The following are the two statutory defenses to international bribery: if the behavior was justified by a written law of the foreign country in which it occurred; or whether or not the payment was a facilitation payment In defending any prosecution, a company must consider the conduct of its directors, executors, managers, and employees to determine whether the threshold test for corporate criminal liability can be satisfied, and, for example, if an employee is a “high managerial agent” of the company.
The defense will typically argue at trial that the essential elements of the criminal offense have not been demonstrated. A defendant may also introduce any factual event as a second line of defense to present mitigating elements such as a clean criminal record, a strong compliance program, and a positive attitude (including self-reporting or cooperation). The courts rarely accept exonerating circumstances, such as genuine ignorance or error.
Defendants to anti-corruption accusations must be evaluated on a case-by-case basis.
The culpability of a company for corruption violations is based on a breach of its supervisory obligation under Section 130 of the Act on Administrative Offenses, for which the corporation is accountable under Section 30 of the Act on Administrative Offenses. To escape accountability, the presence of a supervisory duty breach must be disproved. When a supervisory measure is absent, it must be shown that the supervisory measure was either ineffective in preventing the act of corruption or was not required or reasonable.
A company’s other defenses include demonstrating that any payment, gift, consideration, or advantage in question was not supplied corruptly and was supplied in the ordinary course of business.