The Development Of Foreign Corrupt Practices Act And Its Enlightenment To China

The Foreign Corrupt Practices Act(FCPA)is American federal statutory law enacted in 1977 and was amended respectively in 1988 and 1998.Immediately after its enactment,it was confronted with harsh criticism from domestic business community for the sake of posing them under unfair disadvantage in international marketplace.During its first 3 decades,FCPA was deemed to be in silence due to rare cases or none be enforced per year.However,when it entered the new century,the Department of Justice(DOJ)and Securities and Exchange Commission(SEC)of the United States who served as the law-enforcement agencies began to put much resources and paid more efforts on the enforcement of FCPA.The number of FCPA related cases surged as a result that many famous multi-national corporations investigated and accused by the two agencies.In order to resolve the cases,many corporations had to pay large amounts of fines or penalties and promised to enhance their internal compliance programs.The aggressive enforcement actions made it a priority for many corporations to conduct FCPA compliance programs and leveraged the culture of compliance.In the meantime,the authority of the two agencies expanded while judicial scrutiny was always absent.Another issue is the enforcement actions seemed to be selective because non-American corporations were easier to encounter FCPA scrutiny.These two issues suggest imbalance between executiveauthority and judicial authority,likewise between the United States' domestic interest and other countries' interest.In recent years,FCPA(especially its enforcement)has developed a lot with several trends arisen.The Act covered more than it used to be.More and more whistleblowers contributed to the origins of FCPA cases.Cooperation and remediation offered by the corporations were increasingly encouraged by the two agencies.In addition,the agencies focused on the culpability of individuals and filed more lawsuits against involving individuals.Although FCPA is domestic American law,it exerts massive influence in the whole world including China.Actually,there are many evident and subtle connections between FCPA and China driving us to learn about FCPA.To learn well about the theories,systems and experiences of FCPA is extremely meaningful as that may help to improve the legal system,the marketplace and the image of our country.The thesis mainly consists of four parts,corresponding to four chapters respectively.The first part describes the background of the enactment of 1977 FCPA and its subsequent several revisions in 1988 and 1998,including its promotion to the world as well.This part mainly addresses the issue of how the basic theory and system of FCPA evolved,and how it affects other countries or international organizations in the world.The second part focuses on the enforcement practices of FCPA.First of all,the thesis introduces the two enforcement agencies of the Act and their respective scope of authorities and responsibilities.Then,what's the specific enforcement procedures and typical vehicles to settle the cases.A detailed analysis of the influential cases(about Alstom and Morgan Stanley)in the history of the enforcement of FCPA is presented to visualize the actual operations of the Act.The third part mainly focuses on the two controversial issues in the development of FCPA in recent years and the prediction of its future development so as to understand the overall trend of the Act.It selects the expansion of the application of the Act,the establishment of the “whistleblower” program and its effectiveness,how coordination and remediation mitigate the responsibility of a corporate when it isunder FCPA scrutiny.In addition,the continuous strengthening of the culpabilities of individuals involved is also concerned.The fourth part firstly elaborates the influences FCPA imposes on China,what's the position and attitude China should take towards FCPA.Then,on the basis of the aforesaid,combined with the current situation of the governance of commercial bribery in China,it analyzes what enlightenment FCPA may bring to China.