美國聯邦「海外反貪污行為法」對我國企業法規遵循之啟示

Legal Compliance and Corporate Strategies in Dealing with Foreign Corrupt Practices Act of the United States

美國政府近年來持續不斷的在全球加強「海外反貪污行為法」（Foreign Corrupt Practices Act,FCPA）的執法，多家總公司位於美國境外的知名企業受罰。美國聯邦「海外反貪污行為法」自1977年頒布實施，禁止美國公司及個人或在美國上市或美國從事生意的外國企業及個人向外國政府官員行賄手段取得生意。Chadbourne & Parke LLP在2011年的一份研究報告中指出，亞洲企業是最可能被依美國「海外反貪污行為法」起訴排名第二的區域，僅次於中南美洲，在此一趨勢下，商業脈絡遍及全球的台灣企業對於「海外反貪污行為法」不可不審慎應對。面對全球化的競爭市場，競爭且合作的策略聯盟關係，企業間產生了許多新的競爭問題，公司經營的策略重點不應只是著重於技術的層面，觸角更應擴張為經營管理、商業競爭與法規遵循。傳統上，台灣企業普遍有輕視法律風險的傾向，以致於企業治理的問題與缺失頻傳，包括近年來亞洲企業遭受「海外反貪污行為法」的調查，均屬於輕忽法規遵循與公司治理所產生之結果。對於這類跨越國境、蔓延全球的法規遵循問題，已升溫成為另類的商業競爭手段。在友達光電（AU Optronics Corp.）的反托拉斯案件後，台灣企業雖對於全球法令遵循提高了警戒，惟在細部操作上，常因經驗不足而無法建立有效的法規遵循機制。實務上，現階段台灣企業逐漸設有法務單位，但大部分功能著重在合約審查、專利授權與談判及法律意見諮詢。面對本文所討論之企業應具備的主動事前防範，控制「海外反貪污行為法」的風險，其功能性遠遠不足。所以公司在組織運作上，實在有必要強化企業全球法規遵循能力，藉由健全的運作來預防不當行為的發生，避免傷害企業的商譽與利潤。本論文擬以實際案例與法令剖析往後台灣企業應如何提出對策，妥善因應此一巨大風險，並突顯本議題在國內法制之重要性。

In recent years, the U.S. government has continued to strengthen its implementation of the Foreign Corrupt Practices Act (FCPA) around the world. A number of well-known foreign enterprises with headquarters located outside the United States have been prosecuted, e.g. several executives from German company, Siemens were criminally prosecuted under the FCPA at the end of last year after the company was fined US$160 million in 2008. Since the promulgation and enforcement of the FCPA in 1997, the U.S. Federation has prohibited American companies and individuals, or foreign companies and individuals listed or engaged in business in the U.S. from offering bribes to foreign officials in exchange for business. In a report made by Chadbourne & Parke LLP in 2011, it was found that companies in Asia, second only to Central or South America, were most likely to be prosecuted under the FCPA. With this trend, Taiwanese companies should abide by the FCPA since they are doing business around the world. In a globally competitive market with strategic alliances amid competition and cooperation, companies have triggered many new competitors. Therefore, their business strategy should not only focus on techniques, but also extend to operations management, commercial competition and regulatory compliance. Traditionally, Taiwanese companies generally tend to disregard legal risks, which lead to frequent occurrence of problems and inefficiency in corporate governance. For example, under the FCPA, the recent investigation on Asian companies was the result of neglect in regulatory compliance and company operations. This regulatory compliance problem has crossed national boundaries and has further become an alternative means of business competition. After the antitrust case of AU Optronics Corp., Taiwanese companies have been made aware of global regulatory compliance. However, they failed to establish an effective mechanism on regulatory compliance due to lack of experience in detail operations. At this stage, Taiwanese companies have gradually established legal standards that mainly focused on the review of contracts, patent licensing, negotiation and legal consultation. In terms of precautionary initiatives and risk control of companies under the FCPA which are discussed in the research, these factors could hardly meet the desired functions. Thus, in terms of organizational operation, it is necessary for companies to strengthen their capacity for global regulatory compliance to prevent operational misconduct and prevent risks on reputation and profit. This thesis uses practical cases and laws to analyze how Taiwanese companies find solutions to deal with such huge risk, so as to highlight the importance of this issue in the domestic legal system.