Deadly "American overseas bribery act" ("FCPA")
recently to sign a contract, because the contract terms involving the "America overseas anti bribery law" (hereinafter referred to as "FCPA". Comprehensive and careful examination of the signing of the contract is based on the principle of "American, I for overseas bribery act" is also called "American overseas anti-corruption law" ("FCPA"), making a comprehensive study and careful. A see nothing, feel cold sweat, no small surprise.
　　
According to the "FCPA" rules, the following acts will be investigated for legal responsibility:
according to laws or any USA main camp located in the American legal person or other organization; American citizens or settled in American natural securities issuer and by USA securities trading; in America Securities Market Commission (SEC) regulatory legal; at the same time, the Foreign Company or natural included in the USA territory. But the Usa Inc or the natural person who could be responsible for authorized employees or agents in the overseas bribery.
bribery refers to, must attempt to induce human briber bribery or any other person for the benefit of breach of privilege. And does not require bribery succeed, as long as the offer or promise to pay, offer, promise to pay or authorized third party payment or offer of money or anything of value, which is a crime. Therefore, "FCPA" is the focus of bribery, bribery rather than specific content, such as the official reception, offer or a promise of payment etc..
bribery is the object of foreign officials, employees or any department or any foreign governments, international organizations, on behalf of the official identity agency officials, and members of the royal family, members of the legislature, state-owned enterprise officials as well as "foreign".
at the same time, "FCPA" ban through intermediaries. In the know the full or partial payment will be directly or indirectly paid to foreign officials case, payment to the intermediary illegal.
The legal situation , "FCPA" defined as accelerating routine governmental action "and" convenience fee payment "legitimate; the payee is the intermediary and payment behavior is a necessary condition of" official diplomacy ", the payment of legal acts.
If we can show that the cost of legal or the cost used to display the product or performance of a contract stipulating foreign law, the defendant has the right to plea for "FCPA".
　　
as a lawyer, in contrast with China's "Anti Unfair Competition Law", "criminal law" and the "bribery", "bribery" and other legal provisions, it is not difficult to find the law fairly! According to China's "Anti Unfair Competition Law" provisions of the operators, selling or buying of goods, can offer discounts to others in public, you can pay a commission to the middleman. The operator gives a discount to the other party, pays a commission to the middleman, must truthfully deposit. An operator accepting a discount, commission must truthfully deposit. That is to say the operators express promise to each other the benefits are not illegal. "Criminal law" and "bribery", "bribery" to emphasize the crime rather than "FCPA" emphasizes the bribery intent and purpose.
of course any legal system has its roots in the traditional social and business. May the European and American countries business culture is emphasized the negotiations both sides serious at the negotiating table and a resolve their differences, and in the time of the contract to hold a feast to celebrate; but in the East may be just the opposite, this disagreement is resolved in the wine, the dinner table, only after the official text of contract we will call at the negotiating table and sign the agreement. But such a commercial culture, you do not comply with and may be the other party that is be beneath the human character, and may even be each other "wear shoes". Perhaps American elites in the night to go to the bar just for leisure, but the eastern elites in the evening went to the bar to actually to a great extent in order to work. So the East bar charges than Europe and the United States is expensive, the entertainment industry is relatively developed.
in this business culture, we invite the other party to eat drink is normal, even if he is officials or businessmen, but based on the "FCPA" USA enterprises in trouble. Moreover, we are still a transition from planned economy to market economy, those who occupy the leading position in all walks of life in the majority of enterprises is not transformed from state-owned enterprises, collective enterprises have come? The boss, the boss, the merchants don't have even now there will be more or less certain administrative level. (for example, section chief, deputy director and so on)? Such a "China characteristics" if in strict accordance with the "FCPA", is not the people step by step, everywhere is dangerous shoal?
so I can understand a lot of American enterprise trembling with fear approach. In fact, as a lawyer, or a way to avoid the "FCPA" in the domestic business environment. Of course, the law itself is also in contradiction of circumvention and anti circumvention in development. Development of a typical example is the UK Trust system. Okay, now need this contract or no bribes to officials of possible and necessary.