How is bribery defined?
Bribery & Corruption
The definition differs slightly depending on the category of prohibited conduct.
Bribery of Commonwealth public officials involves dishonestly providing or offering a benefit (or causing it to be provided or offered) to a Commonwealth public official. The intention must be to influence the official in the exercise of the official’s duties. The benefit may be intangible, such as the provision of hospitality or entertainment.
The above definition applies to bribery of foreign public officials, save that the intention must be to influence the foreign official in the exercise of the official's duties in order to obtain or retain a business advantage that is not legitimately due, and the benefit being given must not be legitimately due.
The definitions for bribery of state or territory public officials and private bribery vary slightly between each state and territory.
Bribery can be either active or passive. Active bribery involves giving or promising to give a material or personal benefit to a person in relation to his/her holding a public office. Passive bribery, on the other hand, consists in accepting a material or personal benefit, or a promise thereof, in connection with performing a public function.
A bribe is a material or personal benefit. There is no minimal value set to determine when such benefit should be considered a bribe. Polish criminal law does not provide for a definition of a material or personal benefit and limits itself in this scope to the statement that a material or personal benefit is a benefit received for both oneself and for another person (not necessarily a relative). The most obvious form of giving financial benefits is the handing over of money (in cash). However, this might also refer to any increase in assets or decrease in liabilities. There are also views that winning a tender could be a material benefit.
Accepting or offering a bribe is punishable, provided that it is connected with holding a public office. There has to be a link between a bribe and the performance of the duties of a public official, for example, payment in return for a favourable decision. Such connection can be established also if an official is rewarded for his/her previous conduct that was not related to the bribe. The recipient of a bribe does not have to be the person actually authorised to issue a decision or perform an action. It is sufficient if he/she can influence the decision in any way.
Bribery is a punishable offence regardless of the motivation of the perpetrator and the material value of the benefit.
The Public Bodies Act
The principal offences under the Public Bodies Act deal with corruption in Irish public office and apply in situations where a corrupt payment is being made to, or for the benefit of, an office-holder, their special adviser, a director, or an employee of an Irish public body. In these cases, it is an offence for a person to:
- give, promise or offer, solicit, receive or agree to receive,
- for himself, or for any other person,
- any gift, fee, loan, reward or advantage whatsoever as an inducement to, or reward for,
- an office holder or his or her special adviser or a director of, or occupier of a position of employment in, a public body,
- doing or forbearing to do anything in which the public body is concerned.
The term ‘corruptly’ is not defined in the Public Bodies Act.
The Prevention of Corruption Act
The Prevention of Corruption Act prohibits three offences, commencing with corruptly accepting a gift. It is an offence for an agent or any other person to:
- accept, agree to accept, or agree to obtain,
- a gift, consideration or advantage,
- for himself or any other person,
- as an inducement, reward or on account of the agent doing any act, or making any omission,
- in relation to the agent’s office or position, or his principal’s affairs or business.
The second offence is corruptly giving a gift. In this case, it is an offence for a person to:
- give, agree to give or offer,
- a gift, consideration or advantage,
- to an agent or any other person,
- as an inducement to, or reward for, or otherwise on account of the agent doing any act, or making any omission,
- in relation to his office or his principal’s affairs or business.
The third offence is making a false statement whereby a person will be guilty of an offence if they knowingly give to any agent, or an agent knowingly uses with intent to deceive his or her principal, any receipt, account or other document which contains any statement which is false or erroneous or defective in any away, and which to that person’s knowledge is intended to mislead the principal.
A definition of ‘corruptly’ was introduced in 2011 as “acting with an improper purpose personally or by influencing another person, whether by means of making a false or misleading statement, by means of withholding, concealing, altering or destroying a document or other information, or by any other means”. The phrase ‘improper purpose’ is not defined.
The Criminal Justice (Theft and Fraud Offences) Act 2001 (the “Theft and Fraud Act”) incorporates into Irish law the offences of active and passive corruption as set out in the First Protocol to the EU Convention of the Protection of European Communities Financial Interests. While in many ways similar to the offences outlined above, these apply solely to active and passive corruption of officials of the European Communities or member states that damage the EU’s financial interests.
According to Article 5 of the Brazilian Anticorruption Law, “wrongful acts” against national or foreign public administration bodies those carried out be legal entities to the detriment of national or foreign public assets, of public administration principles, or to Brazil’s international commitments, and are defined as follows:
- to promise, offer or give, directly or indirectly, an undue advantage to a public official or to a third party related to him/her;
- to, on an evidenced manner, finance, defray, sponsor or in any way subsidize the performance of wrongful acts;
- to, on an evidenced manner, make use of a third party, either an individual or a legal entity, in order to conceal or dissimulate the legal entity’s actual interests or the identity of those who benefited from the wrongful acts;
- with respect to public bidding and government procurement:
(iv.a) to thwart or defraud, through an adjustment, arrangement or any other means, the competitive nature of public bidding processes;
(iv.b) to prevent, disturb or defraud the execution of any act related to a public bidding process;
(iv.c) to remove or try to remove a bidder by means of fraud or by the offering of any type of advantage;
(iv.d) to defraud public bidding processes or bidding-related contracts;
(iv.e) to create, in a fraudulent or irregular manner, a legal entity with the purpose of participating in a public bidding process or of entering into a contract with the public administration;
(iv.f) to gain undue advantage or benefit, in a fraudulent manner, from amendments or extensions of contracts executed with the public administration without authorization in the Law, in the notice of the public bidding or in the respective contractual instruments; or
(iv.g) to manipulate or defraud the economic and financial balance of the contracts executed with the public administration;
- to hinder investigations or inspections carried out by public agencies, entities or officials, or to interfere with their work, including the activities performed by regulatory agencies and by inspection bodies of the national financial system.
A bribe is paid where a person receives, offers or gives a bribe either (i) intending that, as a consequence, a function should be performed “improperly”; or (ii) where the bribe is or amounts to a reward for “improper” performance.
The Bribery Act provides three examples of when a function would be deemed to have been carried out “improperly”:
a) The person performing it is expected to perform the function or activity in good faith, but does not
b) The person performing it is expected to perform it impartially, but does not
c) The person is in a position of trust, but breaches that trust
The types of functions that are covered by the Bribery Act are as follows:
a) Functions of a public nature
b) Activities connected with a business
c) Activities performed in the course of a person’s employment
d) An activity performed by or on behalf of a body of persons
A corporate or commercial organisation will also commit an offence under Section 7 of the Bribery Act, where a person “associated with” it bribes another person, intending to obtain or retain business for the organisation or to obtain or retain an advantage in the conduct of business for the organisation. This is a strict liability offence that can be committed in the UK or overseas. Note that:
- A person will be “associated with” the company for these purposes where the person acts on an organisation’s behalf. This could include an employee, agent or subsidiary of the organisation. Contractors, suppliers, joint venture entities and joint venture partners may also be associated persons.
- While there is a rebuttable presumption that an employee acts on behalf of his or her organisation, an individual’s association will be determined by reference to all relevant circumstances, not merely the relationship between the individual and the organisation.
- It is a defence for an organisation to prove that it had “adequate procedures” in place to prevent the bribery.
In addition, Section 6 of the Bribery Act includes a specific offence of “bribery of foreign public officials” (FPOs). Broadly, an offence will be committed where a person directly or through a third party offers, promises, or gives a financial or other advantage to an FPO in his capacity as an FPO (or to a third party at the FPO’s request) and intends to obtain or retain business or a business advantage.
For the purposes of the Bribery Act, an FPO includes an individual who: holds a legislative, administrative or judicial position of any kind; exercises a public function for or on behalf of a country or territory outside the UK or for any public agency or public enterprise of that country or territory; or is an official or agent of a public international organisation. Foreign political parties or candidates for foreign political office are not considered FPOs.
The offence is not committed where the FPO is either permitted or required by the written law applicable to the FPO to be influenced in his or her capacity as an FPO. Effectively, this is only likely to provide protection in the very limited circumstances where a written law explicitly permits or requires the payment to the FPO.
A company or another commercial organisation will also commit an offence where a person “associated with” it bribes an FPO, intending to obtain or retain business for the organisation or to obtain or retain an advantage in the conduct of business for the organisation. This is a strict liability offence that can be committed in the UK or overseas.
There is no “set in stone” definition for bribery in a specific law in the UAE, however when one looks the United Nations Convention Against Corruption (UNCAC) which was adopted as per the 2006 Law, specifically Chapter 3, the definition of bribery is defined as being a criminal offence when the following is committed intentionally:
“(a) The promise, offering or giving, to a public official either directly or indirectly, of an undue advantage, for the official himself or another person or entity. In order that the official act or refrain from acting in the exercise of his or her official duties;
(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.”
The Penal Code, supports the above definition.
The scope of the bribery offences under the PCA is defined widely. In particular, under Section 5 of the PCA it is an offence for anyone to:
"(a) corruptly solicit or receive/, or agree to receive for himself, or for any other person; or
(b) corruptly give, promise or offer to any person whether for the benefit of that person or of another person,
any gratification as an inducement to or reward for, or otherwise on account of —
(i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or
(ii) any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned […]" [emphasis added]
Further, under section 6 of PCA it is an offence for an agent to corruptly accept or obtain any gratification in relation to the acts or performance of the principal.
Sections 11 and 12 of the PCA add prohibitions in relation to gratifications for domestic public officials.
The concept of a “gratification” is also defined widely in section 2 of the PCA – covering both monetary and non-monetary benefits including “any other service, favour or advantage of any description whatsoever”. In practice this can include money, gifts, loans, fees, rewards, commissions, security, property or interests in property, employment, and favours.
Different definitions of bribery under the current administrative law and criminal law. Moreover, the connotation and definition of bribery varies from criminal law and administrative law perspectives. From an administrative law perspective, in a broad sense, bribery refers to the act of offering, taking money or goods, or by other means, in violation of the fair competition principle, in order to provide or obtain transaction opportunities or other financial interests.
From a criminal law perspective, there are 10 bribery related crimes stipulated in Criminal Law, which, generally speaking, forbids the act of offering a bribe to any state functionary, and also receiving a bribe from any state functionary. For example, any state functionary who, by taking advantage of his position, extorts money or property from another person, or illegally accepts another person's money or goods in return for securing benefits for the person, would be guilty of accepting bribes.
Bribery is considered both as a serious administrative offence by the LGRA and as a criminal offence by the CPF.
Article 66 of the LGRA defines bribery as the act of promising, offering or giving public officials, directly or through third parties, any benefit outside of their official remuneration, whether money, values, movables or real estate, even by sale at a notoriously lower price according to market, donations, services, employment and other undue benefits for themselves or for their spouses, relatives or for third parties with whom they have professional, labor or business relations, or for partners or companies which the public officials or the aforementioned persons are part of; in exchange for said public officials to perform or refrain from performing an act related to their functions or another public official’s functions, or abuse their actual or alleged influence, for the purpose of obtaining or maintaining a benefit or advantage, regardless of the acceptance or receipt of the benefit by the public officials or the actual outcome.
Article 222 of the CPF defines bribery as the act of giving, promising or delivering any benefit to public officials, for them to perform or refrain from performing an act related to their functions, to their employment, position or commission.
Bribery in the public sector (public officials) is an act of giving (or receiving) or promising (or accepting), directly or through third parties or intermediaries, unlawful benefits or gain to a public official for committing or omitting an act in the course of one’s duties or against one’s duties. The act of the public official maybe concluded or expected to be concluded in the future.
Bribery in the private sector is an act of giving (or receiving) unlawful benefits or gain directly or indirectly as an exchange for an action or omission contrary to one’s duties (as defined by law, contract, agreement etc.).
It is noted that under Greek Law the promise of a benefit, gain etc. constitutes bribery (even before the gain or benefit has been awarded).
Gains and benefits are not only cash/cash equivalents but also intangible benefits (e.g. promotion or favorable transfer to a better position). The unlawfulness of such gains/benefits is judged on an ad hoc basis. Generally, a benefit may be considered unlawful if it goes beyond the standards of proper social and/or professional conduct.
Section 171B of the Indian Penal Code, defines bribery as follows:
171B. Bribery — (1) Whoever—
(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
(ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery:
Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.
Passive corruption crime
The conduct of a civil servant who, by himself or through a third party designated for such purpose and with his consent or ratification, requests or accepts receiving a pecuniary or non-pecuniary advantage as compensation for the commission of a certain act or omission is punishable pursuant to Article 37 (1) and (2) LCMLO, which define the crime of passive corruption for an unlawful act and the crime of passive corruption for a lawful act, respectively.
Thus, the elements of a passive corruption crime are the following:
- the request or acceptance by a civil servant of a pecuniary or non-pecuniary advantage or the promise of such advantage, either directly or through a third party, for himself or for a third party; and
- the act or omission by a civil servant (precedent passive corruption) or the act or omission of an act already carried out by a civil servant (subsequent passive corruption). The act or omission may be contrary to the civil servant’s duties, thus leading to the commission of an unlawful act, or it may correspond to a lawful act where there is no breach of the civil servant’s duties. In any case, the act or the omission must represent consideration for the advantage mentioned in (i).
Only wilful misconduct is punishable.
Active corruption crime
Under the Angolan legal system, active corruption crime is set forth and punishable pursuant to Article 38 LCMLO.
On the one hand, Article 38 (1) LCMLO criminalizes the conduct of each and every person who, by themselves or through an intermediary with the former’s consent or ratification, offer or promise to offer a pecuniary or non-pecuniary advantage to a civil servant or to a third party designated for such purpose, as consideration for the commission of an act or omission contrary to his official duties.
On the other hand, Article 38 (2) LCMLO criminalizes the conduct of each and every person who, by themselves or through an intermediary with the former’s consent or ratification, offer or promise to offer a pecuniary or non-pecuniary advantage to a civil servant or to a third party designated for such purpose, as consideration for the commission of an act or an omission that does not represent a breach of his official duties.
Although there are many different bribery offenses, which vary according to the status of the person who receives the bribe, they all share a common root definition, based on the United Nations Convention against Corruption’s definition of bribery.
Bribery is separated into passive and active bribery.
Passive bribery is broadly defined as the promise, offering or giving, to someone, directly or indirectly, of an undue advantage, for that same person or another person or entity, in order that the person in question act or refrain from acting in the exercise of his or her duties.
Active bribery is broadly defined as the solicitation or acceptance by someone, directly or indirectly, of an undue advantage, for that same person or another person or entity, in order that the person in question act or refrain from acting in the exercise of his or her duties.
In the Military Justice Code, in addition to this definition, the bribed party’s act must also endanger national security.
Danish law does not have a definition of bribery as such. However, bribery is generally interpreted in line with the common definition of abuse of office or position for private gain.
Firstly, the Criminal Code does not define the term bribery. The Criminal Code differentiates between offering and receiving a bribe, both in relation to business transactions (section 299 – 301 of the Criminal Code), officials (section 331 – 336 of the Criminal Code), voters and delegates (sections 108b and 108e of the Criminal Code) and the sports sector (sections 265c and 265d of the Criminal Code). Hence there is no explicit and uniform definition of bribery in the Criminal Code.
Bribery of officials and within business transactions are commonplace. When a bribe takes place as part of a business transaction (sections 229 – 301 of the Criminal Code), it requires certain persons to demand a benefit and/or promise an employee or agent of business, a benefit. However, the owner of a corporate entity is excluded from criminal liability. These sections should protect the free competition from undue influence.
Under sections 331 and 332 of the Criminal Code, a criminal offence in relation to receiving bribes, requires persons in exposed public positions to demand a benefit for violation of an official duty. The law aims to maintain the public’s trust and faith in the integrity of public officials. Therefore, sections 333 and 334 of the Criminal Code penalise offering bribes if the offender promises a benefit to persons in exposed public positions for the above mentioned reasons.
Bribery and corruption are often accompanied by other crimes such as fraud, tax evasion, money laundering, embezzlement and abuse of trust.
There is not a clear legislative definition of bribery. Nevertheless, it is possible to infer it from the relevant bribery–related provisions, for they share the same (or similar) elements. In particular, according to such provisions, it can be deemed to be bribery every act of giving, offering, promising, as well as every act of soliciting, receiving or accepting undue money or any other benefit as reward for some categories of people (e.g. public officials and directors of companies) to perform an improper conduct.
3.1 Passive corruption crimes
The punishment of any civil servant who requests or accepts a bribe in consideration for carrying out (or omitting the carrying out of) a certain act is set out in Articles 337 and 338 PC, which respectively define passive corruption crime for an unlawful act and passive corruption crime for a lawful act.
The elements of such offences are identical, except for the contents of an action committed (or an omission made) by the civil servant.
Where the mentioned action (or omission) is contrary to the duties of the civil servant’s office, the conduct shall be subsumed in the provision of Article 337 PC (passive corruption for unlawful action);
Where the action (or omission) is instead not contrary to the duties of the civil servant’s office, the conduct shall be punishable under Article 338 of the same Code.
The remaining (common) elements of passive corruption crimes are the following:
- solicitation or acceptance of any pecuniary or non-pecuniary advantage or the promise of such an undue advantage by a civil servant him/herself or through a third party with the former’s consent or ratification, either for him/herself or for a third party; and
- carrying out an action or omission, contrary or not to the duties of the civil servant’s office, in consideration for the accepted or requested advantage.
Similarly, to all corruption crimes provided under Macao’s legal system, passive corruption crimes are only punishable when they correspond to wilful misconduct, meaning that, in general, the civil servant will have to warrant that his/her conduct amounts to the commission of a passive corruption crime and, nevertheless, will not refrain from acting that way and will accept that result.
3.2 Active corruption crimes
The punishment of the perpetrator who corrupts a civil servant is set out in Article 339 PC, which defines respectively in section 1) active corruption crime for an unlawful action and in section 2) active corruption crime for a lawful action.
Whoever provides or promises, personally or through an intermediary, with his/her consent or ratification, to a civil servant, or to a third party, upon indication and with the former’s knowledge, an undue pecuniary or non-pecuniary advantage shall commit an active corruption crime.
- Where the advantage is offered or promised as consideration for carrying out an action (or omission) that is contrary to the duties of the civil servant’s office, an active corruptor shall be punished under the terms of Article 339(1) PC.
- Where the advantage is offered or promised as consideration for an action (or omission) that is not contrary to the duties of the civil servant’s office, a perpetrator shall be punished under section 2) of the same article.
Only wilful misconduct is punishable.
HRA: Under Mozambican law, bribery is defined as active corruption. The elements of the crime of active corruption include:
- The offer or promise of offer made by the agent or by interposed person, with his consent or ratification, to an official or other third party, of a patrimonial or non-patrimonial advantage, which is not due; and
- As a counterpart, an employee's practice of (i) an act that implies the violation of the duties of the office or the omission or delay of an act which the official is obliged to perform (active corruption for an illegal act) or (ii) acts that are not contrary to the duties of the office (active corruption for lawful act).
Though there is no legal definition, bribery is interpreted as an illegal profit in connection with one’s duties.
While the English legal system distinguishes ‘bribery’ from ‘corruption’, the French criminal code only refers to the broad term of ‘corruption’. However, the general French approach of ‘corruption’ is more closely linked to the British definition of bribery. Thus ‘corruption’ in the French legal system is defined as an act whereby a person holding a specific public or private sector function, solicits or proffers or accepts or gives a gift, offer or promise to carry out, obstruct or abstain from carrying out an act pertaining directly or indirectly to his function. The offence of corruption is established by Articles 433-1 and 433-2 of the French Criminal Code.
The French criminal code is very comprehensive regarding the material criteria of corruption.
The British definition of corruption is ‘an abuse of a position of trust in order to gain an undue advantage’, which is more likely to correspond to the influence peddling concept in France, which is sanctioned under French law exactly like corruption.
The law distinguishes between active and passive bribery.
Active bribery is an act whereby an undue advantage is offered, promised or granted for the commission or omission of an act that is contrary to duties or depends on the exercise of discretion. Passive bribery occurs when a person solicits, elicits a promise of or accepts an undue advantage, for his or her own benefit or for the benefit a third party, for the commission or omission of an act that is contrary to his or her duties or depends on the exercise of his or her discretionary powers. In the public sector, the act must relate to official activity; in the private sector, it must relate to the professional or business activity.
Additionally, with regard to Swiss public officials, the giving or accepting of undue advantages (gifts) that are offered, promised or granted not in exchange for a specific official act, but rather with a general view to the future execution of official duties, constitutes an offence. This covers payments intended to maintain relationships and facilitation payments.
However, advantages are not undue if they are allowed by staff regulations or when they are of minor value or in line with social customs. Examples for such permitted advantages are customary small Christmas presents to post office clerks, policemen or similar, modest entertainment of public officials on the occasion of a business meeting, or an appreciation gift for firefighters following their assistance.
Under the FCPA, bribery is defined as:
- making a payment or offering, authorising or promising a payment or anything of value,
- to a foreign public official, foreign political party or party official, or candidate for foreign political office, directly or indirectly,
- with a corrupt intent,
- ‘for purposes of
- influencing any act or decision of such foreign official in his official capacity,
- inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official’,
- ‘securing any improper advantage’ or
- inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality’,
- in order to obtain or retain business or direct business to any person.