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Commissioned Research Report on Domestic Law Examination and Legislative Suggestions regarding Chapter 2 ‘Preventive Measures’ and Chapter 3 ‘Criminalization and Law Enforcement’ of United Nations Convention against Corruption (2017-08-30)

Referring to the requirements of public procurement and management of public finances under Article 9 of the United Nations Convention against Corruption, Part I of this report begins with a review of the norms relating to integrity and ethics in the government procurement system in Taiwan. Following the review is a comparative study on German code of conduct of civil servants, the exemption of confidentiality under the Law on the Status of Civil Servants (Beamtenstatusgesetz) and several concepts of Federal Freedom of Information Act (Informationsfreiheitsgesetz). This report also refers to the relevant provisions of the Berlin Corruption Register Law (Korruptionsregistergesetz) and the draft of German Federal Competition Register Law (Wettbewerbsregistergesetz) that are worthy to be introduced to Taiwan. In addition, since bribe money is often transmitted or hidden through financial institutions, Article 14 of the Convention also requires the establishment of measures to prevent money laundering in financial institutions. Therefore, this report then compares the anti money laundering provisions for financial institutions under Taiwan’s Money Laundering Control Act with the requirements provided by German Banking Act (Kreditwesengesetz – KWG) in order to make suggestions for the AML reform in Taiwan.
Part II of this report focuses on Article 12 (private sector) and Article 33 (protection of reporting persons) of the Convention. It includes discussion on six aspects of internal control, remedying harm from criminal conduct, high money penalty, Institution-affiliated party, duty to report and whistleblower protection. By exploring the U.S. legal system and the practical problems regarding anti corruption requirements for the U.S. enterprises, this report makes several policy and legislative suggestions for the legal reform in Taiwan. Relevant provisions provided by Taiwan’s laws and regulations such as Securities and Exchange Act, Regulations Governing Establishment of Internal Control Systems by Public Companies, Business Entity Accounting Act, Banking Act, and Administrative Penalty Act are discussed for enhancement. Several self-regulatory provisions in rules of professional conduct for lawyers and best practice principles for listed companies are suggested for amendment or enactment. This report also suggests the rule maker considering procedural justice issues in the whistleblower protection arena. To give a clear definition of criminal corruption, Part III begins with an analysis of corrupt activities and the infringement of “Rechtsgut” caused by corruption.
Accordingly, this report tries to make effective legislative proposals that meet Chapter III requirements of the Convention. As to trading in influence (Article 18) and bribery in private sector (Article 21) stated in the Convention, there is still no corresponding punishment or penalty in Taiwan. In addition, Article 298 of German Criminal Code (Strafgesetzbuches) that requires restricting competition through agreements in the context of public bids is considered protecting the same interests as private sector bribery. Therefore, it is suggested that the legislature may consider the establishment of such a punishment in Taiwan as well. This report then makes suggestions and draft provisions for the amendments of relevant laws in Taiwan. It is expected that such a legal reform will be in line with both constitutional and criminal principles and then in accordance with the requirements of the Convention.

Release date:2019-11-18 Last updated:2019-11-18