Currency of information: 4 February 2015
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Penal Code of Thailand
Enforcement agencies: Police bodies, Department of Special Investigation, Public Prosecutor, NCCC, PACC, General Meeting of Supreme Court
Organic Act on Counter Corruption
Enforcement agencies: Police bodies, Department of Special Investigation, NCCC, Public Prosecutor, PACC, Office of the Auditor General, Cabinet, Senate
Act on Offenses Relating to Submission of Bids to Government Agencies
Enforcement agencies: Police bodies, Department of Special Investigation, NCCC, Public Prosecutor
Offenses
Penal Code of Thailand
The Penal Code of Thailand generally criminalizes the offering, acceptance or demand of property and other benefits to an official, to act or omit to act or to delay to act, contrary to the official’s functions.
The Penal Code specifically criminalizes: i) bribery of public officials, public prosecutors and judges; ii) soliciting or accepting gifts by public servants, public prosecutors and judges; iii.) malfeasance of public officials for property or benefit; and iv) malfeasance of public prosecutors and judges for property or benefit.
With respect to a private party offering property or a benefit to a public official, the Penal Code criminalizes such act: i) with respect to the giver, if the act is designed to induce a public official to act contrary to his functions; and ii) with respect to the receiver, if the act is contrary or in accordance with his function. In this regard, although the giver’s act is not specifically punishable, if it is made to induce a public official to act in accordance with his functions, it is nevertheless criminalized from the perspective of the public official.
Defenses
Defenses for bribery are prescribed in the regulations of the National Anti-Corruption Commission concerning criteria for a public official’s receipt of gifts or other benefits by moral obligation B.E. 2543, which establishes criteria for lawful receipt of hospitality expenses. In essence, hospitality expenses are not considered bribery, provided they fall under any of the following scenarios:
(a) The hospitality is received from a relative of the receiver and the hospitality has proper value corresponding to the social status of the receiver.
(b) The hospitality is received from another person who is not a relative of the receiver and the value of the hospitality does not exceed THB3,000 per occasion and per person.
(c) The hospitality is received in a manner that such hospitality is given to many undesignated persons.
Organic Act on Counter Corruption
This act establishes the National Counter Corruption Commission or National Anti-Corruption Commission (NCCC or NACC). The NCCC is an independent agency with broad investigative powers to suppress corruption by state officials. The NCCC can conduct investigations of the assets of politicians or state officials where a person is suspected to have accumulated “unusual wealth.” Specific members of national and local governments, as well as their families, are required to file a declaration of assets before taking office and after leaving office.
Amendments to existing legislation in 2015 have expanded the scope of Thai anti-corruption laws to cover private bribery involving state officials, foreign state officials and international organization officials. The new legislation covers: (1) an official who demands or accepts a bribe; (2) a private party who accepts property or benefits to act as a middleman to induce an official to act improperly; and (3) a private party making a bribe, as well as a juristic entity with which the private party is related and for whose benefit a bribe has been made, if the juristic entity does not have appropriate internal control measures to prevent the offense.
Defenses
With respect to private bribery of state officials, foreign state officials or international organization officials, which is committed by a person related to, and for the benefit of, a juristic entity, if the juristic entity does not have “appropriate internal control measures to prevent such offense,” the juristic entity will be subject to fine of up to two times the damages incurred or benefits obtained. This suggests that a juristic entity will be able to limit or avoid liability for the offense by having in place appropriate internal control measures to prevent bribery of state officials, foreign state officials or international organization officials.
Act on Offenses Relating to Submission of Bids to Government Agencies
This act criminalizes collaboration to influence bid, bribery for bid, and fraud to gain bid. Submission of bids under the Act is defined as: the submission of an offer to be a person entitled to enter into a contract with government agencies relating to the purchase, contracting for works, exchange, lease disposal of property, acquisition of a concession or any other rights. The scope of application includes the Prime Minister, Minister, member of House of Representatives or Senate, political officials, local administrators or members of local assemblies, juristic entities, and individuals.
Penalties
Penal Code of Thailand
Penalties differ according to which criminal act is committed under the Penal Code (Titles II and III).
Penalties range from:
- imprisonment not exceeding five years or fine not exceeding THB10,000, or both(bribing public official to act or refrain from acting (§ 144));
- imprisonment from five to 20 years or imprisonment for life and a fine of THB2,000 to THB40,000 (abuse of public power through coercion/public official accepting benefit to act or not act before or after appointment (§§ 148, 149, and 150)); and
- imprisonment not exceeding seven years and a fine note exceeding THB14,000 (person agrees to give benefit to official to wrongly do or not do any act (§ 167)).
Organic Act on Counter Corruption
With respect to private bribery of state officials, foreign state officials or international organization officials, penalties range from:
- imprisonment not exceeding five years, or fine not exceeding THB100,000, or both, for bribery of an official by a private party; and
- fine equal to, but not exceeding two times, the damages incurred or the benefits obtained, for bribery of an official by a private party who is related to, and has acted on behalf of, a juristic entity that does not have appropriate internal control measures to prevent the offense.
The court is also empowered to order the forfeiture of: (1) property used or possessed for use in the commission of an offense; (2) property or other tangible benefits obtained from commission of an offense or from acting as instigator, supporter, or person advertising or offering to the general public to commit the offense; (3) property or other tangible benefits obtained from the sale or disposal of property or benefit under (1) or (2); or (4) any other benefits arising from the benefit or property under (1), (2) or (3).
Act on Offenses Relating to Submission of Bids to Government Agencies
Penalties range from:
- imprisonment from one to three years, or a fine equal to 50 percent of the highest bid by offenders or the value of the contract, whichever is higher (collaborate in the submission of bids to provide a benefit by avoiding fair competition, or preventing the offer of other goods or services, or taking advantage of government agencies (§ 4));
- imprisonment from one to five years and a fine equal to 50 percent of the highest bid by offenders or the value of the contract, whichever is higher (provide money or benefits to induce a person to submit a bid at a high or low level, not to bid or to withdraw a bid (§ 5));
- imprisonment from five to 10 years and fine equal to 50 percent of the highest bid by the offenders or the value of the contract, whichever is higher (compel a person, including by force or violence, to involuntarily participate or not participate in or withdraw submission of bids (§ 6));
- imprisonment from one to five years and fine equal to 50 percent of the highest bid by the offenders or the value of the contract, whichever is higher (using deceitful means to deprive others of opportunity to make fair submission or to cause mistaken submission of bids (§ 7));
- imprisonment from one to three years or fine equal to 50 percent of the highest bid by the offenders (dishonest submission of low or high bid (§ 8)).
1 This list is to be used as a guide only. It is intended to provide high level information regarding the primary laws in the specified countries in relation to ant-bribery and anti-corruption laws. Please refer to the relevant legislation for detailed information and to ensure that the information contained in this guide is up to date, and refer to the relevant Baker McKenzie contact for the jurisdiction for specific advice.
| Contacts at Baker McKenzie | |
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Timothy Breier Partner, Bangkok +66 2636 2000 p 3092 timothy.breier@bakermckenzie.com |