Collusion or private bribery

by | Oct 5, 2018 | Articles | 0 comments

Criminal sanction for corrupt managers in private enterprise.

Huber Huayllani Vargas[1].

The crime of bribery in Peru, also called “crimes of corruption of officials”, was always linked to a set of crimes consisting of the buying and selling of public office[2]. However, according to Legislative Decree No. 1385 dated March 04, 2018, corruption may also be sanctioned in the private sphere.

Specifically, the explanatory memorandum of this Decree emphatically states that: “it is necessary to establish a criminal sanction for acts of corruption committed in the private sphere that affect the normal development of commercial relations and fair competition in companies”.

In this way, the State, for the first time, decides to criminalize corrupt practices in the private sphere that always existed and that for many years were not denounced, prosecuted or punished, because they were simply not typified in the Penal Code. A case, only figurative, for example, was presented in world soccer.

When the year was 1915 and the Premier League, today famous for its transparency and neatness, at that time did not flirt so much with decency. At the end of the season, the popular Manchester United was playing to stay in the first division and their stay depended on the result they obtained against Liverpool, who had a dream campaign that year.

The final score was 2-0 in favor of “Man U”. Neither the press, nor the Reds’ own fans, understood the bad game played by Liverpool, but shortly afterwards it was discovered that players from both clubs made a pact in a bar to avoid the relegation of the “Red Devils” to the second division. As a result, eight players were suspended for life from all football-related activities. No sanctions were imposed on the clubs, as both teams actively collaborated in the investigations of the case[3].

Cases of corrupt practices in the private sphere are as varied as they are in the public sphere. For example, the request of an economic advantage made by a commercial manager to favor a certain company that will be benefited in the contracting of a service; or the case of a third party, external to the company, that delivers an economic advantage to a partner of the company so that the latter makes a decision that harms the company.

Although these conducts could apparently be denounced as a crime of fraud of legal entities (art. 198° of the PC), since such fraudulent behaviors carried out within legal entities significantly harm their interests and jeopardize their adequate intervention in the legal-economic traffic. However, it is not so, since this criminal offense specifically protects the assets of the legal person due to the systematic location of the offense [Title V of Book Two of the Criminal Code (Crimes against Assets)].

On the other hand, with the incorporation of Art. 241-A and 241-B, the legislator seeks to protect the correct and normal development of commercial practices and free competition of companies. It could also be considered:

To safeguard the duties of transparency in the commercial contracts of the companies.
To protect the principle of impartiality in the competition of companies. Their decisions must be taken without the intervention of interference .

The criminal hypothesis sanctioned by Art. 241-A, called “corruption in the private sphere”, constitutes a classic sanction of a collusive agreement in the private sphere. In plain English, it punishes the conduct of a manager who colludes with a private agent to favor him in contracts for the acquisition or commercialization of goods or merchandise of a company, thus harming free competition against other interested parties.
The second paragraph follows the same tenor, only that it punishes the agent who without having a special position in the company (partner, manager, direct, etc.) promises, offers or grants to a shareholder, manager an economic advantage or undue benefit to perform or omit an act that favors him or a third party in the acquisition or marketing of goods or merchandise of a company, thus harming free competition against other interested parties.

On the other hand, the criminal hypothesis is regulated by Art. 241-B.- called “Corruption within private entities” which corresponds to a classic crime of bribery or bribery per se. It may occur, for example, when a partner or manager, in order to perform or omit an act proper to his position, which is detrimental to the legal entity, requests an illicit consideration or undue benefit from a third party outside the legal entity.

The second paragraph follows the same tenor, but unlike the previous one, it punishes the private agent who bribes a shareholder or manager of a company, so that the latter performs or omits an act, proper to his position, to the detriment of the legal person.

A common characteristic of these criminal offenses is their bilateral or “necessary participation” nature, since there are always two parties involved. The private official (partner, shareholder, etc.) and the agent who is favored in the acquisition or commercialization of goods or merchandise, in the contracting of commercial services or in commercial relations.

Another fundamental characteristic, for the sanction of Art. 241-A, it is not necessary the damage to the legal person, since, it can occur that with such acts of corruption the company is not damaged but benefited. In this sense, the rule does not specifically protect the damage to the company, but the act of corruption that violates free competition in the market. On the other hand, for the sanction of Art. 241-B, the harm to the legal entity is a necessary element.

Finally, a no less important and very fashionable issue is the challenge that the regulation poses to the business sector, since, at a commercial level, it will guide a basic principle in the business environment, “transparent competition in the commercial transactions of private entities” and will allow to separate good practices from those that are not, therefore, it will commit the private sector to establish anti-bribery prevention systems.

Regarding the latter, the compliance officer will have an important role in the company, since he/she will be in charge of designing an anti-corruption compliance program. He/she will also design control and sanction measures in order to establish competencies and responsibilities in each area of the company.

An important measure, although it is not a legal obligation, for example, would be to have a Code of Conduct, a Code of Ethics and Ethics Line that meets the requirements of ISO 37001, which is an essential framework to start a culture of prevention of acts of bribery, establishing control measures, such as analyzing external factors that could affect anti-bribery policies in the business environment.

1] Criminal lawyer. Master’s Degree in Criminal Law from the PUCP.
2] Cfr. ABANTO VÁSQUEZ, Manuel. Los delitos contra la administración pública en el código penal peruano. Lima: Palestra, 2003, p. 409.
3] See URL: Date of consultation: 04.10.18