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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Protected legal interest
- II. Persons involved
- III. Improper advantage
- IV. Offense
- V. Consideration
- VI. Subjective elements of the offense
- VII. Concurrence
- Bibliography
- Materials
I. Protected legal interest
1 The criminal offenses of bribery of public officials protect the public's trust in the objectivity and objectivity of official activities.
2 Some doctrine and case law hold the view that the criminal offense of bribery of public officials protects other legal interests. For example, the Federal Criminal Court also cited the protection of human rights as part of the protected legal interest of bribery of public officials. The protection of competition is also sometimes counted as a (co-)protected legal interest. Pieth, for example, states in connection with the state procurement system that it is undisputed that fair competition must also be protected in accordance with the increased requirements and increased competitive pressure in the state procurement system with the corruption offenses.
3 Although these opinions may often be correct in practice, they miss the mark according to the view expressed here: for example, the protection of human rights is in fact inextricably linked to the objective and factual exercise of state action. In other words, a violation of human rights should always go hand in hand with an illegal or discriminatory activity. If this is also accompanied by a bribe (see n. 21 et seq.), the area of the protected legal right is also affected by a narrow definition. The same applies to fair competition: if an official activity is carried out objectively and factually, competition cannot be impaired by state power. Any further impairment of free and fair competition must then be protected by competition law and not bribery law.
4 Against this background, the present opinion is that the criminal offenses of (domestic) bribery of public officials exclusively protect the public's trust in the objectivity and practicality of official acts.
II. Persons involved
5 The persons involved in the bribery of public officials are divided into the bribing person and the bribed person or public official. In the context of active bribery of public officials pursuant to Art. 322ter SCC, only the bribing person is a suitable offender.
A. Bribing person (perpetrator)
1. Natural person
6 The perpetrator of active bribery of public officials is the bribing person who, by offering or granting an undue advantage, intends to cause the bribed person to breach their (official) duties. Anyone, i.e. any natural person, can be the bribing party and thus the perpetrator of active bribery offenses.
2. Legal person
7 The situation regarding legal persons must be viewed in a more differentiated manner. Pursuant to Art. 102 para. 2 SCC, legal persons may in principle be liable to prosecution within the framework of so-called concurrent corporate criminal liability (see on subsidiary corporate criminal liability, OK-Baumgartner/Hurni, Art. 322quater SCC N. 4 f.). Concurrent corporate criminal liability under Art. 102 para. 2 SCC exists if the company is accused of not having taken all necessary and reasonable organizational measures to prevent the commission of a catalog offence. Since active bribery of public officials under Art. 322ter SCC is such a catalog offence, the possibility of concurrent punishment of the company is possible regardless of the criminal liability of a natural person.
8 It should be noted at this point only that the concurrent corporate criminal liability under Art. 102 para. 2 SCC is not an independent offense, but an attribution norm. This means that if the constituent elements of Art. 102 para. 2 SCC are present, the company is nevertheless not qualified as the “bribe-giver”. The briber is always the natural person. The accusation against the company based on Art. 102 para. 2 SCC is therefore not that the company as the bribing party fulfils the offence of bribery of public officials, but rather that it did not take all reasonable measures to prevent a natural person within the company organization from committing an act of bribery in the course of business.
B. Person bribed (object of the offense)
9 Bribery of a public official can only be punishable if the bribery communication (cf. n. 39 ff., according to which, in the opinion expressed here, a bribery offense is a communication offense) is made to a public official. Public officials within the meaning of Art. 110 para. 3 SCC as well as the other functionaries listed in Art. 322ter SCC are considered public officials. This is an exhaustive list.
1. Member of a judicial or other authority
10 A person is deemed to be a member of a judicial or other authority if he or she is a member of a legislative, executive or judicial body of the state. It is irrelevant whether this body is a collegial body or not. According to the view expressed here, this means that the terminology of “member” is to be understood non-technically and that membership of a judicial authority refers to membership of the entire court and not to an individual panel. This ensures that, for example, a single judge can also be qualified as a member of a judicial authority and can therefore be bribed. This term therefore includes, for example, judges, members of parliament, magistrates and members of church, school and other councils.
11 Often, this type of public official is also likely to fulfill the definition of a public official pursuant to Art. 110 para. 3 SCC.
2. Definition of public official
12 Art. 110 para. 3 SCC defines public officials as employees of a public administration and the administration of justice as well as persons who provisionally hold an office or are provisionally employed by a public administration or the administration of justice or who temporarily exercise official functions. For the assumption of a civil servant status, it is therefore essential that the transferred function is of an official nature. Such an official function always exists if the function has been transferred to fulfill a public task incumbent on the community. In the Pierre Maudet case, the Federal Supreme Court then stated that a “candidate public official” cannot be equated with a public official in office. If a person has a dual status and acts as a public official as well as standing in a future election, a distinction must be made as to whether the benefit is linked to the status as a public official or the status as a candidate in a future election.
13 Private individuals who perform public duties are treated in the same way as public officials (see Art. 322decies para. 2 SCC). This equality already results from the interpretation of the concept of public official under Art. 110 para. 3 SCC, according to which the Swiss Criminal Code assumes an institutional and a functional concept of public official.
14 All bodies that perform public duties with sovereign powers under the relevant law are to be regarded as institutional public officials. This includes, in particular, all bodies of the community that represent the state and administrative organization to the outside world.
15 Functional public officials, on the other hand, are all persons who are entrusted with the performance of a public task, regardless of the legal form of the contractual or binding relationship with the state. In most cases, these are persons who are employed by a state-affiliated company that is entrusted with the performance of a public task. Indications for the assumption of functional public office are therefore, for example, a state majority of shares in the group, control over the majority of votes and state influence over the nomination of the management bodies of this company. In the so-called “Gazprom decision”, the Federal Criminal Court also determined that the law of foreign states must also be taken into account when assessing whether a company performs public functions. The criminal law coverage of public officials is therefore relatively broad.
16 Private judges appointed outside the state by agreement of the parties to arbitrate or decide (private law) disputes are also deemed to be public officials. The explicit mention of arbitrators in the wording of Art. 322ter SCC is necessary as the arbitrators are not acting in a sovereign capacity even in the case of an enforceable arbitral award. The “impartial officials” at sports competitions do not count as referees within the meaning of Art. 322ter SCC; however, the granting of undue advantages to impartial officials may constitute an offense of private bribery pursuant to Art. 322octies f. SCC.
3. Officially appointed experts
17 Officially appointed experts are experts who, due to their special knowledge in a particular field, assist the judicial authorities in establishing legally relevant facts.
4. Officially appointed translators and interpreters
18 Officially appointed translators and interpreters are those auxiliary persons of the authorities and courts who translate statements and documents in foreign languages. The cantonal and federal procedural law determines the details.
5. Members of the armed forces
19 All persons who perform military service on the basis of compulsory or voluntary military service are considered to be members of the armed forces. This includes all officers, non-commissioned officers, privates and soldiers in the armed forces, the military women's service and the Red Cross service.
20 Members of the armed forces are only mentioned in the case of active bribery offenses, as the criminal liability of passive bribery by members of the armed forces is governed exclusively by Art. 142 et seq. MStG.
III. Improper advantage
A. Advantage
21 The instrumentality of bribery offenses is the undue advantage granted by the bribing person to the bribed person. This includes advantages in favor of the bribed person himself as well as in favor of a third party.
22 All gratuitous benefits, both material and immaterial, are deemed to be undue advantages.
1. Material advantage
23 The benefit is material if it results in an objectively measurable, economic or legal improvement. This primarily includes cash benefits, benefits in kind or benefits with a certain market value, as well as a waiver of claims. Legal advantages include the avoidance of a penalty or the extension of a deadline. In practice, attempts are often made to disguise the gratuitousness of the benefit by concluding fictitious transactions. Fictitious consultancy agreements, inflated invoices or the granting of loans that are not in line with the market are common. Such transactions qualify as a benefit if performance and consideration do not correspond economically. The standard market conditions should then be used as a benchmark.
2. Intangible advantage
24 An advantage is immaterial if it is a social or professional advantage, electoral support, advantageous marriage, a promotion and honors or sexual favors. This is criticized in the doctrine as being too broad, as in fact everything can be subsumed as an immaterial advantage. Moreover, most intangible benefits are at least indirectly measurable in material terms.
25 Consent to a joint barbecue or an evening out are not considered intangible benefits.
26 According to the view expressed here, it is not decisive for the affirmation of the existence of an advantage whether this advantage can necessarily be qualified as a tangible or intangible advantage. Rather, the decisive factor is that the recipient of the benefit feels an objectively measurable legal, economic or personal improvement as a result of the granting of this benefit.
3. Further comments
27 The mere compensation of expenses incurred by the recipient as a result of carrying out an action that is contrary to duty or discretionary does not constitute an advantage, as there is neither a legal nor a factual improvement. Therefore, the (subsequent) reimbursement of expenses actually incurred and to be borne by the recipient himself is not a benefit under the facts, not even on the occasion of an official act in breach of duty. However, if the donor's contribution exceeds the recipient's expenses even minimally, this must be regarded as a benefit. It should also be noted that the subsequent granting of an advantage for a prior breach of duty does not constitute bribery.
28 This is due to the so-called future requirement. This means that the granting of the undue advantage must be aimed at a future act or omission by the public official in breach of duty. The question of whether bribery of public officials requires a future requirement is controversial among scholars; while some scholars reject a future requirement, this view is strongly criticized by other voices in doctrine and case law.
29 Art. 135 para. 1 aStGB still expressly stipulated that the official act in breach of duty must be a future official act. Although this explicit provision was repealed with the revision of the criminal law on corruption, the view expressed here is that the future requirement must still be adhered to. A subsequent reward for an act or omission by a public official in breach of duty is not capable of affecting the legal interest protected in this case, as the public's trust in the objectivity of official activities is not affected by an act of bribery.
30 If the future requirement were to be abandoned, it would also be questionable whether an equivalence relationship can exist at all (cf. n. 49 et seq.; under certain circumstances, criminal liability based on the granting of an advantage pursuant to Art. 322quinquies SCC is conceivable, cf. OK-Baumgartner-Hurni, Art. 322quinquies n. 6 et seq.).
31 The future requirement is satisfied if an activity in breach of duty takes place without the granting of an undue advantage, but such an advantage has already been agreed. This case constellation fulfills the offence of promising an undue advantage (see N. 37).
B. Impropriety
32 In order for the granting of an advantage to be punishable in the context of bribery of public officials, it must be an undue advantage.
33 An advantage is improper if the recipient of the advantage is not entitled to accept it. “Improper” and ‘unlawful’ can therefore be used as synonyms.
34 However, it is not absolutely necessary for the acceptance of a lawful benefit that the public official has a direct legal right to accept the benefit. In particular, benefits that are granted on the basis of a contract are also due as long as the law or the administrative rules of the authorities (so-called Code of Conduct) leave room for this. Furthermore, Art. 322decies para. 1 SCC contains special provisions on advantages approved by a third party or minor and socially customary advantages that are never improper (see OC-Baumgartner/Hurni, Art. 322decies N. 2 et seq.).
IV. Offense
35 Finally, the offense in the narrower sense consists of the offering, promising or granting of the undue advantage by the bribing party to the public official for his benefit or for the benefit of a third party. The offense can be committed explicitly or implicitly.
A. Offering, promising or granting
36 The action variant of offering is understood to be the request to conclude a bribery agreement. It is therefore a unilateral declaration of intent on the part of the bribe-giver with the declaration content that the recipient will be granted an undue advantage for an act or omission by the public official in breach of duty. The offer of an undue advantage is a declaration of intent that must be received; by agreeing to the offer, the bribe-giver is obliged to provide the advantage. Whether the contractually agreed performance of an undue advantage can be (compulsorily) enforced under civil law by the public official's consent to the offer is not decisive.
37 The alternative offense of the promise represents the contractual (negotiation) stage in which the undue advantage was offered and also accepted by the potential recipient of the advantage. The parties have therefore agreed the corruptive obligation. The advanced bribery stage of the offense of offering the undue advantage has no influence on the abstract penalty range. At most, the advanced stage of the offense is taken into account in the context of the objective seriousness of the element of the offense.
38 Finally, the offense variant of granting an undue advantage is considered to have been committed if, after the stage of promising an undue advantage, this very advantage is also handed over. The briber therefore fulfills the performance agreed and owed under the bribery contract with the public official for the benefit of the public official or a third party. The dispatch on the revision of the criminal law on corruption already lists undue advantages to close relatives of a public official as a suitable offense. There are particular difficulties in drawing the line where the undue advantage is offered, promised or granted to a social or non-material organization with which the public official is not closely associated. According to the view expressed here, the term “third party” must be interpreted broadly. Public confidence in the objectivity of official activities is also violated if the public official makes a discretionary decision based on unobjective incentives in favour of an idealistic organization with which the public official is closely associated without objective reasons. An example of this would be an agreement whereby the public official, as a big fan of a football club, carries out a discretionary act in favor of a bribing person who in return gives this football club a sum of money. This is an undue advantage in favour of a social organization that is not close to the public official for objective reasons.
B. Attempt
39 It has not been fully clarified how an attempt to bribe a public official must be conceived, or the intensity or precision with which the public official must have received the offer of a bribe. The offense variants of offering and promising both represent the promise of an advantage without the advantage having (already) been conveyed. The acceptance of the offer by the public official is not necessary to complete the offense; it is sufficient if the offer has actually reached the public official. The offense is completed with the offer and the arrival of the offer. However, it is disputed whether the public official must actually have taken note of the offer. According to the view expressed here, there are no convincing arguments as to why it should be necessary for the public official to take note of the offer in order to complete the alternative offense of offering. Rather, it must be sufficient for the offer of a bribe to reach the public official in order for the alternative offence of offering to be completed; in this case, the briber has done everything necessary on his part to commit the offence. The offense of bribery is therefore a communication offense.
40 This means that, according to the authors, an attempt to actively bribe a public official can only be possible if the offer made does not reach the public official, for whatever reason, or could not penetrate the public official's area of access. As soon as the bribe offer has reached the public official's area of access, the bribe-giver's act is complete and he must be punished for active bribery of public officials. In the case of the alternative acts of promising and giving, the public official has necessarily taken note of the bribe-giver's offer and even agreed to it, which is why the question discussed above concerning these alternative acts does not arise. If these alternative actions are affirmed, there is always a completed (and finished) offense.
41 As long as the communication of the undue advantage from the bribe-giver to the public official has not yet begun, there is only a non-punishable preparatory act. An example of this is a case in which the bribe-giver has written and signed a letter offering an undue advantage to the public official, but has not yet sent it. In this case, there is a non-punishable preparatory act. As soon as the person offering the bribe has sent the letter, but the post office loses it, this constitutes attempted active bribery of a public official. If Swiss Post delivers the letter and the public official receives it, this constitutes a completed active bribery of a public official punishable by law; this also applies if the public official places the letter unopened in the waste paper.
V. Consideration
42 The promise, offer or granting of the undue advantage must be made in connection with a consideration by the public official which arises from his official activity.
A. Connection with the official activity
43 The consideration of the public official must be related to his official duties, otherwise there can be no bribery of public officials. In such a case, private bribery would have to be examined if the public official is in an additional, private-law relationship with a principal.
44 The prevailing doctrine pursues a broad definition of official acts. Consequently, a connection with the official activity does not always only exist if the public official acts within the scope of his actual area of responsibility, but can already exist if the action of the public official is also possible merely due to his position within the office. Consequently, it is sufficient to assume a connection to the official activity if the actions take place outside the official's area of responsibility, provided that it is possible to attribute them to “his” authority. An actual decision-making authority of the office holder in a specific matter is not required.
B. Consideration in the narrower sense
45 The act or omission carried out or demanded by the public official must either be in breach of duty or at the discretion of the public official.
1. Decisions or omissions contrary to duty
46 An act or omission by a public official is in breach of duty if it violates a (public law) norm that defines the public official's duty of conduct. A breach of an official directive or an administrative order may also constitute a breach of duty. Purely off-duty activities do not constitute a breach of duty.
47 A special case exists with regard to arbitrators, as their conduct in accordance with their duties arises exclusively from private law standards or contractual provisions. In this case, the private law norms and the contractual provisions are to be regarded as official duties and a breach of them constitutes a breach of duty by the arbitrator that is relevant under bribery law.
2. Discretionary decisions
48 Bribery of public officials also covers actions or omissions that are at the discretion of the public official. Discretionary decisions are always covered by bribery of public officials, even if the discretionary decision is not objectively objectionable; it is not necessary for the discretion to have been exceeded, undercut or abused or for it to be inappropriate. The discretionary decision is therefore always deemed to be relevant under criminal law relating to corruption as soon as it is based on irrelevant motives or a flawed procedure.
C. Equivalence relationship
49 Finally, corruption in the sense of criminal law can only exist if there is an equivalence relationship between the undue advantage granted by the bribe-giver to the recipient of the advantage and the consideration paid by the public official. The public official is supposed to provide his or her consideration, i.e. his or her official activity, precisely because of the bribe-giver's performance. There must therefore be an actual agreement between the bribe-giver and the public official to commit wrongdoing.
50 A relationship of equivalence exists if the undue advantage is offered precisely for the act or omission of the public official in breach of duty. In other words, the benefit must be offered in exchange for a sufficiently specific or determinable breach of duty or discretionary decision. However, this act in breach of duty does not necessarily have to be concretely determined in detail.
51 In order to prove a relationship of equivalence, it is not necessary for the wrongful agreement to be specifically determined for each benefit and each act in breach of duty. It is sufficient if the nature of the public official's action is determined by the agreement on wrongdoing. This view is also supported by the prevailing doctrine, which requires determinability, a sufficiently specific consideration or a consideration whose material content is at least roughly known.
52 Friendly relations between the bribing person and the public official do not preclude bribery as a result of the granting of an undue advantage. An equivalent relationship may also exist in such a constellation.
VI. Subjective elements of the offense
53 Active bribery of public officials is an intentional offense, although contingent intent is also sufficient. The briber's knowledge and intent must relate to the fulfillment of all objective elements of the offence, including in particular the relationship of equivalence.
VII. Concurrence
54 Art. 322ter SCC takes precedence over Art. 168 SCC (bribery during execution).
55 Art. 322ter SCC excludes Art. 322quniquies SCC as a catch-all offense.
56 Art. 322ter SCC and Art. 322quater SCC are mirror images of each other, which is why no participation or complicity in the counter-offense can be established. If the bribed person commits a punishable act as a result of the bribe, the bribe is in genuine ideal competition with incitement to commit a punishable act. Conceivable punishable acts include Art. 293 SCC (publication of official secret negotiations), Art. 305 SCC (favoritism), Art. 307 SCC (false testimony), Art. 312 SCC (abuse of office), Art. 314 SCC (misconduct in office), Art. 317 SCC (falsification of documents in office), Art. 319 SCC (escape of prisoners) and Art. 320 SCC (violation of official secrecy).
57 The relationship between Art. 322ter SCC and the bribery of foreign public officials or the bribery of private individuals is controversial among scholars. Pieth, for example, assumes genuine competition due to the different legal interests involved. According to Hilti, on the other hand, there is no competition, as the offenses are mutually exclusive. This view is to be followed. This means that there is either bribery of a domestic or a foreign public official. If the person involved in the bribery cannot be subsumed under the definition of a public official, then the bribery of a private individual is present.
Bibliography
Arzethauser Martin, Die Vorteilsgewährung bzw. die Vorteilsannahme nach dem revidierten Schweizerischen Korruptionsstrafrecht unter besonderer Berücksichtigung der unteren Begrenzung der Strafbarkeit im Rahmen der Sozialadäquanz und der freiwilligen Mitfinanzierung öffentlicher Aufgaben, Basel, 2001.
Arzt Gunther, Über Korruption, Moral und den kleinen Unterschied, recht 2001, S. 41-50 (zit. Arzt, Moral).
Arzt Gunther, Unternehmensstrafbarkeit, Fernwirkungen im materiellen Strafrecht, recht 2004, S. 213-223 (zit.: Arzt, Unternehmensstrafbarkeit).
Balmelli Marco, Die Bestechungstatbestände des schweizerischen Strafgesetzbuches, Bern 1996.
Baudenbacher Carl/Glöckner Jochen, Kommentierung zu Art. 4 UWG, in: Baudenbacher Carl (Hrsg.), Lauterkeitsrecht, Kommentar zum UWG, Basel 2001.
Cassani Ursula, Le droit pénal suisse face à la corruption de fonctionnaires, plädoyer 3(1997), S. 44-48.
Donatsch Andreas/Thommen Marc/Wohlers Wolfgang, Strafrecht IV, Delikte gegen die Allgemeinheit, 5. Aufl., Zürich 2017.
Frick Tanja, Auswirkungen einer Bestechung auf ein Vertragsverhältnis, Zürich 2004.
Gerber Rudolf, Zur Annahme von Geschenken durch Beamtete des Bundes, ZStrR 1979, S. 243-263.
Gfeller Diego R., Die Privatbestechung, Art. 4a UWG, Konzeption und Kontext, Basel 2010.
Hilti Martin, Kommentierung zu Art. 322ter StGB, in: Graf Damian K. (Hrsg.), Annotierter Kommentar StGB, Bern 2020.
Isenring Bernhard, Kommentierung zu Art. 322ter StGB, in: Donatsch Andreas (Hrsg.), Orell Füssli Kommentar, StGB, 21. Aufl., Zürich 2022.
Jositsch Daniel, Das Schweizerische Korruptionsstrafrecht, Zürich 2004 (zit.: Jositsch, Korruptionsstrafrecht).
Jositsch Daniel, Der Tatbestand des Anfütterns im Korruptionsstrafrecht, ZStrR 2000, S. 53-66 (zit. Jositsch, Anfüttern).
Jositsch Daniel, Der Tatbestand der Privatbestechung, sic! 2006, S. 829-838 (zit.: Jositsch, Tatbestand).
Kaiser Rudolf, Drittmittel, Sponsoring und Fundraising, ZStStr Band 49, Zürich et al. 2008 (zit. Kaiser, Sponsoring).
Mausbach Julian/Straub Peter, Kommentierung zu Art. 110 StGB, in: Graf Damian K. (Hrsg.), Annotierter Kommentar StGB, Bern 2020.
Meili Raffael, Strafrechtliche Bekämpfung der Privatbestechung, Zürich 2018.
Meise Barbara/Huguenin Claire, Kommentierung zu Art. 19/20 OR, in: Widmer Lüchinger Corinne/Oser David (Hrsg.), Basler Kommentar, OR I, 7. Aufl., Basel 2020.
Mingard Roxanne, L’avantage indu dans les infractions relatives à la corruption, ZStrR 2 (2010), Zürich 2010.
Müller Christof, Die Bestechung gemäss Art. 4 lit. b UWG, Bamberg 1997.
Niggli Marcel Alexander/Gfeller Diego R., Kommentierung zu Art. 102 StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, StGB I, 4. Aufl., Basel 2019.
Niggli Marcel Alexander/Mäder Stefan, Unternehmensstrafrecht, in: Ackermann Jürg (Hrsg.), Wirtschaftsstrafrecht der Schweiz, 2. Aufl., Bern 2021, S. 195-238.
Oberholzer Niklaus, Kommentierung zu Art. 110 Abs. 3 StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, StGB I, 4. Aufl., Basel 2019.
Perrin Bertrand, La répression de la corruption d'agents publics étrangers en droit pénal suisse, Basel 2008.
Pieth Mark, Kommentierung zu Art. 322ter StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, StGB II, 4. Aufl., Basel 2019.
Pieth Mark, Kommentierung zu Art. 322octies StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, StGB II, 4. Aufl., Basel 2019.
Pieth Mark, Korruptionsstrafrecht, in: Ackermann Jürg (Hrsg.), Wirtschaftsstrafrecht der Schweiz, 2. Aufl., Bern 2021, S. 803-846 (zit.: Pieth, Wirtschaftsstrafrecht).
Pieth Mark, Plädoyer für die Reform der strafrechtlichen Unternehmenshaftung, Jusletter 19.2.2018 (zit. Pieth, Unternehmenshaftung).
Steinbeisser Adrian, Die Bestechung von Bediensteten in obligationen-, arbeits- und wettbewerbs-rechtlicher Hinsicht, Basel 1977.
Stratenwerth Günter/Bommer Felix, Schweizerisches Strafrecht, Besonderer Teil Bd. 2, 7. Aufl., Bern 2013.
Tercier Pierre, La corruption et le droit des contrats, SJ 1999 II, S. 225-271.
Trechsel Stefan, Kommentierung zu Vor Art. 322ter StGB, in: Trechsel Stefan/Pieth Mark (Hrsg.), Praxiskommentar, StGB, 4. Aufl., Zürich et al. 2021.
Trechsel Stefan/Jean-Richard Marc, Kommentierung zu Art. 322ter StGB, in: Trechsel Stefan/Pieth Mark (Hrsg.), Praxiskommentar, StGB, 4. Aufl., Zürich et al. 2021.
Vasella Juana, Zivilrechtlicher Schutz vor Korruption im Privatsektor, in: Vasella Juana (Hrsg.), Von A wie Arbitration über T wie Transport bis Z wie Zivilprozess, Liber discipulorum für Prof. Dr. Andreas Furrer zum 55. Geburtstag, Bern 2018, S. 71-102.
Weber Daniel S./Baumgartner Loris, Zur Schutznormqualität von Art. 102 Abs. 2 StGB, AJP 2023, S. 437-445.
Materials
Botschaft über die Änderung des Schweizerischen Strafgesetzbuches und des Militärstrafgesetzes (Revision des Korruptionsstrafrechts) sowie über den Beitritt der Schweiz zum Übereinkommen über die Bekämpfung der Bestechung ausländischer Amtsträger im internationalen Geschäftsverkehr vom 19.4.1999, BBl 1999 5497 ff., abrufbar unter: https://www.fedlex.admin.ch/eli/fga/1999/1_5497_5045_4721/de, besucht am 20.11.2023, (zit. Botschaft Revision).