16, investigative authorities such as theprosecutors’ oﬃce and the police have been active toinvestigate domestic and overseas bribery cases inJapan. It is likely that the application of the pleabargaining system enables the investigative authorities
to collect evidence eﬃciently and eﬀectively.

22. Generally how serious areorganisations in your country about
preventing bribery and corruption?
As explained in the METI Guidelines, in general, ‘[s]ocial
responsibility of business is becoming increasingly
weighty as consumer awareness increases and business
operations become more and more internationalized,
etc. Companies across the board are making active
eﬀorts in the area of internal controls, in their attempt toensure statutory compliance and to add more eﬃciency
to their operations, etc.’ However, in terms of
implementation of preventive measures for bribery andcorruption, it appears that the majority of organisationsin Japan are in the process of implementing eﬀective
preventive measures, including the adoption of global
compliance programs and global whistleblowing
systems, and the establishment of global audit systems
and so forth.

23. What are the biggest challenges
enforcement agencies/regulators facewhen investigating and prosecuting casesof bribery and corruption in yourPDF Generated: 1-06-2022

jurisdiction?
Under Japanese law, prosecutors are required to provethat both a giver and a taker (i.e., a public oﬃcial)oﬀered and received a bribe while recognising that the
purpose is to gain and receive advantageous treatment
in connection with the receiver’s authority. In addition,
as bribery is committed secretly, there would be no
explicit evidence to establish the intent of the giver andthe taker. As such, one of the biggest challenges thatprosecutors and police oﬃcers are facing is the diﬃcultyin collecting strong evidence to prove the intent of thebribe-giver and the bribe-taker. In addition,
investigations of bribery cases of foreign public oﬃcials
generally face additional diﬃculties in collecting relevant
evidence because the crime scenes are abroad.

24. What are the biggest challenges
businesses face when investigating bribery
and corruption issues?
It is likely that the adoption of the plea-bargaining
system will facilitate investigative authorities in ﬁnding
information and collecting evidence of domestic andforeign bribery and corruption. With the COVID-19
pandemic, there are fewer opportunities to collectinformation related to bribery and corruption throughface-to-face communication in audit and othermonitoring activities. Under the circumstances, one of
the most signiﬁcant challenges posed to businesses is
how to detect corruption-related information internally at
an early stage in order to mitigate the potential damageof the discovery of bribery or other corruption.

25. What do you consider will be the mostsigniﬁcant corruption-related challenges
posed to businesses in your jurisdiction
over the next 18 months?
N/A

26. How would you improve the legal
framework and process for preventing,investigating and prosecuting cases ofbribery and corruption?
Investigative authorities would be expected to ﬁnd
information and collect evidence of domestic and foreign
bribery and corruption mainly by way of utilizing theplea-bargaining system. On the other hand, from thebusinesses’ perspective, the ﬁrst step is to analyse andidentify the potential risk of bribery and corruption in
their own business activities. The next step is to

6/7© 2022 Legalease Ltd

Bribery & Corruption: Japan

implement an eﬀective global compliance program toprevent bribery and corruption based on the results of
the ﬁrst step. Appointment of a compliance oﬃcer or a
general compliance supervisor to oversee compliance
personnel and implementation of educational activities
in companies are the typical components of global

compliance programs. In addition, taking eﬀective
measures to detect information related to bribery andcorruption at an early stage is signiﬁcant. The typicalmeasures are implementation and improvement ofdomestic and/or global whistleblowing systems, andestablishment and reinforcement of domestic and/or
global audit systems.

Contributors
Makoto TakaharaPartnermakoto.takahara@aplaw.jp

Tetsuro Takeda
Partner

tetsuro.takeda@aplaw.jp

Masahito Fukuda
Partnermasahito.fukuda@aplaw.jp

PDF Generated: 1-06-2022

7/7© 2022 Legalease Ltd