A look at corporate liability for transnational bribery

by | Mar 22, 2016 | Articles | 0 comments

On March 17, the Congress of the Republic approved with 73 votes in favor, 4 against and 6 abstentions, the bill that regulates the administrative liability of legal persons for the crime of transnational active bribery, provided for in article 397-a of the criminal code, sanctioning the company with up to the closing of its establishment and applying a fine of up to 1,700 UIT, that is, 6 million 716,700 soles.

When analyzing the law that regulates the administrative liability of the legal entity for the crime of transnational active bribery, we must point out that it is a law that for the first time in Peru will sanction legal entities directly or autonomously. This law complies with the minimum indispensable requirements to combat acts of corruption in a single crime, and really the only interest for the Peruvian state is to be able to enter as an active member of the anti-bribery commission of the Organization for Economic Cooperation and Development (OECD).

On the other hand, we are of the opinion that the law has been wrongly titled by pointing out the administrative liability of the legal persons, since it is not an administrative liability or sanction, but in the end it is a criminal liability that must be dictated by a criminal judge, attributing autonomous liability to the legal persons that commit this type of crime in a restricted manner, since the official who commits the bribery must be a foreigner.

The law punishes the liability of legal entities only for the crime of transnational active bribery, or rather for the bribery committed by the Peruvian company through a public official of another country. That is to say, the bribe or international commission, having as a condition that the Peruvian company has operations abroad, but it is worth asking ourselves: d o the great majority of Peruvian companies have operations abroad? The answer is clear and categorical: no. Then, is this a sanction for the majority or for the minority of Peruvian legal entities? It will be for the minority of the companies, being able to point out that the scope of application of the rule will be really restricted.

Following the same order of ideas, it is worth asking ourselves: w hat is the real intention of this rule? The answer is simple, as we have already said, but he is currently in the anti-bribery working group of the OECD organization, but as a guest. By legislating the liability of legal persons in transnational bribery, it complies with the minimum requirement to be an active member of such organization, with voice and vote, ceases to be a mere guest or guest of stone and becomes a member of the global anti-corruption fight. For Peruvian interests, this merit is good, but not with a simple law that is not a guarantor. The aphorism that the end justifies the means applies.

Finally, we believe that the criminal liability of legal entities should be legislated in Peru, because there has been a current increase in criminality through companies or within them. It is time that we have an advanced criminal code that criminally regulates legal persons, as Chile has, with Law No. 20.393 II, which legislates on the criminal liability of legal persons in three crimes: money laundering, financing of terrorism and bribery (bribery) to a national or foreign employee. And as Spain legislates since 1995, modified by the reform of the organic law 1/2015 of July 1, 2015, which amended art. 31 bis of the Spanish criminal code, which typifies the criminal liability of legal persons in a greater number of crimes, and indicates the ways to be exempted from liability with compliance or control prevention programs. The Spanish supreme court having issued (on 29.02.15) the first sentence condemning three Spanish companies for criminal liability of legal persons, it has been established in several Spanish articles as a precedent:

The commission of the crime by a person who is a member of the legal entity (de facto or de jure administrators or others) must be established.
The obligation to establish surveillance and control measures to prevent the commission of crimes (criminal compliance) has been breached.
The Spanish criminal code, in art. 31 bis, has served as a precedent to typify the crime of criminal liability of legal persons set out in the draft law of the Judiciary, submitted to Congress in 2012, but which unfortunately continues to sleep the sleep of the just to date, where art. 105-a of the criminal code is incorporated, which typifies the direct or autonomous criminal liability of legal persons.

It seems to us good to start with the minimum necessary to combat the fight against corruption, that is why we have begun to legislate for the liability of legal persons in the crime of transnational active bribery. This measure will serve as a starting point to, later on, make reforms or modifications so that Peru has an advanced criminal code, like the Spanish or Swiss that regulate this criminal type of the autonomous or direct liability of legal persons in the greatest number of crimes within the national territory, and thus be within the framework of the legislation of modern criminal law.