The UK Bribery Act came into force in 2011 and affects all UK and overseas companies doing business in the UK. It established four key bribery offences and provides for a "failure to prevent bribery" offence for commercial organizations. The Act is enforced by the Serious Fraud Office and carries a maximum penalty of 10 years imprisonment. Several high-profile cases have been prosecuted under the Act involving both individuals and companies. Compliance requires establishing adequate procedures including top-level commitment, risk assessments, due diligence, training and monitoring. Criticisms of the Act include a lack of advisory services and not considering foreign customs, while its impact has increased focus on corporate social responsibility and intermediary relationships.

1.
UK BRIBERY ACT
- CASES AND UPDATES*
Helen Tung
Barrister, One Temple Avenue Chambers 2014
*Adapted Seoul (April 2013), Tokyo & Osaka (Nov 2013), London (March
2014) presentations

2. INTRODUCTION
1. What is the UK Bribery Act?
영국의 뇌물 법은 무엇입니까 ?
2. Why does it matter? 왜 문제가 되나요 ?
3. What kind of cases are there? 어떤 종류가 있습니까 ?
4. How do we comply? 우리는 어떻게 준수합니까 ?
5. What criticisms are there? 어떤 비평 있습니까 ?
6. What is the impact of the Bribery Act now?
뇌물 법의 영향이 무엇입니까 ?

3. 1. WHAT IS THE BRIBERY ACT?
영국의 뇌물 법은 무엇입니까 ?
 Came into force July 1, 2011;
 Affects all UK and overseas company doing
business with the UK:
 a. Active Bribery (s1) / 활성 뇌물 ;
 b. Passive Bribery (s2)/ 수동 뇌물 ;
 c. Foreign Public Official (s6)/ 외국 공무원 ;
 d. Failure of commercial organisation to prevent
Bribery (s7) 뇌물을 방지하기 위해 상업 조직의 실
패 .

4. 2. WHY DOES IT MATTER?
왜 문제가 되나요 ?
 Max. penalty of 10 yrs;
 Provides ‘long arm’ jurisdiction;
 Close connection with the UK (s12);
 Serious Fraud Office (SFO);
 a. Evidential Stage/ 증거 단계 ;
 b. Public Interest Stage/ 공공의 이익 단계 ;
 Test: Reasonable person in the UK (s5(1));
영국에 있는 합리적인 사람 ;

5. 3. DEFINITIONS 정의
a. Offer, promise or giving- active bribery
제안 , 약속 또는 제공
 Receive or accept – passive bribery 수신 또는 허
용
 ‘financial or other advantage’ 금융 또는 기타 장점
 Improper performance 부적절한 성능
 Associated person 관련된 사람

6. 4. FACTORS AGAINST PROSECUTION
기소에 대한 요인
 Court likely to impose a nominal penalty (Code
4.17a) 법원의 공칭 벌금 선고할 가능성이 높음
 Harm considered as minor (Code 4.17e)
사소한 피해
 Genuine approach to self reporting
진실된 자기보고

7. 5. FACTORS FOR PROSECUTION
검찰 요인
 Conviction likely to attract sentence (Code 4.16a)
유죄 판결이 재판을 유도
 Pre-meditated & element of corruption (Code
4.16e and k)
계획과 부패의 요소
 Facilitate serious offending (4.16i)
심각한 잘못을 촉진
 Advantage of position (Code 4.16n) 위치의 이점

8. 6. PUBLIC OFFICIAL 공리
 Includes legislators, administrators, holders of
judicial office, officials and agents of
international organisations (IO) (s 5(2))
 Function if performed in UK, written law of UK
 Function were performed elsewhere is that of
relevant state
 If official belongs to IO then rules of written
organisation

9. 7. OTHER
 Facilitation payments 지급을 조장
 Hospitality and promotional expenditure
서비스 및 프로모션 지출
 - ‘improper performance’ 부적절한 성능
 influence the foreign public official so as to
obtain; or
 retain business; or
 an advantage in the conduct of business;
 Lavishness is just one factor.

10. 8. COMMERCIAL ORGANISATION 상
업 조직
 Liable if ‘as a body or partnership incorporated or
formed in the UK irrespective of where it carries
on a business, or an incorporated body or
partnership which carries on a business or part
of a business in the UK irrespective of the place
of incorporation or formation.’s7(5)

11. 9. ADEQUATE PROCEDURES
 Defence if commercial organisation can show
adequate procedures s7(2);
 Standard of proof: balance of probabilities;
확률의 균형
 Issue of adequacy: matter for the courts to decide
on case by case basis;
 Code (4.5) prosecutors must consider defence
case, prospects of conviction and evidential stage

12. 10. CASE STUDIES 사례 연구
 Patel
 He was charged 3 years for a single offence of
active bribery and a concurrent six year sentence
for the common law offence of misconduct in
public offence.
 There were at least 53 instances where he had
been removing evidence of offenders motoring
fines.

13. CASE STUDY 2 사례 연구 2
 Mr. Mushtaq
 Self-employed mini-cab driver
 Convicted of bribery under S1 of Act
 Sentenced 2 months’ imprisonment, suspended
for 12 months & 2 months curfew b/w 6pm and
6am
 Attempt to bribe licensing officer

14. CASE STUDY 3 사례 연구 3
 Sustainable AgroEnergy - Biofuel
 14 August 2013, the Serious Fraud Office (“SFO”)
 Value fraud approx. £23m (b/w April 2011 to Feb
2012)
 All British nationals: aged 28, 52, 38, 57
 SFO, section 1 of Criminal Law Act 1977
 3 charged making and accepting bribe under Act

15. CASE STUDY 4 사례 연구 4
 Sport
 25 Marcy 2014, 5 individuals pleaded not guilty
 Birmingham Crown Court
 Total 9 individuals currently facing charges
under act (in addition to 3 already convicted (as
of 9 April 2014)
 Match-fixing allegations in English football
 2 Singaporean nations charged, D1 &D2: to give
or receive bribery & conspiracy to commit bribe
 D3: only for giving bribe

16. 11. CURRENT SITUATION
 National Crime Agency arrest, 3 April 2014
 13 individuals: bribery & money laundering
 Reinforce Serious Fraud Office (SFO) playing
significant role in prosecuting individuals
 Of 53 individuals convicted in UK since 2008,
only 26 prosecuted by SFO
 Of 12 individuals prosecuted: 4 prosecuted by
SFO (bio-fuels case)

17. 12. HOW TO COMPLY?
준수하는 방법
 6 Principals 6 원칙
 1. Proportionate procedures 비례 절차
 2. Top- Level Commitment 상위 수준 헌신
 3. Risk Assessment 위험 평가
 4. Due Diligence 실사
 5. Communication (including training)
의사소통 ( 교육 포함 )
 6. Monitoring 감시 / 관찰

18. 13. WHAT CRITICISMS?
어떤 비평 있습니까 ?
 1. no advice service available
사용할 수있는 조언 서비스는 없음
 2. does not take into account foreign local custom
해외 현지 관습는 고려하지 않습니다
 3. test as reasonable UK person
영국에 있는 합리적인 사람

19. 14. WHAT IS THE IMPACT OF THE
BRIBERY ACT NOW? 뇌물 법의 영향 지금
무엇입니까 ?
 1. Corporate Social Responsibility
기업의 사회적 책임
 2. Question on use of intermediaries
중개인의 사용에 관한 질문
 3. Corporate structure and processes
기업 구조 및 프로세스

20.  Thank you 감사합니다
 http://helentung.blogspot.co.uk/
 onetempleavenue.co.uk/barristers/helent.html