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Bribery committed by a public official (Articles 248, 248 bis and 249)
Requesting to receive or accepting:
greater payments than those that are usually acceptable by a person in such position or requesting an economic benefit for himself or a third party to perform an act, or for having already performed an act in the exercise of his duties, for which no payments are usually permitted.
an economic benefit for himself or for a third party to omit from acting or for having already omitted to act in the exercise of his duties, or to perform or for having already performed an act in violation of the duties of his office.
an economic benefit for himself or for a third party to commit a serious crime or misdemeanour as a public official in the performance of his duties, or torture or other cruel, inhuman or degrading treatment caused by public officials to the rights guaranteed by the Constitution.
an economic or other benefit to which he is not entitled, for himself or for a third party, by reason of his position.
Exerting influence on another public employee in order to obtain from him a decision that may generate a benefit for an interested third party.
Bribery of a public officer committed by a private natural person (Articles 250, 250 bis and 251 bis)
Giving, offering or consenting to give a public employee an economic benefit, for his advantage or for the advantage of a third party for such a person:
to perform or for having already performed an act in the exercise of his duties, for which reason no for such economic benefit is indicated.
to omit or for having already omitted to act in the exercise of his duties, or to perform or for having already performed an act in violation of the duties of his office.
to commit any serious crime or misdemeanour as a public official in the performance of his duties, or torture or other cruel, inhuman or degrading treatment caused by public officials to the rights guaranteed by the Constitution.
Offering or consenting to give a foreign public official a benefit, whether economic or of another nature, for his advantage or for a third party, to omit or perform, or for already having omitted or performed, an act, in order to obtain or retain, for himself or for a third party, any business or advantage in the context of international transactions.
The bribe
Is there a presumption that the advantage was given/received corruptly?
No
No
Would facilitation payments be caught?
Yes
Yes
Would corporate hospitality be caught?
1
Generally speaking the answer is no. However, Law No. 20.730, which regulates lobbying and the management of private interests before authorities and officials, only authorises official, recorded donations given out of courtesy and politeness (all of which must be disclosed in a public register), so that an excessively burdensome or expensive gift could be considered a bribe. However, this must be analysed according to the particularities of the case.
No
No
Is there any de minimis?
No
No
Does the bribe have to be monetary?
2
In the case of bribery offences in which a Chilean public official is involved, the benefit is only required to be of an economic or material nature, for example, the giving of a gift or debt forgiveness. In the case of bribery of a foreign public official, the law itself provides for the possibility of benefits of another nature.
No
No
Public officials
Does the offence only apply to bribing public officials?
Yes
Yes
Acts performed outside Chile
Can bribery performed outside Chilebe caught?
No
3
Although the answer is no, the following cases will be subject to Chilean jurisdiction: (i) crimes and misdemeanours committed by a diplomatic or consular officer of Chile, in the exercise of his functions, carried out outside the country, and also (ii) bribery committed by Chilean public officials or foreigners in the service of Chile and bribery of foreign public officials, perpetrated outside the country by a Chilean or by a person who has habitual residence in Chile.
No
4
Chilean laws, when contemplating the crime of bribery of a foreign public official, refer to its commission within the Chilean territory or jurisdiction.
Does the act also need to be illegal in the foreign country of performance?
Yes (Irrespective of the liability of the legal entity)
Chilean company if the bribe is committed abroad by its foreign subsidiary?
No
No
Foreign subsidiary of an Chilean company if the bribe is committed abroad?
No
No
Foreign national/company/partnership if bribe is committed in Chile?
Yes
Yes
Foreign national domiciled or “ordinarily resident” in Chile if bribe is committed outside Chile?
No
No
Foreign company/partnership if bribe is committed abroad?
No
No
Penalties
Penalties
Imprisonment from 61 days to ten years
Suspension of exercising the public position
Absolute, temporary or perpetual disqualification, for public positions or offices
Fine of four times the amount of the benefit requested or accepted
Penalty applicable to the crime committed as a result of the bribe, if applicable
Absolute, temporary or perpetual disqualification, to exercise positions, jobs, trades or professions in companies that contract with organs or companies of the State or with companies or associations in which it has a majority participation; or in companies that participate in concessions granted by the State or whose purpose is the provision of public utility services
Imprisonment from 61 days to ten years
Absolute, temporary or perpetual disqualification, for public positions or offices
Fine from two to four times the amount of the benefit offered.
Fine ranging from 100 to 1,000 “Monthly Tax Units”
5
“UTM” is a Chilean legal unit of account mostly used to calculate fines and tax obligations, which is automatically updated according to inflation. Considering UTM value on June 2023, the fine expressed in Euros ascends from EUR 7,255 to EUR 72,550.
fine ranging to the equivalent of app. US$ 7,700 to US$ 2,300,000
Absolute, temporary or perpetual disqualification, to exercise positions, jobs, trades or professions in companies that contract with organs or companies of the State or with companies or associations in which it has a majority participation; or in companies that participate in concessions granted by the State or whose purpose is the provision of public utility services
Penalty applicable to the crime committed by the public official as a result of the bribe, provided that the former is more severe than an imprisonment penalty ranging from 61 days to 540 days
Defences
Are there any defences available?
Yes
Yes
Source of law
Criminal Code
Law 20.393, which establishes the criminal liability of legal entities regarding money laundering and bribery offences
Offence
Bribery committed by or offered to private agents (Articles 287 bis and 287 ter.)
Requesting to receive or accepting an economic benefit (or a benefit of another nature), for himself or for a third party, to favour or for already having favoured in the exercise of his work the contracting with one bidder over another.
Giving, offering or consenting to give an employee or agent an economic or other benefit, for himself or a third party, to favour or for already having favoured the contracting of one bidder over another
Bribery committed by a legal entity or State-owned company
Offering or consenting to give a public employee an economic benefit, for his advantage or for a third party to:
6
Only when the crime has been committed directly and immediately in the interest or advantage of the legal entity, by its owners, controllers, managers, senior executives, representatives or those who perform administrative and supervisory activities, and provided that the commission of the offence was a consequence of the breach by the legal entity of its supervision and managerial duties.
execute or for having executed an act in the exercise of his duties, for which reason no payments are indicated.
omit or for having omitted an act in the exercise of his duties, or to execute or for having executed an act in violation of the duties of his office.
commit any high crime or misdemeanour as a public official in the performance of his duties, or torture or other cruel, inhuman or degrading treatment caused by public officials to the rights guaranteed by the Constitution.
Offering or consenting to give an employee or agent from a private company an economic benefit, for his advantage or for the advantage of a third party for favour or for having favoured in the exercise of his work the contracting with one bidder over another
The bribe
Is there a presumption that any advantage was given/received corruptly?
No
No
Would facilitation payments be caught?
Yes
Yes
Would corporate hospitality be caught?
1
Generally speaking the answer is no. However, Law No. 20.730, which regulates lobbying and the management of private interests before authorities and officials, only authorises official, recorded donations given out of courtesy and politeness (all of which must be disclosed in a public register), so that an excessively burdensome or expensive gift could be considered a bribe. However, this must be analysed according to the particularities of the case.
No
No
Is there any de minimis?
No
No
Does the bribe have to be monetary?
2
In the case of bribery offences in which a Chilean public official is involved, the benefit is only required to be of an economic or material nature, for example, the giving of a gift or debt forgiveness. In the case of bribery of a foreign public official, the law itself provides for the possibility of benefits of another nature.
No
No
Public officials
Does the offence only apply to bribing public officials?
No
Yes
Acts performed outside Chile
Can bribery performed outside Chile be caught?
Yes
Yes
Does the act also need to be illegal in the foreign country of performance?
Chilean company if the bribe is committed abroad by its foreign subsidiary?
No
Yes
Foreign subsidiary of a Chilean company if the bribe is committed abroad?
No
Yes
Foreign national / company / partnership if bribe is committed in Chile?
Yes
Yes
Foreign national domiciled or “ordinarily resident” in Chile if bribe is committed outside the jurisdiction?
No
No
Foreign company / partnership if bribe is committed abroad?
No
No
Penalties
Penalties include:
Imprisonment from 541 days to three years
Fine of double the amount of benefit requested or accepted
Dissolution of the legal entity or cancellation of its legal status
Permanent or temporary prohibition from entering into acts and contracts with State agencies or companies or associations in which the State has majority participation
Prohibition from being awarded any State concessio
Permanent or temporary loss of fiscal benefits, or absolute prohibition from receiving them for a specified period of time
Fine ranging from 400 to 300,000 “Monthly Tax Units”
7
Considering UTM value on June 2023, the fine expressed in Euros ascends from EUR 29,000 to EUR 22m.
Seizure of the assets unlawfully acquire
Seizure of assets whose value corresponds to the amount of the gains obtain through the perpetration of the crime
Publication of the condemnatory judgment
The deposit of a sum equivalent to the investment made in an account held by the treasury (if the crime involves making an investment that exceeds the legal entity’s income
Defences
Are there any defences available?
Yes
Yes
8
In the case of legal entities, they may defend themselves against the attribution of criminal liability by alleging: (i) that the commission of the crime has not been the consequence of the breach of their supervision and managerial duties ; and/or (ii) that the owners, controllers, managers, senior executives, or representatives of the legal person, or those who perform administrative or supervisory activities of it, involved in the commission of the crime, have done so exclusively for their own advantage or in favour of a third party. Penalties Penalties include: — Imprisonment from 61 days to ten years — Suspension of exercising the public position — Absolute, temporary or perpetual disqualification, for public positions or offices — Fine of four times the amount of the benefit requested or accepted — Penalty applicable to the crime committed as a result of the bribe, if applicable — Absolute, temporary or perpetual disqualification, to exercise positions, jobs, trades or professions in companies that contract with organs or companies of the State or with companies or associations in which it has a majority participation; or in companies that participate in concessions granted by the State or whose purpose is the provision of public utility services — Imprisonment from 61 days to ten years — Absolute, temporary or perpetual disqualification, for public positions or offices — Fine from two to four times the amount of the benefit offered. — Fine ranging from 100 to 1,000 “Monthly Tax Units” fine ranging to the equivalent of app. USD 7,700 to USD 2.3m — Absolute, temporary or perpetual disqualification, to exercise positions, jobs, trades or professions in companies that contract with organs or companies of the State or with companies or associations in which it has a majority participation; or in companies that participate in concessions granted by the State or whose purpose is the provision of public utility services — Penalty applicable to the crime committed by the public official as a result of the bribe, provided that the former is more severe than an imprisonment penalty ranging from 61 days to 540 days Defences Are there any defences available? 111 Chile (continued)
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