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Chapter VIII Fair Trade Commission - Section 2 Proceedings

Article 45

(1) Whenever any person believes there to be a fact in violation of the provisions of this Act, the person may report the fact to the Fair Trade Commission and ask for appropriate measures to be taken.

(2) When the Fair Trade Commission receives a report as provided in the preceding paragraph, it must make the necessary investigations into the case.

(3) If a report made pursuant to the provisions of paragraph (1) includes a written allegation with regard to a specific fact pursuant to the provisions of the Rules of the Fair Trade Commission, when the Fair Trade Commission decides to take appropriate measures or to take no measures with respect to the case connected with the report, the Fair Trade Commission must promptly notify the person who made the report to that effect.

(4) Whenever the Fair Trade Commission believes there to be a fact in violation of the provisions of this Act or a fact falling under the purview of a monopolistic situation, the Fair Trade Commission may take appropriate measures on its own authority.

Article 46

(1) If the Fair Trade Commission believes there to be a fact that falls under the purview of a monopolistic situation and decides to take the measures set forth in paragraph (4) of the preceding Article, the Fair Trade Commission must notify the competent minister for the business that the enterprise concerned operates to that effect.

(2) When a notice set forth in the preceding paragraph has been given, the competent minister may express the competent minister's opinion to the Fair Trade Commission regarding the existence or non-existence of a monopolistic situation and other measures that the competent minister considers sufficient to restore competition as provided in the proviso to Article 8-4, paragraph (1).

Article 47

(1) In order to conduct the necessary investigation with regard to a case, the Fair Trade Commission may take the following measures:

(i) order persons concerned with a case or witness to appear to be interrogated, or collect their opinions or reports

(ii) order expert witnesses to appear to give expert opinions

(iii) order persons holding books and documents and other object to submit such objects, or keep such submitted objects at the Fair Trade Commission

(iv) enter any business office of the persons concerned with a case or other necessary sites, and inspect conditions of business operation and property, books and documents, and other materials

(2) If the Fair Trade Commission finds it to be appropriate, it may designate a staff member of the Fair Trade Commission as an investigator pursuant to Cabinet Order, and cause the staff member to take the measures set forth in the preceding paragraph.

(3) If the Fair Trade Commission causes a staff member to conduct an on-site inspection pursuant to the provisions of the preceding paragraph, the Fair Trade Commission must instruct the staff member to carry an identification card and to present it to the persons concerned.

(4) The authority to take measures pursuant to the provisions of paragraph (1) must not be construed as being granted for conducting criminal investigation.

Article 48

Whenever the Fair Trade Commission conducts the necessary investigations for a case, it is to compile a record of the substance of the investigation, and whenever it takes a measure provided in paragraph (1) of the preceding Article, it must clearly record the date on which the measure was taken and the results thereof.

Article 49

If the Fair Trade Commission seeks to issue an order pursuant to the provisions of Article 7, paragraphs (1) or (2) (including when they are applied mutatis mutandis pursuant to Article 8-2, paragraph (2) and Article 20, paragraph (2)); Article 8-2, paragraphs (1) or (3); Article 17-2; or Article 20, paragraph (1) (hereinafter referred to as a "Cease and Desist Order"), it must conduct a hearing of opinions with the would-be addressee of the Cease and Desist Order.

Article 50

(1) In a hearing set forth in the preceding Article, the Fair Trade Commission must notify the would-be addressee of the Cease and Desist Order of the following matters in writing, by a reasonable period of time prior to the date of hearing:

(i) the expected contents of the Cease and Desist Order

(ii) the facts found by the Fair Trade Commission, and the application of laws and regulations thereto

(iii) the date and place of hearing

(iv) the name and location of the organization which has jurisdiction over affairs relating to hearing

(2) The written notice set forth in the preceding paragraph must inform the following matters:

(i) that the would-be addressee of the Cease and Desist Order may state its opinions and submit evidence on the date of hearing or submit a written statement and evidence instead of appearance on the date of hearing.

(ii) that the would-be addressee of the Cease and Desist Order, until the conclusion of the hearing, may request inspection and a copy of evidence pursuant to the provisions of Article 52.

Article 51

(1) The person who has received the notice set forth in paragraph (1) of the preceding Article (hereinafter referred to as the "Party") may appoint agents.

(2) Agents may perform any act relating to an individual hearing on behalf of the Party.

Article 52

(1) The Party may, between the time when notice of a hearing is given pursuant to Article 50, paragraph (1) and the time when the hearing is concluded, submit a request to the Fair Trade Commission to inspect or copy the evidence proving the facts found by the Fair Trade Commission with respect to the case for hearing (as for copy, only limited to evidence prescribed by the Rules of the Fair Trade Commission as one that was submitted by the relevant Party or its employees or that records the statements of the relevant Party or its employees; hereinafter the same applies in this Article). In this case, the Fair Trade Commission may not refuse the inspection or copy unless this is likely to infringe on the interests of a third party or unless there are any other justifiable grounds.

(2) The provisions of preceding paragraph do not preclude the Party from further requesting inspection or copy of the evidence, which becomes necessary in the course of the procedures for hearing.

(3) The Fair Trade Commission may designate the date, time and place for inspection or copy set forth in the preceding two paragraphs.

Article 53

(1) The procedures for hearing is to be presided by the staff member designated by the Fair Trade Commission for each case (hereinafter referred to as the "Designated Staff Member").

(2) The Fair Trade Commission may not designate any staff member who performed the duties of an investigator with respect to the case pursuant to the preceding paragraph and any other staff members who conducted the administrative affairs pertaining to investigations into the relevant case as the presiding staff member for hearing.

Article 54

(1) The Designated Staff Member is to have the investigators designated pursuant to Article 47, paragraph (2) with respect to the case for which the procedures for hearing must be taken and any other staff members who conducted the administrative affairs pertaining to investigations into the relevant case (in the following paragraph and paragraph (3), and Article 56, paragraph (1), referred to as the "investigators, etc.") explain to the Party appearing on the date of hearing the expected content of the Cease and Desist Order, the facts found by the Fair Trade Commission and major evidence among those provided for Article 52, paragraph (1), and the application of laws and regulations to the facts found by the Fair Trade Commission at the outset of the first date of the hearing.

(2) The Party may appear on the date of hearing, state its opinions and submit evidence and also address questions to the investigators, etc. with the permission of the Designated Staff Member.

(3) When the Designated Staff Member finds it necessary on the date of hearing, the Designated Staff Member may address questions to parties, call upon them to state their opinions or submit evidence or request explanation from the investigators, etc.

(4)The proceedings on the date of hearing is not open to the public.

Article 55

The Party may, instead of appearing on the date of hearing, submit written statements and evidence to a Designated Staff Member on or before the date of hearing.

Article 56

(1) The Designated Staff Member may, when it is found necessary to continue the hearing as a result of the statement of opinions, submission of evidence, and questions by the Party, and explanation by the investigators, etc., (in Article 58, paragraphs (1) and (2), referred to as the "statements, etc. by the party"),assign a date for continuation.

(2) In the case referred to in the preceding paragraph, the parties shall be given, in advance, notice in wrinting of the date and the location of the next hearing. However, it would be sufficient to notify parties who appeared on the date of hearing of the above matters which is made on the date of hearing.

Article 57

(1) The Designated Staff Member may, where the parties fail to appear on the date of a hearing without justifiable grounds and to submit written statements or evidence pursuant to Article 55, conclude the hearing without giving any further opportunity for the party to state its opinions and submit evidence.

(2) In addition to the case pursuant to the preceding paragraph, in cases where the parties fail to appear on the date of the hearing and do not submit written statements or evidence pursuant to Article 55, and when the Party is not expected to appear on a date for hearing for a considerable substantial period of time, the Designated Staff Member may ask submission of written statements and evidence of them with the due date, and conclude the hearing when the due date falls.

Article 58

(1) The Designated Staff Member is to prepare a record of the proceedings of the statement of opinions by the Party, etc. on the date of hearing and the record must clearly indicate the outline of the statements raised by parties concerned with respect to the matters listed in Article 50, paragraph (1), items (i) and (ii).

(2) The record set forth in the preceding paragraph must be prepared on each date of the hearing when the statement, etc. by the Party is conducted, and where the statement, etc. by the Party is not conducted, promptly after the hearing is concluded.

(3) The record pursuant to paragraph (1) must be accompanied by the evidence submitted (the written statements and evidence submitted, when written statements and evidence are submitted pursuant to Article 55).

(4) The Designated Staff Member must, promptly after the hearing is concluded, identify the issues of the case for a hearing, prepare a written report containing the relevant issues and submit it to the Fair Trade Commission together with the record pursuant to paragraph (1).

(5) Parties concerned may demand inspection of the record pursuant to paragraph (1) and the written report pursuant to the preceding paragraph.

Article 59

(1) The Fair Trade Commission may, when it finds necessary in light of the circumstances arising after conclusion of the hearing, order the Designated Staff Member to reopen a hearing by returning to the Designated Staff Member the report submitted pursuant to the preceding Article, paragraph (4).

(2) The provisions of the main clause of Article 56, paragraph (2) apply mutatis mutandis to the case of the preceding paragraph.

Article 60

In making a resolution pertaining to the cease and desist order, the Fair Trade Commission must do so only after careful consideration of the contents of the record pursuant to Article 58, paragraph (1) and the report pursuant to Article 58.

Article 61

(1) A Cease and Desist Order must be rendered in writing, and the written Cease and Desist Order is to indicate the measures necessary to eliminate the violation or to ensure that the violation is eliminated, and the facts found by the Fair Trade Commission and the application of laws and regulations thereto, and the chairman and commissioners who attended the meeting pursuant to the provisions of Article 65, paragraph (1) must affix their names and seals thereto.

(2) A Cease and Desist Order is to take effect by serving a copy of the written Cease and Desist Order to the addressee thereof.

Article 62

(1) An order issued pursuant to the provisions of paragraph (1) (including when these are applied mutatis mutandis pursuant to Article 7-2, paragraph (2) and Article 8-3 following the deemed replacement of terms ) or paragraph (4) of Article 7-2, or Articles 20-2 to 20-6 inclusive (hereinafter referred to as a "Payment Order") must be rendered in writing, and the written Payment Order for a surcharge is to state the amount of the surcharge to be paid, the basis of its calculation, the violation to which it pertains, and the time limit for payment, and the chairman and commissioners who attended the meeting pursuant to the provisions of Article 65, paragraph (1) must affix their names and seals thereto.

(2) A Payment Order is to take effect upon service of a copy of the written Payment Order for a surcharge on the addressee thereof.

(3) The time limit for payment of the surcharge set forth in paragraph (1) is to fall on the day on which seven months have elapsed from the day on which the copy of the written Payment Order for a surcharge is issued.

(4) The provisions of Articles 49 to 60 inclusive apply mutatis mutandis to the Payment Order. In this case, in Article 50, paragraph (1), item (i), the term "The expected contents of the Cease and Desist Order" is deemed to be replaced with "Amount of the surcharge intended to be ordered to be paid"; the term "The facts found by the Fair Trade Commission, and the application of laws and regulations thereto" in item (ii) of the same paragraph and the term "the facts found by the Fair Trade Commission" in Article 52, paragraph (1) is deemed to be replaced with "The basis of calculation of the surcharge and the violation related to the surcharge"; in Article 54, paragraph (1), the term "the expected content of the Cease and Desist Order, the facts found by the Fair Trade Commission and major evidence among those provided for Article 52, paragraph (1), and the application of laws and regulations to the facts found by the Fair Trade Commission" is deemed to be replaced with "Amount of the surcharge intended to be ordered to be paid, the basis of calculation of the surcharge and the violation related to the surcharge, and major evidence among those pursuant to Article 52, paragraph (1) as applied mutatis mutandis pursuant to Article 62, paragraph (4) following the deemed replacement of terms."

Article 63

(1) After the Fair Trade Commission has issued a Payment Order pursuant to the provisions of Article 7-2, paragraph (1) (including when these are applied mutatis mutandis pursuant to paragraph (2) of the same Article following the deemed replacement of terms; the same applies in the following paragraph) or paragraph (4), if a final and binding decision on the same case imposes a fine on the person who received the relevant Payment Order, the Fair Trade Commission must issue a decision to modify the amount of the surcharge in the Payment Order by reducing the amount thereof by an amount equivalent to one-half of the amount of the fine imposed in the final and binding decision; provided, however, that this does not apply if the amount of the surcharge in the Payment Order does not exceed the amount equivalent to one-half of the amount of the fine or if the amount after the modification is less than one million yen.

(2) In the case under the proviso to the preceding paragraph, the Fair Trade Commission must render a decision to rescind the Payment Order pursuant to the provisions of Article 7-2, paragraphs (1) or (4).

(3) A decision under the provisions of the preceding two paragraphs must be rendered in writing, and the written decision is to indicate the facts found by the Fair Trade Commission and the application of laws and regulations thereto, and the chairman and commissioners who attended the meeting pursuant to the provisions of Article 65, paragraph (1) must affix their names and seals thereto.

(4) A decision under the provisions of paragraphs (1) and (2) is to take effect by serving a copy of the written decision on the addressee thereof.

(5) In a case under paragraphs (1) and (2), the Fair Trade Commission must refund in money any amount already paid pursuant to the pre-modification or pre-rescission Payment Order (excluding delinquency charges as provided in Article 69, paragraph (2)), if there is some portion that should be refunded.

Article 64

(1) An order issued pursuant to the provisions of Article 8-4, paragraph (1) (hereinafter referred to as a "Competition Restoration Order") must be rendered in writing, and the written Competition Restoration Order is to indicate the measures necessary to restore competition with respect to the goods or services involved in the monopolistic situation, and the facts found by the Fair Trade Commission and the application of laws and regulations thereto, and the chairman and commissioners who attended the meeting pursuant to the provisions of paragraph (1) of the following Article must affix their names and seals thereto.

(2) A Competition Restoration Order is to take effect by serving a copy of the written Competition Restoration Order to the addressee thereof.

(3) No Competition Restoration Order can be executed until it becomes final and binding.

(4) The provisions of Articles 49 to 60 inclusive apply mutatis mutandis to the Competition Restoration Order.

(5) If the Fair Trade Commission intends to make a notification under provisions of Article 50, paragraph (1), as applied mutatis mutandis pursuant to the preceding paragraph, it must consult with the competent ministers for the business operated by the enterprise concerned and hold a public hearing to obtain the opinions of the public.

Article 65

(1) Cease and Desist Orders, Payment Orders and Competition Restoration Orders and decisions under the provisions of this Section (excluding payment decision pursuant to the provisions of Article 70, paragraph (2)) must be reached in meetings of the chairman and commissioners.

(2) The provisions of Article 34, paragraphs (1), (2), and (4) apply mutatis mutandis to the meetings set forth in the preceding paragraph.

(3) For a Competition Restoration Order three or more people must concur, notwithstanding the provisions of Article 34, paragraph (2) as applied mutatis mutandis pursuant to the preceding paragraph.

Article 66

Meetings of the Fair Trade Commission are not open to the public.

Article 67

Any public office or public organization concerned may, in order to protect the public interest, provide its opinions to the Fair Trade Commission.

Article 68

After issuing a Cease and Desist Order or a Competition Restoration Order becoming final and binding , the Fair Trade Commission may, if it considers particularly necessary, take the measures, or order its staff members to take the measures, necessary to ascertain whether the measures ordered in that order are being taken pursuant to the provisions of Article 47.

Article 69

(1) If any person fails to pay a surcharge by the time limit for payment, the Fair Trade Commission must demand the payment by serving a written demand designating a time limit for the payment.

(2) The Fair Trade Commission may, when it demanded payment pursuant to the provisions of the preceding paragraph, collect delinquency charges calculated at a rate of fourteen point five percent per annum of the amount of such surcharge for the number of days intervening between the day after the time limit for payment and the day of payment; provided, however, that this does not apply if the delinquency charges involved are less than one thousand yen.

(3) If the amount of delinquency charges, calculated pursuant to the provisions of the preceding paragraph, includes numbers to the right of the hundreds place, the delinquency charges are rounded down to the nearest hundred yen.

(4) If a person upon whom a demand has been served under the provisions of paragraph (1) fails to make the payment by the designated time limit, the Fair Trade Commission may collect the surcharge to the demand and delinquency charges under the provisions of paragraph (2) pursuant to a disposition of the national tax delinquency.

(5) A statutory lien for a payment to be collected pursuant to the preceding paragraph follows national and local taxes in priority, and the period of prescription for payment follows the rules for national tax.

Article 70

(1) If the Fair Trade Commission has ordered payment of a surcharge pursuant to the provisions of Article 7-2, paragraph (1) (including when these are applied mutatis mutandis pursuant to paragraph (2) of the same Article following the deemed replacement of terms), paragraph (4) of the same Article, or Article 20-2 to 20-6 inclusive, in accordance with the provisions of Article 7-2, paragraph (25) (including when these are applied mutatis mutandis pursuant to Article 20-7 following the deemed replacement of terms), if there is some portion that should be refunded (except in the cases provided in Article 63, paragraph (5)), the Fair Trade Commission shall promptly refund in money any amount already paid pursuant to these provisions.

(2) If the Fair Trade Commission refunds the amount set forth in the preceding paragraph, it must add to the relevant amount the amount calculated by multiplying by a rate specified by Cabinet Order, which must not exceed seven point two five percent per annum, of the amount for the number of days in the period between the day after the lapse of one month from the day after the amount was paid and the day on which the decision was made to pay the refund.

(3) The provisions of the proviso to paragraph (2) and paragraph (3) of the preceding Article apply mutatis mutandis to amounts added pursuant to the provisions of the preceding paragraph.

Article 70-2

(1) When there has been an application for the approval set forth in Article 11, paragraph (1) or (2), the Fair Trade Commission must render a decision to dismiss it if the Fair Trade Commission finds the relevant application to be groundless.

(2) The provisions of Article 45, paragraph (2) apply mutatis mutandis if an application for approval set forth in the preceding paragraph has been filed.

(3) The provisions of Article 63, paragraphs (3) and (4) apply mutatis mutandis to a decision under the provisions of paragraph (1).

Article 70-3

(1) When the Fair Trade Commission has granted the approval set forth in Article 11, paragraph (1) or (2), if the Fair Trade Commission finds that the facts required for the approval have ceased to exist or have changed, it may rescind or modify the approval by a decision.

(2) The provisions of Articles 49 to 60 inclusive and, Article 63, paragraphs (3) and (4) apply mutatis mutandis to a decision under the provisions of the preceding paragraph.

(3) If the Fair Trade Commission finds that maintenance of a Cease and Desist Order or a Competition Restoration Order is inappropriate due to changes in economic conditions or other reasons, it may rescind or modify the Cease and Desist Order by a decision; provided, however, that this does not apply if such action harms the interests of the addressee of the Cease and Desist Order or the Competition Restoration Order.

(4) The provisions of Article 63, paragraphs (3) and (4) apply mutatis mutandis to a decision under the provisions of the preceding paragraph.

Article 70-4

(1) Upon petition by the Fair Trade Commission, if the court finds there to be an urgent necessity of doing so, the court may order the person engaging in an act suspected of violating the provisions of Article 3; Article 6; Article 8; Article 9, paragraph (1) or (2); Article 10, paragraph (1); Article 11 paragraph (1); , Article 13; Article 14; Article 15, paragraph (1); Article 15-2, paragraph (1); Article 15-3, paragraph (1); Article 16, paragraph (1); Article 17; or Article 19 to temporarily stop engaging in the act, stop exercising voting rights, or stop executing business as an officer of a company, or may rescind or modify such order.

(2) The judicial decision under the provisions of the preceding paragraph is made pursuant to the Non-Contentious Case Procedures Act (Act No. 51 of 2011).

Article 70-5

(1) The execution of a judicial decision under the provisions of paragraph (1) of the preceding Article may be stayed by depositing such security deposits or securities (including book-entry transfer bonds, etc., provided in Article 278, paragraph (1) of the Act on Book-Entry Transfer of Company Bonds, Shares, etc.; the same applies in the following paragraph) as the court may fix.

(2) If a deposit has been made pursuant to the provisions of the preceding paragraph and the judicial decision pursuant to the preceding Article, paragraph (1) has become final and binding, the court may, upon the petition of the Fair Trade Commission, impose a non-penal confiscation of the whole or a part of the security deposits or securities deposited.

(3) The provisions of the preceding Article, paragraph (2) apply mutatis mutandis to the judicial decision pursuant to the preceding two paragraphs.

Article 70-6

Documents to be served are fixed by the Rules of the Fair Trade Commission, in addition to what is provided by this Act.

Article 70-7

With regard to the service of documents, the provisions of Article 99, Article 101, Article 103, Article 105, Article 106, Article 108 and Article 109 of the Code of Civil Procedure (Act No. 109 of 1996) apply mutatis mutandis. In this case, the term "court execution officer" in Article 99, paragraph (1) of the Code is deemed to be replaced with "staff members of the Fair Trade Commission", and the term "presiding judge" in Article 108 of the same Code and the term "court" in Article 109 of the same Code is deemed to be replaced with "the Fair Trade Commission".

Article 70-8

(1) The Fair Trade Commission may make service by publication in the following cases:

(i) if the domicile, residence or other place where the would-be service recipient should be served is unknown

(ii) for service that should be made in a foreign country, if the provisions of Article 108 of the Code of Civil Procedure as applied mutatis mutandis pursuant to the preceding Article following the deemed replacement of terms cannot be applied, or if it is recognized that service cannot be made based on the provisions

(iii) if, after the lapse of six months from the date on which a competent foreign government agency was commissioned to make service pursuant to the provisions of Article 108 of the Code of Civil Procedure as applied mutatis mutandis pursuant to the preceding Article following the deemed replacement of terms, documents certifying that service was made are not received.

(2) Service by publication is made by posting on the notice board of the Fair Trade Commission to the effect that the documents to be served will be delivered at any time to the person who is to be served.

(3) Service by publication takes effect after two weeks from the date on which the posting under the provisions of the preceding paragraph began.

(4) Regarding service by publication in lieu of service to be made in a foreign country, the time period set forth in the preceding paragraph is six weeks.

Article 70-9

(1) Notice of a disposition, etc. pursuant to Article 2, item (vii) of the Act on Use of Information and Communications Technology in Administrative Procedure (Act No. 151 of 2002), that is to be effected by the service of documents pursuant to the provisions of this Act or the Rules of the Fair Trade Commission, may not be effected using an electronic data processing system ("electronic data processing system" as provided in Article 4, paragraph (1) of the Act on Use of Information and Communications Technology in Administrative Procedure; hereinafter the same applies in this Article) if the recipient of the notice of the disposition, etc. has not indicated via the method specified in the Rules of the Fair Trade Commission that it will be served, notwithstanding the provisions of the same paragraph.

(2) Whenever a staff member of the Fair Trade Commission engages in administrative affairs related to notice of a disposition, etc. as provided in the preceding paragraph using an electronic data processing system, the staff member must record matters related to the service under the provisions of Article 109 of the Code of Civil Procedure as applied mutatis mutandis pursuant to Article 70-7 following the deemed replacement of terms in a file stored in a computer (including input and output devices) used by the Fair Trade Commission via an electronic data processing system instead of preparing and submitting a document that states those matters.

Article 70-10

In addition to what is provided for in this Act, necessary matters with respect to Fair Trade Commission investigation and any other matters relating to the processing of cases, as well as those with respect to deposits set forth in Article 70-5, paragraph (1) are provided by Cabinet Order.

Article 70-11

The provisions of Chapters II and III of the Administrative Procedure Act (Act No. 88 of 1993) does not apply to Cease and Desist Orders, Payment Orders, Competition Restoration Orders or measures connected with applications for approval provided in Article 70-2, paragraph (1), decisions or any other measures under the provisions of this Section (including measures effected by investigators under the provisions of Article 47, paragraph (2) or by a Designated Staff Member under the provisions of this Section) that have been rendered by the Fair Trade Commission.

Article 70-12

Cease and Desist Orders, Payment Orders and Competition Restoration Orders as well as decisions and any other measures under the provisions of this Section (including measures effected by investigators under the provisions of Article 47, paragraph (2) or by a Designated Staff Member under the provisions of this Section) that have been rendered by the Fair Trade Commission cannot be appealed under the Administrative Appeal Act (Act No. 160 of 1962).



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