Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
Bribery & Corruption (2nd edition)
Yes. The law distinguishes between the bribery of a public official and that of private persons. There is a specific term for public official in China, which is “state functionary”, which refers to anyone who performs public service in state organs, state-owned enterprises and institutions, and the other persons who perform public service according to law. The Criminal Law sets up a clear division between the bribery of a state functionary and the bribery of a private person, and also provides for different crimes depending on the involvement of the duty, or influence of the state functionary. For example, offering bribes to an executive in a private entity would be convicted of the crime of offering bribes to a non-state functionary, and subject to criminal liabilities ranging from criminal detention to imprisonment of up to 10 years, with a monetary penalty when the involved amount is huge. As for the act of offering bribes to a state functionary, it would constitute the crime of offering bribes to a state functionary, and subject to criminal liabilities of up to life-time imprisonment, along with the confiscation of property.
French criminal law does distinguish between bribery of a public official or a private person.
With respect to the offences of corruption and trading in influence, a public official is strictly defined as a person holding public authority, discharging a public service mission, or holding a public electoral mandate (e.g. Minister, Member of Parliament, policeman, public servant) This definition applies to both French and foreign public officials, as well as to persons working in international organisations.
Moreover, the French criminal code specifically provides for bribery offences in relation to French or foreign legal professionals such as judges, jurors, or clerks.
German criminal law distinguishes between offering and receiving bribes of public officials (section 331 – 336 of the Criminal Code), of voters and delegates (sections 108b and 108e of the Criminal Code), in relation to the sports sector (sections 265c and 265d of the Criminal Code) as well as offering and receiving bribes in business transactions, which includes the public health sector (section 299 – 301 of the Criminal Code). Furthermore the Criminal Code differentiates between “public officials”, “European officials” and “persons entrusted with special public service functions”. Each term is defined in section 11 of the Criminal Code. According to section 11 No. 2 of the Criminal Code a “public official” is a person who, under German law, is a civil servant or judge, and otherwise carries out public official functions or has otherwise been appointed to serve with a public authority or other agency or has been commissioned to perform public administrative services regardless of the organisational form chosen to fulfil such duties. As shown in the “Ecclestone-case”, it can be controversial on the definition of a “public official”.
The Criminal Code defines bribery of public officials and bribery in business transactions differently (see question 3).
There is a distinction between bribery of public officials and private persons. Both are punishable under Greek Law.
A public official is a person entrusted permanently or temporarily with the exercise of duties directly related to the State or public law entities.
Article 263A of the Greek Criminal Code (as amended) has extended the notion of “public official” including employees of entities of private law established and/or controlled by the State or of other public law entities, domestic banks, members of the judiciary (also arbitrators), members of international and transnational bodies, mayors and/or members of local governments or local parliaments, members of international organizations, members of EU Bodies, individuals that exercise public service for a foreign country.
Certain provisions of the 2018 Act relate to all persons whether public or private whereas others relates to public officials only.
For example, section 5 of the Act applies to gifts, consideration or advantages offered or given as an inducement to, or reward for, or otherwise on account of, any person doing an act in relation to his or her office, employment, position or business. This would include government officials.
Section 6 of the Act applies where a person corruptly offers, gives or agrees to give, a gift, consideration or advantage in order to induce another person to exert an improper influence over an act of a foreign government official in relation to their office, employment, position or business.
Section 7 of the Act prohibits an Irish government official from doing any act in relation to his office or position for the purpose of corruptly obtaining a benefit.
‘Foreign Officials’ include members of the government of any other State, members of parliament of any other State, members of the European Parliament, members of the Court of Auditors of the EU, members of the European Commission, public prosecutors in another State, Judges of another State, jury members, and any other person employed on or behalf of the public administration of another State.
Italian law distinguishes between bribery of a public official and bribery of private persons, in particular:
- articles from 318 to 322 bis of the Criminal Code regulate bribery offences relating to domestic or foreign public officials and provide for penalties for both such persons and the private persons who bribe (or attempt to bribe);
- articles 2635 and 2635 bis of the Italian Civil Code regulate the so-called ‘private bribery’. Private bribery occurs when a director or a general manager or a manager in charge of preparing the corporate accounting documents or a statutory auditor or a liquidator ask or receive undue money or any other benefit (or accept the promise to be given such money or benefit) in order to perform a conduct in breach of their duties. The said articles provide for penalties for both such persons and the private persons who bribe (or attempt to bribe).
The ‘public official’ is defined by article 357 of the Criminal Code as a person who is in charge of performing a public, legislative, juridical or administrative function. On top of that, article 358 of the Criminal Code defines the ‘person in charge of a public service’ (which is as well subject to public bribery and corruption provisions) as a person who, for whatever reason, provides a public service.
Under Belgian law, a distinction is indeed made between bribery of a public official and bribery of private persons.
Under articles 504bis-504ter of the Criminal Code, both active and passive private bribery are covered.
Passive private bribery is the act of a person, in his capacity as director, manager of a legal entity, trustee or appointee of a legal entity or as a natural person requesting, accepting or receiving an offer, promise or benefit of any kind, directly or through intermediaries, on his own behalf or on behalf of a third party, in order to induce him to perform or refrain from performing an act falling within the scope of his responsibilities, or made easier by his position, without the authorisation of and without informing the board of directors, general shareholders’ meeting, principal or employer.
Active private bribery is the act of making an offer or promise, or offering a benefit of any kind to a director, manager of a legal entity, trustee or appointee of a legal entity or a natural person, directly or through intermediaries, on his own behalf or on behalf of a third party, in order to induce that person to perform or refrain from performing an act falling within the scope of his responsibilities, or made easier by his position, without the authorisation of and without informing his board of directors, general shareholders’ meeting, principal or employer.
Public bribery is punishable pursuant to articles 246-249 of the Criminal Code.
Passive public bribery is the act whereby a person exercising a public office, directly or through intermediaries, on his own behalf or that of a third party, requests, accepts or receives an offer, a promise or a benefit of any kind in order to conduct one of the acts mentioned in article 247 of the Criminal Code.
Active public bribery consists in proposing, directly or through intermediaries, to a person exercising a public office an offer, promise or benefit of any kind on his own behalf or that of a third party in order to conduct one of the acts in article 247 of the Criminal Code.
Pursuant to article 247 of the Criminal Code different criminal sanctions apply depending on the purpose of the bribery:
a) with the purpose of inducing the person exercising a public office, to perform a lawful act that is not subject to payment of his office (art. 247, § 1, of the Criminal Code);
b) with the purpose of inducing the person exercising a public office, to perform an unlawful act in the exercise of his office or to induce such person to refrain from performing an act that is part of his duties (art. 247, § 2, of the Criminal Code);
c) with the purpose of inducing the person exercising a public office, to commit a crime or offence in connection with the exercise of his office (art. 247, § 3, of the Criminal Code);
d) with the purpose of inducing the person exercising a public office, to use their established or possible influence acquired by virtue of his office to obtain the performance or omission of an act of a public authority or a public administration (art. 247, § 4, of the Criminal Code).
Articles 246 and 247 of the Criminal Code cover all categories of persons exercising any public office, and irrespective of their status: federal, regional, community officials, provincial or municipal officers or officials, elected representatives, public officers, persons who temporary or permanently exercise a part of the public authority, and even private persons charged with a public service mission.
Persons who are assimilated to a person exercising a public office are:
- persons who are a candidate for a public office;
- persons who give the impression that they will hold a public office;
- persons who, by making use of false capacities, make believe that they exercise a public office.
Specific sanctions are provided for when the act of bribery concerns a police officer, an officer of judicial police or member of the Public prosecution (art. 248 Criminal Code), an arbitrator (art. 249, § 1, Criminal Code), a judge-assessor or a member of a jury (art. 249, § 2, Criminal Code), or a judge (art. 249, § 3, Criminal Code).
Article 250 of the Criminal Code extends the bribery offences as described in articles 246-249 of the Criminal Code to the bribery of persons who exercise a public office in a foreign country as well as the bribery of persons who exercise a public office in an international public organisation.
The laws of Japan in principle distinguish between bribery of a public official and bribery of private persons. A ‘Public official’ is defined under the Penal Code as ‘a national or local government official, a member of an assembly or committee, or other employee engaged in the performance of public duties in accordance with laws and regulations.’
In the case of a private person performing a service related to public interest, such person is treated as a ‘quasi-public official’ and regulated in accordance with the same laws and regulations that are applicable to public officials, including the Penal Code. Examples of such quasi-public officials are officers and employees of the Bank of Japan, national universities, state-owned enterprises, and notaries public. Even if a private person is not categorized as a quasi-public official but performs a service of a public nature, bribery of such private person is regulated under specific laws applicable to such person. Such laws can include, for example, the Companies Act, the Financial Instruments and Exchange Act, and the Bankruptcy Act.
‘Foreign Public Officer’ under Article 18 of the UCPA is defined under paragraph 2 of Article 18 of the Act as (i) a person engaged in public service for the national or local government of a foreign state, (ii) a person engaged in the business affairs of an entity established under a special foreign law to carry out specific business affairs in the public interest, etc.
The Bribery Act is applicable to the public, public officers and private entities. The law does not distinguish between bribery of a public official and bribery of private persons per se and therefore there are is no separate definitions for bribery of a public official and bribery of a private person. A legal obligation is placed on state officers, public officers and persons holding a position of authority in a public or private entity to report within 24 hours, any knowledge or suspicion of instances of bribery, to EACC. Failure to report this is an offence. Article 260 of the Kenyan Constitution defines ‘public officer’ to mean any state officer or any person, other than a state officer who holds a public office. ‘Public office’ on the other hand is defined as an office in the national government, county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.
The FCPA prohibits the bribery of a foreign public official and does not reach bribery of a private person unless that private person is acting on behalf of a foreign official. A ‘foreign official’ is defined as ‘any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organisation, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organisation’. 15 USC section 78dd-1. The FCPA does not distinguish between low-ranking and high-level officials of foreign governments—any such foreign government employee or official may fall within the definition of ‘foreign official’.
Because ‘foreign official’ includes those acting on behalf of any foreign governmental ‘department, agency, or instrumentality’, the term has been interpreted broadly by US enforcement authorities to include employees and agents of state-owned enterprises. DOJ and SEC, A Resource Guide to the U.S. Foreign Corrupt Practices Act at 20 [2012, updated 2015]. To determine whether a foreign entity is an ‘instrumentality’ of a foreign government under the FCPA, a fact-specific inquiry is made into whether the government controls the entity and whether the entity performs a government function. In United States v. Esquenazi, 752 F3d 912 (11th Cir. 2014), the US Court of Appeals for the Eleventh Circuit sought to determine the contours of the term ‘instrumentality’ in the FCPA and provided a non-exhaustive list of factors to consider.
(a) Whether the government controls the entity
(i) How is the entity formally designated by the foreign government?
(ii) Does the foreign government own a majority interest in the entity?
(iii) Can the foreign government hire and fire the entity’s principals?
(iv) Do the entity’s profits, if any, go directly into the foreign government’s fisc?
(v) Does the foreign government fund the entity, if necessary?
(b) Whether the entity performs a government function
(i) Does the entity have a monopoly over the function it carries out?
(ii) Does the government subsidize the costs associated with the entity’s provision of services?
(iii) Does the entity provide services to the public at large in the foreign country?
(iv) Do the foreign government and the public perceive the entity to be performing a governmental function?
United States v. Esquenazi, 752 F3d 912, 926 (11th Cir. 2014), cert. denied, 135 SCt 293 (2014); accord United States v. Duperval, 777 F3d 1324 (11th Cir. 2015).
As opposed to other jurisdictions, Mexican law only provides specific definitions and typology for bribery of public officials and does not include specific provisions in connection with the bribery of private persons. Notwithstanding the fact that certain illicit conducts -mostly framed as fraud- may fall within the scope of the general concept of “private” bribery, there is no specific provision in Mexican law neither defining nor sanctioning the bribery of private persons.
Public official is defined in the LGRA as such person holding an employment, position or commission in public entities, whether federal or local, in accordance with the provisions of Article 108 of the CPEUM, that is, elected representatives, members of the Federal Judicial Power, officials and employees and, in general, any person who performs a job, position or commission of any nature in the Congress or in the Federal Public Administration, as well as in autonomous governmental organizations.
For purposes of the CPF, public official means any person who performs a job, position or commission of any nature within the Centralized Federal Public Administration or in Mexico City, decentralized bodies or agencies, state companies (or similar organizations and companies), public trusts, state productive companies, autonomous constitutional bodies, legislative power known as Congress of the Union, or in the Federal Judicial Power, or that handles federal economic resources.
The Brazilian legal framework has not adopted the concept of corruption in the private sector or commercial bribery.
Nonetheless, there is a broad concept for public officials. Public official is anyone who works for any level, branch of agency of the government or entity owned by the government. This concept is extended to anyone who works for a private company that is retained to provide a public service.
Under the Brazilian Criminal Code, a public official as one who, whether temporarily or officially, with or without remuneration, holds a public position, job, or duty. In addition, paragraph one of Article 327 extends the definition of a public official to include whoever performs work in a position, job, or function in a quasi-governmental company, and whoever works for a private outsourced company contracted to carry out an activity that is typical of the Brazilian Public Administration.
Additionally, a foreign public official is the one who, even transitorily or without remuneration, holds a position, job or duty in governmental entities or diplomatic representation of a foreign country. Further, a person is held equivalent to a foreign public official when holding a position, job, or duty in companies directly or indirectly controlled by the public administration of a foreign country or in international public organizations.
Yes, the two principal statutes distinguish between the bribery of public officials and bribery of private persons. The Crimes Act regulates bribery of public officials, as well as judges, parliamentarians and foreign officials. The Secret Commissions Act regulates the bribery of any other legal persons, including individuals and corporations.
An ‘official’ is defined under the Crimes Act (section 99), to mean ‘any person in the service of the Sovereign in right of New Zealand (whether that service is honorary or within or outside New Zealand) or any member or employee of any local authority or public body or any person employed in the education service.'
There are different bribery offences for public official and private persons, although the necessary elements of the offences are essentially the same (see answer to question 3).
Bribery of public officials is defined in the Crimes Act as when a person corruptly gives, receives, accepts or obtains a bribe for himself, herself, or any other person, with intent to influence that person to act or refrain from acting in their official capacity.
Bribery in the private sector is defined in the Secret Commissions Act as when a person corruptly gives, agrees, or offers to give an agent (who works on behalf of the principal) a gift or other consideration to induce or reward an agent’s action with respect to their principal’s affairs or business.
At the outset, the Danish Criminal Code distinguishes between three types of bribery; 1) “public active bribery” which is governed by section 122, 2) “public passive bribery” which is governed by section 144, and 3) “private bribery” which is governed by section 299(2), which applies to both “active” and “passive” bribery of private persons.
As mentioned, section 122 governs “public active bribery” which means the act of giving, offering or promising a bribe to a public official. Accordingly, it follows from section 122 that: Any person who unduly gives, promises or offers to someone performing a public function or office with a Danish, foreign or international public organisation a gift or another benefit to make the relevant person perform or fail to perform such function or office is sentenced (…).
Section 144 of the Danish Criminal Code mirrors section 122 in the sense that section 144 prohibits any individual exercising a domestic, foreign or international public function from unduly receiving, demanding or agreeing to receive a gift or another benefit.
It is clear from the wordings of sections 122 and 144 that the provisions must be interpreted broadly and in accordance with the principles of the anti-corruption conventions ratified by Denmark. Accordingly, the provisions cover persons elected to, employed by or acting on behalf of any Danish public body (state and municipal alike), as well as persons with a similar relationship to either a foreign state or an international organisation (such as the UN, the OECD or NATO). As the provisions must be understood to reflect OECD guidelines and similar instruments, a public body includes functions carried out by limited companies, etc. on behalf of a public body. Consequently, “public official” must be understood broadly under Danish anti-bribery law.
Section 299(2) of the Criminal Code governs bribery in the private sector. It follows from section 299(2) that a fine or imprisonment” … is imposed on any person who receives, demands or agrees to receive a gift or another benefit for himself or others in a manner contrary to his duty of managing the property entrusted to him by another person, and on any person who grants, promises or offers such gift or benefit”.
The law makes a distinction between bribery of a public official and bribery of private persons, considering the latter less severe. Thus, the definition of a public official provided by the Criminal Code establishes that: ‘(1) For the purposes of criminal law, public servant is the person who, on a permanent or temporary basis, with or without remuneration:
a) shall exercise the duties and responsibilities, set under the law, to implement the prerogatives of the legislative, executive or judiciary branches;
b) shall exercise a function of public dignity or a public office irrespective of its nature;
c) shall exercise, alone or jointly with other persons, within a public utility company, or another economic operator or a legal entity owned by the state alone or whose majority shareholder the state is, responsibilities needed to carry out the activity of the entity.
(2) At the same time, for the purposes of criminal law, the following shall be deemed a public servant: the person who supplies a public-interest service, which they have been vested with by the public authorities or who shall be subject to the latter’s control or supervision with respect to carrying out such public service.’
On the other hand, the stipulations regarding bribery shall apply accordingly to acts committed by or in connection with the persons who carry out, on a permanent or on a temporary basis, with or without a remuneration, a duty irrespective of its nature in the service of a natural person of those provided under Article 175 par. (2) – ‘the person who supplies a public-interest service, which they have been vested with by the public authorities or who shall be subject to the latter’s control or supervision with respect to carrying out such public service’ – or within any legal entity.
Thus, bribery is sanctioned with respect to both public officials and private persons. In the case of private persons, however, the penalty is reduced by a third.
The primary corruption offences under section 5 and 6 of the PCA apply to both the private and public sectors.
However, the law distinguishes between the private and public sectors in that there is a presumption of corruption where gratification has been given to public officials under Section 8 of the PCA. Section 8 of the PCA provides as follows:
8. Where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification has been paid or given to or received by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved.
Section 8 of the PCA defines a public official as “a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body”.
Section 2 of the PCA defines a “public body” widely as “any corporation, board, council, commissioners or other body which has power to act under and for the purposes of any written law relating to public health or to undertakings or public utility or otherwise to administer money levied or raised by rates or charges in pursuance of any written law”.
There are also specific offences under the PCA which relate to the public sector, in particular:
- Corruptly procuring the withdrawal from a government tender (section 10 of the PCA);
- Bribery of a member of the Singapore Parliament (section 11 of the PCA); and
- Bribery of a member of a public body (section 12 of the PCA).
Further, there are specific offences under the Penal Code which relate to the public sector, in particular:
- The acceptance by a public servant of a gratification or anything of value without any or adequate consideration (section 165 of the Penal Code);
- The acceptance of a gratification by any person in order to influence or to exercise personal influence over a public servant (sections 162-163 of the Penal Code); and
- The acceptance by a public servant of a gratification or anything of value as a reward for doing any official act, outside of legal remuneration (section 161 of the Penal Code).
Under the Penal Code, "public servant" is defined under section 21 of the Penal Code as including:
- An officer in the Singapore Armed Forces;
- A judge;
- An officer of a court of justice;
- An assessor assisting a court of justice;
- An arbitrator or other person to whom any cause or matter has been referred for decision;
- An office holder who holds powers to confine other persons;
- An officer of the Singapore Government;
- An officer who acts on behalf of the Government; or
- A member of the Public Service or Legal Service Commission.
The SCC distinguishes between bribery of public officials, foreign public officials and private individuals.
Public officials within the meaning of the bribery and corruption provisions are officials and employees of a public administrative authority or of an authority for the administration of justice as well as officially appointed experts, translators or interpreters, arbitrators or member of the armed forces, and any individuals fulfilling a public function for Switzerland, a foreign state or an international organization. Hence, under Swiss law a very broad definition of ‘public officials’ applies, which includes categories of individuals that may not be considered government officials elsewhere, potentially including in particular employees of state-owned or state-controlled enterprises.
In practice, the Swiss courts as well as the OAG and PPO apply a very broad interpretation when assessing who qualifies as an official. The authorities rely on a 'functional' notion, based on which anyone in a position to influence business dealings with states or state-owned or controlled entities is deemed to be a foreign official. This is particularly relevant in the context of bribery of foreign officials.
In principle, the same rules apply to the bribery of public officials and private persons. The offence consists in offering, promising or giving an individual an advantage for an act or omission that is contrary to his or her duties or within his or her discretion. In addition, a connection between the granting of the advantage and the official function or, in case of private bribery, a connection to the employment or business activity is required. However, the giving or accepting of undue advantages given not in exchange for an act or omission in breach of a duty or a discretionary decision is not an offence in the private sector.
Bribery of public officials and private persons are prosecuted ex officio, with the exception of minor cases of private bribery that are only prosecuted upon the request of an injured party.
The general offences of bribery in the UK anti-bribery legislation do not distinguish between bribes paid to a public official and those paid in the private sector. However, the Bribery Act does provide an additional offence of bribery in relation to foreign public officials.
The Criminal Code distinguishes between bribery of a public official and bribery of public persons.
In the public sphere, the Criminal Code Section 2 states that a ‘public officer’ includes anyone who holds an office in government, a civil or military commission or any party who is employed in a public department or who is elected or appointed to discharge a public duty.
The Criminal Code criminalise bribery in the private sphere separately under Part X relating to ‘Fraudulent Transactions Relating to Contracts and Trade’ (Criminal Code, Section 426). The Code makes it an offence for a party to bribe an agent to do, or omit to do, an act contrary to her or his duties to a principal. However, unlike the bribery provisions addressing public officials, these provisions specially criminalise the offering of bribes, but not the acceptance of those bribes. While the recipient of the bribe remains distinct, the definition of bribery remains unchanged across the offences.
In the international context, the CFPOA prohibits Canadian individuals and entities from bribing foreign public officials. While the Act does not extent to private persons, the definition of bribery remains broader than that provided in the Criminal Code.
Portuguese law foresees bribery of public officials as well as bribery of private persons.
There is a concept of “public official” specifically designed for criminal law.
The brother notion of Public officials includes the notions of civil servants (defined in Article 386 of the PCC), military personnel (defined in Article 4 of the Military Justice Code), holders of political office and holders of high public office (defined in Articles 3 and 3-A of Law No. 34/1987, of 16 of July).
- Civil servants;
- Administrative officials;
- Arbitrators, jurors and experts;
- Whoever, even temporarily, performs an activity, remunerated or not, falling under the administrative or jurisdictional civil service, performs functions in public-benefit bodies or participates in them;
- Managers, officers of supervisory bodies and employees of public companies;
- Magistrates, officers, agents of public international law organizations;
- Officers who are nationals of other States who commit a criminal infraction (even if partially) in Portuguese territory;
- Whoever acting on behalf of a public international law organization which Portugal is a member of performs functions similar to those of civil servants, administrative officials, arbitrators, jurors and experts or any other activity under the administrative or jurisdictional civil service and commits a criminal infraction (even if partially) on Portuguese territory;
- Magistrates and officers of international courts provided that Portugal has stated it accepts the jurisdiction of such courts;
- Anyone who performs functions within the scope of out-of-court dispute settlement procedures, irrespective of their nationality and residence, whenever the infringement has been fully or partially committed on Portuguese territory; and
- Jurors and arbitrators who are nationals of other States who commit a criminal infraction (even if partially) on Portuguese territory.
- Officers, sergeants and other military belonging to the Armed Forces (Forças Armadas) and the Republican Nacional Guard (Guarda Nacional Republicana);
- Officers in training.
Political office holders:
- The President of the Republic;
- The President of the Assembly of the Republic;
- Members of the Assembly of the Republic;
- Members of Government;
- Members of the European Parliament;
- Members of Government within the Autonomous Regions;
- Members of the representative body of a local authority;
- Holders of political office of public international law organizations and of other States who commit a criminal infraction (even if partially) on Portuguese territory.
Holders of high public office:
- Public managers;
- Holders of management positions in public companies;
- Members of executive bodies in companies which are part of the local public sector;
- Members of the board of public institutes;
- Members of independent public entities established under the Constitution or in law;
- Holders of higher 1st rank management offices and equivalent.
The ACC does not prohibit private bribery, except for the case of financial passive bribery –Article 312 prohibits employees or staff members of financial institutions, or institutions which operate in the stock market, from receiving money or any other economic advantage as a condition to engage in loans, financial or stock capitalization transactions.
However, certain private bribery cases could be construed as fraudulent mismanagement, if a private bribe taker has management functions, and the company suffers economic loss due to the bribe (ACC Art. 173.7).
A new Criminal Code Project Bill, which is starting to be debated by Congress in 2019, does criminalize both active and passive private bribery.
The ACC defines public official as any person who takes part, incidentally or permanently, in the exercise of public functions whether by popular vote or by appointment of the competent authority (art 77). According to the Public Ethics Law, public function means “every activity, permanent or temporary, paid or honorary, performed by a person in the name or service of the State or any of its entities, at any hierarchical level” (Law 25188, art. 1).
In Angola, there is no distinction between the corruption of a public official or a private person