Die Abschaffung des „Resident Representative Director“. Das japanische Justizministerium erleichtert die Corporate Governance japanischer Tochterunternehmen ausländischer Investoren

Abstract

On 16th March 2015, the Ministry of Justice issued a notice abolishing the requirement that at least one representative of a company incorporated in Japan or branch offices registered in Japan be a resident there. Until then, although there is no provision stating expressly that the representative’s address, which must be registered in the commercial register, has to be in Japan, the law was interpreted to have been passed presupposing that the representative director had a permanent address in Japan. Hence, in accordance with binding statements from the Ministry’s Civil Affairs Bureau that “unless at least one representative director is a resident of Japan, the application for registration of establishment cannot be accepted”, it was generally understood that all companies registered in Japan shall at any time have one or more representative directors with a permanent residence in Japan. This rule was applied equally to all foreign-affiliated companies registered in Japan. As a result, even if it was not necessary for operative purposes, foreign companies had to send staff of the mother-company to Japan or had to appoint a representative director hired in Japan only for that particular purpose.

Now, as part of “Abenomics”, the resident representative requirement has been abolished and new chances, particularly for foreign companies to re-structure the corporate governance of the Japanese subsidiaries, emerged. It is now possible to have all board members of a Japanese subsidiary be staff members of the mother company, not residing in Japan, and no newly-employed persons or third persons with no real interest in the company must be entrusted with these highly influential positions any more. However, existing structures involving such persons should only carefully be changed, in particular, if Japanese staff of the subsidiary have functioned as resident representative directors of a subsidiary for registration purposes and considerable time thereafter and probably have given personal guarantees to institutions such as banks, landlords etc.