Unfair Competition Prevention Act Article 26: Witness Examination Outside of Trial Dates
When a confidentiality order is issued, it is possible that witness examinations or procedures requiring statements from the defendant may not be conducted appropriately. This is because witnesses or others might inadvertently mention matters specifying trade secret constituent information.
For this reason, in cases where a confidentiality order has been issued, the court may, under prescribed requirements, conduct witness examinations or defendant questioning outside of trial dates.
Note that witness examinations outside of trial dates in criminal proceedings are permitted under Articles 158 and 281 of the Code of Criminal Procedure. These provisions were established to ensure that witness examinations are conducted appropriately, taking into account the importance of the witness, their age, and other attributes, in situations where such examinations cannot be conducted properly in an open court.
On the other hand, witness examinations outside of trial dates under Article 26 of the Unfair Competition Prevention Act are intended to protect trade secrets by preventing their content from being revealed in an open court. Article 26 of the Unfair Competition Prevention Act is a newly established provision because (i) its purpose and objectives differ from those of Articles 158 and 281 of the Code of Criminal Procedure, and (ii) the factors to be considered also differ.
・Article 26 of the Unfair Competition Prevention Act
(Witness Examination Outside of Trial Dates)
Article 26: When a court has issued a confidentiality order, if it examines a witness, expert witness, interpreter, or translator, or if a defendant makes a voluntary statement, the court shall hear the opinions of the public prosecutor and the defendant or their defense counsel. If the examination of or statement by the witness, expert witness, interpreter, or translator, or the act of requesting a statement from the defendant or the defendant's statement itself, pertains to matters specifying trade secret constituent information, and if there is a risk that revealing this in an open court would cause significant hindrance to the business activities of the victim, the defendant, or others based on said trade secret, and the court finds it unavoidable to prevent this, it may conduct said examination or the procedure for requesting a statement from the defendant as prescribed in Article 311, paragraphs (2) and (3) of the Code of Criminal Procedure outside of trial dates.
(2) The provisions of Article 157, paragraphs (1) and (2), Article 158, paragraphs (2) and (3), Article 159, paragraph (1), Article 273, paragraph (2), Article 274, and Article 303 of the Code of Criminal Procedure shall apply mutatis mutandis to the procedure for requesting a statement from the defendant under the preceding paragraph. In this case, the term "defendant or defense counsel" in Article 157, paragraph (1), Article 158, paragraph (3), and Article 159, paragraph (1) of said Code shall be read as "defense counsel, co-defendant, or their defense counsel"; the term "defendant and defense counsel" in Article 158, paragraph (2) of said Code shall be read as "defense counsel, co-defendant, and their defense counsel"; the term "trial date" in Article 273, paragraph (2) of said Code shall be read as "date of the procedure for requesting a statement from the defendant under the provisions of Article 26, paragraph (1) of the Unfair Competition Prevention Act"; the term "trial date" in Article 274 of said Code shall be read as "date, time, and place of the procedure for requesting a statement from the defendant under the provisions of Article 26, paragraph (1) of the Unfair Competition Prevention Act"; and the terms "documents stating the results of the examination of witnesses and other persons, verification, seizure, and search, as well as seized items" and "documentary evidence or physical evidence" in Article 303 of said Code shall be read as "documents stating the results of the procedure for requesting a statement from the defendant under the provisions of Article 26, paragraph (1) of the Unfair Competition Prevention Act" and "documentary evidence," respectively.
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