Document Type : Research Paper

Authors

1 PhD Student in Criminal Law and Criminology, Department of Law, Shiraz Branch, Islamic Azad University of Shiraz, Iran

2 Assistant Professor of Law, Shiraz Branch, Islamic Azad University of Shiraz, Iran (Corresponding Author)

3 Assistant Professor of Law, Shiraz Branch, Islamic Azad University of Shiraz, Iran

Abstract

 
Abstract
Although one of the requirements of the implementation of the Merida Convention is the criminalization of "bribery in the private sector", the Iranian legislature has not yet considered this issue and there is no clear approach in the judicial process in this regard. From the point of view of international instruments and comparative law today, there is no doubt that bribery in the private sphere, as well as doing it in the public sphere, can be a manifestation of financial and administrative corruption that should be specifically criminalized and punished. However, in Iranian law, the question is what is the nature of paying and receiving bribes in the private sector. And, what is the reaction to it? Findings of the research indicate this: in Iranian criminal law, according to Article 588 of the Criminal Code of 1996, a specific type of private bribery (a receipt of money or property by judges, auditors and experts) has been criminalized. The judicial practice seeks to extend this prohibition to all private sectors responsible for public services in accordance with the principles of the crime and other related provisions. In particular, it seems that the provisions and basis of the "Unanimous Vote of Procedure No. 798 of the General Assembly of the Supreme Court", which has just been issued, have made this possible even more. Because, in this vote, by considering the criterion of "public services" and considering the employees of private banks as "public service agents", the said employees are considered to be subject to Article 598 of the mentioned law. According to this rule and the stipulation of "public service officers" in Article 3 of the Law on Intensification of Punishment for Perpetrators of Embezzlement, Bribery and Fraud, there is no distinction between the mentioned crimes and a single procedure should be established for them. However, jurisprudence cannot compensate for the shortcomings of the legislation in this area.
 
Keywords: Financial and administrative corruption, Public services, Public service agents, Embezzlement, Illegal occupation.

Keywords

 
Agreement Establishing the Group of States Against Corruption.
Afosu - Amah, W. Patti et al., (2005), “Legal Frameworks for Combating Corruption (Financial)”, Translated: Ahmad Ranjbar, First Edition, Tehran: Research Center of the Islamic Consultative Assembly. [in Persian]
Albrecht, Hans Yurge, (2009), “Corruption and Corruption Control: A Look at the Phenomenon of Corruption with an Approach to International Documents in the Prevention and Prohibition of Corruption”, Translated: Majid Ghorcheh Beigi, Legal Information Quarterly, vols, 17 and 18. [in Persian]
Amin, Seyed Hassan, (2007), “History of Iranian Law”, First Edition, Tehran: Encyclopedia of Iranology Publications. [in Persian]
Bantekas, Ilias. (2006). “Corruption as an international crime and against Humanity”, Journal of international criminal Justice, Oxford, Oxford university press.
Burckhardt, Peter & Borsodi, Benjamin. (2007). Focuses on Private Sector Bribery, Switzerland Tightens Anti-Corruption Laws, 23 INT’L ENFORCEMENT L. REP.
Callmann, Rudolf. (1968). The Law of Unfair Competition, Trademarks and Monopolies § 49, 3d ed
Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union.
Corruption of Foreign Public Officials Act, 1998 S.C., c. 34.
Farahmandfar, Haidar, (2009), “Requirements of the Iranian legislature after accession to the United Nations Convention against Corruption”, Agah Scientific Quarterly, Volume 2, Issue 7. [in Persian]
Gevurtz, Franklin A. (2007). Rethinking Corruption: An Introduction to a Symposium and a Few Additional Thoughts, 20 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. Available at: http://www.oecd.org/corruption/sweden-s-laws-on-corporate-responsibility-for-international-bribery-need-urgent-reform
.htm.
Goel, Asheesh. (2012). International Anti-Bribery and Corruption Trends and Developments, 166, Available at:
Hosseini, Seyed Hossein, (2004), “A comparative approach to how the crime of bribery is reflected in Legal systems of France, Italy, Switzerland and China”, Journal of Legal Research, Vol 6. [in Persian]
Jones, Caitlin. (2005). Magnetic and Environmental Influences of Criminal Behaviour, Rochester instatitute of Technology.
Karim, Mohammad Hossein, (2015), “Evaluation of the privatization process in line with the general policies of Article 44 of the Constitution (increasing the share of the private sector)”, Quarterly Journal of Strategic and Macro Policies, Volume 3, Issue 11, P 49-62. [in Persian]
Kazemi, Alireza, (2016), “International Responsibility of States for Bribery of Foreign Officials in International Trade: A Look at the Obligations of States Parties to the Anti-Corruption Convention in Article 1(16)”, Listed in the Proceedings of the United Nations Convention against Corruption: Achievements and Challenges, Iranian Association for United Nations Studies, Tehran: Mizan publication. [in Persian]
Lajcakova, Jamila. (2003). Violation of Human Rights Through State Tolerance of Street-Level Bribery: Case Study, Slovakia, 9 BUFF. HUM. RTS. L. REV.
Naimi Nejad, Mohammad and Fallah Tafti, Marjan, (2017), “Embezzlement by employees of private banks”, Two Quarterly Journal of Judicial Procedure (Criminal Justice), No 3. [in Persian]
Nazari Monazam, Mehdi and Vatan khah, (2016), “Fight against corruption from the perspective of Iranian law and the Merida International Convention”, Quarterly Journal of International Police Studies, Year 6, Issue 28. [in Persian]
Novartis Corp. v. Luppino. (1998) (In re Luppino), 221 B.R. 693, 703 n.4 Bankr. S.D.N.Y.
Hamrahi, Razieh, (2018), “The role of credit reporting institutions in preventing corruption in the light of the principle of recognizing financial information”, Inserted in the criminal policy against economic delinquency (by the effort of Amir Hossein Niazpour), Tehran: Mizan Publishing. [in Persian]
Rohlfsen, Ryan J. (2012). Recent Developments in Foreign and Domestic Criminal Commercial Bribery Laws.
Siffert, John S. & Rakoff, Jed S. (2012). Business Crime: Criminal Liability of the Business Community (six volumes).
Statement on the Adoption by the General Assembly of the United Nations Convention Against Corruption (2003).
Talebi Klishemi, Ali Morad, (2017), “Bribery and embezzlement in Iranian law and international documents”, first edition, Tehran: Khorsandi Publications. [in Persian]
The European Convention on Extradition of 1957.
The Foreign Corrupt Practices Act.
The International Code of Conduct for Public Officials.
The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
United Kingdom Law Commission, Reforming Bribry–A Consultation Paper 27 (2007), Available at:
 http://lawcommission.justice.gov.uk/docs/cp185_Reform
ing_Bribery_consultation.pdf.
United Kingdom Ministry of Justice, The Bribery ACT 2010–available at: http://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pd
f.
United Nations Convention Against Corruption, supra note 55, art. 1.
United States v. Carson, No. SACR 09-00077-JVS, 2011 U.S. Dist. LEXIS 154145, at *3–*4, *28 (C.D. Cal. Sept. 20, 2011).
United States v. Fagan, 821 F.2d 1002, 1009 (5th Cir. 1987).
United States v. Lipscomb, 299 F.3d 303, 309 (5th Cir. 2002) (citation omitted) (internal quotation marks omitteed).
United States v. Tonry, 837 F.2d 1281, 1284 (5th Cir. 1988). Available at: http://
www.cms-cmck.com/Hubbard.File.