On November 20, 2018, Law 21,121 (Anti-Corruption Law) was published, which amended the Criminal Code and incorporated the crime of bribery between private parties or individuals.
What does it consist of?
When an employee or agent who, exercising his position or duties in the private sector, requests or accepts an economic benefit or of another nature, for himself or for a third party, in order to favor or have favored the contracting of one bidder over another (287 bis); Whoever gives, offers or consents to give to an employee or agent an economic or other benefits, for himself or for a third party, in order to favor or have favored the contracting of one bidder over another (287 ter).
Who can commit the offense?
Any employee or agent of an organization in the exercise of his duties who:
- Solicits
- Accepts to receive (287 bis). An economic benefit or of any other nature.
Any person, that:
- Gives
- Offers
- Consents to give (287 ter). An economic or other benefits.
This crime is also known as bribery between private parties or corruption between private parties.
Questions and answers on private-to-private bribery
How does this affect companies?
It is essential that companies review and raise the standard of their control and management protocols since with this new crime, they could be liable for the acts committed by them or the collaborators who violate the rules while exercising these activities. This crime carries high penalties, both for the individuals who have committed it and for the companies involved.
What is the difference between bribery between private parties and public official bribery?
Public official bribery is characterized by the involvement of a public official, therefore, for the crime to occur, at least one of those involved must be a public administration worker, while bribery or corruption between private parties is characterized by the fact that it happens between companies.
In which areas or sectors is there a greater risk of this crime being committed?
In investment, disinvestment, or financing operations, procurement of goods or services, tenders (new selection process for proposals from different bidders), personnel selection (in exchange for favors – gifts such as prizes and invitations).
Matrix of bribery between private parties
This crime is typified in articles 287 bis and 287 ter of the Penal Code and they differ in the following points:
| Article
Penal Code |
287 BIS | 287 TER |
| Who can commit this crime? | Employee or agent | Any person |
| How can the crime be committed? | Requesting or agreeing to receive a benefit | Giving, offering, or consenting to give a benefit |
| What is the benefit? | Economic benefit or benefit of any other nature | |
| What is the benefit sought? | Favoring or having favored the contracting of one bidder over another | |
| What is the penalty? | 541 days to 3 years and one day + fine of up to double the benefit (if economic, or if of another nature: between $ 2,500,000 to $ 25,500,000 approximately). | 541 days to 3 years and one day + fine (to give or offer)
61 to 540 days (consenting to give) |
