The Criminalisation of Bribery in Asia and the Pacific

image of The Criminalisation of Bribery in Asia and the Pacific

Criminalisation is a key component of all international anti-corruption instruments. For example, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) and the UN Convention against Corruption (UNCAC) both require States Parties to enact specific criminal offences on bribery. The Asian Development Bank (ADB)/Organisation for Economic Co-operation and Development (OECD) Anti-Corruption Initiative's Action Plan commits countries to ensure ‘the existence of legislation with dissuasive sanctions which effectively and actively combat the offence of bribery of public officials’.

However, criminalisation can be a challenging task, as experienced by many countries Party to the Anti-Bribery Convention. This report reviews the criminalisation of bribery offences in Asian countries under the UNCAC. Drawing on the experience of the OECD Anti-Bribery Convention's monitoring mechanism, the review focuses on each member's implementation of UNCAC Articles 15, 16 and 26 (domestic and foreign bribery by natural and legal persons). The review also identifies trends and challenges across the Asia-Pacific region.


Sanctions for bribery

There is sometimes an imbalance in the sanctions between active and passive bribery. Over one-third of the Initiative’s members prescribe heavier maximum penalties for passive bribery than active bribery. On the contrary, no member punishes active bribery heavier than passive bribery. This reflects the traditional view that an official’s acceptance of a bribe is seen as a breach of trust and an abuse of power, and is thus more serious than bribe-giving. There is particular sympathy to this view in cases such as when a briber is a poor individual who must bribe to obtain basic public services. However, bribery is sometimes a crime of greed rather than need, such as when a business bribes an official to win a contract. It is questionable whether in these cases the briber is less culpable than the bribed official.


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