Fighting Corruption from the Civil Side: Echoes from the Silence of Venezuelan Contract Law
© Springer International Publishing Switzerland 2015
Michael Joachim Bonell and Olaf Meyer (eds.)The Impact of Corruption on International Commercial ContractsIus Comparatum – Global Studies in Comparative Law1110.1007/978-3-319-19054-9_1919. Fighting Corruption from the Civil Side: Echoes from the Silence of Venezuelan Contract Law
(1)
School of Law and Political Sciences of Universidad Monteávila, Avenida Principal de Las Mercedes cruce con calle Paris, Centro Bancaribe, Piso 2, 1060 Caracas, Venezuela
(2)
Instituto de Derecho Privado, Facultad de Ciencias Jurídicas y Políticas, Universidad Central de Venezuela, Ciudad Universitaria de Caracas, Los Chaguaramos, 1051 Caracas, Venezuela
Eugenio Hernández-BretónDean (Corresponding author)
Abstract
The Venezuelan Anti-Corruption Law regulates the criminal aspects of corruption. However, there is no express statutory regulation in that Law or in any other Venezuelan law dealing specifically with the civil law consequences of corruption. Therefore, the general rules on contracts and torts of the Civil Code, and the general rules on civil liability arising from criminal offences contained in the Criminal Code, will apply. Although there is a considerable amount of court decisions dealing with the application of the Anti-Corruption Law, we have been unable to locate a single court decision or arbitral award dealing with the civil law consequences of corruption. Similarly, domestic commentators are silent on the subject matter. Thus, from the Venezuelan legal standpoint the matters dealt with in this exploratory research paper are unchartered waters.
19.1 Corruption Under Venezuelan Law
19.1.1 General Framework
The fight against corruption has been the subject of many efforts and different laws throughout the history of Venezuela. Notably, the first special law on the matter was enacted in 1982 (Organic Law for the Safeguard of the Public Patrimony).1 Previously corruption was punished by the relevant provisions of the different Criminal Codes in force since the nineteenth century.
Corruption is in fact a criminal offence under Venezuelan law. Currently anti-corruption legislation is contained in the Law against Corruption – Ley contra la Corrupción – (“Anti-Corruption Law”).2 There are several provisions of the Anti-Corruption Law that establish criminal offences that fall under the common meaning of corruption.
Pursuant to the Anti-Corruption Law, there are at least six crimes that, pursuant to the circumstances of each specific case, may be applicable. To wit:
For purposes of the foregoing, the following persons do qualify as public officials9:
1.
Inducement to give or promise benefits3: This crime is committed when a public official, abusing his functions, induces someone to give or promise, for himself or for another person, a sum of money or any other undue benefit or gift.
2.
Improper passive corruption4: This crime is committed when a public official who, because of a certain act related to his functions, receives or accepts a promise, for himself or for others, of retribution or other benefits not due to him. The person giving or promising the retribution or benefit shall also be subject to criminal liability.
3.
Proper passive corruption5: This crime is committed when a public official, with the purpose of delaying or omitting an act corresponding to his functions or performing an act contrary to his functions, receives or accepts money, a promise or other benefits, directly or indirectly. In this case, the penalties corresponding to this crime will also be imposed on (i) the intermediary of the public official or person who received the money, promise or other benefits on behalf of the public official; and (ii) the person giving or promising the money or other benefits.
Art 64 of the Anti-Corruption Law also provides that the crime of proper passive corruption shall be aggravated in the following circumstances:
(a)
when the object of the act of corruption is to confer public employment, subsidies, pensions or honors or to cause the public official to agree to sign contracts related to the administration to which the official belongs;
(b)
when the object of the act of corruption is to favor or cause any harm or damage to any of the parties in an administrative, criminal, civil or any other kind of procedure or lawsuit; and/or
(c)
when the act of corruption is committed by a judge who renders a judgment of deprivation of freedom exceeding 6 months.
4.
Incitement to corruption6: This crime is committed by a person who, without achieving his objective, insists on persuading or inducing any public official to commit any of the crimes of corruption.
5.
Collusion7: A conspiracy or concert of action between a public official and persons or intermediaries in order to obtain a specific result from a given contract. This offence is aggravated if the public official receives moneys, gifts or undue earnings.
6.
Representation of relationships with public officials8: This crime is committed by a person that representing that he/she has relationships with public officials is capable of influencing their decision making, and for such reason receives or is promised money or any other benefit for his intermediation, or in order to remunerate the granting of favors from public officials. The same offence is committed by the person giving or promising money or benefits, unless the payer has denounced the situation to the authorities before the initiation of the criminal judicial proceedings.
1.
Those invested with public functions, permanent or transitory, remunerated or ad honorem, whether by election, appointment or contract granted by competent authorities, serving at Agencies of the Republic, of the states, territories and federal dependencies, district, metropolitan districts or municipalities, national, state, district and municipal autonomous institutes, public universities, Central Bank of Venezuela or of any entities that exercise public powers.