Who may be held liable for bribery? Only individuals, or also corporate entities?

Bribery & Corruption

Australia Small Flag Australia

Both individuals and corporates may be held liable.

Poland Small Flag Poland

Polish law provides for liability of both individuals and corporate entities involved in criminal conduct.

The liability of corporate entities for criminal offences is regulated by the Act on Criminal Liability of Collective Entities for Punishable Offences. In general, under the Act, a corporate entity may be liable if an offence mentioned in the Act is committed by a specific person and his/her conduct has resulted or may have resulted in a benefit for the corporate entity.

A corporate entity may be held liable for the conduct of a person acting on behalf or in the interest of the entity within the scope of his/her power or duty to represent it, make decisions on its behalf or exercise internal control, or exceeding his/her power or failing to perform his/her duty, or a person being "an entrepreneur" (a sole trader) who is involved in a business relationship with the corporate entity. However, the liability of the corporate entity is secondary to the liability of the person who committed the offence, i.e. the entity can be held criminally liable only after the person who committed the offence has been found guilty and sentenced by a court of law.

The corporate entity will face liability for the actions of the above-mentioned persons only if its bodies or representatives failed to exercise due diligence in preventing the commission of an offence or it has failed to exercise due diligence in hiring or supervising a person given permission to represent it. The lack of criminal liability of a corporate entity does not exclude the possibility of the corporate entity's incurring civil liability for the damage caused or the administrative liability of the entity.

The current Act on the Liability of Collective Entities for Punishable Acts is commonly recognised as inefficient and is very rarely applied in practice. For this reason the Polish Government is working on a new draft Act on Criminal Liability of Collective Entities for Punishable Offences, which is to make the procedure of bringing corporate entities to account more efficient (see: answer to Question 18).

Ireland Small Flag Ireland

The Interpretation Act 2005 provides that in all Irish legislation, references to ‘persons’ include references to companies and corporate entities.

In addition, under the Prevention of Corruption Act, where a company commits an offence under that legislation, an officer of that company will also be guilty of an offence, if the offence is proved to have been committed with the consent, connivance or approval of the officer, or is attributable to the neglect of the company’s officers. To date, however, there are no recorded prosecutions of companies or their officers under Irish anti-corruption legislation.

See Q18 for possible developments in this regard.

Brazil Small Flag Brazil

Please refer to Question 1. Both individuals and corporate entities may be held liable for bribery.

United Kingdom Small Flag United Kingdom

Both individuals and corporates can be held liable for bribery, with the exception of offences under Section 7 of the Bribery Act, which applies only to corporate bodies.

Senior officers can be held liable for the offences of their organisation if they consented to or connived in the offence and had a close connection to the UK.

UAE Small Flag UAE

Both individuals and corporate entities can be held liable for bribery.

The penalties may differ however.

Individuals found guilty of bribery will face possible jail time whereas corporate entities will typically be issued with a fine.

Both individuals and companies can also face administrative penalties such as sector exclusion and trade license cancellation.

Singapore Small Flag Singapore

The general bribery offences under sections 5 and 6 of the PCA apply to all "persons". The term "person" is defined in the Singapore Interpretation Act to include "any company or association of body of persons, corporate or unincorporated." As such, both individuals and corporates can in principle be held liable.

In practice, however, authorities' enforcement efforts have focussed predominantly on individuals, with prosecutions against corporates for corruption offences being rare to date – although there have been some recent indications of a potential shift in focus towards greater enforcement against corporates.

China Small Flag China

On a criminal level, the bribery acts of an employee of a company could be deemed as either an individual crime, or a unit crime, depending on various considerations including the company’s involvement in the bribery act (such as whether it is the company’s decision to conduct the bribery), the possession of the illegal gains, and whether the bribes are offered in the name of the company or the individual employee. If the charge is raised against the individual employee, then the company would not be held accountable for the crime. However, if the charge is against the company as a unit crime, not only would the company be punished by a monetary penalty, but also the responsible persons (eg, the legal representative, and other persons in charge) could be put into criminal detention or imprisonment.

The administrative enforcement differs as there is a default mechanism in place, that the acts of bribery committed by the employee of the company shall be deemed as the conducts of the company, unless it has evidence to prove that such acts of the employee are irrelevant to seeking for transaction opportunities, or competitive advantages for the employer. Only the company would be imposed with administrative liabilities, including a fine ranging from RMB 100,000 to 3,000,000, confiscation of illegal gains, and revocation of the business license under serious circumstances. No individual liabilities are specified with this regard.

Mexico Small Flag Mexico

Pursuant to article 24 of the LGRA, both individuals and corporate entities may be held liable for bribery and other administrative offences, with the applicable penalties and sanctions described in answer to question 5 above.

Pursuant to Article 11 Bis of the CPF and 421 of the National Code on Criminal Procedures (“CNPP”), both individuals and corporate entities may be held criminally liable for performing acts of corruption, including bribery and, therefore, punished for offences committed on their behalf, for their benefit or through the means they provide.

Greece Small Flag Greece

Liability as a general term may be refer to individuals and entities alike. Liability maybe criminal or civil liability.

Criminal Liability:
Only individuals may be held criminally liable. Under Greek Law, legal entities may not be the subject of criminal proceedings, they can’t be prosecuted or criminally convicted. Entities may be included in a criminal trial not as defendants but as third parties liable for damages. In view of the fact that Greece has undertaken obligations to comply with the international conventions and other instruments for combating corruption, there are provisions for liability of entities within the context of criminal proceedings, which take the form of fines and/or administrative penalties. This liability (connected to the criminal proceedings) is independent from other sanctions (civil or administrative).

Civil Liability:
Individuals and entities may be held liable in the course of civil proceedings. Individuals and entities may also be held liable in the course of independent proceedings conducted by other Regulatory Bodies (e.g. the Capital Market Commission, the Competition Commission, the Central Bank of Greece etc.)

India Small Flag India

Under the PCA, an individual as well as a corporate body who facilitate payment of gratification can be prosecuted for having abetted an offence committed by a public servant punishable under PCA.

However, since the corporate body cannot per se be imprisoned, the Courts in India usually levy monetary penalties on commission of an offence. The persons in charge of or responsible for the conduct of the company’s business at the time that such offences were committed may however face imprisonment.

Angola Small Flag Angola

Criminal liability of corporate entities has only been foreseen in the Angolan jurisdiction since 2011 (in 2011 for money laundering, terrorism financing, etc., and in 2014 for other economic crimes mentioned in the LCMLO, including the crime of corruption). The Angolan Penal Code, originally passed in 1886, does not provide for the liability of corporate entities and, therefore, legal persons cannot be held accountable for any facts (towards the crime of corruption) performed before the entering into force of the LCMLO. The wording of the law is not, however, very clear in terms of how the liability of corporate entities is established or which crimes it encompasses. It does seem that this law generally allows for this type of liability for all crimes it provides for, including for the crime of corruption. For the purposes of the present questionnaire and out of caution we shall assume this to be the correct interpretation of the law.

The consequences vary according to the person liable. In the case of natural persons, the consequences may be either a fine or imprisonment. As for legal persons, the consequences may only be fines and winding up.

Portugal Small Flag Portugal

In addition to individuals, corporate entities may be held liable for bribery under the Penal Code, under Law no. 20/2008 and under Law no. 50/2007.

Denmark Small Flag Denmark

Any natural or legal person, including individuals and corporate entities, may be held liable for bribery.

Germany Small Flag Germany

The German Criminal Code only holds individuals criminally liable for bribery offences. It does not provide for the criminal responsibility of a corporate entity. Nonetheless the Administrative Offences Act allows to fine a corporate entities for being legally responsible for bribery offences committed on behalf of the entity. For almost 20 years there are discussions regarding the implementation of a corporate criminal law in Germany. For example, in 2013 the minister of justice of the State of North-Rhine Westphalia presented a bill that was not introduced in the Bundesrat. Most recently, German legal practitioners published a so-called “Kölner Entwurf eines Verbandssanktiongesetzes” requesting the implementation of a corporate criminal law. According to their coalition agreement, the recent German government is considering the implementation of a corporate criminal law.

Italy Small Flag Italy

According to articles 25 and 25 ter of Legislative Decree no. 231, dated 8th June 2001, also the corporate entities might be held responsible for bribery (public or private) crimes committed in their interest or to their advantage by directors, executives and their subordinates, agents and other individuals acting on behalf of the legal entities. In order to prevent the commission of said crimes (and other ones, provided for by the said Legislative Decree), as well as to be entitled to seek for an exemption from liability, a company is required to put in place the above-mentioned compliance program.

Macau Small Flag Macau

Article 10 PC establishes that save in the exceptions expressly provided in the law, only natural persons are susceptible to criminal liability.

However, there are several exceptions to the rule provided in the mentioned law, which allow extending penal liability to legal persons. Regarding corruption crimes, one of the exceptions is provided in the framework on prevention and repression corruption actions in foreign trade, as will be shown below.

Perpetration of a crime may take several different forms, as provided in Article 25 PC:
Principal and co-perpetrator- whoever executes or takes part directly in the action, by agreement or together with another or other persons;

Intermediary- whoever takes part directly in the commitment of a crime through a third party; or

Instigator- whoever maliciously induces a third party to commit the criminal action, provided that there is execution or indication of its execution.

Article 26 PC also defines complicity as a way to participate in the crime and considers an accomplice whoever, wilfully or otherwise, provides material or moral support to the commission of a wrongful act by a third party. Under section 2) of the same article, the penalty set out for the perpetrator shall be applied to the accomplice, with special mitigation.

As mentioned earlier, the rule is that only natural persons are criminally liable.

However, Article 5 of Law no. 10/2014 expressly provides legal persons’ criminal liability for the crime of active corruption within the scope of foreign trade.

Thus, under the terms of said law, legal persons (even where irregularly incorporated) and associations without legal personality are liable for the crime provided in Article 4 of Law no. 10/2014, when it is committed:

By its corporate bodies or representatives; or

By a person under the authority of its bodies or representatives, where the commitment of the crime may have become possible due to a wilful breach of the duties of due diligence or control that fall upon them.

To be noted that the liability of legal persons shall be excluded whenever the perpetrator acts against expressly stated orders or instructions issued by the proper authorities (Article 5(2) of Law no. 10/2014) and the liability of legal persons will however not exclude individual liability of the respective actors (Article 5(3) of Law no. 10/2014).

Mozambique Small Flag Mozambique

HRA: Both individuals and corporate entities can be held liable for bribery and corruption. Legal persons are criminally liable for the commission of crimes, whenever they are carried out by the holders of their bodies or their representatives, in their name and interest. Note that the liability of legal persons does not exclude the individual liability of the perpetrators.
Determining who committed a crime is divided in three categories:

  • Perpetrator, whoever executes the act or takes direct part in its execution by agreement or together with another or with others;
  • Accomplice, whomever directly advises or instigates another person to commit a crime, or who directly participates to facilitate or prepare its execution in such cases where, if there was no such assistance, the crime might not have been committed; and
  • Accessory, whomever (i) alters or disrupts evidence of a crime to prevent or hinder the constitution of the corpus delicti; (ii) conceals or destroys evidence, a crime’s instruments or objects, trying to get impunity; (iii) being forced thereto, conceals or alters the truth of the facts as found through the examination requested from him, for the purpose of helping the alleged perpetrator of a crime; or (iv) harbours the perpetrator of a crime or facilitates his escape for the purpose of evading justice.

Japan Small Flag Japan

Only a natural person is liable for bribery under the Penal Code. Under the UCPA, on the other hand, a corporation as well as a natural person is liable for bribery of foreign officials.

France Small Flag France

Except for the passive bribery of judicial officers, legal persons may be convicted, notably as accomplices. The penalty shall amount to five times the fine and may be combined with more specific penalties under Article 131-39 of the Criminal code.

In addition, the penalty of complying with an obligation to submit to a compliance program is also incurred for certain bribery offences (Criminal code, arts. 131-39-2,433-26,434-48,435-15 and 445-4).

For the offences of active bribery and passive bribery of private agents only, a CJP may be proposed to the legal person by the public prosecutor, as long as public action has not been initiated.

Switzerland Small Flag Switzerland

Under Swiss criminal law, criminal liability primarily rests with the individuals. In cases of bribery of public officials and commercial bribery, however, there is a parallel corporate criminal liability for failing to take all reasonable organisational measure that would have been required to prevent the bribery offences, making the failure to implement an appropriate compliance organization a potential criminal offence.

United States Small Flag United States

Both individuals and corporate entities may be held liable for bribery of a foreign official. A corporate entity may be liable ‘when its directors, officers, employees, or agents, acting within the scope of their employment, commit FCPA violations intended, at least in part, to benefit the company’. DOJ and SEC, A Resource Guide to the US Foreign Corrupt Practices Act at 27 [2012, updated 2015].

In recent years, US government authorities have emphasised enforcement against individuals. In 2015, the DOJ announced that investigations and prosecutions would prioritise identifying and pursuing ‘culpable individuals at all levels in corporate cases’. Sally Quillian Yates, DOJ, Individual Accountability for Corporate Wrongdoing [9 Sept 2015]. Among other things, the DOJ required that corporate entities report ‘all relevant facts relating to individuals responsible for the misconduct’ in order to receive cooperation credit. Id. The DOJ’s FCPA Corporate Enforcement Policy announced in November 2017 similarly focuses on individuals. The Policy reiterates that full cooperation from a corporate entity includes disclosure of ‘all facts related to involvement in the criminal activity by the company’s officers, employees, or agents’. Regarding ‘timely and appropriate remediation’—which is also required for full cooperation credit—the Policy requires corporate entities to appropriately discipline employees who were responsible for the misconduct. The SEC has similarly stated that individual liability is a fundamental aspect of FCPA enforcement

Updated: June 11, 2018