Introductory analysis of the relationship between the compliance programs of the Japanese corporations and their legal responsibilities - the result of the investigation based on the questionnaire into their attitudes towards the relationship and the prospects of the desirable one(in Japanese)

Takeyoshi Imai, Ken Shiraishi and Daisaku Okada

ESRI Discussion paper series from Economic and Social Research Institute (ESRI)

Abstract: In the USA and Europe, the corporate scandals such as the Enron case became a big social issues in the year 2000.The situation was very similar even in Japan where since around the same time the scandals of one of the leading Japanese companies emerged one after another in such ways as selling food (e.g, meat or milk) with a false description which should show the correct ingredients or the stored time or omitting and hiding the requested report for recall of vehicles. However, in Japan, there have been few statistics that have shown the actual situation as to the corporate scandals or crimes and the reaction of those companies. So, to get more actual information, we have conducted an investigation into such matters by using questionnaire which are to be sent to and collected from as many major corporations as possible in Japan.Then, with the results of this survey, we have also examined the issue relating to the so-called CSR (Corporate Social Responsibility), compliance program and corporate governance. In this process, special attention was paid to the way of taking legal (especially criminal) responsibilities by the corporations whose acts would be regarded as anti-social or illegal. The results of the questionnaire indicate that companies, for the most part, are aware of the concept of the CSR or so. Actually, it seems that companies relatively understand well the first two ideas (namely, compliance program and corporate governance). However, regarding the CSR, most companies seem not recognise it clearly. The reason of it could be that, in addition to the possible differences of the approach to the same concept (CSR itself) between the commercial law sphere and criminal law one, these three concepts above mentioned have not been considered thoroughly in legal theory, at least in Japan.As a result, it has not bee clear which idea could be vital when justification or excuse of the deliquent companies is an urgent matter to be resolved. So, apparently, companies also have not been able to get a reliable idea when they are confronted with the risk of being charged or penalised due to their business related bad behaviours. Taking these situations into consideration, one of the necessary tasks for both the scholars and those in charge of legislation should be the theoretical analysis of the compliance program as a possible mitigating factor for the corporate criminal responsibility. Now that companies are becoming considerably aware of the significance of the compliance program, they must have spent fairly cost to set up and implement such program. As a result, such companies could argue against its possible prosecution or trial that they should be exempted from criminal responsibility because they have done as mush as they could. It might be approved to some extent. However, it should not be overlooked that how effective the compliance program could be as a defence against the criminal allegation must be evaluated from the criminal law viewpoint rather than business customes. It means that further theoretical examination has to be done in considering whether or not the compliance program could be applied without conflicts with the traditionally accepted notion or interpretation in the criminal law.

Pages: 45 pages
Date: 2005-04
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