The recent plea-bargaining deal has exempted a corporation from criminal prosecution while it has indicted employees. Developments leading up to the deal are hard to digest.
In dealing with the case involving a bribe to a Thai public servant over a power plant project in that country, the special investigation squad from the Tokyo District Public Prosecutors Office has indicted a former managing director and two others from Mitsubishi Hitachi Power Systems, Ltd. (MHPS) on charges of violating the Unfair Competition Prevention Law.
The plea bargaining system has been applied for the first time since its start in June. The prosecution decided not to indict MHPS in exchange for its investigative cooperation, despite a concurrent penalty clause stipulated in the Unfair Competition Prevention Law, under which a company can also be charged as a juridical person.
There have long been concerns that innocent people may be unjustly accused because of false testimony.
However, it is unlikely for a corporation that possesses credibility among the general public to provide the investigative authorities with false information. With that in mind, the special investigation department seems to have applied plea bargaining in a solid case under the system.
The three indicted are believed to have paid about 39 million yen to an official from the Thai port authorities who had demanded a bribe in connection with a problem that had arisen when construction materials were about to be landed.
It is difficult to gather evidence for foreign bribery cases against which Japan's investigative right cannot be exercised. Since giving bribes to foreign public service employees was banned under the Unfair Competition Prevention Law, only four cases have been built as criminal offenses over a 20-year period. Our nation has been asked by the Organization for Economic Cooperation and Development to reinforce measures against such misconduct.
Uncover irregularities at top
The special investigation team is said to have found a clue to the latest case after receiving a voluntary report from MHPS, thereby making smooth progress in questioning persons related to the problem and collecting evidence.
If MHPS is indicted as a juridical person, the company will suffer a decline in its public trust, and this will undermine its overseas business. The latest application of plea bargaining can be described as a result of the fact that the motives of both MHPS and the prosecution agreed with each other.
In the United States, plea bargaining is common practice in investigations of such cases. The prosecution's latest action seems to have some degree of positive significance as it was able to build the MHPS affair as a criminal case, based on the evidence that could not have been obtained through conventional means of investigation.
However, the primary objective of plea bargaining is to uncover irregularities perpetrated by top officials of an organization or committed as a company-wide activity in probing organized or economic crimes, through the investigative cooperation gained from the rank and file related to these cases.
A senior public prosecutor has emphasized they were able to indict the former managing director and others with responsible positions who likely paid a bribe to raise their company's business performance. The method adopted in the latest case, which appears to involve a company forcing individuals to assume criminal responsibility, does not seem to fit Japan's corporate environment.
There is good reason for the method to be criticized by many as the act of sacrificing the weak to save an organization.
If plea bargaining has become a tool for companies trying to evade responsibility, the system itself will not be trusted. It must serve to track down the main culprits who hold overwhelming power. The investigating authorities should achieve good results in handling cases that fit the purpose of the system.
(From The Yomiuri Shimbun, July 29, 2018)
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