The Study On The Enforcement Practice Of The Foreign Corrupt Practice Act

U.S.Foreign Corrupt Practices Act(hereinafter referred to as "FCPA")was enacted in 1977 and has amended several times,too.It aims to regulate the bribery of American-related companies and individuals to officials of overseas governments and organizations.It is mainly composed of anti-bribery clauses and accounting clauses.The anti-bribery clauses mainly clarify the illegality of overseas bribery and its behavioral composition.The provisions on the subjects of jurisdiction are the key to define whether foreign companies and individuals are included in the jurisdiction of FCPA.The accounting clauses stipulate the records requirements and internal control requirements.What's more,the U.S.Department of justice and the U.S.Securities and Exchange Commission are responsible for FCPA's enforcement.Companies and individuals who violate it will face severe criminal penalties and civil liability.There was a great deal of opposition at the beginning of the promulgation of FCPA,because if only American companies in the overseas market were forbidden to pay bribes,many business opportunities would be taken away by other countries' companies.For this reason,the FCPA has been almost silent for a long time.However,with the conclusion of international convention on commercial bribery and the application of the long arm jurisdiction theory,the jurisdiction of FCPA is expanding and more and more foreign companies and individuals are bound by FCPA.Since the20 th century,FCPA's enforcement has been very active,and many multinational companies have been punished by billions of dollars,constantly refreshing the list of the highest penalty amount of FCPA.With the advancement of China's “Belt and Road” project,more and more Chinese companies are operating offshore and will directly or indirectly link up with FCPA.Therefore,this paper will analyze and discuss about the enforcement of FCPA based on its enforcement practice around the world.In general,FCPA's enforcement mainly presents the following characteristics:wide extraterritorial jurisdiction,application of reconciliation procedure andindividual reporting system,self-disclosure encouragement,and emphasis on the implementation of accounting terms.Among them,the FCPA's extraterritorial jurisdiction under the application of the long arm jurisdiction theory is noteworthy.As long as a company signs a contract in U.S.dollars,pays or simply sends a stored e-mail through a server located in the United States,it will be considered to build a "minimum connection" with the United States and then included in the FCPA jurisdiction.Moreover,because most FCPA cases are terminated by the settlement agreement signed between the companies involved and the FCPA enforcement agencies,and rarely enter the judicial trial stage,the current FCPA enforcement activities lack of effective judicial supervision.Based on the great discretion,FCPA enforcement agencies' enforcement activities around the world also present a "selective preference" for non-U.S.companies.In addition,this paper presents the FCPA enforcement data in 2019 and compares it with the one in recent years.Based on analysis,FCPA's global enforcement practice shows several trends.Besides the expanding jurisdiction scope,FCAP enforcement agencies are increasing their efforts to pursue individual responsibility,giving more attention to Chinese companies,and actively promoting international joint enforcement.Although no Chinese companies have been directly investigated by FCPA,cases against Chinese individuals have emerged.We can foresee that more and more Chinese companies and individuals will be directly or indirectly affected by FCPA in the future.In this regard,this paper has made a prediction on the scope and specific content of the impact that Chinese companies and individuals may be affected by.In order to deal with the challenges from FCPA enforcement,Chinese companies and individuals shall take precautions,such as learning the FCPA basic knowledge and typical cases and carrying out risk assessment for themselves.If one day they really become the target of FCPA enforcement,it is necessary to take effective measures in time and decide whether to reconcile with FCPA enforcement department according to the specific situation.In conclusion,the study of FCPA enforcement practice is a preparation for Chinese companies to deal with potential FCPA law enforcement,which has great practical significance and value and is worth further study.