FCPA法案.docx

1、FCPA法案July 22, 2004Anti-Bribery and Books & Records Provisions ofThe Foreign Corrupt Practices ActCurrent through Pub. L. 105-366 (November 10, 1998)UNITED STATES CODETITLE 15. COMMERCE AND TRADECHAPTER 2B-SECURITIES EXCHANGES 78m. Periodical and other reports (a) Reports by issuer of security; cont

2、entsEvery issuer of a security registered pursuant to section 78l of this title shall file with the Commission, in accordance with such rules and regulations as the Commission may prescribe as necessary or appropriate for the proper protection of investors and to insure fair dealing in the security-

3、(1) such information and documents (and such copies thereof) as the Commission shall require to keep reasonably current the information and documents required to be included in or filed with an application or registration statement filed pursuant to section 78l of this title, except that the Commiss

4、ion may not require the filing of any material contract wholly executed before July 1, 1962.(2) such annual reports (and such copies thereof), certified if required by the rules and regulations of the Commission by independent public accountants, and such quarterly reports (and such copies thereof),

5、 as the Commission may prescribe.Every issuer of a security registered on a national securities exchange shall also file a duplicate original of such information, documents, and reports with the exchange.(b) Form of report; books, records, and internal accounting; directives* * *(2) Every issuer whi

6、ch has a class of securities registered pursuant to section 78l of this title and every issuer which is required to file reports pursuant to section 78o(d) of this title shall-(A) make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions

7、and dispositions of the assets of the issuer; and(B) devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that-(i) transactions are executed in accordance with managements general or specific authorization;(ii) transactions are recorded as necessar

8、y (I) to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and (II) to maintain accountability for assets;(iii) access to assets is permitted only in accordance with managements general or speci

9、fic authorization; and(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.(3)(A) With respect to matters concerning the national security of the United States, no duty or liability un

10、der paragraph (2) of this subsection shall be imposed upon any person acting in cooperation with the head of any Federal department or agency responsible for such matters if such act in cooperation with such head of a department or agency was done upon the specific, written directive of the head of

11、such department or agency pursuant to Presidential authority to issue such directives. Each directive issued under this paragraph shall set forth the specific facts and circumstances with respect to which the provisions of this paragraph are to be invoked. Each such directive shall, unless renewed i

12、n writing, expire one year after the date of issuance.(B) Each head of a Federal department or agency of the United States who issues such a directive pursuant to this paragraph shall maintain a complete file of all such directives and shall, on October 1 of each year, transmit a summary of matters

13、covered by such directives in force at any time during the previous year to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.(4) No criminal liability shall be imposed for failing to comply with the requirements of

14、paragraph (2) of this subsection except as provided in paragraph (5) of this subsection.(5) No person shall knowingly circumvent or knowingly fail to implement a system of internal accounting controls or knowingly falsify any book, record, or account described in paragraph (2).(6) Where an issuer wh

15、ich has a class of securities registered pursuant to section 78l of this title or an issuer which is required to file reports pursuant to section 78o(d) of this title holds 50 per centum or less of the voting power with respect to a domestic or foreign firm, the provisions of paragraph (2) require o

16、nly that the issuer proceed in good faith to use its influence, to the extent reasonable under the issuers circumstances, to cause such domestic or foreign firm to devise and maintain a system of internal accounting controls consistent with paragraph (2). Such circumstances include the relative degr

17、ee of the issuers ownership of the domestic or foreign firm and the laws and practices governing the business operations of the country in which such firm is located. An issuer which demonstrates good faith efforts to use such influence shall be conclusively presumed to have complied with the requir

18、ements of paragraph (2).(7) For the purpose of paragraph (2) of this subsection, the terms reasonable assurances and reasonable detail mean such level of detail and degree of assurance as would satisfy prudent officials in the conduct of their own affairs.-top-* * * 78dd-1 Section 30A of the Securit

19、ies & Exchange Act of 1934. Prohibited foreign trade practices by issuers(a) ProhibitionIt shall be unlawful for any issuer which has a class of securities registered pursuant to section 78l of this title or which is required to file reports under section 78o(d) of this title, or for any officer, di

20、rector, employee, or agent of such issuer or any stockholder thereof acting on behalf of such issuer, to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer,

21、 gift, promise to give, or authorization of the giving of anything of value to-(1) any foreign official for purposes of-(A) (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawfu

22、l duty of such official, or (iii) securing any improper advantage; or(B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,in order to assist such issuer in obtaini

23、ng or retaining business for or with, or directing business to, any person;(2) any foreign political party or official thereof or any candidate for foreign political office for purposes of-(A) (i) influencing any act or decision of such party, official, or candidate in its or his official capacity,

24、(ii) inducing such party, official, or candidate to do or omit to do an act in violation of the lawful duty of such party, official, or candidate, or (iii) securing any improper advantage; or(B) inducing such party, official, or candidate to use its or his influence with a foreign government or inst

25、rumentality thereof to affect or influence any act or decision of such government or instrumentality.in order to assist such issuer in obtaining or retaining business for or with, or directing business to, any person; or(3) any person, while knowing that all or a portion of such money or thing of va

26、lue will be offered, given, or promised, directly or indirectly, to any foreign official, to any foreign political party or official thereof, or to any candidate for foreign political office, for purposes of-(A) (i) influencing any act or decision of such foreign official, political party, party off

27、icial, or candidate in his or its official capacity, (ii) inducing such foreign official, political party, party official, or candidate to do or omit to do any act in violation of the lawful duty of such foreign official, political party, party official, or candidate, or (iii) securing any improper

28、advantage; or(B) inducing such foreign official, political party, party official, or candidate to use his or its influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,in order to assist such issuer in obtaining

29、 or retaining business for or with, or directing business to, any person.(b) Exception for routine governmental actionSubsections (a) and (g) of this section shall not apply to any facilitating or expediting payment to a foreign official, political party, or party official the purpose of which is to

30、 expedite or to secure the performance of a routine governmental action by a foreign official, political party, or party official.(c) Affirmative defensesIt shall be an affirmative defense to actions under subsection (a) or (g) of this section that-(1) the payment, gift, offer, or promise of anythin

31、g of value that was made, was lawful under the written laws and regulations of the foreign officials, political partys, party officials, or candidates country; or(2) the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel an

32、d lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to-(A) the promotion, demonstration, or explanation of products or services; or(B) the execution or performance of a contract with a foreign government or agency thereof.(d) Guidelines by Attorney GeneralNot later than one year after August 23, 1988, the Attorney General, after consultation with the Commission, the Secretary of Commerce, the United States Trade Representative, the Secretary of State, and the Se