What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
Bribery & Corruption (2nd edition)
Bribery and corruption in China are governed by authorities in accordance with various laws and legislation. The legal framework could be stratified, by and large, into three levels depending on the severity and identity of the involved individuals. Firstly, there are the laws and regulations under civil, administrative, and economic spheres, such as the Anti-Unfair Competition Law and the Provisional Regulations on the Prohibition of Commercial Bribery, which are the foundations for the wide-spread administrative enforcement against commercial bribery in China. Secondly, there is the Criminal Law and its corresponding legislative and judicial interpretations, which regulate the criminal violations and liabilities. In a more general sense, the disciplines and regulations issued by the Central Committee of the Communist Party of China (“CPC”), which are binding to all the CPC members and stricter in setting a much lower threshold for the constitution of the corruption related violations.
The French legal framework with respect to bribery and corruption can be summarily described as follows:
- The French criminal code (Art.432-11 ff.) provides for the definition and sanctions of offenses such as corruption and influence peddling (trafic d’influence). It also provides for specific forms of bribery within the context of public procurement or public elections (on this point, see 8.).
- Procedural rules applicable to the investigation, prosecution and judgement of bribery cases are contained in the French criminal procedure code (territorial competence, statute of limitations, etc.).
- With respect to the prevention of corruption, legal and regulatory provisions derived from the 2016 Sapin II anticorruption Act, which are now included in the criminal code, provide for various obligations such as a compliance program for businesses of a certain size, or a corporate alert system.
In German law corruption is not legally defined. German law uses the term bribery and can be generally defined as the abuse of entrusted power for private or political gain. German anti-corruption provisions are included in different legislations such as the Criminal Code (StGB), the Administrative Offences Act (OWiG), the Law on Fighting Corruption (Gesetz zur Bekämpfung von Korruption), the Law on Fighting International Bribery (IntBestG) and the EU Anti Bribery Act (EUBestG).
In 2015 the new German Law on Fighting Corruption entered into force to meet the international standards on commercial bribery by implementing both European legislation and the Criminal Law Convention of the Council of Europe. The provisions on corruption in business transactions were expanded, as was the criminal liability of active and passive corruption of foreign public officials. The concept of German Criminal Law only provides for the criminal liability of an individual. It does not provide for the criminal responsibility of a corporate entity. Although German Law follows the concept of individual responsibility, the Administrative Offences Act allows the imposition of a fine to the legal entity. In certain cases the owners and management can also be held responsible for not supervising the necessary measures for preventing criminal offences.
Following continuous amendments of relevant legislation and ratification of all major international instruments against corruption (see below under 19), the main core of anti-corruption legislation is found in articles 235-238 of the Greek Criminal Code, Law 4022/2011 (Anti-Corruption Prosecutor’s Office and procedure), Law 4557/2018 (AML Regulation, sanctions applicable to acts of corruption).
The key Irish anti-bribery and corruption legislation is the Criminal Justice (Corruption Offences) Act 2018 (the ‘2018 Act’). Certain provisions in relation to gifts and hospitality are also set out in the Ethics in Public Office Act 1995 and Standards in Public Office Act 2001 (together the ‘Ethics Acts’).
The key Italian bribery and corruption provisions are laid down by the Criminal Code, the Civil Code and Legislative Decree no. 231, dated 8th June 2001. Furthermore, the guidelines issued by the ANAC (National Anti-corruption Authority) on bribery and corruption, although not legally binding, provide for the best practices that private and public companies should follow to ensure that they comply with Italian and EU regulations.
The Act of 10 February 1999 on the punishment of corruption has introduced the regulations regarding anti-bribery and corruption into the Belgian Criminal Code. Embezzlement, extortion and conflict of interests by persons exercising a public office are punished by articles 240-245 of the Criminal Code. Bribery of persons exercising a public office is punished by articles 246-253 of the Criminal Code (public bribery) and bribery of non-public persons is punished by articles 504bis-504ter of the Criminal Code (private bribery).
Recently a new Criminal Code has been drafted. That new Code has not yet been voted in the Belgian Parliament. According to the information available at the moment (May 2019) the current situation will remain, to a large extent, unaltered.
In Japan, bribery of domestic public officials is prohibited mainly under the Penal Code. Under the Code, a public official who, in connection with his/her duties: (i) accepts, solicits, or promises to accept a bribe (Article 197); (ii) causes a bribe to be given to a third party (Article 197-2); (iii) acts illegally or omits to act appropriately after/before committing a crime under one of the preceding two Articles (Article 197-3); or (iv) accepts a bribe for exertion of influence on other public officers (Article 197-4) shall be subject to criminal liability. A person who gives, offers, or promises to give a bribe of the sort described above also shall be subject to criminal liability.
The National Public Service Ethics Act and regulations issued thereunder provide guidelines regarding gifts and other kinds of benefits that a public official may receive. Members of the Diet and local assemblies are prohibited from accepting bribes for exerting influence in relation to transactions in which a governmental organization is a party, under the Act on Punishment of Public Officials' Profiting by Exerting Influence (APPOPEI). The Political Fund Control Act regulates political contributions (see answer 8). In addition, there are other laws and regulations regulating bribery of ‘quasi-public officials’ as well as private persons who are performing duties relating to the public interest, as described in Answer 4 below.
Furthermore, bribery of foreign public officials is regulated under the Unfair Competition Prevention Act (UCPA). Under the UCPA, offering, promising, or giving bribes to foreign officials in order to obtain an improper business advantage in the conduct of international business is prohibited (Article 18).
Article 10 of the Constitution of Kenya (2010), which is the supreme law of the Republic, provides for Kenya’s national values and principles of governance which binds all State organs, State officers, public offices and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or make or implement public policy decisions. The national values and principles of governance include; good governance, integrity, transparency and accountability.
There are various legislations governing bribery and corruption in Kenya. These include; the Anti-Corruption and Economic Crimes Act, the Ethics and Anti-Corruption Commission Act, the Public Procurement and Disposals Act, the Penal Code, the Proceeds of Crime and Anti-Money Laundering (Amendment) Act, the Leadership and Integrity Act as well as the most recent one being the Bribery Act. The Bribery Act governs the prevention, investigation and punishment of bribery.
Pursuant to Article 2 (5) and 2(6) of the Constitution, the general rules of international law form part of the laws of Kenya and any treaty or convention ratified by Kenya forms parts of the laws of Kenya. These conventions including the United Nations Convention against Corruption and the International Code of Conduct for Public Officials which Kenya has ratified form part of the domestic law in Kenya.
The Foreign Corrupt Practices Act [FCPA], enacted in 1977, governs bribery of foreign public officials and representatives of government-controlled companies. 15 USC sections 78dd-1, et seq. In general, the FCPA prohibits US issuers and their agents, US corporate entities, US citizens, nationals or residents, and foreign nationals while in the United States, from ‘corruptly’ paying, promising, authorising or offering ‘anything of value’ to a foreign public official to ‘influenc[e] any act or decision of such foreign official in his official capacity’ or to secure an improper business advantage. 15 USC sections 78dd-1, 78dd-2, and 78dd-3. The FCPA also includes accounting provisions, which require US issuers to make and keep accurate books, records and accounts and to implement internal accounting controls. 15 USC section 78m.
Several other federal criminal statutes can be implicated in anti-bribery investigations, such as the Travel Act, federal money laundering laws, and federal mail and wire fraud statutes. The Travel Act prohibits ‘travels in interstate or foreign commerce’, or use of ‘the mail or any facility in interstate or foreign commerce, with the intent to . . . distribute the proceeds of any unlawful activity’ or ‘promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity’. 18 USC section 1952. Violations of the FCPA, as well as state laws prohibiting private commercial bribery, are included in the Travel Act’s definition of ‘unlawful activity’. Federal money laundering laws prohibit certain financial transactions using proceeds from specified unlawful activities, including FCPA violations. Mail and wire fraud statutes, which prohibit use of the mail or interstate telephonic, electronic or other wire communication to further any fraudulent scheme to deprive another of money or property, may also be implicated—for example, where a company executive with fiduciary duties is alleged to have failed to disclose bribery as part of a scheme to induce investment. 18 USC sections 1341 and 1343.
The Political Constitution of the United Mexican States (“CPEUM”) sets forth the general basis under which the National Anticorruption System (“SNA”) shall operate, its purpose, integration and standards.
The recently enacted General Law on the National Anticorruption System (2016) establishes the principles for the coordination between all relevant anticorruption enforcement entities, whether federal, state or municipal.
The General Law on Administrative Liabilities (“LGRA”) sets forth the duties and responsibilities of public officials and determines applicable penalties and sanctions to public officials, individuals and corporate entities for certain illegal conducts.
The Organic Law of the Federal Court of Administrative Justice grants authority to the Federal Court of Administrative Justice to impose penalties to public officials, individuals and corporate entities involved in bribery and corruption conducts.
The Organic Law of the Federal Public Administration grants authority to the Ministry of Public Administration to act, prosecute and impose sanctions related with anticorruption matters.
The General Law of the Attorney General’s Office provides the creation of the Specialized Anti-Corruption Prosecutor’s Office, as an independent body in charge of investigating and prosecuting corruption acts.
The Federal Criminal Code (“CPF”), defines the typology of certain criminal offences related with corruption, such as bribery, traffic of influence, embezzlement, illicit enrichment and their applicable criminal consequences.
The Audit and Accountability of the Federation Law governs the authority and powers of the Supreme Federation Audit Office, which is a specialized body dependent of the Chamber of Deputies, which has technical autonomy to audit and oversee the use of public resources by governmental entities.
The Federal Law for the Prevention and Identification of Transactions with Resources of illegal Origin (better known as the “anti-money laundering law”), sets forth the general basis and procedures to identify and prevent activities and transactions involving illegal resources.
In addition to the foregoing, there are certain documents that outline the constitutional principles under which public officials must perform their duties, such as: (i) the Code of Ethics of the Federal Public Officials; (ii) the Integrity Rules of the Public Service; and (iii) the General Guidelines to foster the integrity of public officials and to implement permanent actions encouraging their ethical behavior, through the Committees for Ethics and Prevention of Conflict of Interest.
From a non-legal perspective, there have been some efforts carried out by the private sector to design and deliver anti-corruption guidelines for companies. As a result, reputable and leading business organizations such as the Business Coordinating Council (Consejo Coordinador Empresarial), have issued the Corporate Integrity and Ethics Code, a non-binding code which has been welcomed by the business community in Mexico.
Corruption has been headlined on the Brazilian agenda for the past few years. Despite a robust legal framework, there is a perception that the country faces an endemic scenario.
From an international standpoint, the country is a party to and has ratified the following internal treaties and conventions all of which have become law in Brazil:
a. Inter-American Convention against Corruption of March 29, 1996, promulgated through the Decree 4410/02;
b. the Organization for Economic Cooperation and Development Convention (OECD) on Combating Bribery of Foreign Public Officials in International Business Transactions of December 17, 1997, promulgated through Decree 3678/00;
c. the United Nations Convention against Transnational Organized Crime of November 15, 2000, promulgated in Brazil through Decree 5015/04; and
d. the United Nations Convention against Corruption of October 31, 2003, promulgated in Brazil through Decree 5687/06.
As for the domestic legal framework, the Brazilian Anti-Corruption Law, also known as, Brazilian Clean Company Act (Law No. 12,846 of 2013) sets forth strict civil and administrative liabilities for corruption acts practiced by legal entities.
In addition, individuals can be held criminally liable for bribery of a public official under the Criminal Code (Legislative Decree No. 2,848 of 1940).
Notwithstanding, the current legal framework is far more complex and mainly composed of:
a. Legislative Decree No.2,848 if 1940 (Criminal Code);
b. Law No. 8,666 of 1993 (Public Procurement Law);
c. Law No. 8,429 of 1992 (Administrative Misconduct Law) and;
d. Law No. 12,846 of 2018 (Brazilian Clean Company Act)
e. Decree No. 8,410 of 2015 (Anti-Corruption Decree).
At last, there are scattered norms, codes of conduct, and ethics that apply to public officials, i.e., to the individuals to whom gifts, and business courtesies are directed, but these norms are not applicable to individuals who offer the courtesies.
New Zealand law treats bribery and corruption as criminal matters and there are two principal statutes that apply; the Crimes Act 1961 (Crimes Act) and the Secret Commissions Act 1910 (Secret Commissions Act).
The Crimes Act (Part 6, sections 99 – 106) applies principally to corruption in the public sector. It includes criminal offences such as the corrupt use of official information and the corruption and bribery of the Judiciary, Ministers of the Crown, and Members of Parliament, law enforcement officers and public officials.
The Secret Commissions Act contains bribery and corruption-style offences relevant to the private sector.
New Zealand law also contains many other offences covering corruption-style crimes such as money laundering, fraud, insider trading and market manipulation and disclosure of donor support to politicians.
New Zealand is a signatory to and has ratified certain international treaties, which impose obligations on New Zealand to assist other nations in criminal and non-criminal investigations and proceedings.
The Danish Criminal Code governs bribery and corruption committed in Denmark and in certain circumstances also abroad (see 4. below)
The main normative acts that govern bribery and corruption related crimes in Romania are the Criminal Code and the Law no. 78/2000 on preventing, discovering and sanctioning of corruption acts.
The primary legislation governing bribery and corruption in Singapore is the Prevention of Corruption Act (Chapter 241) (PCA). The main offences under the PCA are set out in sections 5 and 6 which apply to both the private and public sector and prohibit both active and passive bribery.
The Penal Code (Chapter 224) contains further provisions concerning corruption. This includes offences related to bribery of domestic “public servants” under sections 161 to 165 of the Penal Code. In practice, however, the offences under the Penal Code are rarely used to prosecute corruption offences. Prosecutors usually rely on the offences under the PCA instead.
The Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act (Cap 65A) (CDSA) is another legislation to combat corruption. The CDSA criminalises the acquiring, possessing, using, concealing and/or transferring of benefits from criminal conduct such as corruption, and allows for the confiscation of such benefits.
Switzerland has tight criminal laws on corruption, which sanction active and passive bribery of Swiss and foreign public officials as well as active and passive commercial bribery in the private sector. All offences are included in the Swiss Criminal Code (SCC).
Additionally, administrative law includes rules on hospitality, travel and entertainment expenses, as well as provisions on public procurement aimed at preventing bribery and corruption.
The Bribery Act 2010 provides for a general offence of bribery, which criminalises both the receipt and payment of bribes.
The key legislative provisions relating to bribery and corruption in Canada are contained the Criminal Code of Canada (“Criminal Code”), in the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 (“CFPOA”), and, in Quebec, the Quebec Anti-Corruption Act, CQLR, c. L-6.1, s. 17. Simply put, the Criminal Code criminalises the corruption of domestic public officials, and the CFPOA criminalises the corruption of foreign public officials.
Federally, the Criminal Code focus on bribery of public officers, but also criminalise secret payments among private parties. Offences relating to bribery are primarily found in Part IV of the Criminal Code concerning ‘Offences Against the Administration of Law and Justice’.
Criminal Code, Sections 119 to 125 specify various forms of domestic corruption, including:
- Section 119 – Bribery of judicial officers;
- Section 120 – Bribery of officers;
- Section 121 – Frauds on the government;
- Section 122 – Breach of trust by a public officer;
- Section 123 – Municipal corruption;
- Section 124 – Selling or purchasing public office;
- Section 125 – Influencing or negotiating appointments or dealing in offices;
- Section 380 – Fraud; and
- Section 426 – Secret commissions.
Internationally, the CFPOA prohibits Canadian individuals and entities from bribing foreign public officials. The CFPOA creates civil and criminal liability for individuals and entities that engage in bribery or corruption of foreign officials. The CFPOA was the ratifying legislation of the Organisation for Economic Co-operation and Development (“OECD”) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and has been referred to as the Canadian equivalent to the United States' Foreign Corrupt Practices Act.
In addition, there are several federal and provincial acts that address issues relating to lobbying and hospitality.
According Portuguese legal framework, bribery can be prosecuted in many forms such as trading in influence, abuse of function and corruption itself.
Such criminal offenses are regulated in Portuguese Criminal Code (PCC) and also throughout disperse legislation. Such legislation usually enforces EU directives, UN Conventions and other agreements focused against Corruption such as GRECO recommendations(1).
The following legislation relates to Portuguese bribery offenses:
- Article 363 (referring to Articles 359 and 360) of the PCC, regarding bribery per se as a crime against justice;
- Articles 372, 373, 374, 374-A and 374-B of the PCC, concerning different types of corruption in the public sector;
- Articles 375 and 376 of the PCC, regarding embezzlement in the public sector;
- Article 379 of the PCC, concerning graft in the public sector;
- Articles 7 through 9 of Law No. 20/2008 of 21 April regarding corruption in international trade and the private sector.
- Articles 16, 17 and through 18 of Law No. 34/87 of 16 July regarding crimes committed by holders of political office and high public office;
- Articles 36 and 37 of the Military Justice Code (Law No. 100/2003 of 15 November) regarding crimes committed by military personnel;
- Articles 8 and 9 of Law No. 50/2007 of 31 August, concerning crimes committed by sports agents as defined there.
(1) - For instance, Portugal signed international organisations and agreements related to corruption, the most relevant being:
- the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed on 26 May 1997 and ratified on 10 March 2000;
- the Council of Europe Civil Law Convention on Corruption, ratified on 20 September 2001;
- the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the EU, adopted by the Member States on 26 May 1997 and ratified on 3 December 2001;
- the Council of Europe Criminal Law Convention on Corruption, ratified by Portugal on 7 May 2002 and the Additional Protocol to the Criminal Law Convention on Corruption, ratified by Portugal on 12 March 2015, which entered into force on 1 April 2015;
- the EU Convention on the Protection of the Financial Interests of the Communities and Protocols, ratified by all Member States which entered into force on 17 October 2002;
- the UN Convention against Transnational Organized Crime, signed in December 2000 and ratified on 10 May 2004; and
- the UN Convention against Corruption, signed on 7 December 2007 and ratified on 12 September 2007.
Bribery and corruption are criminalized for individual persons in the Argentine Criminal Code (“ACC”), Title XI (“Crimes against the public administration”).
Legal persons’ criminal liability of for bribery and corruption offenses is established in Law 27,401, which entered into force in March, 2018.
In Angola, the legal framework of corruption is governed by:
a) The Law number 3/14, from the 10th of February, Law on the criminalization of crimes related to the money laundry;
b) The Law number 6/99, from the 3rd of September, on the economic crimes.