Cabinet Office Ordinance on Surcharge Pursuant to the Provisions of the Certified Public Accountants Act (Tentative translation)
Based on the provisions of Articles 31-2, 34-21-2 and 34-62 of the Certified Public Accountants Act (Act No. 103 of 1948) and to implement the same Act, a Cabinet Office Ordinance concerning a surcharge is established pursuant to the provisions of the Certified Public Accountants Act as follows.
Chapter 1 Order for Payment of a Surcharge (Article 1)
Chapter 2 Hearing Procedure
Section 1 General Provisions (Articles 2-14)
Section 2 Commencement of a Hearing Procedure (Articles 15-18)
Section 3 Assertions , etc. at a Hearing and Preparation thereof (Articles 19-31)
Section 4 Evidence
Subsection 1 General Provisions (Articles 32-36)
Subsection 2 Examination of a Witness (Articles 37-49)
Subsection 3 Examination of the Respondent (Article 50)
Subsection 4 Examination of Documentary Evidence and Articles of Evidence (Articles 51-54)
Subsection 5 Expert Opinion (Articles 55-59)
Subsection 6 On-site Inspection (Article 60)
Section 5 Decision (Articles 61-68)
Supplementary Provisions
Chapter 1 Order for Payment of Surcharge
(Cases Where Order for Payment of Surcharge May Not be Issued, etc.)
Article 1 (1) The case categorized by a Cabinet Office Ordinance prescribed in Articles 31-2, paragraph (2), item (i) and 34-21-2, paragraph (2), item (i) of the Certified Public Accountants Act (hereinafter referred to as the "Act") shall be the case where changes of numbers or other contents stated in the financial documents (which means the financial documents prescribed in Article 1-3, paragraph (1) of the Act; hereinafter the same shall apply in this Article) set forth in Article 30, paragraph (1) or 34-21, paragraph (2), item (i) of the Act made by misstatements, errors or omissions relating pertaining to said financial documents are minor.
(2) The case categorized by a Cabinet Office Ordinance prescribed in Articles 31-2, paragraph (2), item (ii) and 34-21-2, paragraph (2), item (ii) of the Act shall be the case where auditing or attesting of financial documents conducted by a certified public accountant (including registered foreign certified public accountants prescribed in Article 16-2, paragraph (5) of the Act) or an audit corporation is significantly insufficient in the light of the generally accepted audit standards and practices.
(3) The item categorized by a Cabinet Office Ordinance prescribed in Articles 31-2, paragraph (2), item (iii) and 34-21-2, paragraph (2), item (iii) of the Act shall be the services set forth in Article 2, paragraph (1) of the Act that are provided based on a contract already concluded with the audit client company, etc. (which means the audit client company, etc. prescribed in Article 34-10-4, paragraph (4) of the Act ).
Chapter 2 Hearing Procedure
Section 1 General Provisions
(Purpose)
Article 2 With regard to a hearing procedure pursuant to the provisions of Chapter 5-5 of the Act, in addition to what is provided for in said Chapter, the provisions of this Chapter shall apply.
(Matters To Be Stated in a Document Submitted in a Hearing Procedure)
Article 3 (1) A written answer, brief and any other document submitted by the respondent (which means the respondent prescribed in Article 34-41, paragraph (3) of the Act; the same shall apply hereinafter) or his/her agent in a hearing procedure shall state the following matters, and the respondent or his/her agent shall affix his/her name and seal thereto:
(i) Individual or business name and address of the respondent, and the name and address of his/her agent
(ii) Indication of the case
(iii) Indication of annexed documents
(iv) Date, month and year
(2) Notwithstanding the provisions of the preceding paragraph, if a document set forth in the same paragraph stating the address of the respondent or his/her agent has been submitted, the respondent shall not be required to state in a document to be submitted in a hearing procedure thereafter the address of the respondent and his/her agent of the matters listed in item (i) of the same paragraph.
(3) A brief and any other document that is submitted by a designated official (which means a designated official prescribed in Article 34-43, paragraph (2) of the Act; the same shall apply hereinafter) in a hearing procedure shall state the individual or business name of the respondent and the matters listed in paragraph (1), items (ii) to (iv), and the designated official shall affix his/her name and seal thereto.
(Submission of Document by Facsimile)
Article 4 (1) A document submitted in a hearing procedure, excluding any of the following, may be submitted by transmitting it by facsimile :
(i) A written answer prescribed in Article 34-45, paragraph (2) of the Act
(ii) A document for proving the authority of statutory representation or the authority of the agent set forth in Article 34-43, paragraph (1) of the Act, or any other document for proving important matters in the hearing procedure
(2) When a document has been submitted by facsimile, said document shall be deemed to have been submitted to a hearing examiner at the time the hearing examiner received it .
(3) A hearing examiner may, if he/she finds it necessary in the case prescribed in the preceding paragraph, have the submitter submit the document used for the transmission .
(Notice)
Article 5 (1) An official who carries out clerical work relating to a hearing procedure prescribed in Article 8, paragraph (2) shall, when he/she has given a notice pursuant to the provisions of this Chapter, clarify to that effect and as to the method of the notice in the case record .
(2) There shall be no requirement to give a notice pursuant to the provisions of this Chapter (excluding a notice pursuant to the provisions of Articles 13, paragraph (3) and 23, paragraph (4)), when the location of the person who is to receive the notice is unknown or when such person is located in a foreign state. In this case, an official who carries out clerical work relating to a hearing procedure pursuant to the provisions of Article 8, paragraph (2) shall clarify the grounds therefor in the case record.
(Decision of Hearing Examiners)
Article 6 In cases where a hearing procedure is carried out by a panel, the decision of the hearing examiners shall be made by a majority vote.
(Execution of Duties)
Article 7 (1) A hearing examiner shall execute his/her duties fairly, promptly and independently.
(2) A public prosecutor, an attorney at law or a person who is qualified to become an attorney at law shall be added to a person who is eligible, pursuant to the provisions of Article 34-42, paragraph (2) of the Act, to be designated as a hearing examiner constituting a panel prescribed in the main text of paragraph (1) of the same Article or a sole examiner prescribed in the proviso to the same paragraph.
(Officials Carrying Out Clerical Work Relating to a Hearing Procedure)
Article 8 (1) The Commissioner of the Financial Services Agency shall have his/her officials carry out clerical work relating to a hearing procedure.
(2) An official set forth in the preceding paragraph (hereinafter referred to as an "official carrying out clerical work relating to a hearing procedure") shall carry out clerical work relating to preparing, storing, serving and sending records and other documents in a hearing procedure and a notice pursuant to the provisions of this Chapter under the direction of the Commissioner of the Financial Services Agency or a hearing examiner.
(Capacity of an Adult Ward to Perform Act in a Hearing Procedure, etc.)
Article 9 (1) An adult ward may not perform any act in a hearing procedure except through his/her statutory agent.
(2) The authority of statutory representation shall be proven in writing.
(Agent)
Article 10 (1) The authority of an agent who is an attorney at law or a legal professional corporation shall be proven in writing.
(2) When the respondent intends to seek the approval set forth in Article 34-43, paragraph (1) of the Act, he/she shall submit to the Commissioner of the Financial Services Agency a document stating the name, address and occupation of the person whom he/she intends to appoint as his/her agent, the relationship between said person and the respondent and any other matter by which whether or not said person is suitable as an agent can be sufficiently determined.
(3) The document set forth in the preceding paragraph shall attach a document clearly indicating the authority and scope of authority of the agent.
(4) When the Commissioner of the Financial Services Agency has received a document set forth in paragraph (2) and made a decision on his/her approval set forth in Article 34-43, paragraph (1) of the Act or disapproval, he/she shall notify the respondent thereof.
(5) When the respondent has dismissed his/her agent, he/she shall notify the hearing examiner in writing thereof without delay.
(Form of Copy of Case Record)
Article 11 An official carrying out clerical work relating to a hearing procedure who has prepared a copy required to be prepared pursuant to the provisions of Chapter 5-5 of the Act or this Chapter shall state, subsequent to its contents, that the copy is a true copy of the original, and affix his/her name and seal to the copy, and affix an impression of a seal over each joint of pages or take similar measures.
(Calculation of a Period)
Article 12 (1) Calculation of a period shall be governed by the provisions of the Civil Code (Act No.89 of 1896) pertaining to a period.
(2) When the last day of a period falls under the day listed in any of the items of Article 1, paragraph (1) of the Act on Holidays of Administrative Organs (Act No. 91 of 1988), the period shall expire on the following day.
(Service)
Article 13 (1) When a substituted service pursuant to the provisions of Article 106, paragraph (2) of the Code of Civil Procedure (Act No. 109 of 1996) as applied mutatis mutandis pursuant to Article 34-55 of the Act is made, an official carrying out clerical work relating to a hearing procedure shall notify the person who has received the service thereof.
(2) When an official carrying out clerical work relating to a hearing procedure has made a service pursuant to the provisions of Article 107, paragraph (1) of the Code of Civil Procedure as applied mutatis mutandis pursuant to Article 34-55 of the Act, he/she shall notify the person who has received the service of such fact and the fact that the service of said document is deemed to have been made at the time of sending thereof by registered mail, etc. pursuant to the same paragraph.
(3) The Commissioner of the Financial Services Agency or a hearing examiner may publish in the Official Gazette or newspaper the fact that the service of the public notice has been made. With respect to a service to be made in a foreign state, the Commissioner of the Financial Services Agency or a hearing examiner may give a notice of the fact that the service of the public notice has been made in lieu of publishing the same in the Official Gazette or newspaper.
(Language )
Article 14 (1) The Japanese language shall be used in a hearing procedure.
(2) If a person who participates in a hearing procedure is unable to communicate in Japanese, an interpreter shall attend the hearing procedure.
Section 2 Commencement of a Hearing procedure
(Ruling for the Commencement of a Hearing Procedure)
Article 15 (1) A ruling for the commencement of a hearing procedure pursuant to the provisions of Article 34-40, paragraph (1) of the Act shall be rendered by making a service of a copy of a document stating the following matters (hereinafter referred to as the "written ruling for commencement of a hearing procedure ")
(i) The amount of a surcharge required to be paid
(ii) The fact prescribed in Article 31-2, paragraph (1) or 34-21-2, paragraph (1) of the Act pertaining to the surcharge
(iii) Application of laws and regulations
(iv) The basis of calculation of the surcharge
(v) The date and place of the initial hearing
(2) When the service of the written ruling for commencement of a hearing procedure is made, a written notice stating the following matters shall be attached:
(i) The fact that the respondent or his/her agent is required to appear on the date of hearing
(ii) The time limit for the submission of a written answer
(Change of Date of Initial Hearing, etc.)
Article 16 A hearing examiner may, on a motion or by his/her own authority, change the date or place of the initial hearing, or postpone the time limit for the submission of a written answer if he/she finds that there are reasonable grounds therefor.
(Matters to Be Stated in a Written Answer)
Article 17 (1) A written answer shall state the following matters:
(i) Response to the amount of a surcharge required to be paid
(ii) Acceptance or denial of the matter listed in Article 15, paragraph (1), item (ii)
(iii) Assertions pertaining to the matters listed in items (iii) and (iv) of Article 15, paragraph (1)
(iv) Assertions of the respondent (excluding those listed in the preceding item)
(2) In addition to what is listed in each item of the preceding paragraph, a written answer shall state the postal code and telephone number (including facsimile number) of the respondent or his/her agent.
(Designation of a Hearing Examiner)
Article 18 (1) When the Commissioner of the Financial Services Agency has designated a hearing examiner to be in charge of a hearing case pursuant to the provisions of Article 34-42, paragraph (2) of the Act, he/she shall notify the respondent or his/her agent of the name of the hearing examiner.
(2) When the Commissioner of the Financial Services Agency has designated the chief hearing examiner to be in charge of a hearing case pursuant to the provisions of Article 34-42, paragraph (3) of the Act, he/she shall notify the respondent or his/her agent of the name of the chief hearing examiner.
Section 3 Assertions, etc. At a Hearing and Preparation Thereof
(Tribunal)
Article 19 A hearing shall be conducted at a tribunal of the Financial Services Agency.; provided, however, that a hearing examiner may select a place suitable for a hearing as a tribunal if he/she finds it necessary.
(Request to Be Closed)
Article 20 (1) A request that a hearing be closed to the public shall be made by expressly indicating the scope, reasons and period of the hearing to be closed to the public.
(2) If a hearing examiner intends to make a hearing closed to the public, he/she shall state such fact and the reasons therefor.
(Designation and Change of Date of Hearing and Summons for Appearance Date)
Article 21 (1) The chief hearing examiner shall designate the dates of the second and subsequent hearings.
(2) The dates of the hearings set forth in the preceding paragraph may not be changed unless there are unavoidable reasons therefor
(3) Summons for an appearance date set forth in paragraph (1) shall be made by serving a writ of summons, giving a notice of the date to a person who has appeared for the case in question, or any other method that is found to be appropriate.
(Control and Maintenance of Order of a Hearing)
Article 22 (1) The chief hearing examiner shall control the hearing .
(2) The chief hearing examiner may permit a person to speak or prohibit a person who does not comply with his/her direction from speaking.
(3) The chief hearing examiner may order necessary matters or take necessary measures to maintain order of the tribunal.
(Authority to Ask for Explanation, etc.)
Article 23 (1) The chief hearing examiner, on the date of a hearing or a date other than that date, in order to clarify the matters related to the case, may ask questions of a designated official, or the respondent or his/her agent, or to carry out necessary acts.
(2) A hearing examiner other than the chief hearing examiner, after notifying the chief hearing examiner, may take the measures prescribed in the preceding paragraph.
(3) A designated official, or the respondent or his/her agent, on the date of a hearing or a date other than that date, may request the chief hearing examiner to ask necessary questions.
(4) If the chief hearing examiner or a hearing examiner other than the chief hearing examiner, on a date other than the date of a hearing, has taken the measures pursuant to the provisions of paragraph (1) or (2) with regard to a matter which could cause a material change in the assertions or evidence, he/she shall notify the opponent of the content of such change.
(Consolidation of a Hearing Procedure, etc.)
Article 24 (1) A hearing examiner may order the restriction on offering assertions or evidence in a hearing procedure or separation or consolidation of a hearing procedure, or revoke such order.
(2) A hearing examiner may order the resumption of a hearing procedure that has been concluded.
(Time for Submission of Assertions or Offering of Evidence)
Article 25 Submission of assertions or offering of evidence shall be made at an appropriate time depending on the status of progress of a hearing.
(Formal Matters To Be Stated in a Hearing Record)
Article 26 (1) An official carrying out clerical work relating to a hearing procedure shall prepare a record on each date of a hearing. Such record shall state the following matters:
(i) Indication of the case
(ii) Names of hearing examiners and officials carrying out clerical work relating to the hearing procedure
(iii) Names of designated officials
(iv) Names of the respondent, his/her agent, and interpreter who appeared
(v) Date, time and place of the hearing
(vi) The fact that the hearing was held publically, or, if it was not held publically, a statement to that effect and the reasons therefor
(2) An official carrying out clerical work relating to a hearing procedure shall affix his/her name and seal on the record set forth in the preceding paragraph, and the chief hearing examiner shall affix a seal of approval thereto.
(3) In the case set forth in the preceding paragraph, if the chief hearing examiner is unable to affix a seal of approval, a hearing examiner other than the chief hearing examiner shall affix a seal of approval while appending a supplementary note about the grounds therefor. If any other hearing examiner is unable to affix a seal of approval, it shall be sufficient for an official carrying out clerical work relating to a hearing procedure to include a statement to that effect in the record.
(Substantial Matters To Be Stated in a Hearing Record)
Article 27 A record of a hearing shall contain statements of the summary of assertions and offering and examination of evidence, while clarifying, in particular, the following matters:
(i) Statements by witnesses, the respondent and expert witnesses
(ii) Whether or not witnesses and expert witnesses took oath , and reasons for not having had witnesses or expert witnesses take oath
(iii) Results of on-site inspection
(iv) Matters that were ordered by the chief hearing examiner to be stated and matters that were allowed to be stated at the request of a designated official, or the respondent or his/her agent
(Citation in a Record)
Article 28 A document, photograph or any other object that is found to be appropriate by a hearing examiner may be cited in a hearing record and attached to the case record as part of said hearing record.
(Brief)
Article 29 (1) Assertions in a hearing procedure shall be prepared in writing.
(2) A brief shall be submitted to a hearing examiner while allowing a period necessary for the opponent to make preparations with regard to the matters stated therein .
(3) Two copies (or, when there are two or more opponent parties to whom said document should be sent, the number of copies shall be the number of such parties plus one) of the brief set forth in the preceding paragraph shall be submitted.
(4) The materials cited in the brief shall be attached to each copy of the brief as annexed documents.
(5) An official carrying out clerical work relating to a hearing procedure shall send the brief submitted to the hearing examiner to the opponent of the person who submitted the brief.
(Period for Submission of Brief, etc.)
Article 30 (1) The chief hearing examiner may specify a period in which a brief may be submitted or evidence may be offered.
(2) When the period set forth in the preceding paragraph has expired, a designated official, or the respondent or his/her agent may not submit new assertions or offer new evidence; provided, however, that this shall not apply in a case where the chief hearing examiner finds it appropriate.
(Preparatory Procedure)
Article 31 (1) A hearing examiner, when he/she finds it necessary in order to arrange issues and evidence, may take a preparatory procedure, after hearing the opinion of a designated official, or the respondent or his/her agent .
(2) A hearing examiner may request a designated official, or the respondent or his/her agent to submit a brief.
(3) The provisions of Articles 21 shall apply mutatis mutandis to the date of a preparatory procedure, and the provisions of Articles 22, paragraphs (1) and (2) and Articles 23 to 28 shall apply mutatis mutandis to a preparatory procedure.
(4) A hearing examiner may, on a motion of the respondent or his/her agent, request a designated official to permit said respondent or his/her agent to inspect or copy all or part of the materials proving the matters listed in items (ii) and (iv) of Articles 15, paragraph (1); provided, however, that this shall not apply in the case where the interests of a third party are likely to be harmed or there are reasonable grounds therefor.
Section 4 Evidence
Subsection 1 General Provisions
(Offer of Evidence )
Article 32 (1) A designated official, or the respondent or his/her agent may offer evidence.
(2) Evidence shall be offered by specifically and clearly indicating the fact to be proven thereby and the relationship between such fact and the evidence.
(3) Evidence may be offered prior to the date of hearing .
(4) The provisions of Articles 29, paragraphs (2), (3) and (5) shall apply mutatis mutandis to the document stating an offer of evidence.
(Examination of Evidence by Own Authority)
Article 33 A hearing examiner may conduct examination of evidence by his/her own authority.
(Cases Where Examination of Evidence Is Not Conducted)
Article 34 A hearing examiner shall not be required to conduct examination of evidence that is offered by a designated official, or the respondent or his/her agent, if he/she finds it unnecessary.
(Examination of Evidence by an Authorized Hearing Examiner)
Article 35 (1) When a hearing examiner examines evidence, he/she may order a member of the panel to examine the evidence.
(2) In cases where a hearing examiner has a member of the panel examine evidence pursuant to the provisions of the preceding paragraph, the chief hearing examiner shall designate such hearing examiner.
(Period for Submission of Documents and Other Objects)
Article 36 Documents and other objects that are planned to be used in the examination of a witness, expert witness, or the respondent shall be submitted by allowing a reasonable period before the time of the commencement of said examination of the witness, expert witness or respondent, except for those that are to be used as evidence for denying the credibility of statements by the witness, expert witness, or respondent ; provided, however, that when it is not possible to submit such documents or other objects, it shall be sufficient to submit a copy thereof.
Subsection 2 Examination of a Witness
(Request for Examination of a Witness)
Article 37 A request for examination of a witness shall be made by designating the witness and clearly indicating the expected time for examination.
(Statement of Matters for Examination)
Article 38 (1) When requesting the examination of a witness, three copies (or, when there are two or more opponent parties to whom said document should be sent, the number of copies shall be the number of such parties plus two) of a statement of matters for examination (which means a document stating the matters for examination; the same shall apply hereinafter) shall be submitted at the same time ; provided, however, that it shall be sufficient to submit such copies within a period specified by the chief hearing examiner, if there are unavoidable grounds therefor.
(2) A statement of matters for examination shall be stated individually and specifically insofar as possible.
(3) An official carrying out clerical work relating to a hearing procedure shall send a statement of matters for examination to the opponent of the person who made a request set forth in paragraph (1).
(Matters to Be Stated in a Writ of Summons, etc .)
Article 39 A writ of summons for a witness shall state the following matters and shall have attached a statement of matters for examination:
(i) Indication of the respondent
(ii) Date, time and place for appearance
(iii) Legal sanction against a failure to appear
(Ensuring Appearance of a Witness )
Article 40 When a ruling to the effect that a witness be examined has been rendered, a designated official, or the respondent or his/her agent who requested the examination shall endeavor to have the witness appear on the appearance date.
(Notification of Non-Appearance )
Article 41 A witness shall, when circumstances that prevent him/her from appearing on the appearance date have arisen, report such fact while clarifying the circumstances.
(Oath )
Article 42 (1) A witness shall be directed to take oath before examination.
(2) Taking oath shall be conducted solemnly while standing.
(3) The chief hearing examiner shall have a witness read aloud the written oath and have him/her sign and seal it. When a witness is unable to read the written oath aloud, the chief hearing examiner shall have an official carrying out clerical work relating to a hearing procedure read it aloud.
(4) The written oath set forth in the preceding paragraph shall contain a statement to the effect that the person swears to tell the truth according to the dictates of conscience, without withholding anything or adding anything.
(5) The chief hearing examiner shall, before a witness takes oath, explain the purpose of taking oath and notify the punishment against any perjury.
(Order of Examination )
Article 43 (1) A witness shall be examined in the order of the person who requested the examination, the opponent, and the chief hearing examiner.
(2) The chief hearing examiner, when he/she finds it appropriate, may change the order set forth in the preceding paragraph, after hearing the opinion of a designated official, or the respondent or his/her agent.
(3) A witness shall be examined by a designated official, or the respondent or his/her agent in the following order:
(i) Examination by the person who has requested the examination (direct examination)
(ii) Examination by the opponent (cross examination)
(iii) Further examination by the person who has requested the examination (redirect examination)
(4) A designated official, or the respondent or his/her agent may conduct a further examination with the permission of the chief hearing examiner.
(5) The chief hearing examiner may examine a witness himself/herself, or allow examination by a designated official, or the respondent or his/her agent not only pursuant to the provisions of paragraphs (1) and (2), but whenever he/she finds it necessary.
(6) A hearing examiner other than the chief hearing examiner may examine a witness after notifying the chief hearing examiner.
(Limitation of Question )
Article 44 (1) The examinations listed in the following items shall be conducted for the matters respectively specified in those items:
(i) Direct examination – Matters to be proven and any matters related thereto
(ii) Cross examination – Matters mentioned in the direct examination and any matters related thereto, and matters concerning credibility of statements
(iii) Redirect examination – Matters mentioned in the cross examination and any matters related thereto.
(2) The chief hearing examiner may, on a motion or by his/her own authority, limit a question asked in any of the examinations listed in the items of the preceding paragraph, if he/she finds that said question relates to a matter other than the matters specified in the items of said paragraph and is inappropriate.
Article 45 (1) Questions shall be asked individually and specifically insofar as possible.
(2) A designated official, and the respondent and his/her agent shall not ask the following questions: provided, however, that this shall not apply to the questions listed in items (ii) to (v) in cases where justifiable grounds exist:
(i) A question that insults or confuses the witness
(ii) A leading question
(iii) A question that overlaps with any previous question
(iv) A question unrelated to the issues
(v) A question seeking a statement of opinion
(3) The chief hearing examiner may, on a motion or by his/her own authority, limit a question if he/she finds it to be in violation of the provisions of the preceding paragraph.
(Use of Document, etc. in Questions )
Article 46 (1) A designated official, or the respondent or his/her agent may, with the permission of the chief hearing examiner, ask questions of a witness while using a document, drawing, photograph, model, equipment, or any other appropriate object (hereinafter referred to as a "document, etc." in this Article).
(2) In the case set forth in the preceding paragraph, if the document, etc. has not been subject to the examination of evidence, the opponent shall be given an opportunity to inspect it before the asking of said questions; provided, however, that this shall not apply if the opponent has no objection.
(3) The chief hearing examiner may request a designated official, or the respondent or his/her agent to submit a copy of a document, etc., if he/she finds it necessary for attaching such copy to the record or for any other purpose.
(Prohibition of Making Statements Based on a Document)
Article 47 A witness may not make statements based on a document ; provided, however, that this shall not apply if he/she has obtained permission of the chief hearing examiner.
(Simultaneous Examination )
Article 48 (1) The chief hearing examiner may, if he/she finds it necessary, direct a simultaneous examination of a witness and another witness.
(2) When having directed a simultaneous examination pursuant to the provisions of the preceding paragraph, the chief hearing examiner shall have a statement to that effect included in the record.
(3) When carrying out a simultaneous examination, the chief hearing examiner may examine the witnesses first.
(Powers of an Authorized Hearing Examiner)
Article 49 Where an authorized hearing examiner examines a witness, said authorized hearing examiner shall perform the duties of the chief hearing examiner.
Subsection 3 Examination of the Respondent
(Procedure for Examination of the Respondent)
Article 50 (1) When carrying out the examination of a witness and the respondent, the witness shall be examined first; provided, however, that the respondent may be examined first, after hearing the opinion of a designated official, or the respondent or his/her agent.
(2) The chief hearing examiner may, if he/she finds it necessary, direct a simultaneous examination of the respondent and another respondent or a witness.
(3) The provisions of the preceding subsection (excluding Articles 42 and 48(1)) shall apply mutatis mutandis to the examination of the respondent.
Subsection 4 Examination of Documentary Evidence and Articles of Evidence
(Submission of Documentary Evidence or Articles of Evidence, etc.)
Article 51 (1) When submitting documentary evidence, two copies of the document (or, when there are two or more opponent parties to whom said document should be sent, the number of copies shall be the number of such parties plus one) shall be submitted and two copies (or, when there are two or more opponent parties to whom said document should be sent, the number of copies shall be the number of such parties plus one) of the description of evidence clarifying the title of the documentary evidence, the person who prepared the documentary evidence and the facts to be proven shall be submitted by the time of submission thereof, unless such matters are apparent from the statements in the documentary evidence; provided, however, that it shall be sufficient to submit such copies within a period specified by the chief hearing examiner, if there are unavoidable grounds therefor.
(2) When submitting articles of evidence, two copies (or, when there are two or more opponent parties to whom said document should be sent, the number of copies shall be the number of such parties plus one) of the description of evidence clarifying the titles of the articles of evidence and the facts to be proven shall be submitted; provided, however, that it shall be sufficient to submit such copies within a period specified by the chief hearing examiner, if there are unavoidable grounds therefor.
(3) An official carrying out clerical work relating to a hearing procedure shall send a copy of documentary evidence set forth in paragraph (1) and the description of evidence related to said documentary evidence or the description of evidence related to the articles of evidence set forth in the preceding paragraph to the opponent to whom said document should be sent.
(Attaching of Translation, etc .)
Article 52 (1) When submitting documentary evidence prepared in a foreign language, a translation of the part of the document for which examination is sought shall be attached thereto. In this case, if an official carrying out clerical work relating to a hearing procedure sends the documentary evidence pursuant to the provisions of paragraph (3) of the preceding Article, he/she shall also send such translation at the same time.
(2) If the opponent wishes to state an opinion on the accuracy of the translation set forth in the preceding paragraph, he/she shall submit a document stating such opinion to a hearing examiner.
(Motion Requesting an Order to Submit a Document, etc.)
Article 53 (1) A motion requesting an order to submit a document or any other object (hereinafter referred to as the "document, etc." in this Article) shall be presented in writing by clarifying the following matters:
(i) Indication of the document, etc.
(ii) Purport of the document, etc.
(iii) Holder of the document, etc.
(iv) Facts to be proven
(2) If the opponent wishes to state an opinion on the motion set forth in the preceding paragraph, he/she shall submit a document stating such opinion to a hearing examiner.
(3) A hearing examiner shall order the holder of the document, etc. to submit it if he/she finds that there are grounds for the motion requesting an order to submit the document, etc.
(4) Where a hearing examiner intends to order a third party to submit the document, etc., he/she shall hear the opinion of such third party.
(Method of Submission of Documentary Evidence)
Article 54 (1) When submitting documentary evidence, the original, an authenticated copy or a certified transcript of the document shall be submitted .
(2) Notwithstanding the provisions of the preceding paragraph, a hearing examiner may order the submission of the original.
Subsection 5 Expert Opinion
(Matters for Expert Opinion )
Article 55 (1) When requesting an expert opinion, two copies (or, when there are two or more opponent parties to whom said document should be sent, the number of copies shall be the number of such parties plus one) of a document stating the matters for which an expert opinion is sought shall be submitted at the same time; provided, however, that it shall be sufficient to submit such copies within a period specified by the chief hearing examiner, if there are unavoidable grounds therefor.
(2) An official carrying out clerical work relating to a hearing procedure shall send the document set forth in the preceding paragraph to the opponent of the person who made the request set forth in said paragraph.
(3) If the opponent wishes to state an opinion on the document set forth in paragraph (1), he/she shall submit a document stating such opinion to a hearing examiner.
(4) A hearing examiner shall specify the matters for an expert opinion based on the document set forth in paragraph (1) while also giving consideration to the opinion set forth in the preceding paragraph. In this case, a document stating the matters for an expert opinion shall be sent to the expert witness.
(Method of Taking Oath )
Article 56 (1) A written oath shall contain a statement to the effect that the person swears to give an expert opinion sincerely according to the dictates of conscience.
(2) It shall be also acceptable to have an expert witness take oath by the method of submitting a written oath to a hearing examiner. In this case, the chief hearing examiner shall explain the purpose of taking oath and notify the punishment against any false expert opinion by the method of sending a document stating such matters to the expert witness.
(Method of Making Statements by an Expert Witness )
Article 57 (1) The chief hearing examiner may have an expert witness state an opinion orally or in writing.
(2) Where a hearing examiner has had an expert witness state an opinion, when he/she finds it necessary in order to clarify the content of the opinion or confirm the grounds therefor, the hearing examiner, on a motion or by his/her own authority, may have the expert witness state an additional opinion.
(Questioning of an Expert Witness)
Article 58 (1) Where a hearing examiner has an expert witness state an opinion orally, the hearing examiner may ask questions of the expert witness after the expert witness has stated such opinion.
(2) The questioning set forth in the preceding paragraph shall be conducted by the chief hearing examiner, the person who has requested the expert witness's opinion, and the opponent, in that order.
(3) The chief hearing examiner, when he/she finds it appropriate, may change the order set forth in the preceding paragraph, after hearing the opinion of a designated official and respondent or his/her agent.
(Application Mutatis Mutandis of the Provisions Concerning Examination of a Witness )
Article 59 The provisions of Article 39 shall apply mutatis mutandis to a writ of summons for an expert witness, the provisions of Article 41 shall apply mutatis mutandis to cases where circumstances that prevent an expert witness from appearing on the appearance date have arisen, the provisions of Articles 42, paragraphs (2), (3) and (5) shall apply mutatis mutandis to cases of having an expert witness take oath, the provisions of Articles 43, paragraphs (4) to (6) inclusive, 46 and 48 shall apply mutatis mutandis to cases of having an expert witness state an opinion orally, and the provisions of Article 49 shall apply mutatis mutandis to cases where an authorized hearing examiner has an expert witness state an opinion.
Subsection 6 On-site inspection
(Method of Requesting On-site Inspection)
Article 60 A request for an on-site inspection shall be made by indicating the purpose and place of the on-site inspection.
Section 5 Decision
(Conclusion of a Hearing Procedure)
Article 61 (1) A hearing examiner shall conclude a hearing procedure when he/she finds that assertions and evidence sufficient for the Commissioner of the Financial Services Agency to make a decision set forth in Articles 34-53, paragraphs (1) to (6) of the Act have been submitted.
(2) When the respondent has not appeared on the hearing date, or has not offered any assertions or evidence before leaving the hearing, a hearing examiner may conclude the hearing procedure, if he/she finds it appropriate in consideration of the existing status of the hearing and the status of conduct of the designated official and respondent of the hearing procedure.
(3) When the respondent has not appeared on the hearing date on two consecutive occasions, or has not offered any assertions or evidence before leaving the hearing, a hearing examiner may conclude the hearing procedure; provided, however, that this shall not apply in the case where a hearing examiner finds it appropriate.
(Decision by Which the Fact That a Payment of a Surcharge Cannot Be Ordered Is Clarified)
Article 62 When the proviso to paragraph (3) or (5) of Article 34-53 of the Act is applicable, the Commissioner of the Financial Services Agency shall render a decision clarifying to that effect.
(Matters to Be Stated in a Decision)
Article 63 (1) A decision set forth in Articles 34-53, paragraphs (1) to (5) of the Act shall state the following matters:
(i) Main text
(ii) Facts and reasons
(iii) The respondent and his/her agent
(2) The matter listed in item (i) of the preceding paragraph shall contain the amount of a surcharge to be paid and the due date for payment.
(3) The matter listed in paragraph (1), item (ii) shall contain the facts, application of laws and regulations and the basis of calculation of a surcharge prescribed in Article 31-2, paragraph (1) of the Act or Article 34-21-2, paragraph (1) of the Act pertaining to a surcharge. In this case, the written ruling for commencement of a hearing procedure may be cited.
(4) The decision or ruling set forth in Article 34-53, paragraph (6) of the Act and the preceding Article shall state the fact that either of the following items is applicable and the reasons therefor:
(i) There is no fact prescribed in Article 31-2, paragraph (1) of the Act or Article 34-21-2, paragraph (1) of the Act
(ii) The fact that the proviso to paragraph (3) or (5) of Article 34-53 of the Act is applicable.
(Proportionate Amount in Cases Where Two or More Decisions Are Rendered in Relation to an Order to Pay a Surcharge Related to a Certified Public Accountant)
Article 64 The amount obtained by dividing proportionately in accordance with the amounts calculated for the individual decisions pursuant to the provisions of a Cabinet Office Ordinance prescribed in Article 34-53, paragraph (2) of the Act shall be the amount obtained by multiplying the highest of the amounts calculated for the individual decisions (which means the amount calculated for the individual decisions prescribed in the same paragraph; hereinafter the same shall apply in this Article and the following Article) by the proportion of the amount calculated for said individual decisions to the total amount of the amounts calculated for the individual decisions.
(Proportionate Amount in Cases Where There Is an Existing Decision on an Order to Pay a Surcharge Related to a Certified Public Accountant)
Article 65 The amount obtained by dividing proportionately in accordance with the amounts calculated for the individual decisions on the facts pertaining to the respective new decisions (which means the new decision set forth in Article 34-53, paragraph (3) of the Act) pursuant to a Cabinet Office Ordinance prescribed in the same paragraph shall be the amount obtained by multiplying the amount obtained by subtracting the amount listed in item (ii) of the same paragraph from the amount listed in item (i) of the same paragraph by the proportion of the amount of said individual decisions to the total amount of the amounts calculated for the individual decisions.
(Proportionate Amount in Cases Where Two or More Decisions Are Rendered in Relation to an Order to Pay a Surcharge Related to an Audit Corporation)
Article 66 The amount obtained by dividing proportionately in accordance with the amounts calculated for the individual decisions pursuant to the provisions of a Cabinet Office Ordinance prescribed in Article 34-53, paragraph (4) of the Act shall be the amount obtained by multiplying the highest of the amounts calculated for the individual decisions (which means the amount calculated for the individual decisions prescribed in the same paragraph; hereinafter the same shall apply in this Article and the following Article) by the proportion of the amount of said individual decisions to the total amount of the amounts calculated for the individual decisions.
(Proportionate Amount in Cases Where There Is an Existing Decision on an Order to Pay a Surcharge Related to an Audit Corporation)
Article 67 The amount obtained by dividing proportionately in accordance with the amounts calculated for the individual decisions on the facts pertaining to the respective new decisions (which means the new decision set forth in Article 34-53, paragraph (5) of the Act) pursuant to a Cabinet Office Ordinance prescribed in the same paragraph shall be the amount obtained by multiplying the amount obtained by subtracting the amount listed in item (ii) of the same paragraph from the amount listed in item (i) of the same paragraph by the proportion of the amount of said individual decisions to the total amount of the amounts calculated for the individual decisions.
(Omission of an Odd Amount)
Article 68 When the amount of a surcharge calculated pursuant to the provisions of Articles 34-53, paragraphs (2) to (5) of the Act includes an odd amount of less than one yen, such odd amount shall be omitted.