The Application Of Deferred Prosecution Agreements In Combating Transnational Commercial Bribery

As multinational corporations(MNCs)conduct business globally,commercial bribery committed by MNCs,i.e.,transnational commercial bribery,has also become distinctive from ordinary commercial bribery.Transnational commercial bribery is more widespread,as well as being more covert and complex,and more destructive than ordinary commercial bribery.These special characteristics pose a greater challenge to fighting transnational commercial bribery.At the same time,due to the current international governance level of transnational commercial bribery,there are certain problems and defects,such as the conflicts of jurisdiction,which makes the phenomenon of forum shopping unable to be effectively resolved,and also brings the risk of multiple enforcement to MNCs.Therefore,in the field of transnational commercial bribery,a more effective means is needed to mitigate the aforementioned defects and problems.This paper argues that the Deferred Prosecution Agreements(DPAs)have become effective tools to combat commercial bribery and have the potential to become a future trend to effectively address transnational commercial bribery cases.Not only can them effectively avoid the adverse consequences of corporate conviction at trial,they can also promote a culture of compliance,encourage corporate self-disclosure,and prevent crimes at their sources.In particular,the multi-jurisdictional model of coordinated deferred prosecution agreements has lots of merits in the fight against transnational commercial bribery and can also mitigate current problems.However,along with the effectiveness of this tool,certain problems and potential risks have emerged in practice,such as the inability to fully address the risk of multiple enforcement,the possibility of further expanding the extraterritorial jurisdiction,obstacles to asset recovery issues,and the possibility of further exacerbating the Too Big to Fail dilemma.Therefore,in the process of constructing and applying a DPA-like resolution to address transnational commercial bribery in China in the future,attention should be paid to the prevention and resolution of its potential risks,so as to better utilize its advantages.In the face of the increasingly common application of the DPA in combating transnational commercial bribery,especially under the model of coordinated deferred prosecution agreements in multiple countries,multinational corporations should pay more attention to actively respond to it from multiple aspects.Chapter 1 is the “overview of the background and current situation of the fight against transnational commercial bribery”.The first chapter summarizes the background of fighting transnational commercial bribery and introduces the connotation,characteristics and different approaches to combating transnational commercial bribery.Second,it introduces the deferred prosecution agreements in the context of transnational commercial bribery,and suggests that the focus of this paper will be on the multi-jurisdictional coordinated deferred prosecution agreement model.The last part of this chapter summarizes the current situation and problems in the field of combating transnational commercial bribery,laying the foundation for the subsequent analysis.The second chapter is "Legal Regulation and Practice of the Deferred Prosecution Agreement in Combating Transnational Commercial Bribery".This chapter introduces the international regulation of transnational commercial bribery by the OECD and the United Nations on deferred prosecution agreements(DPAs)at three levels:international conventions,convention-related documents and research reports.The final part of this chapter analyzes in detail the current legal practice of multijurisdictional coordinated deferred prosecution agreements,mainly through the analysis of the Airbus case and other cases to summarize the specific situations of legal practice.The third chapter is "Evaluation of the Deferred Prosecution Agreements for Transnational Commercial Bribery".This chapter analyzes the strengths,weaknesses and potential risks of the deferred prosecution agreements for transnational commercial bribery.In the third part,the chapter summarizes the content of the chapter and provides an overall evaluation of the DPAs,namely,the tool is a more effective approach in the current context and may become a possible trend in the future,and the potential risks should be prevented in the construction and application of the tool.The fourth chapter is "China’s Application of Deferred Prosecution in Combating Transnational Bribery and Suggestions for Multinational Corporations to Respond".Based on the analysis in the first three chapters,this chapter makes recommendations for China and MNCs to respond.The recommendations for China are: improving criminal compliance legislation,actively applying the criminal compliance system to combating transnational commercial bribery crimes,and flexibly responding to the improper use of the deferred prosecution agreements by foreign countries.The recommendations for MNCs are: improve compliance programs,actively self-report,and actively cooperate with law enforcement authorities.