Harder administrative sanction and the preferable way to "the burden of proof" and "the standard of proof"(in Japanese)

Ken Shiraishi and Atsushi Yamashita

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

Abstract: The enforcement of the revised Antimonopoly Law in January, 2006 leads to the upward revision of surcharges. Since the surcharge is levied under an administrative procedure, the due process is different from that of the criminal case. The largest difference in the procedural due process is in the difference of the standard of proof. If the standard of proof for the administrative trials is lower than that of the criminal one, sanctions could be imposed easily. Therefore, there is an argument that the level of proof standard should be raised for an administrative trial. On the other hand, the accusation is usually very difficult in many corporate crime cases because a lot of evidences are occupied by offenders' side. So, lower standard of proof is needed to punish offenders. A preferable proof level and the procedure cannot be derived from an abstract discussion about the seriousness of the crime. The preferable way is balancing the levels of due process and verification from the viewpoint of the "effect" and "efficiency". Such an idea is observed in the United States.

Pages: 34 pages
Date: 2006-02
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