Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act of 1977 (15 USC §§ 78dd-1, ff.) Is a federal law of the United States that prohibits payments and gifts of value to foreign government officials who have the purpose of winning a business or a business relationship maintain. In addition, the law obliges all US- listed companies to keep accounts in accordance with 15 USC § 78m, which are aligned with the anti-corruption rules of the FCPA.
The reason that the FCPA deals with the accounting of the listed companies is that bribe payments were either not recorded in the books of the companies or were incorrectly reported there. Therefore, the FCPA criminalizes not only paying bribes , but also making false or misleading entries in company records.
Since not only natural persons but also companies can be sanctioned, some compare the Foreign Corrupt Practices Act with the British anti-corruption law Bribery Act 2010 .
The five conditions
The law sets five conditions as elements that must be met for the law to take effect:
Who : The FCPA Act applies to individuals, corporations, civil servants, officers, employees, corporate intermediaries, and any shareholder acting on behalf of the company. This also applies if they instigate third parties to violate the provisions of the law.
Bribery intent: The person who makes or arranges the payment must do so with the intent to bribe, and the payment must have the purpose of inducing the recipient to abuse his official position in order to the payer or a third party the surcharge for to give a business. It is not a requirement that this attempt be successful. Just the offer or promise of such payment could be in violation of the law.
Payment : The law includes payments, the offering of payment, and the promise to make such an offer. Payment can be cash or any other value.
Recipient : The prohibition extends only to bribe payments to a foreign official, a foreign political party or a party representative or a candidate for political office abroad. “Foreign public official” means any civil servant or employee of a foreign government, international organization, department or agency thereof, and any person in the public service. The rank and position of this person are irrelevant.
Business purpose : The law forbids payments with the aim of creating a business deal for a company or person, extending a business relationship or passing on a business to someone. It should be noted that it is not only about business that is directly related to a foreign government or a foreign state-owned company, but also includes all business, including with non-governmental organizations, companies and private individuals.
To ensure compliance with this law, companies carry out a so-called FCPA due diligence and document this explicitly. These documents are then attached to the contracts.
The companies involved and the people involved are punished. The company involved can be fined up to $ 2 million. In addition, there are fines or imprisonment against the employees involved, at whose behest the payment was ordered or who carried it out. In addition, civil penalties can be imposed.
- US Department of Justice (DOJ) explanation of FCPA, English
- The legal treatment of bribe payments in the USA ("Foreign Corrupt Practices Act") and Germany, University of Cologne
- ↑ Withus, New British Anti-Corruption Act: Effects on German Companies - Part I: Key points of the new legislation, ZCG 2010, 185.