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29 June 20229 minute read

Understanding how Thai law looks at bribery, gift-giving and appropriate controls

Under Thai law, the act of bribery could be a criminal offense.[1] Key principles of the offense are as follows:

  1. The act of bribery means to give, offer, or promise to give any property or other benefits.
  2. Such benefit or property must be offered to a public official.[2]
  3. The benefit or property must be offered to the aforementioned official with the intent to persuade the official to wrongfully perform, not to perform, or delay the performance of any duty of the official’s office.
  4. If the offense of bribery is established, the individual found guilty will be subject to an imprisonment sentence not exceeding five years and/or a fine not exceeding THB100,000.

Further observations on the offense:

  • Offering a benefit or property to an employee of a private sector is not considered a bribery offense, but may instead be considered a breach of internal policy, and would only lead to, eg, a disciplinary sanction, employment termination, and/or breach of contract.
  • If bribery takes place, the intermediary[3] who connects the briber to an official may also be subject to an offense, along with the official.[4]
  • If an offense of bribery is committed by an associated person[5] having any relation to a private entity[6] and the bribe was taken for the benefit of such entity, the entity will be subject to a fine of one to two times the damages caused, or the benefit received.
  • An entity may have an affirmative defense to an allegation of bribery, if the entity can prove that it had implemented appropriate internal control measures to prevent the commission of bribery.

Appropriate internal control measures

The National Anti-Corruption Commission has issued guidelines for the determination of internal control measures appropriate for legal entities to prevent bribery, as follows:

  • strong policy and support from top-level management to fight bribery
  • risk assessment to effectively identify and evaluate exposure to bribery
  • enhanced and detailed measures for high risk and vulnerable areas
  • application of anti-bribery measures to business partners
  • accurate books and accounting records
  • human resources management policies complementary to anti-bribery measures
  • communication mechanisms that encourage reporting of suspicion of bribery andperiodic review and evaluation of anti-bribery prevention measure and their effectiveness.

Giving gifts to public officials

Thai law also regulates the giving of gifts or benefits by any persons to public officials.[7] “Gifts or benefits” includes, but is not limited to, discounts, entertainment, service, meals or the equivalent.

The criteria for a  public official to accept gifts or benefits are as follows:

Value of gifts or benefits

Given to

officials

Gift or benefit not exceeding THB3,000 per occasion. Such gifts or benefits must only be given during recognized festive occasions, per tradition, or as part of a custom or cultural exchange

Permitted

Gift or benefit exceeding THB3,000. There are no express restrictions on when such gift or benefits may be given.

Requires approval from the official's direct supervisor


Giving a gift or benefit, regardless of the value, to a public official is not considered an offense of bribery, unless it is given with an intent to solicit a benefit in kind may be considered an offense of bribery, as discussed above.

Reporting channel for foreign investors

Foreign investors may report[8] the conduct of an official to the Complaint Center for Foreign Investors (CCFI), a report-recipient arm under the Office of Public Sector Anti-Corruption Commission (PACC), when faced with:

  1. An official’s failure to comply with the Licensing Facilitation Act[9]
  2. An official’s conduct that causes nuisance or damages to the public and/or
  3. An official’s conduct that causes severe detriment to government services.

The PACC may take the following actions upon a report:

  • Notify the relevant government agency of the report. The government agency will conduct internal investigation on the issue, and notify the outcome to the PACC within 60 days and
  • Where action is required, the government agency will notify the PACC of how long the actions will take. If the government agency fails to comply with such timeline without reasonable cause, the PACC shall take further actions as required.

The procedure has yet proven to provide an effective sanction, measure, or relief for the reporting foreign investor. In principle, the CCFI/PACC plays only a liaising role with other government agencies.

Over time, the procedure will likely see further amendments to bolster the CCFI/PACC’s authority.

Find out more about the work of the CCFI and PACC in Thailand and the implications for your business by contacting any of the authors.


[1] Under the Penal Code of Thailand and The Act Supplementing the Constitution Relating to the Prevention and Suppression of Corruption (2018).

[2] Includes officials of the Thai government (including those who have retired or resigned from their positions for two years or less), a Thai state-owned enterprise, foreign government, or an international organization.

[3] Refers to a person who calls for, accepts, or agrees to take any property or other benefits as an incentive for persuading or having persuaded a public officer by dishonest or unlawful means or by his or her influence, to act or omit to act in the duty which is advantageous or disadvantageous to any person. If found guilty, the intermediary will be subject to an imprisonment sentence of not exceeding 5 years and/or a fine of not exceeding THB100,000.

[4] A public officer who calls for, accepts, or agrees to take a bribe for his or herself or others in order to act or to omit to act in his or her position will be subject to an imprisonment sentence of 5-20 years or to life imprisonment, and/or to a fine of THB100,000-400,000, whether or not such act is lawful in the performance of duties.

[5] Includes representatives, employees, agents, affiliated companies, or any persons acting for or on behalf of the Thai or foreign entity, if whether or not such person has the authority to act on behalf of the entity.

[6] Includes an entity incorporated under the laws of Thailand or of foreign countries that operates in Thailand.

[7] The Notification of the National Anti-Corruption Commission concerning the provisions of the acceptance of property or any other benefit on ethical basis by State officials B.E. 2543 (2000).

[8] Section 58/2 of the Executive Measure in Anti-Corruption Act B.E. 2551 (2008)

[9] The law which generally regulates the public sector to consider the application for any permits and ensure that the process is timely and transparent.

 

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