Strafrechtliche Haftung für Bilanzfälschung, Marktmanipulation und fehlerhafte Publizität aus japanischer Sicht
Abstract
As in other countries, white-collar crime is an issue of growing concern in Japan. Right after the end of the so-called bubble economy during the 1980s, many small and also a significant number of large companies and banks encountered economic difficulties. At the same time, the number of scandals concerning white-collar crimes – for instance, the falsification of financial statements – was apparently increasing. This paper discusses the intervention of criminal law in Japan to prevent and prosecute crimes associated with the management and monitoring of companies, as well as with the functioning of the capital market.
Penal provisions related to misdeeds in this area can be found in three different laws: the general Criminal Code, the Commercial Code, and the Stock Exchange and Securities Trade Act. The latter two are of particular importance. The Commercial Code imposes sanctions against certain deeds of managers and auditors that harm the interests of their company (Artt. 486 et seq.).Related to the falsification of financial statements, there is a provision proscribing the endangering of the company’s assets by illegal distribution of profits(Art. 489 no. 3). One of the most spectacular cases concerning this crime was the indictment of the former president and other leading managers of Yamaichi Securities, once one of the largest Japanese securities firms that went bankrupt and was disbanded in 1997. In 2000 the former president was sentenced to two and a half years of prison without probation. Another important penal provision is Art. 486 para. 1, which penalizes the intentional breach of duty by managers and auditors resulting in a harm of the company’s interests in order to gain personal profits. This is sometimes also applicable for falsification of financial statements. However, the indictment of persons because of a probable violation of either of these two provisions is rare.
The penal provisions in the Stock Exchange and Securities Trade Act, for instance, penalize the deliberate submission and publication of wrongful financial statements, the manipulation of the securities price at the stock exchange, and insider trading. Whereas the Commercial Code’s criminal provisions aim at protecting the shareholders and creditors of the company concerned, the Stock Exchange and Securities Trade Act intends to safeguard the general confidence of investors toward the capital market. Therefore, if one of the crimes mentioned is committed by a representative, an employee, or another auxiliary person of the company, not only the offender himself but also the company will be charged and sentenced for the misdeed.
In reality, however, the prosecution and indictment of a violation of a penal provision of the Stock Exchange and Securities Trade Act is even scarcer than those of the Commercial Code. Therefore, the author infers that these penal provisions were only dead-letter law on the books. Furthermore, the author is of the opinion that criminal law is now facing new and grave problems in the area of misdeeds associated with the management and monitoring of companies as well as with publicity duties in the capital market. Further discussion on the function and task of criminal law in this field is necessary.
(The Editors)
