1. If the crime occurs beyond the borders of the state or involves any type of federal or federal agency, it can be argued that federal criminal law would also apply. Typical cases include bribes involving international or interstate trade, or institutions such as banks that are members of the Federal Reserve banking system, or federal savings and lending institutions. The defendant may be charged with committing an act that constitutes a violation of conflict of interest or corruption that affects a personal financial interest under the United States Code, Chapter 11, Section 208. The penalty for violating section 208 may be up to five years` imprisonment and/or a fine of $50,000, or the amount the person received, whichever is greater. The United States has a variety of federal and state laws that deal with corruption alongside the FCPA. The FCPA is first and foremost a law on „foreign” corruption. The FCP/Nazi anti-bribery provisions do not apply to officials and employees of the federal and federal governments of the United States. Instead, the federal government`s most important law on domestic corruption appears in 18 U.S.C. § 201.
This law is similar to the FCPA and has been a model of it. In addition, each U.S. state has its own laws prohibiting bribes to its officials. In addition, bribes paid to state officials who use interstate business assets can be levied on U.S. federal violations under U.S. travel law. In some cases, law enforcement agencies have also used U.S. travel law to prosecute corruption in the commercial/private sector outside the U.S.
Finally, it is even possible that even FCP/Nazi accounting rules (see below) play a role in monitoring corruption at the national level. Companies that pay bribes to U.S. officials and do not accurately record them as such in their books and records may be considered by law enforcement authorities to be accounting violations of the FCPA, regardless of the domestic nature of the payments and the absence of a „foreign” element. 5The substantive provisions of the FCPA address corruption through direct and indirect means. First, it directly prohibits the bribery of foreign officials. [12] Second, it requires companies to prepare accurate accounting statements. This provision, sometimes referred to as the „book and record requirement,” is an indirect way to solve the problem. [13] The articles on corruption provide for the application of civil and criminal law by the Department of Justice, while the SEC has civil authority over books and records and provisions relating to corruption.
[14] In addition, under the FCPA`s accounting rules, the SEC can sue publicly traded companies for commercial corruption in the domestic context. As the Court of Justice did in SEC v. FalconStor5, the FCPA`s accounting rules, which require listed companies to keep accurate books and records and maintain appropriate internal controls, also apply to domestic transactions. For intentional and unintentional accounting violations, the SEC may sue both individuals and issuers of registered securities or issuers who are required to file annual reports or other periodic reports with the SEC. These issuers include all companies whose securities are traded on a U.S. stock exchange. The FCPA itself does not contain a specific upper limit for the hospitality industry. Instead, the FCPA`s anti-corruption provisions focus on corrupt intentions. The more lavish the hospitality, the greater the risk that a law enforcement agency will interpret it as corrupt. To avoid a law enforcement review, many companies try to use the reasonable and gullible affirmative defense described below. The FCPA`s anti-corruption provisions explicitly exempt the facilitation of payments made to expedite or ensure the implementation of routine government action.
However, the term routine state action is interpreted restrictively and does not include decisions to assign new cases or to continue to do business with a particular party. 16 Although the United States ratified the OECD Convention and made the necessary amendments in accordance with its domestic legislation required by the Treaty, the OECD Convention was an important decree that affected the implementation of the national fight against corruption and may require additional amendments under United States law in the future. As a result of U.S. efforts to persuade other developed countries to end bribery linked to foreign companies, the OECD has been working on the issue for several years. Their first response was the Recommendation on Bribery of Foreign Public Officials, adopted by the OECD in 1996. In May 1997, the OECD Council adopted a revised Recommendation on Combating Bribery in International Business Transactions. This recommendation conveyed the signatories` view of the destructive nature of corruption and created the conditions for further action. The United States, which was not satisfied with the non-binding recommendation, continued to push for a binding treaty and managed to review it later in 1997. 26 The States Parties to the Convention undertake to adopt the criminal law necessary to establish the criminalisation of such acts in their domestic legal order.
States must also enact laws that criminalize the participation of their nationals in gifts, favours, promises or benefits related to economic or commercial transactions in exchange for an act or omission of such an actor. States that have not classified such an offence as criminal nevertheless undertake to grant mutual legal assistance to other States. 8The FCPA`s anti-corruption provisions, unlike the provisions on books and records, require scientists to be responsible for liability. The definitions in the law suggest that „conscious” conduct exists when (i) a person is aware that he or she is engaging in particular conduct, that such circumstances exist, or that the result is substantially certain that it will occur, or (ii) the person has a „firm belief” that such a circumstance exists or is substantially certain. [23] It also states that in cases where knowledge of a criminal offence is required, „a high probability of the existence of such circumstances” is sufficient, unless the person actually believes that it does not exist.