Prevention of fraud, corruption and bribery committed through legal entities for the purpose of financial and economic gain
In Dutch law there is no overall criminal offence on corruption. In Dutch criminal law corruption is divided in specific criminal offences which all have their own specific definition. Most corruption can be qualified as a criminal offence but it is sometimes difficult to qualify them as such. Qualifying in general as an offence is easy (forgery for example) but proving that the act specifically qualifies as corruption is harder. Given this general observation, a specific form of active corruption in the Dutch Criminal Code (DCC) seems relevant regarding to art. 2, par. 1, section a of the Framework Decision 2003/568/JHA of 22 July 2003 on combatting corruption in the private sector. Art. 328ter par. 2 of the DCC deals with bribery of a private person: punishable is the private person that gives or offers someone other than a civil servant, working in employement or acting as an agent, in exchange for something he has done or not done or will do or refrain from doing in the performance of his burden, a gift or promise, or a service of that nature or under such circumstances that he should reasonable assume that such a gift or promise will be withheld from his employer or principal contrary to good faith. This provision covers active corruption on the initiative of all private persons, including employees, managers and directors of private entities. However, this provision is limited to the bribery of employees and managers and seems to exclude the bribery of a director of a private entity. This means that this provision does not fully cover the obligation under art. 2, par. 1, section a of the Framework Decision 2003/568/JHA. In addition to art. 328ter DCC more general provisions can be used, especcially when the active corruption involves bribery of a director of a private entity. Dependant upon the circumstances of the case the provisions on forgery, falsifying of documents and cheating could be relevant. These circumstances should then involve: the forgery of a written statement with the intention to use this statement as genuine (art. 225 DCC), the falsification of stock certificates or other official certificates or documents, (art. 226 DCC) or the elements of cheating. In art. 326 of the DCC cheating is described as: the person who intentionally favours himself or another person in a unlawfull way, by using a false name, a false capacity, cunning manouvres or fabrications, moving another person to hand over a good, a service, information or a debt.
|Organisation||Erasmus School of Law|
Hartmann, A, & van der Hulst, J.W. (2012). Prevention of fraud, corruption and bribery committed through legal entities for the purpose of financial and economic gain. Retrieved from http://hdl.handle.net/1765/34736