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1 PROPOSAL of law No. 159/X explanatory statement the approval of a new regime of corruption in international trade and in the private sector is necessary for two reasons: firstly, due to the amendment of the Penal Code which included a general system of criminal liability of legal persons; Secondly, to comply with the guidelines contained in the full Convention on combating bribery of foreign public officials in International Transactions, adopted in Paris on 17 December 1997, under the auspices of the OECD, the Criminal Law Convention on corruption of the Council of Europe, of 30 April 1999, the framework decision 2003/568/JHA of 22 July 2003, and of the United Nations Convention against corruption, signed in December 2003. On liability of legal persons, the application of the arrangements provided for in the criminal code. Legal persons are held liable when the crime is committed in your name and interest by person occupies a position of leadership or to act under your authority, not excluding the responsibility of individuals in general terms. As determines the criminal code, are imposed for legal persons main penalties of fines and dissolution, the feathers instead of admonition, guarantee of good conduct and judicial surveillance and judicial injunction accessory penalties, prohibition of exercise of activity, prohibition of celebrating certain contracts or contracts with certain entities, deprivation of the right to subsidies, grants or incentives , closure of establishment and publicity of the judgment. To give full compliance to the Convention on combating bribery of foreign public officials in International Transactions explains the concept of holder of political office abroad, which shall include the person who, in the service of a foreign country, has an Office within the legislative, judicial or executive function, to national, regional or local level, for which it has been nominated or elected. In terms of political and criminal options, not shall aggravation of penalties, only the maximum penalty that the passive corruption in the private sector (in cases where the Act or omission to which corruption refers is suitable for 2 cause a distortion of competition or a third party asset impairment) – three to five years in prison and 600 days to 360 fine- to distinguish the active corruption, in a manner congruent with the provisions of the Penal Code. Don't ignore that, sometimes, the corruption is active graver than passive corruption, especially when the first crime agent having the initiative to formulate a promise or give an advantage. However, in the context of the specific penalty that consideration be made, taking into account the partial coincidence of feathers that corresponds to both crimes. Still in the field of punishment dedicates a subsidiarity rule, determining that apply more severe penalties whenever there is an apparent competition between these crimes and other more serious crimes. This can happen in particular with regard to corruption offences provided for in the criminal code. At the technical level, a set of definitions-foreign official, foreign political office holder, employee of the private sector, private-sector entity intended to facilitate the correct application of this law by the interpreter. Were heard the Superior Council of the Magistracy, the High Council of the Public Ministry, the Bar Association and the Advisory Council of the Attorney-General of the Republic. The steps were promoted for hearing of the Trade Union Association of Portuguese Judges and prosecutors ' Union.
So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: chapter I General provisions Article 1 subject-matter this law establishes the regime of criminal liability for corruption offences committed in international trade and private activity.
3 article 2 definitions for the purposes of this law: the foreign official): the person who, in the service of a foreign country, as an employee, agent or otherwise, even if temporarily, for remuneration or interim or free of charge, voluntarily or compulsorily, has been named to play or participate in the performance of an activity included in the administrative or judicial or civil service under the same circumstances, perform functions in public bodies or participate or who carries out functions of Manager, holder of the supervisory organs or public company worker, nationalized, public capital or with majority ownership of the public and public utility company; b) employee of international organization: the person who, in the service of an international public law, as an employee, agent or otherwise, even if temporarily, for remuneration or interim or free of charge, voluntarily or compulsorily, has been named to play or participate in the performance of an activity; c) Holder of political office abroad: the person who, in the service of a foreign country, has an Office within the legislative, judicial or executive function, to national, regional or local level, for which it has been nominated or elected; d) private sector Worker: a person who carries out functions, including management or supervisory bodies under contract of employment, to provide services or otherwise, even if temporarily, for remuneration or interim or free of charge, in the service of a private-sector entity; and) private-sector entity: the legal person under private law, civil society and the Association.
4 Article 3 Application in space
Without prejudice to the General rules of criminal law enforcement in space and established in international judicial cooperation, this law still applies: a) in the case of criminality provided for in article 7, the facts charged by Portuguese or foreigners who are found in Portugal, regardless of where they have been committed; b) in the case of offences referred to in articles 8 and 9, regardless of where the facts have been charged, when who goes, promise, solicit or accept an advantage or the promise is national employee or holder of political office or national, being of Portuguese nationality, is an employee of international organization.
Article 4 the criminal responsibility of legal persons and similar legal persons and similar entities are responsible, in general terms, for the crimes provided for in this law.
Article 5 special Mitigation and remission of sentence on the crimes provided for in this law: a) the penalty is specially mitigated if the auxiliary agent in the collection of the decisive evidence for identification or capture of other responsible or otherwise contribute decisively for the discovery of truth; b) agent is relieved of penalty if voluntarily, before the practice of fact, reject the offer or the promise that had accepted, restore the advantage or, in the case of fungible thing, your value, remove the promise or request the refund of the advantage given.
5 article 6 supplementary law 1 – the penalties provided for in this law shall apply only to the fact that does not fit most severe penalty under another legal provision. 2-the crimes provided for in this law are in the alternative the provisions of the Penal Code.
Chapter II article 7 active Bribery Crimes at the expense of international trade Who by themselves, or by your consent or ratification, through an intermediary, gives or promise employee, national, foreign or international organisation, or the holder of political office, national or foreign, or the third with knowledge of those assets or non-patrimonial advantage, which is not due to obtain or retain a business, a contract or other undue advantage in international trade, is punished with imprisonment from one to eight years.
Article 8 passive corruption in the private sector 1 – the private sector worker who, by you or by your consent or ratification, through an intermediary, requesting or accepting, for themselves or for third parties, without his due, patrimonial or non-patrimonial advantage, or to your promise, for any act or omission that constitutes a violation of their functional duties, is punished with imprisonment up to two years or with fine penalty. 2 – If the Act or omission referred to in the preceding paragraph is suitable to cause a distortion of competition or a prejudice third party asset, the agent is punished with imprisonment up to five years or with fine penalty up to 600 days.
6 article 9 Active corruption in the private sector 1 – Who by themselves, or by your consent or ratification, through an intermediary, gives or promise the person referred to in the preceding article, or the third with knowledge that, or not patrimonial asset advantage, which is not due to continue the order here indicated is punishable by imprisonment up to one year or with fine penalty. 2 – If the conduct referred to in the preceding paragraph aim to get or is suitable to cause a distortion of competition or a prejudice third party asset, the agent is punished with imprisonment up to three years or with fine penalty.
Chapter III final provisions article 10 money laundering and the fight against corruption and economic and financial crime, the behavior that is described in article 7 is considered a crime of corruption for the purposes of article 368.º of the Penal Code and in paragraph 1 (a)) of paragraph 1 of article 1 of law No. 36/94, of 29 September.
Article 11 Standard set Are deleted articles 41-A, 41-B and 41 C of the Decree-Law No. 28/84 of 20 January, and the law No. 13/2001, of 4 June.
Seen and approved by the Council of Ministers of 30 August 2007 Prime Minister the Minister of Parliamentary Affairs Minister Presidency
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