Category: Law

Defending the financial system against yakuza infiltration

Citibank is feeling some FSA heat right now because it wasn’t strict enough in monitoring and reporting “suspicious transactions including money laundering.”

Organized crime relations are becoming a bigger and bigger deal in the world of Japanese financial regulation. Late last year, the FSA and the Japanese Bankers’ Association adopted some administrative guidelines concerning how banks should protect against yakuza, sokaiya and other rabblerousers, and many of those guidelines are being phased in this year by institutions across the country.

One measure being implemented is amending account agreements in order to allow banks to pull service from customers with criminal ties. Here is a translation of the JBA’s suggested language (original version here). It is pretty laughable even by legal Japanese standards; I wonder who had a hand in drafting it. Exploring options such as liquidation uk can offer additional strategies for businesses to manage financial liabilities and regulatory compliance effectively.

Article [__] (Exclusion of Anti-Social Forces)

(1) I hereby represent that I am currently not, and hereby agree that in the future I shall not become, any of the following.

1. A criminal organization (暴力団)
2. A member of a criminal organization
3. A quasi-constituent of a criminal organization
4. An enterprise related to a criminal organization
5. A sokaiya (総会屋), politically-branded racketeering organization (社会運動等標ぼうゴロ) or organized crime-related “specialist” (特殊知能暴力集団 – a police term for individuals or groups who are not yakuza themselves, but help fund yakuza activities)
6. Any other person pursuant to any of the above

(2) I hereby agree that I shall not engage in any of the following acts, whether personally or through a third party.

1. Violent demands
2. Improper demands in excess of legal responsibilities
3. Acts of violence or menacing statements in relation to a transaction
4. Spreading of rumors, use of falsified statistics or use of obstruction to harm the reputation of your bank, or to obstruct the business of your bank
5. Any other act pursuant to any of the above

(3) In the event it is determined that I correspond to any of the listed items in paragraph 1 above, commit any listed act in the preceding paragraph, or have made a falsified report with regard to the representations and covenants in paragraph 1 above, and it is improper to continue transactions with me, upon the demand of your bank, I will lose the benefit of term with regard to all liabilities I have to your bank, and will promptly perform those liabilities.

(4) In the event that I have received the discounting of notes, that it is determined that I correspond to any of the listed items in paragraph 1 above, commit any listed act in the preceding paragraph, or have made a falsified report with regard to the representations and covenants in paragraph 1 above, and that it is improper to continue transactions with me, upon the demand of your bank, I will owe a liability to repay the face amount of all notes, and will promptly perform it. Until such time as this liability is performed, your bank may exercise all of its rights as the holder of such notes.

(5) Once performance of the liabilities under the preceding two paragraphs has been completed, this agreement will lose validity. (Bizarre phrasing!)

Organ Harvesting in Japan–Now Legal?

The Lower House voted yesterday to remove the major restrictions on organ transplants in Japan–an age limit and the need for family consent of the donor. Since the organ transplant law was passed, transplants have been difficult to get in Japan and are fairly rare–only 81 in the 11 years since the current law was enacted. Yesterday’s changes were spurred by pressure from the WHO, looking to stem the tide of “medical tourists” who go overseas to get transplants.

Of course, this isn’t to say that everyone agrees with the changes that were made. Many Japanese remain wary of organ transplants and the concept of “brain death,” necessary for organ transplants, is not as accepted in Japan as it is in the United States. Twice Dead, by Margaret Lock, details many objections Japanese people have; the most interesting one she cites relates to 贈答文化, exchange culture, in that a donee can not properly return the favor.

Now, this was nowhere near as interesting as the reason detailed in the newspaper handed to me this morning as I passed a group of protesters demonstrating outside the Diet. According to 関東「障害者」解放委員会, the Kanto “Disabled Persons” Liberation Committee, the law will allow the nefarious Japanese government to do what it has long wanted: harvest organs from workers and sell them on the global market. Social stratification in Japan has spread to the medical arena and politicans led astray by America’s neo-liberal influence are plotting to increase the number of its brain death diagnoses in order to save costs on emergency care and further oppress the working poor! Will the capitalists never cease their brutal exploitation of workers?

After getting over my shock in realizing I was actually reading the headline of the newspaper correctly, I found myself somewhat disappointed that the protestors couldn’t have put together a better case. It is possible to argue against organ transplants without sounding like a complete nut. Although the criteria for brain death are quite rigorous and misdiagnoses are nearly unheard of, there are rare cases of people being declared brain-dead and then coming back to life. The idea of brain death also conflicts with many religious and cultural notions of death.  These aren’t limited to non-Western cultures; according to Wikipedia, the orthodox Jewish community is divided over the issue.

Of course, these nuanced arguments are complicated. It’s much easier to simply say that Japanese politicians are selling poor people’s hearts and livers to line their pockets. Ah, politics! I can’t wait to see what I’m handed the next time I head to Nagatacho.

(Interestingly enough, Japan has had problems with people who allegedly broker “used” organs. Also, see Roy’s post about Japanese organ harvesting in Thailand.)

Japan’s Badge Phenomenon

I must confess to a certain nerdish habit when walking around central Tokyo — badge-spotting. Whether it be Japan’s many corporations and the uniform-like consistency in which employees pin the logos to their suits, or the guild-specific badges of many professionals, badges are everywhere. In particular, it’s fun to spot the legal/accounting/tax professionals, often based on a flower blossom motif. This post quickly summarizes the badges of such professionals that you are likely to see in any commercial district of Japan — if you pay close attention.

badge1

The Administrative Scrivener badge has a cosmos flower with the archaic “行” character in the center; the Attorney badge has the scales of justice in the middle of a sunflower, the flower designed to represent justice; the Judicial Scrivener badge is a paulownia, and is silver, apparently specifically to be in second place to the golden badge of the attorney.

badge2

The Tax Lawyer badge is a circle with a sakura cherry blossom in the top; the Patent Attorney badge is a chrysanthemum with an unknown symbol in the center; the Social Insurance and Labor Specialist badge is a chrysanthemum with sharp, not round, petals, with the roman letters “S.R.” for the romanization of the profession’s title, shakaihoken rodoushi,

badge3

The Land Surveyor badge is a paulownia with the archaic “側” character in the center; the CPA (certified public accountant), despite being perhaps the toughest of all state exams together with the bar exam, nonetheless has an utterly cheesy badge that simply bears the roman letters of the English translation of the title; and the Marine Procedure Agent has a badge that is a chrysanthemum with a ship’s steering wheel in the center.

badge4

The badge of a judge is not a flower but the Yata, a mythical mirror that is said to be part of the Imperial Regalia, with the character “裁” in the center; elected members of the Diet have a metal chrysanthemum badge pinned to a thick purple felt patch; and Diet Secretary badges are a wafer thin, red chrysanthemum.

Those of you wannabe lawyers and diet members out there who don’t want to go through the formalities of “passing the bar” or “being elected” are in luck — website PinJP sells replica badges that look just like the real thing. Just don’t actually engage in the act of immitating a lawyer or you’ll face jail time.

Employment law in Japan: the Civil Code, the Labor Standards Act and work rules collide (with a cameo by Northwest Airlines!)

Japan and the US supposedly operate on fundamentally different legal systems. Japan has a “civil law” system where all the rules ultimately have some source in a neatly-organized set of statutes, whereas the US follows the English “common law” system of letting ancient court cases govern large areas of law, such as contracts and real estate. Although this is what you’ll learn in a Law 101 class, the distinction is actually not so simple in practice. Both systems are fundamentally patchworks of overlapping statutes and judicial fiat.

Japanese employment law is a good example of this. The Civil Code (民法), which is the general basis of private legal relations in Japan (contracts, property and familial relationships), has some basic rules governing employment and labor contracts. The Labor Standards Act (労働基準法), enacted by the Diet after World War II, goes into more detail about workers’ particular rights. Since then, there have been even more statutes covering family care leave, temp staff dispatching and other more minute areas, and there have been a number of precedents which seemingly overwrite the statutes altogether. Lifetime employment, arguably one of the key principles of Japanese employment law, is not enshrined anywhere in the Japanese code books; it comes entirely from court cases playing fast and loose with the Civil Code.

In practice, people usually look to expert advice to figure out what’s going on. One of my favorite online resources is a law firm called Eiko, an outfit of eight horribly serious-looking Japanese lawyers and one not-so-Japanese lawyer based in Osaka. I have no clue how good they are in the courtroom, but they put out four short articles each month in Japanese through their “Business Law Front Line!” (ビジネス法務最前線！) newsletter. You can subscribe here.

This week, one of their topics is employer liability for economy-induced work stoppages. This is a phenomenon you’ve probably heard about in the news: many Japanese companies are shutting down entire lines and telling their employees to take some time off. The full article, by attorney Yukari Ikeno, is here. Here’s a translation of the meat of it:

Under the Labor Standards Act, when work stops “due to the fault of the employer [the company],” the company must pay wages (or salary) at no less than 60% of the ordinary rate.

On the other hand, under the Civil Code, when an employee is unable to provide labor “due to the fault of the creditor [the company],” the employee does not lose their right to receive the full amount of their salary.

Although it is hard to interpret which of these two standards applies to form a duty to pay, the Supreme Court held, in its decision of July 17, 1987 on the Northwest Case (ノースウエスト事件), that if the Civil Code standard is fulfilled, the worker may claim the full amount of their salary under the Civil Code provision.

As some additional color (and because I love to talk about the history of Japanese aviation), this was a case from the late 70s which arose during a Northwest Airlines employee strike in Tokyo. The strike forced the Tokyo station to close, halting Northwest’s continuing service to Osaka and Okinawa. Northwest told its employees in the latter cities (who were not striking) to stay at home and cut their salary for the duration. The Supreme Court used this opportunity to state that the Civil Code provision covered a wider range of issues than the Labor Standards Act provision — and then said that it didn’t really matter, because the strike was caused by the union and therefore the employees had no right to invoke either provision.

Continuing:

This interpretation gives rise to doubt as to why the Labor Standards Act, a law for the purpose of protecting workers, provides for a lower standard of payment than the Civil Code. It’s a bit confusing, but here is how we understand this point:

Under the Labor Standards Act, even language similar to that of the Civil Code would be rigidly construed against the employer from the general legal standpoint of protecting workers. Thus we understand that the company has an obligation to pay 60% or more in any case, except in cases of force majeure such as a factory being destroyed in an earthquake.

On the other hand, under the Civil Code, as the language states, when the employee has become unable to provide their labor, the employee must prove that there is some fault on the part of the company, thus limiting, moreso than the Labor Standards Act, the cases in which the liability of the company may be found.

So compensation under the Labor Standards Act, despite being lower in amount, also greatly relaxes the worker’s responsibility to provide evidence, and is therefore viewed as protecting the worker.

Views diverge as to whether losses from the current worldwide recession can give rise to the 100% payment under the Civil Code. One can believe that these would have to be determined judicially on a case-by-case basis.

Oh no! Litigation! But wait, there’s a solution:

To avoid this sort of dispute, a company should preventively provide in its rules of employment that “for days when a work-stoppage allowance is paid, the worker may not claim any salary in excess thereof.”

That’s why your company writes really long rules of employment; they don’t want to have to go through all that just to find out how much they owe you. That said, such a provision would likely be more of a deterrent than an actual bar to claiming full salary, since the law still applies regardless of what the work rules say.

Read (part of) the unofficial final volume of Doraemon that the MAN doesn’t want you to see!

Doraemon fans: In you’re like me and missed this scandal back in 2007, take a look at this Flash sample of the dojinshi “final volume” of Doraemon that was suppressed by publisher Shogakukan for basically becoming too popular. This is just a sample, but the early pages promise much intrigue – Doraemon’s battery dies when Nobita is still a boy, so he vows to bring his best friend back to life by becoming the world’s premiere robotics engineer.

Here is a video of a 2007 Japanese news story describing the scandal.

According to Wikipedia, Japan’s copyright laws, based on a 1997 Supreme Court case, hold that while there is no copyright on a manga character, depicting those characters in a specific manga without permission would constitute a copyright violation. Usually, the publishers do not take action against dojinshi publishers because they are a valuable way for fans to get the most out of their favorite characters, and they serve as practice to develop the next generation of artists. However, this case “crossed a line” –  Shogakukan and Fujiko Productions were apparently worried that giving readers the impression that the Doraemon series is over would dampen interest in future movies or other derivative ventures. They demanded that the man cease selling the manga and give them whatever money he made from it, demands which the author agreed to. Tragically, it appears that he gave up drawing manga entirely following the scandal.

(h/t to Aceface for the links)

Important Japan visa rule update

According to the Ministry of Justice website, starting April 1, 2010, anyone extending their Japanese visa or changing their residency status will be required to show a valid health insurance card/booklet. The relevant portions are below.

平成２２（２０１０）年４月１日以降申請時に窓口において保険証の提示を求めることとしています。

８. 社会保険に加入していること
社会保険への加入義務がある場合には，当該義務を履行していることが必要です。
なお，平成２２（２０１０）年４月１日以降は，申請の際に窓口で健康保険証の提示を求めることとなります。

While technically the rules have already required registration in the national health system (technically it is a duty of almost all residents, citizens included) there has not previously been any penalty for non-registration, although I hear a history of insurance non-registration it may cause problems when applying for permanent residency or citizenship. Note that although in principle residents are supposed to be registered in both the national health insurance and the pension scheme, these regulations refer only to the health system, and it does not seem that non-registration in the pension scheme will have any effect on visa renewals.

I have met an awful lot of foreign residents of Japan over the years who have never bothered to register for either public social insurance program and have never had any trouble over it, but this will not be the case in the future. Any Japan resident foreigners not registered in the national health insurance who are thinking of extending their stay past their current visa term had better look into registration ASAP.

HIV testing for visas

In a blog post earlier Andrew Sullivan wrote that:

the US is the only developed country – and one of only a handful of undeveloped countries – that still tells the world that people with HIV are dangerous pariahs, who need policing at borders and deporting if discovered.

When I went to study abroad in Taiwan 2005-2006 they actually did require an HIV test to get a visa, as did China, who abandoned the policy with much fanfare a year or two ago. However, I never saw an announcement that Taiwan did so, but I also could not find any mention of it in the current visa application procedures. Does anyone know if Taiwan has abandoned the HIV test policy, and if so, when? I suspect that they ditched the policy around the same time China did, but did so quietly to avoid drawing any attention to the fact that they continued a system criticized as backwards and uncivilized when the PRC was doing it.

Paypal coming to Japan

UPDATE: Just to be clear, this article is about an expansion of Paypal’s services in Japan  into bank remittances. Paypal already offers some services in Japan linked to credit cards. Thanks to commenter Adrian for pointing that out.

The Nikkei has an article noting that thanks to law revisions set to pass in the current Diet session, restrictions on the remittance business will be substantially relaxed in a move that will finally allow Paypal to offer its services in Japan. The article contains an example of how sending money will change starting some time in 2010:

Current money transfer services offered by banks are not ideal for sending small amounts of money overseas. For example, a major Japanese bank charges 5,500 yen for wiring money to a U.S. bank account regardless of the amount.

PayPal and other online money-transfer services offer a cheaper, more convenient alternative to traditional bank wires. High fees have stopped a grandmother in Nagoya from sending a 5,000 yen birthday gift to a grandchild in the U.S., since she would have to spend more on fees than the amount she is sending.

If an online money transfer service such as PayPal can be used, the grandmother probably would have sent the money without hesitation because fees for sending 5,000 yen to the U.S. using that service come to no more than 200 yen.

This sounds tempting, but the numbers presented are misleading, especially in this English-language summary of the original Japanese article.

According to the print edition of Nikkei, Paypal will charge fees of 1.9-2.7% of the amount, plus an additional 30 yen fee, in contrast to banks which take a flat fee (usually around 4,000 yen, but Lloyds charges just 2,000) plus a foreign exchange fee of around 1%. So while the service looks cheap for small amounts like the example above, in reality the fees are cheaper than banks only up to around 150,000 yen, according to a company spokesperson quoted in the article (vs. Lloyds that number falls to 100,000 yen). For debt slaves like me who routinely send 200,000 yen overseas each month, this would make no difference at all.

And of course Paypal’s service has other benefits besides overseas remittances – it’s mainly a convenient way to pay for online auction purchases (without giving out credit card info) and other ventures that can turn into profits similar to those on https://bitcoinapex.com/, so maybe it will catch on here as well. Other benefits touted by the article included 24-hour service and “lower fees” though they did not present examples as to how the fees for domestic transfers would be cheaper.

Plus other businesses such as NTT Docomo are planning their own services, so maybe at some point someone will find a profitable way to make overseas remittance cheaper.

Difficulties for rare names in China

Just two weeks ago I posted a link to an article about a Taiwanese “collector” of rare Chinese family names. While his activity may seem to be a mere eccentric hobby, documenting these names and their lineage does have important historical significance, as seen in recent moves by the Chinese government. According to a NYT article from April 20, China has been phasing in an electronic ID card system which does not support many of the exotic antique characters used in rare family names, and their solution has been to ask people affected to change their names.

One of the main examples given in the article is the character [ed: oops, actually the character they reference was too obscure for me to enter using either the Japanese or Chinese IME. I confused it with the still-rare but far more common “驫”. 驫 (骉 simplified, as it would be written in the PRC), pronounced “Cheng” according to the article, but “Biao” according to the dictionary. Apparently the software used for the Chinese ID system does not support this character, despite the fact that I had no problem drawing it on the IME pad in Windows Vista using my house, and it can even be found in the Japanese language Wiktionary.

(Before I go on, I want to note briefly that the word 漢字, meaning “Chinese character” is used in Chinese, Korean and Japanese, respectively pronounced hanzi, hanja, and kanji. When using one of these three words I am specifically referring to the use of Chinese characters in that country/language.)

According to the article, the computer system currently in use by the government supports 32,252 hanzi, out of well over 50,000 found in the most comprehensive classical dictionaries. The government is currently working on a restricted list of characters approves for use in modern Chinese writing, which they estimate will exceed 8000 characters-a significant drop from even the current de-facto list of 32,252.

While these sorts of legal restrictions on one’s very name name may sound stereotypically totalitarian for the communist People’s Republic, in fact both Japan and Korea have had similar restrictions for a long time. In Japan, the Law on Household Registration (Koseki-hou) governs the kanji which may be used in personal names. Under current regulations, kanji for personal names may only be chosen from either the Joyo Kanji (Kanji for Daily Use, the list that forms the basis of public school Japanese education, Japanese proficiency tests, etc.), consisting of 1945 characters, or the  983 character Jinmeiyou-kanji (Kanji for Use in Personal Names). Both of these lists have been revised, usually expanded but sometimes with deletions, over the years.

There was an amusing incident during the 2004 round of additions to the Jinmeiyou list. The committee proposed an initial list of 489 additions purely based on statistical analysis of the commonality of various characters in modern Japanese text, and then posted it online to seek comments. While many of the names were popular, 9 of them were the target of objections from the public, and were removed from the list. Those 9 kanji were: 糞(feces) 屍(corpse) 呪(curse, magic spell) 癌(cancer) 姦(rape) 淫(lewd obscene) 怨(hatred, grudge-as in the horror film) 痔(hemorrhoid) and 妾(concubine). (Bonus word trivia: two of these kanji combine to make the word for necrophilia.) As a foreigner who has only been studying Japanese for around 8 years, I recognized all of 9 of these on first glance and could read all but two(淫 and 妾), so I would assume that any adult native-reader of Japanese knows all of these moderately obscure characters and many hundreds more, despite their not being on the official government lists.

(The current Jinmeiyo list may be seen conveniently at Wikipedia.)

In South Korea there are 5151 characters allowed, even though most people normally write their name in the natively developed hangul alphabet, which has replaced hanja in everyday use. While traditional Korean family names are all hanja, personal names may also contain hangul. Interestingly, the Korean list of name characters is written using the same Chinese characters as the Japanese one-인명용 한자（人名用漢字）, although like other shared Sinic words it is pronounced in the Korean fashion “inmyong yo hanja”.

North Korea legally eliminated hanja from their language some time ago, so even though most names can be traced etymologically to Chinese, all legal names today are written in hangul in all circumstances.

Vietnam was also historically a Chinese-character culture (known locally as chữ nôm), but they abandoned it early in the 20th century. While as much of their vocabulary is descended from Chinese words as in Japan or Korea, today they write purely in the Roman alphabet and the original Chinese characters for words or names are found only on old art or documents, or in dictionaries.

Taiwan, as befitting its role as the bastion of traditional Chinese writing, has no restrictions on hanzi name use. Hong Kong and Macao, which while part of the PRC also maintain traditional writing and also have a separate legal code from the PRC, presumably also have the same level of name freedom as Taiwan.

Now, what about immigrants? When I was first studying in Japan as an undergraduate, I know a girl whose name contained the hanja “妵” (pronounced “ju” in Korean), which is not just absent from the Japanese name-kanji list, but also not even found in standard Japanese fonts or dictionaries! On her Foreigner Registration Card, this character was pasted in using an obviously different font, as it couldn’t be typed normally. While I do not know the actual law, I assume that this is the traditional custom for dealing with domestically disallowed hanzi/hanja names in Japan, or domestically disallowed hanzi names in South Korea. (In South Korea today, Japanese names are usually rendered in hangul based on their pronunciation, and the actual kanji are ignored.) However, when a foreigner naturalizes in Japan their legal name must follow the local rules, which may force them to adopt a less exotic name. Of course, even should they be forced to change their name, nothing will keep them from using the original one in all circumstances except legal documentation.

To summarize, the freedom of choice for Chinese characters in names of the four countries which still use such names is as follows:

Taiwan* > China > South Korea > Japan

*Hong Kong and Macau may be at this level, confirmation needed

Although the NYT article implied that the imposition of restrictions on the hanzi in names is threateningly totalitarian, in fact Chinese citizens will still have FAR more options than Koreans or Japanese even if restricted to the 8000+ character list, and South Koreans today have nearly twice as many options as the Japanese do, despite that fact that most South Koreans can hardly read any but the most common of hanja. Of course, it is only in Japan where one has the option of choosing a reading for ones name that has no historical relationship whatsoever with the kanji themselves.

Surprise! You’re Brazilian

Awesome citizenship story from an Asahi reporter (translated from page 11 of the Asahi Shimbun April 10 morning edition):

[Correspondent’s Notebook] Sao Paolo, Brazil: A Dubious Fine

I paid a fine the other day.

The reason? It was my duty as a Brazilian.

I was born in Brazil due to my father’s job, but after returning to Japan at age 1 I was raised as a Japanese and never doubted otherwise.

All that changed when the decision was made to dispatch me to Sao Paolo. I headed to the Consulate General Brazil of Brazil in Tokyo to apply for a visa, but they refused to issue one, telling me, “You are a Brazilian.” They said I had no standing to get a visa as visas can only be issued to foreigners.

Brazil is a jus solis country, meaning that you automatically receive citizenship if you are born there. Well I never… Slightly confused, I accepted the green Brazilian passport and headed to my post.

In Sao Paolo, I tried to get my ID card and was told I needed to register to vote. On top of that, since I had neglected to register at age 18, they ordered me to pay a fine. Voting is mandatory in Brazil.

Though I retorted, “Until recently I was a Japanese living in Japan,” the official was ready with a comeback: “Just the other day, a native came in here and insisted, ‘I was living in the jungle until now, so I had no idea about registering to vote.’ But rules are rules!”

Not totally satisfied with the explanation, I gave up and paid the fine of 3.5 real (160 yen or USD $1.60).

(Ari Hirayama)

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Check the Adamukun blog for Adamu’s shared articles and recommended links.