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.95 2).This provision, which seems to beunique to this Act, was never used as of 1992 (Shibahara, 1992: 42).The natureof these apparent vicarious liabilities is not explained.So far, there are no statutoryprovisions making a middle manager punishable.The criminal liability of an unin-corporated association has some examples in the Act Against Monopolies (Art.95(2)), the Securities and Exchange Act (23rd Showa, 25, Art.207), etc.In terms of the number of statutes making a juristic person punishable, it isvoluminous and overwhelming in percentage.In the early 1980s, there wereno less than 470 pieces of legislation which contained provisions whereby topunish juristic persons by fines, of some 700 pieces of legislation then in force(Utsuro, 1984: 188).It is difficult to have up-to-date statistics here because ofthe subsequent changes in the way in which statistics have been compiled, butthe number of such statutes has no doubt increased substantially by now(2007).The Crimes White Paper 2005 has a list of a number of cases whichhave been brought to the Public Prosecution Service with respect to offencesunder 42 statutes (on pp.148 9).The criteria for the selection of thesestatutes are not clear, but they supposedly include those statutory offencesmost frequently being brought to the attention of the prosecutors.Out of the42 statutes, 34, comprising more than 80 per cent, have provisions making ajuristic person punishable under the 1932 formula.147Crime and CultureThis SAGE ebook is copyright and is supplied by NetLibrary.Unauthorised distribution forbidden.07-Minkes-3706:08-Minkes-Ch-07 5/29/2008 10:56 AM Page 148Is corporate crime truly criminal? Most statutory offences, which may becommitted by a juristic person (or an unincorporated association, as thecase may be) under the 1932 formula, seem to be those which the EnglishCourt of Appeal would call  regulatory offences as opposed to  truecrimes.17In Japan, by contrast, the 1932 formula is provided even for a true  crime ,18with all its moral implications, under an  Industrial Crimes Against HumanHealth Act 1970 (45th Showa, 142).The Act was enacted in response to anumber of environmental disasters caused by heavy industrial activities at theheight of Japan s post-war economic growth, harming seriously large sectionsof members of the public, such as the mass mercury poisonings in and aroundMinamata and Niigata, the mass cadmium poisonings along the River Jintsuuand the massive air pollutions in Yokkaichi.The Act s sister statutes are the AirPollution Prevention Act (43rd Showa, 97); the Pollutions and Disasters at SeaAct (45th Showa, 136); the Waste Disposal and Cleaning Act (45th Showa,137); the Water Contamination Act (45th Showa, 138), etc.The significance of the Industrial Crimes Act, as distinct from its sisterstatutes, is in its purpose (Art.1) and the mode of trial (Art.7).In essence, theAct says that it constitutes a  crime to create a risk to the health and safety ofmembers of the public by the emission or disposal of substances harmful tohuman health, and that the purpose of the Act is to punish such a crime.Thetrial is to be held in a full trial court,19 consisting of three professional judges.20By contrast,  breaches of provisions under the sister statutes are to be tried bya single judge in a summary court.21The Industrial Crimes Act is somewhat anomalous in that it presumescausation between the emission/disposal of the substance and a risk, evenwhere there is the same substance from other sources, as long as theamount of emission/disposal by the defendant is sufficient to create the risk(Art.5).This places the legal burden of proof on the defence to rebut thepresumption.However, the Act s title precludes an explanation that thereverse burden of proof is justified for  regulatory offences which are nottruly criminal.22The idea of  industrial crime , i.e. crime committed by way of industrialactivities , is quite explicit in the Act s purpose clause (Art.1) as well as thedefinitions of a crime with  intent and recklessness (dolus) (Art.2) and acrime by occupational or business negligence (culpa) (Art.3).These mentalelements are questioned as regards the creation of risk.However, the Act hasno definition of the mens rea of a juristic person defendant (Art.4).There isonly the 1932 formula, supra, as in the Act s sister statutes.So far, the Act hasrarely been used in practice, and the first conviction of a juristic person for abreach of the occupational duty of care under the Act, Art.3, did not discussthe corporate mens rea.23 The Court said that it punished the companybecause its employees committed the crime on account of the business of thecompany24  mere recital of the Act.148 Corporate and White-collar CrimeThis SAGE ebook is copyright and is supplied by NetLibrary.Unauthorised distribution forbidden.07-Minkes-3706:08-Minkes-Ch-07 5/29/2008 10:56 AM Page 149Punishment The only means of punishment of a juristic person currentlyavailable is a fine.The Japanese legislation does have a distinction between punishment money (bakkin) and  breach fees (karyou).However, this is dif-ferent from the German distinction between two different kinds of  fine ,namely  money punishment (Geldstrafe) for a  true crime (Justizstrafe) and money mending (Geldbuße) for a  regulation breach (Ordungswidrigkeit).InGerman law, there shall be  no punishment without a crime (von Feuerbach,1799: 148)25 so that a juristic person who cannot commit a crime cannot bepunished.In Japan, a very substantial  punishment money applies to a juristicperson, whereas small  breach fees only apply to a natural person.26In 1992, amendments to the Securities and Exchange Act, Art.207, to the ActAgainst Monopolies, Art.95, etc [ Pobierz caÅ‚ość w formacie PDF ]