Anti-Corruption in Japan: An Introduction

In February 2024, the Ministry of Economy, Trade and Industry (METI) published the amended Guidelines for the Prevention of Bribery of Foreign Public Officials (the “Guidelines”), as described below. This is the first amendment since May 2021. To understand the reasons for and content of the amendment of the Guidelines, it is necessary to learn about the trends and development of anti-corruption efforts in Japan.

Japan is recognised as a country where bribery and other forms of corruption are relatively rare. In fact, according to the Corruption Perceptions Index 2023, which is published by Transparency International, Japan is the 16th cleanest country among 180 countries in the world (ranking above the USA).

However, Japan still experiences many bribery cases involving politicians or public officials that are uncovered and widely reported every year. The public has paid close attention to the many arrests that have been widely reported both in Japan and abroad, including of executives of famous companies in bribery cases surrounding the Tokyo Olympics and Paralympics. In 2024, a former executive officer of an advertising company was convicted of bribery (Tokyo District Court decision on 12 March 2024).

In addition, as described below, the OECD Working Group on Bribery (WGB) has pointed out the low number of cases involving bribery of foreign public officials in Japan, and has made 17 recommendations to the Japanese government to improve its enforcement. In response, METI held discussions related to the laws and regulations on the bribery of foreign officials, which led to the amendment of the Unfair Competition Prevention Act (UCPA).

Bribery of both domestic and foreign public officials has received a lot of attention in society. Therefore, employees and executives in all companies need to properly understand and comply with anti-bribery and anti-corruption laws and regulations in Japan and take appropriate measures to prevent corruption. To help in this regard, this article introduces the latest trends and developments in anti-corruption regulation in Japan.

Bribery of domestic public officials

Overview of the laws and regulations on the bribery of domestic public officials

In Japan, bribery of domestic public officials is regulated mainly by the Penal Code (Act No 45 of 1907), under which a public official shall be subject to criminal liability in connection with their duties if they:

• accept, solicit or promise to accept a bribe (Article 197);
• cause a bribe to be given to a third party (Article 197-2);
• act illegally or omit to act appropriately after/before committing a crime under one of the preceding two Articles (Article 197-3); or
• accept, solicit or promise to accept a bribe as consideration for the influence that a public official exerted, or is to exert, in response to a request, over another public official so as to cause the other to act illegally or refrain from acting in the exercise of their official duty (Article 197-4).

A person who gives, offers, or promises to give such bribes shall also be subject to criminal liability (Article 198).

Under court precedents, “bribery” is defined as unjust remuneration for the services of a public official. The “benefit” is not limited to tangible benefits but could include anything that satisfies one’s desires or demands, such as hospitality, travel or entertainment expenses.

A public official who accepts, solicits, or promises to accept a bribe in connection with their duties is punishable by imprisonment for not more than five years. If such a public official agrees to perform an act in response to a request, they are punishable by imprisonment for not more than seven years.

When a public official commits the crime of bribery and consequently acts illegally or refrains from acting in the exercise of their duty, they are punishable by imprisonment for at least one year (Article 197-3 (1)). The same applies when a public official accepts, solicits or promises to accept a bribe, is involved in a bribe being given to a third party, or solicits or promises that a bribe be given to a third party in connection with having acted illegally or having refrained from acting in the exercise of their duty (Article 197-3 (2)). A bribe knowingly accepted by an offender or by a third party shall be confiscated.

A person who gives, offers or promises to give a bribe as provided for in Articles 197 through 197-4 is punishable by imprisonment for not more than three years or a fine of not more than JPY2.5 million (Article 198).

It is worth mentioning that only individuals are subject to bribery regulation under the Penal Code; corporations are not.

Recent trends and cases of bribery of domestic public officials

Although bribery is a serious economic crime in Japan with severe penalties, as described above, bribery cases continue to occur.

In 2024, various bribery cases were uncovered and widely reported. For example, in a bribery case involving road construction ordered by a prefecture, a prefectural official in charge and the ex-president of the construction contractor were arrested and convicted. Also, in a case where an orthopaedic surgeon at a hospital run by an incorporated administrative agency, which was treated as a deemed public official, provided favours to a medical equipment manufacturing company in relation to the selection of implants, the surgeon and the company’s ex-employee in charge were arrested and convicted.

Tokyo Olympics bribery scandal

The most socially impactful bribery case in recent years was that involving the sponsorship of the Tokyo Olympics and Paralympics. In this case, various companies – such as a business suit retail company, an advertising company, a publishing company, and a company manufacturing and selling stuffed toys – gave bribes to a former board member of the Tokyo Olympics Organising Committee, and a total of 15 executives of these companies were indicted for giving bribes. The directors and employees of the Tokyo Olympics Organising Committee, including the board members, are “deemed public officials” under the Act on Special Measures Concerning the Tokyo Olympics and Paralympics. Therefore, the board members are subject to bribery regulation.

The former executives of the business suit retail company were convicted by the Tokyo District Court on 21 April 2023. The former chairperson was sentenced to two years and six months in prison, with a four-year suspended sentence, for the following reasons.

• The defendants’ requests in return for bribes to the board member covered a wide range of matters, including the selection of sponsors, and the bribes were paid 31 times over a period of two years and six months, amounting to a total of JPY28 million.
• The bribes have harmed society’s trust in the fairness of the officials involved in the operation of the Tokyo Olympics and Paralympics, a sporting event that has attracted worldwide attention and is considered to be of particular national importance.

Also, the former executive officer of the advertising company was convicted by the Tokyo District Court on 12 March 2024. He was sentenced to two years in prison, with a four-year suspended sentence, for the following reasons.

• The amount of the bribe provided by the defendant, approximately JPY6.5 million, is not small.
• The defendant’s crime has distorted the process of deciding Olympic sponsors and has undermined confidence in the operation of the Tokyo Olympics and Paralympics.

Bribery of foreign public officials

Overview of the laws and regulations on bribery of foreign public officials

In 1997, Japan ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In 1998, the UCPA was amended to treat bribery of foreign public officials as a crime. Japan is also a signatory of the United Nations Convention Against Corruption, which includes provisions requiring legal action against the acceptance of bribes by domestic public officials and bribery of domestic and foreign officials.

Under the UCPA, offering, promising or giving bribes to foreign officials in order to obtain an improper business advantage in the conduct of international business is prohibited (Article 18), and “the principle of territorial jurisdiction” is adopted. Therefore, in cases where any actions constituting bribery have been committed in Japan, or the results of bribery have affected Japan, the person committing the bribery is punishable for bribery of a foreign public official, regardless of their nationality. The “principle of nationality” is also adopted, so that Japanese persons who bribe a foreign official outside Japan are punishable for bribery of a foreign public official.

Recommendations of the OECD Convention

The WGB is responsible for overseeing and promoting the implementation of the OECD Convention and conducts peer reviews among the parties to the Convention. It has conducted peer reviews of Japan on four occasions and published the results in the form of an “Assessment Report” with recommendations for Japan.

On 27 June 2019, the WGB published its fourth review report on Japan. It expressed its concern about Japan’s attitude towards investigation of bribery of foreign public officials, as follows.

• Twenty years after the Convention came into force, the WGB remains concerned that Japan has still not given full effect to its foreign bribery prevention measures.
• Overall, Japan has only detected 46 allegations of foreign bribery, half of which the WGB brought to Japan’s attention. Japan has investigated 30 of the 46 known allegations, resulting in the conviction of 12 individuals and two legal persons in five foreign bribery cases. These numbers are particularly low given the size of Japan’s economy and the high-risk regions and sectors in which its companies operate.
• The police and the prosecution lack proactivity in their foreign bribery investigations.
• The role of theMinistry of Justice (MOJ) in transmitting or clarifying certain allegations may have contributed to unnecessary delays (from one to nine years) in the opening of investigations. The WGB remains concerned by the police’s continued lack of involvement in foreign bribery cases.

In addition, the report made 17 recommendations, in particular urging Japan to submit a written report in one year regarding the following key recommendations.

• Take urgent steps to further extend the statute of limitations on foreign bribery to an appropriate period, to ensure the effective prosecution of foreign bribery or to introduce the possibility of suspending the limitation period during the investigation with the aim of achieving the same goal.
• Enact legislation to substantially increase the statutory maximum fine for natural persons convicted of foreign bribery.
• Urgently review its legislation to ensure that Japan has jurisdiction over foreign bribery offences, including when bribes by Japanese companies operating abroad are paid by non-Japanese employees.
• Raise the statutory maximum or provide alternative grounds to impose higher fines (eg, the amount of the bribe given or the unlawful benefit obtained) to ensure that the fine imposed will be effective, proportionate and dissuasive, even in large-scale corruption cases

Amendment of the UCPA in 2023

In response to the above recommendations of the OECD, the Working Group on Bribery of Foreign Public Officials of the Subcommittee on Unfair Competition Prevention of the Intellectual Property Section of the Industrial Structure Council of METI released the Report on Strengthening Disciplinary Rules for the Crime of Bribery of Foreign Public Officials in March 2023. The report proposed the following four amendments to the UCPA:

• sanctions against natural persons;
• sanctions against legal persons;
• a statute of limitations of prosecution; and
• applicable jurisdiction (punishment of foreign crimes) over corporations.

On 7 June 2023, the UCPA was amended to strengthen regulations on bribery of foreign public officials. The amendments increase statutory penalties for natural persons and legal entities and expand the scope of punishment to include bribery by non-Japanese individuals of executives or employees of Japanese companies overseas. The amended UCPA came into effect as of 1 April 2024.

First, the penalty for natural persons who bribe foreign officials became more severe. The maximum amount of the fine for natural persons increased from JPY5 million to JPY30 million, which is the highest maximum fine for natural persons in Japan at the time of writing. In addition, the maximum term of imprisonment increased from five years to ten years, which is the longest term of imprisonment for economic crimes in Japan at the time of writing. As a result of the ten-year maximum term of imprisonment, the statute of limitations for prosecution was increased from five years to seven years.

The penalty for corporations whose employees or executives bribe foreign officials also became more severe. In Japan, a corporation alone is not subject to criminal penalties. A corporation is subject to criminal penalties only when a dual punishment provision is stipulated, punishing not only the executive or employee who committed the crime but also the corporation to which the executive or employee belongs. The maximum fine for corporations under the dual punishment provision in the UCPA increased from JPY300 million to JPY1 billion, which is the highest maximum fine for corporations in Japan at the time of writing.

In terms of the severity of the criminal penalty for both natural persons and corporations, the bribery of foreign officials has become one of the most serious economic crimes in Japan.

The bribery of foreign public officials by non-Japanese executives or employees of a corporation whose principal office is in Japan has been added to the scope of the UCPA as warranting a criminal penalty. Specifically, in cases where a non-Japanese employee who belongs to a Japanese corporation bribes a public official of a foreign country in connection with the business of the corporation, said employee could be punishable even if they are not Japanese and the criminal act occurs in a foreign country.

Amendment of the Guidelines in 2024

In February 2024, METI amended the Guidelines. The main points of the amendment are as follows:

• reflecting the amendment to the UCPA concerning the crime of bribery of foreign public officials;
• correcting the description of small facilitation payments (recommending that companies prohibit facilitation payments);
• clarifying cases where the parent company (head office) is punished for acts of bribery by employees of overseas subsidiaries or branches;
• updating cases where the crime of bribery of foreign public officials is applied; and
• expanding descriptions regarding the establishment of a system to prevent bribery of foreign public officials.

Despite the amendment, the purpose and main content of the Guidelines have not changed.

The Guidelines describe in detail a compliance system for the prevention of bribery of foreign public officials by businesses and introduce three important perspectives, emphasising:

• the importance of the attitude of, and message from, top management;
• a risk-based approach; and
• the necessity of taking action at the subsidiary level based on the bribery risk.

In addition, the Guidelines introduce desirable preventative system methodologies for businesses and recommend that the following six desirable elements be included in a preventative system:

• the formulation/announcement of basic policies;
• the formulation of internal rules (eg, approval rules for high-risk activities such as socialising or the appointment of third parties, and rules for disciplinary punishment or censure);
• the development of organisational frameworks;
• the implementation of educational activities in the company;
• audits; and
• review by management.

Although the Guidelines were prepared from the perspective of preventing bribery of foreign public officials, the basic points and suggestions presented therein are also very useful for preventing bribery of domestic public officials in Japan. The formulation of basic policies and internal rules and educational activities is highly effective to prevent bribery of both domestic and foreign public officials.

Conclusion

Continuing on from 2023, there have been major developments regarding anti-bribery regulations in Japan, including the amendment of the Guidelines.

However, the author believes that bribery cases have not been eliminated, not only because of the greed of individuals or corporations aiming to gain business advantages and deficiencies in internal controls and governance, but also due to the lack of sufficient legal knowledge and integrity among executives and employees.

If executives and employees fully understand the content of laws and regulations on bribery, including the severity of the penalties and the reputational damage to the company if bribery is discovered, they would realise how unprofitable and shortsighted it is to engage in bribery to gain immediate profit. Also, if executives knew that the discovery of bribery would severely damage them and their companies, they would be able to steadfastly refuse to become involved in bribery even if public officials are demanding a bribe. It is not easy to disseminate accurate legal information and ethical standards to all executives and employees, and it will be important for management to continuously disseminate messages and conduct periodic education and training programmes. Hopefully, this report will be of some help in this regard.