For now, there is no unified code against bribery in Taiwan. To prevent public servants from bribery, activities such as gratuities or banquets, are regulated by the Ethics Guidelines for Civil Servants (“the Guidelines”). Bribery with civil servants is punishable under the Criminal Code and the Anti-Corruption Act. Commercial bribery not involving civil servants may constitute the offense of breach of trust provided in the Criminal Code or the Securities and Exchange Act.
According to the Guideline, civil servants shall not demand, solicit, or accept gratuities from, and not take part in banquets or other entertainment activities of, those who have vested interests in their official duties. Such activities is acceptable under certain circumstances, e.g. unsolicited occurrence not influencing civil servants’ exercise of official duties, and activities in accordance with standard limit on normal courtesy gratuities, such as providing gratuities below 3,000 NTD for the wedding. However, the Guide is only an administrative regulation, and the violation of which would not necessarily incur bribery under the Criminal Code or the Securities and Exchange Act. In order to establish bribery, there shall be a quid pro quo relation between the vested money or interests and the official duties of the civil servant. In determining a quid pro quo relation, numerous objective criteria shall be taken into considerations, e.g. details of the official duties, relationship between offeror and offeree, category and value of the bribe, the timing of the offer of bribe. In particular, while giving gratuities to civil servants, it is not allowed to give gratuities or entertainment activities that would make civil servants breach her official duties, or jeopardize her official judgment. Gratuities and entertainment activities cost too much shall also be avoided. Therefore, it is obliged to obey the Civil Servant Services Act and relevant regulations promulgated by competent authorities, especially regulations regarding gratuities and entertainment activities.
In addition, in order to constitute bribery under the Criminal Code, one shall offer, promises, or give bribes or other improper benefits to a civil servant for a breach of her “official duties”. In determining “official duties”, two interpretations can be found from the jurisprudence: the theory of “legal duty”, and the theory of “substantial influence”. According to the theory of legal duty, official duties shall refer to acts of civil servant’s duties provided in the laws, while the theory of substantial influence deems such duties as acts related to and substantially affected by civil servant’s duties. In a case concerning a former legislator taking bribes for interceding and “settling” problems, the Court in the first-instance judgment adopted the theory of legal duty, ruling that intercession and settling problems were not within the legal duties of a legislator, and thus out of the scope of official duties. However, the Court in the second-instance adopted the theory of substantial influence, sentencing the former legislator guilty, because he had substantial influence with the interceded matters regarding personnel, financial and operational affairs. Therefore there was close connection between bribery and official duties, and thus constitutes the offense of bribery. This case is currently pending in the Supreme Court. How the Court adopts one of the theories would determine the standard for the meaning of “official duties”. It would be a case worth keeping an eye on.
Last but not least, there is no unified code for commercial bribery not involving civil servants. It may constitute the offense of breach of trust provided in the Criminal Code or the Securities and Exchange Act for a non-civil servant individual to accept bribes or other improper benefits, causing loss to her corporation. For example, a procurement manager of a public company took commission from the supplier, and purchased commodities with a price far above the market average, causing loss to her company. In addition, it also constitutes the offense of breach of trust when a company member bribes a third party, and caused loss to her company (such as reputation loss, e.g. bribery reported by the press, or monetary loss, e.g. money unauthorized taken from the company as the bribe).