Research On Some Legal Issues Of Bribery In International Business Transactions

Corruption is universally condemned yet universally prevalent.Corruption takes all kinds of forms, as of political corruption, bureaucratic corruption, judicial corruption, commercial corruption, or petty corruption, grand corruption. Whatever kind of corruption as exists, the nature of which is the abuse of power by the offenders empowered to by the people of the nation or entrusted to by the trustor. Corruption is disastrous to both the nation and people, as it may ruin the kind and peaceful stability of a state, or even topple the government when it is very serious, especially when exploited by persons with ulterior motives, which can be seen in the Middle East as a result of the Arabian Spring, and in turn damage people’s welfare. Small or less serious as a corrupt act may be, it still infringes on others interests, at least challenges and degrades the social morality if the one is not engaged in a competition in a business with the offender. As in the public case, corruption destroys the respectful integrity people vest in the government or the authorities, as in the private sector, it distorts the honesty established between the trustor and the trustee. Among these various corruption, this article focuses on the bribery in international business transactions, and restricts the research only on a few issues, while leaves the others for future research.The discussion on the issues is distributed to four parts. Part I gives an overview of the corruption problem in international business transactions and probes into the definition of corruption or bribery in the international business transactions from various perspectives, then proceeds with the constituents of bribery in this business field, and then further goes with the international legislative regulation progress of this kind of transnational bribery. Finally, on an analysis of the present situation of the transnational bribery there comes the conclusion that corruption in this field is not satisfactorily controlled, and further steps are expected. Part II takes a close look at the sanctions of bribery beginning with the principles derived from the abstraction of international anti-bribery conventions which should be adhere to. As set out in this article, there are three principles, effectiveness, proportionality and deterrence respectively. Following the principles are the measures chosen to sanction the offender, which include criminal sanctions and non-criminal ones, i.e. the civil and administrative measures as well as disciplinary measures. On the second topic, this article gives more effort on the non-criminal sanctions, in preference of which are the validity or invalidity of contracts awarded through bribery the foreign officials, and the civil compensation for the victims of the bribery. Part III deals with the jurisdiction of bribery in international business transactions. At the beginning of this part is the general introduction of theories about extraterritorial jurisdiction, including criminal and civil approaches. Later on, efforts is laid on the jurisdiction stipulated in relevant international anti-bribery conventions, say, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption. The final efforts are put on the analyses of the U.S. jurisdictional practices in enforcing the Foreign Corrupt Practices Act. After discussion of the first two important cases involving foreign subsidiaries and foreign nationals, and with a simple glance of some other countries legislation on transnational bribery, this article comes to a conclusion that there is a tendency to expand its jurisdiction to foreign bribery act. Part IV probes into the arguable fact whether the fight against transnational briber is effective or not after nearly20years of international efforts and examine the domestic legislation concerning transnational bribery. On the first theme, this article gives the conclusion that although great efforts have been put on the fight against corruption, there’s still a lack of effectiveness due to the inherent unwillingness of genuine domestic enforcement of some countries regardless of their approval or contracting the anti-bribery conventions and adoption thereof. The participation of civil actors are expected to promote the effectiveness and may represent the trends in the future fighting against corruption. On the second topic, this article probes into the essence of the domestic laws which may interpret to cover victim compensations in the civil law sphere, and examines the recently promulgated amendments to the criminal code, and the2012revision of the criminal procedure law. The conclusion drawn from the examination of the domestic laws depicts defects in the domestic legal system. Suggestions concerning the defects include improving the existing whistleblower’s protection system and the financial disclosure system, establishment of victims compensation system, especially when concerned with victims who do not have a direct damage arising from the corrupt act, reconstruct the incidental civil action system to contain any victim’s compensation action, and improvement of the system of confiscation without a trial of the defendant or the so called trial by default. Lastly, greater participation of the civil sector is called on in this article to fight all kinds of corruption for a more effective result.