海外反腐败法

Anti-Bribery and Books & Records Provisions of

The Foreign Corrupt Practices Act

Current through Pub. L. 105-366 (November 10, 1998)

UNITED STATES CODE

TITLE 15. COMMERCE AND TRADE

CHAPTER 2B--SECURITIES EXCHANGES

§

78m. Periodical and other reports

(a) Reports by issuer of security; contents

Every issuer of a security registered pursuant to section 78l of this title shall file

with

the Commission, in accordance

with such rules and regulations as the

Commission

may

prescribe

as

necessary

or

appropriate

for

the

proper

protection of investors and to insure fair dealing in the security--

(1)

such

information

and

documents

(and

such

copies

thereof)

as

the

Commission

shall

require

to

keep

reasonably

current

the

information

and

documents required to be included in or filed with an application or registration

statement filed pursuant to section 78l of this title, except that the Commission

may not require the filing of any material contract wholly executed before July

1, 1962.

(2) such annual reports (and such copies thereof), certified if required by the

rules and regulations of the Commission by independent public accountants,

and such quarterly reports (and such copies thereof), as the Commission may

prescribe.

Every issuer of a security

registered on a

national securities exchange shall

also file a duplicate original of such information, documents, and reports with

the exchange.

(b) Form of report; books, records, and internal accounting; directives

* * *

(2) Every issuer which has a class of securities registered pursuant to section

78l of this title and every issuer

which is required to file reports pursuant to

section 78o(d) of this title shall--

(A) make and keep books, records, and accounts, which, in reasonable detail,

accurately and fairly reflect the transactions and dispositions of the assets of

the issuer; and

(B) devise and maintain a system of internal accounting controls sufficient to

provide reasonable assurances that--

(i)

transactions

are

executed

in

accordance

with

management's

general

or

specific authorization;

(ii) transactions are recorded as necessary (I) to permit preparation of financial

statements in conformity with generally accepted accounting principles or any

other criteria applicable to such statements, and (II) to maintain accountability

for assets;

(iii)

access

to

assets

is

permitted

only

in

accordance

with

management's

general or specific authorization; and

(iv) the recorded accountability for assets is compared with the existing assets

at

reasonable

intervals

and

appropriate

action

is

taken

with

respect

to

any

differences.

(3) (A) With respect to matters concerning the national security of the United

States,

no

duty

or

liability

under

paragraph

(2)

of

this

subsection

shall

be

imposed upon any person acting in cooperation with the head of any Federal

department or agency responsible for such matters if such act in cooperation

with such head of a department or agency was done upon the specific, written

directive of the

head of such department or agency pursuant to Presidential

authority to issue such directives. Each directive issued under this paragraph

shall set

forth

the specific facts and circumstances with respect

to which the

provisions

of

this

paragraph

are

to

be

invoked.

Each

such

directive

shall,

unless renewed in writing, expire one year after the date of issuance.

(B) Each

head of a Federal department or agency of the

United States who

issues such a directive pursuant to

this paragraph shall maintain a complete

file

of

all

such

directives

and

shall,

on

October

1

of

each

year,

transmit

a

summary of matters covered by such directives in force at any time during the

previous year to the Permanent Select Committee on Intelligence of the House

of Representatives and the Select Committee on Intelligence of the Senate.

(4)

No

criminal

liability

shall

be

imposed

for

failing

to

comply

with

the

requirements

of

paragraph

(2)

of

this

subsection

except

as

provided

in

paragraph (5) of this subsection.

(5)

No

person

shall

knowingly

circumvent

or

knowingly

fail

to

implement

a

system of internal accounting controls or knowingly falsify any book, record, or

account described in paragraph (2).

(6)

Where

an

issuer

which

has

a

class

of

securities

registered

pursuant

to

section 78l of this title or an issuer which is required to file reports pursuant to

section 78o(d) of this title holds 50 per centum or less of the voting power with

respect to a domestic or foreign firm, the provisions of paragraph (2) require

only

that the issuer proceed in good faith to

use its influence,

to

the extent

reasonable

under

the

issuer's

circumstances,

to

cause

such

domestic

or

foreign firm to devise and maintain a system of internal accounting controls

consistent with paragraph (2). Such circumstances include the relative degree

of

the

issuer's

ownership

of

the

domestic

or

foreign

firm

and

the

laws

and

practices governing the business operations of the country in which such firm

is

located.

An

issuer

which

demonstrates

good

faith

efforts

to

use

such

influence

shall

be

conclusively

presumed

to

have

complied

with

the

requirements of paragraph (2).

(7) For the purpose of paragraph (2) of this subsection, the terms

assurances

assurance as would satisfy prudent officials in the conduct of their own affairs.

-top-

* * *

§

78dd-1 [Section 30A of the Securities & Exchange Act of 1934].

Prohibited foreign trade practices by issuers

(a) Prohibition

It shall be

unlawful

for any issuer which

has a class of securities registered

pursuant to section 78l of

this title or

which is

required to file reports

under

section 78o(d) of this title, or

for any officer, director, employee, or agent of

such issuer or any stockholder thereof acting on behalf of such issuer, to make

use

of

the

mails

or

any

means

or

instrumentality

of

interstate

commerce

corruptly in furtherance of an offer, payment, promise to pay, or authorization of

the payment of any money, or offer, gift, promise to give, or authorization of the

giving of anything of value to--

(1) any foreign official for purposes of--

(A)

(i)

influencing

any

act

or

decision

of

such

foreign

official

in

his

official

capacity

, (ii) inducing such foreign official to do or omit to do any act in violation

of the lawful duty of such official, or (iii) securing any improper advantage; or

(B) inducing such foreign official to use his influence with a foreign government

or

instrumentality

thereof

to

affect

or

influence

any

act

or

decision

of

such

government or instrumentality,

in order to assist such issuer in obtaining or retaining business for or with, or

directing business to, any person;

(2)

any

foreign

political

party

or

official

thereof

or

any

candidate

for

foreign

political office for purposes of--

(A) (i) influencing any act or decision of such party

, official, or candidate in its or

his official capacity, (ii) inducing such party, official, or candidate to do or omit

to do an act in violation of the lawful duty of such party

, official, or candidate, or

(iii) securing any improper advantage; or

(B) inducing such party, official, or candidate to use its or his influence with a

foreign government or instrumentality thereof to affect or influence any act or

decision of such government or instrumentality

.

in order to assist such issuer in obtaining or retaining business for or with, or

directing business to, any person; or

(3) any person, while knowing that all or a portion of such money or thing of

value will be offered, given, or promised, directly or indirectly

,

to any

foreign

official, to any foreign political party or official thereof, or to any candidate for

foreign political office, for purposes of--

(A)

(i)

influencing

any

act

or

decision

of

such

foreign

official,

political

party

,

party official, or candidate in his or its official capacity, (ii) inducing such foreign

official, political party, party official, or candidate to do or omit to do any act in

violation of the lawful duty of such foreign official, political party

, party official,

or candidate, or (iii) securing any improper advantage; or

(B) inducing such foreign official, political party, party official, or candidate to

use his or its influence with a foreign government or instrumentality thereof to

affect or influence any act or decision of such government or instrumentality

,

in order to assist such issuer in obtaining or retaining business for or with, or

directing business to, any person.

(b) Exception for routine governmental action

Subsections

(a)

and

(g)

of

this

section

shall

not

apply

to

any

facilitating

or

expediting

payment

to

a

foreign

official,

political

party

,

or

party

official

the

purpose

of

which

is

to

expedite

or

to

secure

the

performance

of

a

routine

governmental action by a foreign official, political party, or party official.

(c) Affirmative defenses

It shall be an affirmative defense to actions under subsection (a) or (g) of this

section that--

(1) the payment, gift, offer, or promise of anything of value that was made, was

lawful

under the

written laws and regu

lations of

the foreign official’s, political

party’s, party official’s, or candidate’s country; or

(2) the payment, gift, offer, or promise of anything of value that was made, was

a reasonable and bona fide expenditure, such as travel and lodging expenses,

incurred by or on behalf of a foreign official, party

, party official, or candidate

and was directly related to--

(A) the promotion, demonstration, or explanation of products or services; or

(B) the execution or performance of a contract

with a foreign government or

agency thereof.

(d) Guidelines by Attorney General

Not

later

than

one

year

after

August

23,

1988,

the

Attorney

General,

after

consultation

with

the

Commission,

the

Secretary

of

Commerce,

the

United

States Trade Representative, the Secretary of State, and the Secretary of the

Treasury, and after obtaining the views of all interested persons through public

notice and comment procedures, shall determine to what extent compliance

with this section

would be enhanced and the business community would be

assisted by further clarification of the preceding provisions of this section and

may,

based

on

such

determination

and

to

the

extent

necessary

and

appropriate, issue--

(1) guidelines describing specific types of conduct, associated with commo

n

types

of

export

sales

arrangements

and

business

contracts,

which

for

purposes

of

the

Department

of

Justice’s

present

enforcement

policy

,

the

Attorney

General

determines

would

be

in

conformance

with

the

preceding

provisions of this section; and

(2) general precautionary procedures

which issuers may

use on a

voluntary

basis

to

conform

their

conduct

to

the

Department

of

Justice’s

present

enforcement policy regarding the preceding provisions of this section.

The Attorney General shall issue the guidelines and procedures referred to in

the preceding sentence in accordance with the provisions of subchapter II of

chapter 5 of Title 5 and those guidelines and procedures shall be subject to the

provisions of chapter 7 of that title.

-top-

(e) Opinions of Attorney General

(1) The Attorney General, after consultation with appropriate departments and

agencies of the

United States and after obtaining the

views of all interested

persons

through

public

notice

and

comment

procedures,

shall

establish

a

procedure

to

provide

responses

to

specific

inquiries

by

issuers

concerning

conformance

of

their

conduct

with

the

Department

of

Justice’s

present

enforcement

policy

regarding

the

preceding

provisions

of

this

section.

The

Attorney General shall, within 30 days after receiving such a request, issue an

opinion

in

response

to

that

request.

The

opinion

shall

state

whether

or

not

certain specified prospective conduct would, for purposes of the Department of

Justice’s present enforcement policy,

violate the preceding provisio

ns of

this

section. Additional requests for opinions may be filed with the Attorney General

regarding

other

specified

prospective

conduct

that

is

beyond

the

scope

of

conduct

specified

in

previous

requests.

In

any

action

brought

under

the

applicable provisions of this section,

there shall be a rebuttable presumption

that conduct,

which is specified in a

request by an issuer and

for

which the

Attorney General has issued an opinion that such conduct is in conformity with

the Department of Justice’s present enf

orcement policy

, is in compliance with

the preceding provisions of this section. Such a presumption may be rebutted

by

a

preponderance

of

the

evidence.

In

considering

the

presumption

for

purposes of this paragraph, a court shall weight all relevant factors, including

but

not

limited to whether the information submitted to

the Attorney

General

was accurate and complete and whether it was within the scope of the conduct

specified

in

any

request

received

by

the

Attorney

General.

The

Attorney

General

shall

establish

the

procedure

required

by

this

paragraph

in

accordance with the provisions of subchapter II of chapter 5 of Title 5 and that

procedure shall be subject to the provisions of chapter 7 of that title.

(2)

Any

document

or

other

material

which

is

provided

to,

received

by

,

or

prepared in the Department of Justice or any other department or agency of

the

United

States

in

connection

with

a

request

by

an

issuer

under

the

procedure established

under paragraph

(1), shall be exempt from disclosure

under section 552 of Title 5 and shall not, except with the consent of the issuer,

be

made

publicly

available,

regardless

of

whether

the

Attorney

General

responds

to

such

a

request

or

the

issuer

withdraws

such

request

before

receiving a response.

(3)

Any

issuer

who

has

made

a

request

to

the

Attorney

General

under

paragraph

(1)

may

withdraw

such

request

prior

to

the

time

the

Attorney

General

issues

an

opinion

in

response

to

such

request.

Any

request

so

withdrawn shall have no force or effect.

(4)

The

Attorney

General

shall,

to

the

maximum

extent

practicable,

provide

timely guidance concerning the Department of Justice’s present enforcement

policy

with

respect

to

the

preceding

provisions

of

this

section

to

potential

exporters and small businesses that are unable to obtain specialized counsel

on

issues

pertaining

to

such

provisions.

Such

guidance

shall

be

limited

to

responses to requests under paragraph (1) concerning conformity of specified

prospective

conduct

with

the

Department

of

Justice’s

present

enforcement

policy

regarding

the

preceding

provisions

of

this

section

and

general

explanations of compliance responsibilities and of potential liabilities under the

preceding provisions of this section.

(f) Definitions

For purposes of this section:

(1) A)

The

term

“foreign official” means any officer or employee of a

foreign

government

or

any

department,

agency

,

or

instrumentality

thereof,

or

of

a

public international organization, or any person acting in an official capacity for

or on behalf of any such government or department, agency

, or instrumentality

,

or for or on behalf of any such public international organization.

(B)

For

purposes

of

subparagraph

(A),

the

term

“public

international

organization” means

--

(i) an organization that is designated by Executive Order pursuant to section 1

of the International Organizations Immunities Act (22 U.S.C. §

288); or

(ii) any other international organization that is designated by the President by

Executive

order

for

the

purposes

of

this

section,

effective

as

of

the

date

of

publication of such order in the Federal Register.

(2)

(A)

A

person’s

state

of

mind

is

“knowing”

with

respect

to

conduct,

a

circumstance, or a result if--

(i) such person is aware

that such person is engaging in such conduct,

that

such circumstance exists, or that such result is substantially certain to occur; or

(ii) such person

has a

firm belief

that such circumstance exists or that such

result is substantially certain to occur.

(B) When knowledge of the existence of a particular circumstance is required

for an offense, such knowledge is established if a person is aware of a

high

probability of

the existence of such circumstance,

unless the person actually

believes that such circumstance does not exist.

(3) (A) The term “routine governmental action”

means only an action which is

ordinarily and commonly performed by a foreign official in--

(i) obtaining permits, licenses, or other official documents to qualify a person to

do business in a foreign country;

(ii) processing governmental papers, such as visas and work orders;

(iii)

providing

police

protection,

mail

pick-up

and

delivery

,

or

scheduling

inspections

associated

with

contract

performance

or

inspections

related

to

transit of goods across country;

(iv) providing phone service, power and

water supply

,

loading and unloading

cargo, or protecting perishable products or commodities from deterioration; or

(v) actions of a similar nature.

(B) The term “routine governmental action” does not include any decision by a

foreign

official

whether,

or

on

what

terms,

to

award

new

business

to

or

to

continue

business

with

a

particular

party,

or

any

action

taken

by

a

foreign

official

involved

in

the

decision-making

process

to

encourage

a

decision

to

award new business to or continue business with a particular party.

-top-

(g) Alternative Jurisdiction

(1)

It

shall

also

be

unlawful

for

any

issuer

organized

under

the

laws

of

the

United States, or a State, territory, possession, or commonwealth of the United

States

or

a

political

subdivision

thereof

and

which

has

a

class

of

securities

registered pursuant to section 12 of this title or which is required to file reports

under section 15(d) of this title, or for any United States person that is an officer,

director, employee, or agent of such issuer or a stockholder thereof acting on

behalf

of

such

issuer,

to

corruptly

do

any

act

outside

the

United

States

in

furtherance

of

an

offer,

payment,

promise

to

pay

,

or

authorization

of

the

payment of any

money

, or offer, gift, promise to give, or authorization of the

giving

of

anything

of

value

to

any

of

the

persons

or

entities

set

forth

in

paragraphs

(1),

(2),

and

(3)

of

this

subsection

(a)

of

this

section

for

the

purposes set forth therein, irrespective of whether such issuer or such officer,

director, employee, agent, or stockholder makes use of the mails or any means

or

instrumentality

of

interstate

commerce

in

furtherance

of

such

offer,

gift,

payment, promise, or authorization.

(2)

As

used

in

this

subsection,

the

term

“United

States

person”

means

a

national of the United States (as defined in section 101 of the Immigration and

Nationality Act (8 U.S.C. §

1101)) or any corporation, partnership, association,

joint-stock

company

,

business

trust,

unincorporated

organization,

or

sole

proprietorship

organized

under

the

laws

of

the

United

States

or

any

State,

territory, possession, or commonwealth of

the

United States, or any political

subdivision thereof.

§

78dd-2. Prohibited foreign trade practices by domestic concerns

(a) Prohibition

It shall be

unlawful for any domestic concern, other than an issuer

which is

subject to section 78dd-1 of this title, or for any officer, director, employee, or

agent of such domestic concern or any stockholder thereof acting on behalf of

such

domestic

concern,

to

make

use

of

the

mails

or

any

means

or

instrumentality

of

interstate

commerce

corruptly

in

furtherance

of

an

offer,

payment, promise

to pay

, or authorization of the payment of any money, or

offer, gift, promise to give, or authorization of the giving of anything of value to

--

(1) any foreign official for purposes of--

(A)

(i)

influencing

any

act

or

decision

of

such

foreign

official

in

his

official

capacity

, (ii) inducing such foreign official to do or omit to do any act in violation

of the lawful duty of such official, or (iii) securing any improper advantage; or

(B) inducing such foreign official to use his influence with a foreign government

or

instrumentality

thereof

to

affect

or

influence

any

act

or

decision

of

such

government or instrumentality,

in order to assist such domestic concern in obtaining or retaining business for

or with, or directing business to, any person;

(2)

any

foreign

political

party

or

official

thereof

or

any

candidate

for

foreign

political office for purposes of--

(A) (i) influencing any act or decision of such party

, official, or candidate in its or

his official capacity, (ii) inducing such party, official, or candidate to do or omit

to do an act in violation of the lawful duty of such party

, official, or candidate, or

(iii) securing any improper advantage; or

(B) inducing such party, official, or candidate to use its or his influence with a

foreign government or instrumentality thereof to affect or influence any act or

decision of such government or instrumentality

,

in order to assist such domestic concern in obtaining or retaining business for

or with, or directing business to, any person;

(3) any person, while knowing that all or a portion of such money or thing of

value will be offered, given, or promised, directly or indirectly

,

to any

foreign

official, to any foreign political party or official thereof, or to any candidate for

foreign political office, for purposes of--

(A)

(i)

influencing

any

act

or

decision

of

such

foreign

official,

political

party

,

party official, or candidate in his or its official capacity, (ii) inducing such foreign

official, political party, party official, or candidate to do or omit to do any act in

violation of the lawful duty of such foreign official, political party

, party official,

or candidate, or (iii) securing any improper advantage; or

(B) inducing such foreign official, political party, party official, or candidate to

use his or its influence with a foreign government or instrumentality thereof to

affect or influence any act or decision of such government or instrumentality

,

in order to assist such domestic concern in obtaining or retaining business for

or with, or directing business to, any person.

(b) Exception for routine governmental action

Subsections

(a)

and

(i)

of

this

section

shall

not

apply

to

any

facilitating

or

expediting

payment

to

a

foreign

official,

political

party

,

or

party

official

the

purpose

of

which

is

to

expedite

or

to

secure

the

performance

of

a

routine

governmental action by a foreign official, political party, or party official.

(c) Affirmative defenses

It shall be an affirmative defense to actions under subsection (a) or (i) of this

section that--

(1) the payment, gift, offer, or promise of anything of value that was made, was

lawful

under the

written laws and regulati

ons of

the foreign official’s, political

party’s, party official’s, or candidate’s country; or

(2) the payment, gift, offer, or promise of anything of value that was made, was

a reasonable and bona fide expenditure, such as travel and lodging expenses,

incurred by or on behalf of a foreign official, party

, party official, or candidate

and was directly related to--

(A) the promotion, demonstration, or explanation of products or services; or

(B) the execution or performance of a contract

with a foreign

government or

agency thereof.

-top-

(d) Injunctive relief

(1)

When

it

appears

to

the

Attorney

General

that

any

domestic

concern

to

which this section applies, or officer, director, employee, agent, or stockholder

thereof, is engaged, or about to engage, in any act or practice constituting a

violation of subsection (a) or (i) of this section, the Attorney General may, in his

discretion,

bring

a

civil

action

in

an

appropriate

district

court

of

the

United

States to enjoin such act or practice, and upon a proper showing, a permanent

injunction or a temporary restraining order shall be granted without bond.

(2)

For

the

purpose

of

any

civil

investigation

which,

in

the

opinion

of

the

Attorney General, is necessary and proper to enforce this section, the Attorney

General or his designee are empowered to administer oaths and affirmations,

subpoena witnesses, take evidence, and require the production of any books,

papers,

or

other

documents

which

the

Attorney

General

deems

relevant

or

material to such investigation. The attendance of witnesses and the production

of documentary evidence may be required from any place in the United States,

or

any

territory

,

possession,

or

commonwealth

of

the

United

States,

at

any

designated place of hearing.

(3)

In

case of contumacy by

, or

refusal

to obey a subpoena issued

to, any

person, the Attorney General

may invoke the aid of any court of the United

States

within

the

jurisdiction

of

which

such

investigation

or

proceeding

is

carried on, or where such person resides or carries on business, in requiring

the

attendance

and

testimony

of

witnesses

and

the

production

of

books,

papers, or other documents. Any such court may issue an order requiring such

person

to

appear

before

the

Attorney

General

or

his

designee,

there

to

produce records, if so ordered, or to give testimony touching the matter under

investigation. Any failure to obey such order of the court may be punished by

such court as a contempt thereof.

All process in any such case may be served in the judicial district in which such

person resides or may be found. The Attorney General may make such rules

relating to civil investigations as may be necessary or appropriate to implement

the provisions of this subsection.

(e) Guidelines by Attorney General

Not

later

than

6

months

after

August

23,

1988,

the

Attorney

General,

after

consultation with the Securities and Exchange Commission, the Secretary of

Commerce,

the

United States

Trade

Representative,

the Secretary of State,

and

the

Secretary

of

the

Treasury,

and

after

obtaining

the

views

of

all

interested

persons

through

public

notice

and

comment

procedures,

shall

determine to what extent compliance with this section would be enhanced and

the

business

community

would

be

assisted

by

further

clarification

of

the

preceding

provisions

of

this

section

and

may,

based

on

such

determination

and to the extent necessary and appropriate, issue--

(1) guidelines describing specific types of conduct, associated with common

types

of

export

sales

arrangements

and

business

contracts,

which

for

purposes

of

the

Department

of

Justice’s

present

enforcement

policy

,

the

Attorney

General

determines

would

be

in

conformance

with

the

preceding

provisions of this section; and

(2) general precautionary procedures which domestic concerns may use on a

vo

luntary basis to conform their conduct to the Department of Justice’s present

enforcement policy regarding the preceding provisions of this section.

The Attorney General shall issue the guidelines and procedures referred to in

the preceding sentence in accordance with the provisions of subchapter II of

chapter 5 of Title 5 and those guidelines and procedures shall be subject to the

provisions of chapter 7 of that title.

(f) Opinions of Attorney General

(1) The Attorney General, after consultation with appropriate departments and

agencies of the

United States and after obtaining the

views of all interested

persons

through

public

notice

and

comment

procedures,

shall

establish

a

procedure

to

provide

responses

to

specific

inquiries

by

domestic

concerns

con

cerning

conformance

of

their

conduct

with

the

Department

of

Justice’s

present enforcement policy regarding the preceding provisions of this section.

The

Attorney

General

shall,

within

30

days

after

receiving

such

a

request,

issue an opinion in response to that request. The opinion shall state whether or

not

certain

specified

prospective

conduct

would,

for

purposes

of

the

Department

of

Justice’s

present

enforcement

policy,

violate

the

preceding

provisions of this section. Additional requests for opinions may be filed with the

Attorney General regarding other specified prospective conduct that is beyond

the

scope

of

conduct

specified

in

previous

requests.

In

any

action

brought