미국의 해외부패방지법과 다국적 기업: 외국공무원의 개념을 중심으로 = FCPA`s Legacy for Multinational Corporations: Foreign Officials Can Come in Many Guises

다국어 초록 (Multilingual Abstract)

Scholars and practitioners alike have criticized the SEC`s and DOJ`s enforcement of the Foreign Corrupt Practices Act (FCPA) as overly aggressive. Although dormant for years since its passage in 1977, in the last decade the FCPA (generally prohibiting the making of a corrupt payment to a foreign official for the purpose of obtaining or retaining business) has been vigorously enforced against US companies and citizens as well as foreign entities. Due to the fact that most of the enforcement actions have resulted in pleas, settlements, or NPA/DPAs, FCPA law for many years developed largely through private negotiations between the SEC/DOJ and the company, and therefore almost wholly outside the judicial process. Commentators have opined that the absence of judicial scrutiny is troubling, particularly given the so-called dubious legal theories put forth by the enforcement agencies. They have pointed out, in particular, that the enforcement agencies` definition of foreign official is overly broad as it includes employees of state-owned or state-controlled enterprises. This Article argues that employees of such entities should, under certain circumstances, come under the FCPA and that courts (which addressed this issue only in the past two years) have appropriately allowed flexibility in the determination of whether someone is a foreign official. The government`s nuanced interpretation of who can be designated a foreign official for purposes of the Act is necessary in light of the the broad aims of the statute.

참고문헌 (Reference)

1 Stephanie Clifford, "Wal-Mart’s US Expansion Plans Complicated by Bribery Scandal" N.Y. Times 2012

2 Aruna Viswanatha, "Wal-Mart seen facing sizable fines in U.S. bribery probe"

3 Christopher M. Matthews, "Wal-Mart FCPA Probe Grows,” The Wall St. Journal, (Nov. 15, 2012), available at http://blogs.wsj.com/corruption-currents/2012/11/15/wal-mart-fcpa-probe-grows/ Yinzhi Miao, “Oversea Listing and State-Owned-Enterprise Governance in China: the Role of the State"

4 David Barstow, "Vast Mexico Bribery Case Hushed Up by Wal-Mart After Top-Level Struggle" The N.Y. Times 2012

5 Alberto Gonzalez, "United States: the Impact of the new FCPA Guidance on Reform Efforts"

6 "US v. Alcatel-Lucent, S.A., Case No. 10-20907 (S.D. Fla. Dec. 27, 2010)"

7 "U.S. v. Carson et al., No. 09-77 (C.D. Ca. May 18, 2011)"

8 Mike Koehler, "The Story of the Foreign Corrupt Practices Act" 73 (73): 2012

9 "The Guidance Press Conference"

10 Mike Koehler, "The Façade of FCPA Enforcement" 41 (41): 2010

11 David Barstow, "The Bribery Aisle: How Wal-Mart Got Its Way in Mexico" The N.Y. Times 2012

12 Susan Rose-Ackerman, "TRANSPARENCY AND BUSINESS ADVANTAGE: THE IMPACT OF IN-TERNATIONAL ANTI-CORRUPTION POLICIES ON THE UNITED STATES NATIONAL INTEREST" 67 (67): 2012

13 John Ashcroft, "THE RECENT AND UNUSUAL EVOLUTION OF AN EXPANDING FCPA" 26 (26): 2012

14 Paul Rose, "State Capitalism and the Foreign Corrupt Practices Act" 73 (73): 2012

15 DOJ press release, "Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay $450 Million in Combined Criminal Fines"

16 "Recent Cases, Foreign Companies Dominate New Top Ten"

17 Eric J. Smith, "RESOLVING AMBIGUITY IN THE FCPA THROUGH COMPLIANCE WITH THE OECD CONVENTION ON BRIBERY OF FOREIGN PUBLIC OFFICIALS" 27 (27): 2012

18 Cyavash Nasir Ahmadi, "REGULATING THE REGULATORS: A SOLUTION TO FOREIGN CORRUPT PRACTICES ACT WOES" 11 (11): 2012

19 Douglas N. Greenburg, "Prosecutors Without Borders: Emerging Trends In Extraterritorial Enforcement" 2011

20 United States v. Nguyen, "No. 2:08-cr-00522"

21 Edward Luce, "Lunch with the FT: Zbigniew Brzezinksi"

22 "Letter from Sen. Amy Klobuchar and Sen. Chris Coons to Att’y Gen. Eric Holder, U.S. Dept. of Justice"

23 "Lamb v. Phillip Morris, Inc., 915 F.2d 1024 (6th Cir. 1990)"

24 Lanny A. Breuer, "Keynote Address to The Tenth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices Forum"

25 Shearman, "FCPA Digest"

26 Evan Osnos, "Boss Rail The Disaster that Exposed the Underside of the Boom" The New Yorker 2012

27 Christopher M. Matthews, "Asia Pacific Companies Not Prepared for FCPA/UK Bribery Act"

28 Nora M. Rubin, "A Convergence of 1996 and 1997 Global Efforts to Curb Corruption and Bribery in International Business Transactions: the Legal Implications of the OECD Recommendations and Convention for the United States, Germany, and Switzerland" 14 (14): 1998

29 United States v. Esquenazi, "1:09-cr-21010"