美国反海外腐败法与中国合规现状.pdf

VIRGINIA LAW BUSINESS REVIEW VOLUME 5 SPRING 2010 NUMBER 1 FCPA COMPLIANCE IN CHINA AND THE GIFTS AND HOSPITALITY CHALLENGE F. Joseph Warin, Michael S. Diamant, and Jill M. Pfenning† INTRODUCTION 34 I. THE UPHILL FIGHT AGAINST CORRUPTION IN CHINA 35 A. Chinese Efforts To Curb Corruption 38 B. The American Angle 43 1. Recent History of FCPA Prosecutions Involving China 48 2. Prosecutions Against Individuals 57 II. GIFTS AND HOSPITALITY IN CHINA AND THE FCPA 58 A. Chinese Cultural Context 59 B. The FCPA’s Anti-Bribery Provisions and Business Courtesies In China 61 1. Anti -Bribery Provisions 61 2. Facilitating Payments Exception 62 3. Affirmative Defenses 65 † Mr. Warin is a partner and Mr. Diamant and Ms. Pfenning are associates at Gibson, Dunn Crutcher LLP in Washington, D.C. Mr. Warin, Mr. Diamant, and Ms. Pfenning represent numerous multinational companies doing business in China. Mr. Warin served as the FCPA compliance monitor for Statoil ASA and currently serves as U.S. counsel to the monitor for Siemens AG. Copyright © 2010 Virginia Law Business Review Association 33 34 Virginia Law Business Review 5:33 (2010) III. A COMPLIANCE PROGRAM FOR CHINESE OPERATIONS 70 A. Assessing the Company’s Business Courtesy Risk In China 70 B. Reporting and Recording 73 C. Designated Vendors and Pre-Approved Promotional Items 75 D. Effective Compliance Organization 76 E. Employee Training 78 CONCLUSION 79 INTRODUCTION ON the fifteenth day of the eighth lunar month (usual