Basic prohibition clause
The Foreign Corrupt Practices Act stipulates that it is illegal to bribe foreign government officials to gain or maintain business. For the basic prohibition, the following five elements must be met to constitute a violation: A. Subject-The Foreign Corrupt Practices Act may indicate that it is applicable to any individual, company, official, director, employee or company agent and any shareholder representing the company. Individuals and companies may face penalties if they order, authorize or assist others to violate or conspire to violate anti-bribery provisions or * * * conspire to violate bribery provisions. According to the Foreign Corrupt Practices Act, the jurisdiction of the United States over bribing foreign officials depends on whether the violator is an "issuer" or involves a "domestic legal person", a foreign national or an enterprise. "Issuer" refers to a company that is registered in the United States to issue securities or requires regular reporting of Securities and Exchange Commission documents. "Domestic legal person" refers to any individual who is a citizen, foreigner or resident of the United States, as well as any company, partnership, association, joint-stock company, commercial trust, unincorporated organization or sole proprietorship enterprise whose principal place of business is in the United States or its states, regions, entities or federal laws.
Securities issuers and domestic legal persons can bear the responsibilities involved in the Foreign Corrupt Practices Act according to their regions or nationalities. For the system used in the United States, if issuers and domestic legal persons use the United States Postal Service or other means or interstate trade to promote corruption and bribe foreign officials, they must bear the responsibility. This method or means includes telephone, fax transmission, wire transfer, interstate or international travel. In addition, issuers and domestic legal persons may be responsible for any acts that promote corruption and bribe officials of countries outside the United States. Therefore, American companies or state-owned companies may be responsible for agents authorized by employees or operating completely outside the United States, that is, using money from foreign bank accounts without any bribery of American participants.
Before 1998, foreign companies, except those who can be called "issuers", were not controlled by the Foreign Corrupt Practices Act. The amendment 1998 extends the scope of application of the Foreign Corrupt Practices Act to foreign companies and nationals. At present, foreign companies or individuals also fall within the scope of application of the Foreign Corrupt Practices Act, directly or through agents, promoting corruption and bribery in the United States. However, this behavior is not required to use the US Postal Service or other means or interstate commerce. Finally, American holding companies may authorize, guide or control foreign subsidiaries to engage in questionable activities for them.
As American citizens or residents, they are "domestic legal persons" employed by or on behalf of foreign-funded enterprises.
And subsidiaries.
B. Corrupt Intention-The actor who implements or authorizes payment must have corrupt intent, and the payment behavior must deliberately induce the payee to abuse his position to make unfair transactions with the payer or others. It should be noted that the Foreign Corrupt Practices Act does not require corruption to succeed. Offering or promising a bribe can also constitute a crime. The Foreign Corrupt Practices Act prohibits any act or decision that affects a foreign official who holds a public office, or induces the official to do any act that violates or fails to perform his statutory duties to obtain any illegitimate interests, or induces the foreign official to use his influence in a foreign government or its institutions to influence any act or decision of the government or institutions to help issuers obtain or retain anyone's business, or instruct anyone to conduct business.
C. Payment-The Foreign Corrupt Practices Act prohibits payment, offering or promising to pay (or authorizing payment or offering) money or anything of value.
D. Recipient-The prohibition clause applies to bribing foreign government officials, political parties or candidates for political party officials. Foreign government officials refer to foreign governments. Any official or employee of an international organization or any department or agency thereof, or any person acting in an official capacity. For specific issues, we should consider using the opinion procedure set by the Foreign Corrupt Practices Act of the Ministry of Justice. As far as the definition of "foreign officials" is concerned, for example, whether they are members of the royal family, members of the legislature or employees of state-owned enterprises, they are all regarded as "foreign officials".
The provisions of the Foreign Corrupt Practices Act apply to any government official, regardless of his rank or position.
There is an exception to the Foreign Corrupt Practices Act, which focuses on the purpose of payment rather than accepting payment, quotation or payment commitment.
Anti-bribery clause
"Promoting the Government's Daily Action Payment" (see below)
E. Business Purpose-The Foreign Corrupt Practices Act prohibits payments to companies that help companies acquire or retain business or direct business. The Ministry of Justice has given a broad interpretation of "acquiring or retaining business", which means not only awarding or renewing contracts. It should be noted that the acquisition or retention of business is not necessarily related to foreign governments or foreign government agencies.
Third party payment
The Foreign Corrupt Practices Act prohibits the provision of corrupt funds through intermediaries. It is illegal to provide money to a third party if it is known that all or part of the money will be paid directly or indirectly to foreign officials. The word "know" includes conscious indifference and intentional neglect. The content of the defense is basically the same as the above, except that in this case, the "recipient"
It is an intermediary to pay the necessary "foreign officials". Intermediaries may include joint venture partners or agents. In order to avoid the responsibility of payment by corrupt third parties, American companies have done some due diligence as much as possible and taken all necessary preventive measures to ensure that they have reached business relations with reputable and qualified partners and representatives. These due diligence include investigating potential foreign representatives and joint venture partners to determine whether they are qualified for this position, whether they have personal or professional ties with the government, the number and reputation of their customer base, and their reputation among American embassies or consulates and local bankers/customers/other business partners. In addition, American companies should be aware of the so-called "characteristics" when negotiating business relations.
That is, unusual payment methods or financial arrangements, history of national corruption and rejection of certificates provided by foreign joint venture partners or representatives, it will not take any action to promote illegal terms, commitments or payments of foreign government officials, nor will it take any action to cause American companies to violate the Foreign Corrupt Practices Act. Usually, the Office of the High Commissioner and the jurisdiction lack transparency in fees and accounting records, and obviously lack qualifications or resources in implementing services provided by joint venture partners or representatives.
And whether the joint venture partner or representative has been formally recommended as a potential customer of the government. You should seek legal counsel's advice and consider using the opinion procedure set in the Foreign Corrupt Practices Act of the Ministry of Justice for specific issues of third-party payment.
Payment of permission and active defense
The Foreign Corrupt Practices Act contains a clear exception, that is, it is forbidden to pay "convenience fees" for "daily government actions" or provide active defense that can be used to prevent suspected violations of the Foreign Corrupt Practices Act.
Promote the payment of government's daily behavior
An exception to anti-commercial bribery is the convenience of government routine behavior and accelerated payment. The list of laws and regulations includes the following examples: obtaining licenses, business licenses or other official documents, handling government documents, visas and work instructions. Providing police protection, postal and telecommunication shuttle service, providing telephone service, electricity and water supply, loading and unloading goods, or protecting perishable products, and dispatching and inspecting contract-related performance or transnational transportation of goods. Activities like this are also included in the exception. If you are in doubt about whether the compensation is an exception, you can consult a legal adviser. At the same time, we should also consider whether to use the opinion procedure of the Foreign Corrupt Practices Act of the judicial department.
Conventional government behavior
It does not apply to providing convenient and quick payment to any foreign official, such as deciding to grant new business or continuing business with a political party.
Affirmative plea
A person accused of violating the anti-bribery provisions of the Foreign Corrupt Practices Act can make the following defense: according to the statutory law of the country where the foreign official belongs, the payment is legal, or the money spent is used for the promotion, display or performance of contract obligations of products or services. In foreign statutory laws, it may be difficult to determine whether the payment is legal. We should consider seeking the advice of legal counsel, or use the Foreign Corrupt Practices Act of the Ministry of Justice to face such an opinion procedure on the legality of payment. In addition, since these defenses are "positive defenses", the defendant needs to prove that the payment meets these requirements at the first trial. The prosecution does not assume any responsibility to prove that it does not constitute this type of payment in the first instance.
Bribery sanction
Sanctions against criminals
According to the anti-bribery provisions of the Foreign Corrupt Practices Act, possible criminal penalties: companies and other commercial entities are fined up to $2 million, and officials, directors, shareholders, employees and agents are fined up to $65,438+0,000,000, with a maximum imprisonment of five years. In addition, according to the provisions of the Selective Punishment Law, the maximum fine can be twice that of the defendant's illegal income through the requirement of paying corruption money. Fines imposed on individuals cannot be paid by their employers or responsible persons.
Sanctions against citizens
The US Attorney General or the Securities and Exchange Commission may, at their discretion, bring a civil lawsuit against any company and its officials, directors, employees, agency companies or shareholders representing the company, and impose a fine not exceeding $65,438+00,000. In addition, during the enforcement action of the Securities and Exchange Commission, the court may impose an additional fine not exceeding (i).
The total economic income obtained by the defendant due to the illegal act, or (ii) the prescribed amount limit. The prescribed limits are based on excessive violations, ranging from $5,000 to $65,438+000,000 for natural persons and $50,000 for others.
Up to half a million dollars. As long as the company (or its officers, directors, employees, agents or shareholders' representatives) violates (
Or about to violate) the anti-bribery clause, the attorney general or the US Securities and Exchange Commission may also file a civil lawsuit against it as appropriate.
Other government actions
According to the guidelines issued by the Office of Management and Budget, individuals or companies that violate the Foreign Corrupt Practices Act may be prohibited from doing business with the federal government. Individual prosecution may also lead to the suspension of the right to do business with the government. The President has instructed that if this right is excluded or suspended, or any political party whose procurement or non-procurement activities are excluded, the administrative organ shall not allow these political parties to participate in any procurement or non-procurement activities. In addition, if an individual or company is found to have violated the Foreign Corrupt Practices Act, it is ineligible to obtain an export license. The US Securities and Exchange Commission can suspend or prohibit personal securities business and impose civil penalties on securities business. The US Commodity Futures Trading Commission and the US overseas private investment company can suspend or exclude institutional projects that violate the Foreign Corrupt Practices Act. The fees paid to foreign government officials in violation of the Foreign Corrupt Practices Act cannot be deducted as business expenses to reduce tax revenue.
individual behavior
According to the Fraud Effects and Corruption Organization Act (RICO) or other federal or state laws, violating the anti-bribery provisions of the Foreign Corrupt Practices Act may also lead to triple compensation for personal reasons. For example, the bill may also be used as a basis for claiming to bribe competitors who led the defendant to win overseas contracts.
Government guidance
The Ministry of Justice has set up a consultation procedure for the Foreign Corrupt Practices Act. With regard to any proposed business practices, according to the anti-bribery provisions of the Foreign Corrupt Practices Act, American companies or nationals can ask the US Department of Justice to announce the current implementation intention. Details of the comment procedure can be found in 28 CFR Part 80. According to this procedure, the Minister of Justice will respond to the investigation of specific problems of individuals or companies within 30 days. (The 30-day period begins when the Ministry of Justice receives all the information that needs to be expressed. The Ministry of Justice has issued an opinion that business practices in line with current policies are in line with the Foreign Corrupt Practices Act in any subsequent law enforcement actions. Copies of the foregoing comments can be found on the Foreign Corrupt Practices Act website of the Ministry of Justice.
brief introduction
1988 the trade act instructs the attorney general to provide guidance on the implementation policy of the Ministry of justice on the 1977 foreign corrupt practices act. (15 U.S.C. 78 DD- 1) For potential exporters and small businesses that cannot get professional lawyers to answer questions related to the Foreign Corrupt Practices Act, there are limited procedural guidelines for responding to the opinions of the Foreign Corrupt Practices Act of the Ministry of Justice. The following descriptions and general explanations of compliance responsibilities and potential responsibilities are based on the Foreign Corrupt Practices Act. This manual gives a general explanation of the Foreign Corrupt Practices Act of the Ministry of Justice.
American companies seeking to do business in overseas markets must be familiar with the Foreign Corrupt Practices Act. Generally speaking, the Foreign Corrupt Practices Act prohibits bribing foreign officials for the purpose of obtaining or retaining business. In addition, other laws and regulations, such as postal telecommunications and online fraud,18U.S.C.134 1343, Tourism Law,18U.S.C./kloc-0.
The Ministry of Justice is an administrative agency, and the Securities and Exchange Commission (SEC) plays a coordinating role. The General Counsel of the Office of the Ministry of Commerce also answered the general questions of American exporters about the basic requirements and restrictions of the Foreign Corrupt Practices Act.