Criminal anti-corruption reform in the private sector
Since February of this year, a legal reform to the Organic Integral Penal Code has been in force, which highlights article 320.1 “acts of corruption in the private sector”, which has been questioned by this sector.
There is a need to clarify the proportionalities of the article, since it is judged with the same yardstick on three very broad criteria:
- The following may be prosecuted: the director, general manager, administrator, principal executive, shareholders, partners, legal representatives, attorneys-in-fact, advisors, auditors, sponsoring attorneys or any employee exercising management positions.
- From a wide variety of figures: legal entity under private law, non-governmental organization, association, foundation, committee, including irregular entities.
- For the following conducts: accepting, receiving or soliciting donations, gifts, presents, promises, rights, quotas, contributions, rents, interests, advantages, salaries, gratuities, immaterial benefits or undue economic benefits or other material goods, omitting or committing an act that allows favoring himself or a third party, in the course of economic, financial or commercial activities.
This article covers a large number of actors, a variety of conducts and a penalty of imprisonment of five to seven years, accompanied by a fine that in 2021 ranges between two hundred thousand and four hundred thousand dollars. It is encouraging to think that this reform seeks to deter acts of corruption. However, the criteria can be problematic because they are very broad and judge these types of conduct within the same sanctioning standard. From an economic point of view, the regulatory fragment makes the business landscape less attractive.
In addition, it is important to emphasize that, in the event that the liability of the legal entity is determined, the fine will be accompanied by the dissolution and liquidation of the legal entity.
Finally, it is worth noting that this reform includes the citizen’s duty to denounce, as well as incentives for those who do so, this in articles 422.1 and 430.2 respectively, these reforms aim to reduce acts of corruption, however, it is inevitable to question whether these measures will help reduce such acts or we will find ourselves with a mountain of complaints from anonymity.
This reform is generated after the IMF approved a disbursement of two billion dollars in favor of Ecuador, within the framework of this agreement the country committed among other things to strengthen the fight against corruption, which is why in December of last year the National Assembly approved a draft of 25 articles and since February of this year a legal reform to the Organic Integral Criminal Code is in force.