Corporate Governance und die Reform des Gesellschaftsrechts in Japan

Abstract

I. EinleitungII. Die historische Entwicklung der Corporate Governance in Japan 1. Corporate Governance vor dem Zweiten Weltkrieg2. Die Corporate Governance nach dem Zweiten WeltkriegIII. Die jüngsten Entwicklungen im Bereich der Corporate Governance: die Reformen des Handelsgesetzes 2001/20021. Verlauf der Reformen2. Die Reformen im EinzelnenIV. Zukünftige ReformenV. Abschliessende Bemerkungen ; Since the 1980s, the English technical term "corporate governance" has been used as a catch phrase in the Japanese debate about reforms of company law that would provide a legal framework for installing effective management and monitoring systems within companies, particularly stock corporations. The subject of this debate is by no means a new one. A vivid, ongoing discussion about the appropriate model for company structures has continuously taken place since the 19 th century; only the label "corporate governance" is new. This paper outlines the development of the discussion as well as its impact on the Japanese legislature, and illustrates the recent law reforms concerning corporate governance in Japan.Before World War II, Japanese commercial law and hence the provisions concerning the establishment of companies were greatly influenced by German law. At the end of the 19th century, the Japanese government employed the German law professor Carl Friedrich Hermann Roesler to deliver a draft for a Japanese Commercial Code that eventually provided the basis for the later-enacted Shôhô. The rules for the corporate governance of Japanese corporations were based on the German concept at that time. The establishment of the infamous zaibatsu in the prewar era was also influenced by the then current German concept of effective structuring of large corporate groups. One major issue of concern in the corporate governance of Japanese companies before World War II was the apparent ineffective monitoring by the controlling body, especially in stock corporations.This lack of control over the management of Japanese companies by the controlling body continued to exist as a problem even after extensive postwar reforms of company law. These reforms were initiated by American occupation authorities and were in line with American law. Although the technical structure of Japanese companies became more similar to American companies as a result, in reality the corporate governance of Japanese firms differed greatly. A series of startling corporate and financial scandals in the 1990s revealed the weak points of the Japanese system of corporate governance and prompted the Japanese government to launch drastic reforms of corporate and financial law. The latest reforms particularly affected the requirements for and proceedings of a derivative suit (2001) and the corporate governance system (2001/2002). The most significant change in corporate governance was the further installation of structures of American corporate governance. For that purpose, several new requirements for the establishment and reorganization of Japanese companies were introduced into the Commercial Code. Japanese companies now have to decide whether they will keep their corporate governance structure and adjust it according to the new law, or adopt a totally new system. The most significant feature of the new type of system, which is limited to larger stock corporations, is the installation of a board system in line with American company law. The board is to function as the controlling body of the company, with the management in the hands of so-called "executive managers" (shikkô-yaku). It is mandatory for companies that introduce the new board system to install at least three committees: a nomination committee, an audit committee, and a remuneration committee. Many Japanese companies are currently examining whether they should restructure corporate governance by introducing this new board system. Some companies have already completed their reorganization in this manner, including the Hitachi corporate group with all of its eighteen affiliated companies.Further reforms of corporate law are on the Japanese government's agenda, including the introduction of digital shares instead of share certificates, and the linguistic reform of codes in commercial and corporate law.In his conclusion, the author endorses the recent reforms of company law concerning corporate governance in Japan. Especially for foreign investors, finding a corporate governance system they are already familiar with might be an incentive to invest money in Japanese companies.(The Editors)