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Can Anticorruption Law Be Used To Prosecute Both Individuals And Businesses?

Australia

Yes. Corporate criminal culpability can be assigned to a firm under Sections 12.1 to 12.6 of the Criminal Code. When a firm’s employee, agent, or officer commits a physical element while operating within the actual or apparent scope of his or her employment or authority, the physical element is ascribed to the company. A firm is held responsible for fault elements if it “expressly, tacitly, or impliedly authorised or permitted the conduct of the offence.” Both companies and people have been prosecuted in Australia’s corruption cases so far. 

 

Belgium

Yes, both companies and individuals can be prosecuted in Belgium for corruption. Corruption charges can be brought against a company if the offense is: inherently tied to the achievement of the firm’s corporate mission; intrinsically tied to the preservation of the firm’s interests (economic or otherwise); or committed on behalf of the firm, as evidenced by the facts. For the same offenses, both the company and the individual(s) may be held criminally accountable. However, the company’s liability is distinct from that of the identifiable individual(s) (there is no such thing as a “strict” or “vicarious” liability principle under Belgian criminal law). To be held criminally liable, the criminal authorities must show that the company’s executive bodies or managers were willing to commit or participate in the corruption offense, which could be due to the company’s corporate culture, internal organization, general policy, strategy, and control mechanisms. 

 

France

Yes, legal entities can be held criminally accountable for any crime committed on their behalf, whether by their management or their legal agents. Individuals who are offenders or accomplices to the same crime are nonetheless criminally liable. 

 

Germany 

Criminal law only applies to natural persons. Legal entities may only be prosecuted under administrative offence law in the absence of corporate criminal law. Companies are accessorily accountable for criminal and administrative offenses committed by their leaders, according to Section 30 of the Act on Administrative Offenses. Because many times it is a regular employee who bribes or is bribed rather than a senior leader, the corruption itself is rarely deemed a serious violation. However, Section 130 of the Act on Administrative Offenses may be used in such instances. A violation of a supervisory obligation is an administrative offense under Section 130. Section 130 requires management to take supervisory measures to avoid criminal activity within the organization. This indicates that, in order to prevent corruption, a corporation must take all suitable, necessary, and reasonable supervision procedures. If these supervisory measures are not implemented and acts of corruption occur within the company, the firm will be held accountable under Section 30 of the Act on Administrative Offenses. 

 

Ireland

Yes, the Corruption Act can be used to prosecute both persons and businesses. 

 

Switzerland

Companies, on the whole, are not liable to criminal culpability. Companies, on the other hand, are criminally liable in two instances. First, under Article 102 of the SCC, legal entities are liable if they: The infraction is committed by a firm employee in the course of his or her business activity; yet, due to the company’s poor organization, it is impossible to connect the wrongdoing to a specific employee. In this case, the corporation is held responsible for the unlawful act and faces a fine of up to CHF 5 million (Article 102, para 1 of the SCC). The judge will consider the following factors when determining the actual fine: the gravity of the offense; the scope of the organizational failings; the loss or harm caused by the offense; and the failing company’s financial abilities Second, in cases where the SCC’s Article 322ter, 322quinquies, 322septies, para 1 or 322octies apply, the failing legal entity is liable regardless of any individual’s criminal liability, provided that the company failed to take all reasonable organizational measures required to prevent the respective offence. In such circumstances, the firm may be held accountable for failing to take all necessary precautions to prevent an employee from committing a crime (Article 102, para 2 of the SCC). 

 

UK

Sections 1, 2 and 6 of the Bribery Act provide for individual prosecution. A firm can also be prosecuted under these sections if the prosecution can prove the mental element required for the offence to be assigned to the firm’s “directing mind.” Only the corporation can be charged for failure to prevent bribery under Section 7 of the Bribery Act 2010. 

 

United Arab Emirates 

People and corporate entities can both be held accountable for bribery, albeit the punishments vary: individuals who are found guilty of bribery may face jail time, while corporate entities are usually fined. Individuals and businesses may face administrative penalties such as sector exclusion and trade license termination.

 

United States of America 

Bribery of a foreign official can be punishable by both people and corporations.