L'infraction de corruption: étude comparative entre le droit français et le droit tunisien

The new French penal code and the Tunisian penal code determine the average generators of the corruption which constitute the operations charged to the delinquents. The study of these average results in distinguishing two relative problems, respectively, with the nature of the thing offered or approved (A), and with the anteriority of these means compared to the act, the abstention or the intervention (B). The study of these two problems will enable us to determine the points of convergences and divergences between the two legislations.

A- The nature of the thing offered or approved

The repressive texts of the penal code, which aim at the active corruption and passivates, indicate the things offered, proposed, requested or approved by a very broad enumeration. It is a question, indeed, of soliciting, of proposing or of approving « offers, promises, gifts, present or advantages unspecified ». Voluntarily broad, these terms of the law call thus an extensive interpretation the legislator aims initially the handing-over of material things : cash^110(*), the promissory notes, accounts - checks or payment dissimulated under a banking operation^111(*), invaluable objects^112(*) etc it aim then the indirect payments which consist of the payment of the debts of the whom corrupted person^113(*), for example.

The legislator aims finally any unspecified advantage. Being the satisfaction of a hatred, the supreme court of appeal decides that it is not that about a purely subjective advantage^114(*). the unspecified advantage must be objective. A former decision of the jurisdiction for minors of Sarreuguemines had adopted the opposite solution^115(*). Article 432-11 CPF lends itself to this extensive solution.

Constitute unspecified advantages a step that the corrupter  commit yourself carrying out, the sexual intercourse which propose the corrupter, for example, « when a girl, surprised in obvious offense with decency offers to the gendarme to have sexual intercourse with him so that it gives up noting the offense^116(*) ».

With our opinion, today the sexual intercourse constitutes an average generator of the corruption and this in spite of the decision of the Supreme court of appeal of November 14, 1975 above mentioned, because article 432-11 CPF speaks explicitly about unspecified advantages^117(*).

It is noticed that, the legal formula translates the will of the legislator to exclude the case where the culprit acted on simple prayers or recommendations, forecasts which enter the incriminations. It is necessary that there is for the corruption an enrichment. What means that if the corrupted does not draw from money or an unspecified advantage of its intervention, the infringement will not be consumed. However, it does not matter that there was not a personal enrichment.

The specificity of the corruption of paid compared to that of the civils servant lies in the possibility for the employer of authorizing remuneration. For the corruption of paid the secret nature of remuneration is an essential component.

The secret character of remuneration puts in danger the interests of the employer. Secret remuneration being dangerous, the character is even enough in him to characterize the punishable activity. It is not necessary that the intrigues of the employees cause a damage with the employer. This point of view is explained and seemed to have to be that which the legislator wanted to do to prevail. Indeed, words « that this act caused an injury to him » were to withdraw during parliamentary work. The employer is not thus held to bring the proof of a damage which it would have undergone. However, when it was informed of the handing-over of remuneration and y agreed, the employer cannot call upon the violation of the obligation of fidelity which the employee must respect.

The proof of the knowledge and the assent of the employer is delicate in particular as it was informed of the handing-over by diverted ways and did not protest^118(*). The assent of the employer is supposed in the cases of posterior remuneration which are the tips. However, when the average generators of the punishable activity preceded the act, the abstention or the intervention of the corrupted, it should be considered that there was corrupting remuneration.

In Tunisian right, the legislator uses terms very close to those employed by his French counterpart. It acts indeed, «of the gifts or promise of gifts, or present or advantages of some nature that it is» for the active corruption and «of the gifts, promises, present or advantages of some nature that it is» for the passive corruption.

It should be noted that the terms «promise of gifts» and «advantages of some nature that it is» were added by the reform of May 23, 1998. The expression «promises of gifts» required a clarification on behalf of the government following the request of the commission of the laws, according to the government this expression was added to accuse the reception of the gifts promised after the achievement of the act. With our direction, there does not have is not a difference between the promises planned for the passive corruption and the promises of gifts planned for the active corruption. The legislator should have used the expression of «promise» for the two forms of corruption.

As for the words «advantages of some nature that it is» were added to widen the field of application of the texts. Thus the thing offered can consist, not only in money or material objects but also, more generally, in any advantage unspecified, material, intellectual or social, for the culprit or any other person.

Lastly, the reform of May 23, 1998 gave up the term " offers ", which existed in the old texts. We think that this abandonment would not involve a legislative vacuum since this concept can be included by that «advantages of some nature that it is».

In conclusion, the two legislations thus enumerate the same generating means of corruption the Tunisian jurisdictions can take as a starting point the the jurisprudence of the French courts since the court orders published are, on this point, very few even non-existent.

B the anteriority of the punishable behavior  compared to the act of the function

Following the reform of June 30, 2000 in France, the requirement of the anteriority of the request or approval compared to the act of the function, which envisaged forever by the Tunisian criminal law (2), was given up by the French legislator (1).

1- The abandonment of a traditional rule of the French criminal law of the corruption

According to a traditional rule of « criminal law of the corruption^119(*) », it is necessary that the request or approval is former compared to the act or the abstention. Thus, the only existence of offers which preceding the act of the function or the abstention is enough to characterize the infringement.

The condition of anteriority is imposed by the wording even articles 432-11, 434-9 and 433-1 CPF and L. 152-6 Fair labor standards act, etc These texts establish the order of succession of the various stages of the corruption. And thus first of all punished the fact of soliciting or of approving offers... for, only afterwards, of making or of abstaining from making the act of its function.

The Supreme court of appeal requires the proof of the anteriority of convention between the corrupter and the corrupted with the act which it remunerates. The acceptance of a gift, by a civil servant east can be morally or disciplinarily condemnable ; but it is not the corruption in the absence of former convention. This problem does not arise when the sums requested or counsels are indeed versed before the realization of the required goal^120(*).

This point of view is different from that adopted by certain foreign legislations such as the Italian right and German which do not know the rule of anteriority. IE German right carries out a single repression. The remunerations gifts of L `accomplished act and those of payment of act to come are repressed by a single infringement^121(*). In Italy the right distinguishes between two cases. Remuneration a posteriori is less severely punished^122(*). This distinction is founded on the idea that the gravity of the facts is less than in the corruption former to the act^123(*).

The solution adopted by the French legislator was criticized by professor DELMAS-SAINT-HILAIRE^124(*). It finds that this principle of anteriority comprises paradoxical consequences since it makes it possible to punish the civil servant who requested or approved a remuneration but which abstained from carrying out the act proposed or delayed, whereas it allows the impunity of the civil servant who starts by achieving the punishable act and to claim or accept remuneration thereafter.

Professor Vitu, as for him notices that this criticism is right and finds the remarks of professor relevant DELMAS-SAINT-HILAIRE. But they would not be in conformity with the wording of article 432-11 CPF : « ... The fact is punished... of requesting or of approving... offers, promises... to achieve or abstain from achieving...^125(*) ».

Jurisprudence undertook to correct the impunity which the ingeniousness of the delinquents could involve who would proceed to posterior successive remunerations with the pact of the corrupter. It retained a criterion based on the number of remunerations. It distinguishes two situations.

Of with dimensions, there is a single act ; it decides that it is of a gift and not about a corrupting remuneration. Of another dimensioned, there is a succession of gifts. In this case it decides that the character of anteriority of received remuneration results sufficiently owing to the fact that it was authorized systematically and to some extent permanent, in such a way that it necessarily determined the corrupted to achieve an act of its employment^126(*). The fraudulent concert can intervene later on at the time of new businesses.

Jurisprudence did not choose the solution to insulate each act. It decides that there is corruption, because the relations were tied between the civil servant and the private individual. The purpose of the gifts, remunerations of acts passed, can be to facilitate the future services thus, the doubtful context of the received gifts prints a punishable character easily to them and the offense of corruption is then made up^127(*).

Conscious, of the difficulty for the magistrates of bringing back the proof of the preliminary pact, some deputies mobilized themselves, in spring 2000, to make adopt by the Parliament an amendment which should facilitate the continuations of the facts of corruption. This initiative was adopted by the law of June 30 2000 which specified in articles 432-11, 433-1 and 434-9 CPF which the request or approval can intervene « constantly^128(*) ». From now on, the infringements of corruption activates or passivates are made up whatever the moment when the corrupter proposed his offer or his gift and whatever the moment when the accepted or requested corrupted.

Unfortunately, the legislator did not believe necessary or rather it did not realize that it was necessary consequently to modify the drafting of the continuation of the texts^129(*). Those say from now on this : « the request or the approval of the advantages is made constantly to achieve or abstain from achieving an act of the function ». It is noticed thus, that the letter of the law continues to maintain the requirement of the anteriority of the pact of corruption.

Certain authors proposed to make out the articles in question in another manner and to write : « the fact by a Community civil servant... of soliciting or of approving, without right... offers... to achieve or abstain from achieving or to have achieved or to have abstained from achieving an act of its function... ^130(*)».

Certain commentators, while trusting, with the ratio legis, wrote that the reform involves the disappearance of the requirement of the anteriority of the pact of corruption and that the intention of the legislator arises clearly from parliamentary work^131(*).

With our direction, one should not interpret the articles relating to the corruption following the reform of June 30 2000 in a literal way but it is necessary to carry out a teleological interpretation, giving the primacy for the legislator and not to the letter of the law. Such an interpretation would make it possible to say that the requirement of the anteriority of the pact of corruption was abandoned.

2 - The absence of the requirement of anteriority in Tunisian right 

Article 83 new CPT lays down : « Any person ...... who will have approved,....To achieve an act related to its function,... or to facilitate the achievement of an act.... or to abstain from achieving an act of its function,... is punished ten years of imprisonment and a double fine of the value of these receipts or approved promises, without it being able to be lower than ten thousand dinars ».

Article 91 new CPT lays out, as for him ; « Is punished five years of imprisonment.... any person who will have corrupted or tried to corrupt... in order to achieve an act related to her oiling,... or to facilitate the achievement of a dependant act has her function, or to abstain from achieving an act which it is of its duty to make ».

These two articles indicate well that must follow one another, in this order, the request or approval and the act to be achieved and not the reverse.

These two texts, if they are read in a way isolated from the other texts relating to the corruption, carry out to think that only the operations the purpose of which are the market of the function are repressed while they leave unpunished the remunerations given a posteriori such as it was the case in France before the reform of June 30, 2000.

Eager to avoid such a gap, the Tunisian legislator envisaged a special incrimination relating to remuneration a posteriori in article 85 new CPT which lay out : « If the public servant or comparable accepted gifts,.... in reward of acts which it achieved... or of an act which it abstained from making... ».

Let us announce that this incrimination existed since the promulgation of the Tunisian Penal code in 1913 and that only the sorrow, envisaged in this article, was modified by the reform of May 23, 1998. It is carried, indeed, one year of imprisonment at five years.

Another remark must be made on this level. The solution envisaged by the Tunisian legislator is identical to that envisaged by the Italian legislator since it makes the distinction between posterior remuneration with the act of the function and remuneration former to this act. The two moments of remuneration are the subject of distinct articles.

Of another with dimensions, the Tunisian legislator less severely punished remuneration a posteriori than former remuneration. First is punished five years of imprisonment whereas second is punished ten years of imprisonment.

The distinction relating to the applicable sorrows is founded on the idea that the gravity of the facts is less than in the corruption former to the act^132(*).

With our direction, it would be preferable that the Tunisian legislator represses by a single infringement the remunerative gifts of the accomplished act and those of the act to come, such as it is the case in German right and French right following the reform of June 30, 2000^133(*), since the gravity of the facts is identical whatever the moment, posterior or former, of remuneration compared to the act.

Para III : problems relating to the punishable activity 

Two problems can be raised on this level ; the attempt at corruption (A), the interposition of a third person (B).

With- the attempt 

The study of the two legislations shows the uselessness of the concept of attempt in French right (1) and the existence of an attempt of active corruption in Tunisian right (2).

1- the uselessness of the concept of attempt in French right 

Before the law of 1943, there were difficulties for the repression of the attempt at corruption. The cause was the incapacity of the doctrines to specify exactly the moment of consumption of the infringement. The doctrines were divided.

According to a first current, one placed the consumption of the infringement in the conclusion of the illicit market, the attempt at corruption passivates did not have that a restricted strong field and was hardly conceived but if the civil servant had requested offers or present. A voluntary desistance from the culprit could thus intervene effectively only at this stage of the traffic of the function; occurring after the agreement illicit between corrupter and corrupted, it was late and thus inoperative^134(*).

According to a second current, the consumption of the infringement was attached to the execution of the illicit market. The corrupted civil servant could still desist and abstain from the act for the achievement of which it had been paid, thus escaping any repression^135(*).

These difficulties disappeared in two times. Initially, with the law of March 16 1943 which decided that as regards corruption passivates the offense is considered consumed not only by the conclusion of the illicit market, but even by the simple request of the gifts or promises. Consequently, There was not thus more place for the punishable attempt nor for voluntary desistance.

Then, the ordinance of February 8, 1945 made disappear, in its turn, the concept of attempt as regards active corruption while including in the consumed offense, not only the proposals or promises made with the civil servant and accepted by him, or the agreement on the emanated requests of this civil servant, but also the simple offer of gifts or present. There was not thus more place, on this level also, for the punishable attempt nor for a voluntary desistance.

The new texts preserved the solution of 1943-1945. Indeed, they decide that the offense is immediately and fully consumed as soon as the titular person of a function to be solicited, directly or indirectly the handing-over of a remuneration or an unspecified advantage and decide for the active corruption that the offense is also fully consumed as soon as a private individual proposes offers with the titular person of the function.

One thus should not be astonished by dumbness by article 432-11 and article 433-1 CPF about the attempt : an allusion made to this concept would be « useless, and even erroneous^136(*) ».

2- the existence of an attempt at corruption activates in Tunisian right 

The Tunisian legislator envisages the attempt in the articles relating to the active corruption. Thus, article 91 CPT lays out : « Is punished five years of imprisonment and five thousand dinars fine, any person who will have corrupted or tried to corrupt... ».

Another dimensioned, article 92 CPT, relating in an exclusive way to the attempt, has : « If the attempt at corruption did not have any effect, the others will be punished one year of imprisonment and thousand dinars fine.

If the attempt at ways in fact or threats did not have any effect, the authors will be punished two years of imprisonment and two thousand dinars fine ».

The study of these two articles can let include/understand, with premium access, which there is a contradiction between these two texts. Of dimensioned, article 91 CPT represses the person who tries to corrupt by persuasion a public servant and punished five years of imprisonment. Of another with dimensions article 92 CPT accuse, in its turn, the active corruption which did not have any effect and punished one year of imprisonment only. How can one explain this apparent contradiction ? And which are the criteria of distinction between the two texts ?

Article 91 CPT accuses the attempt at active corruption of a public servant in whom an illicit market was concluded between the corrupter and was corrupted in order to achieve an act of the function, however the execution of this pact did not lead for reasons independent of the will of the authors. This article includes also the case of the civil servant who accepts the gifts suggested but desists to achieve the agreement.

In these two cases it reached there with the public office since the offers were accepted by the public servant. This article lets think that the consumption of the infringement is conditioned by the execution of the illicit market.

Article 92 CPT subparagraph first lays down, as for him, the attempt which did not have any effect or in other words ; the missed attempt because the proposals made to the public servant were not accepted by this last. One notices in this case that the attack with the public office is unilateral since it emanates only from the corrupter. For this reason the sorrow envisaged is less severe than that envisaged in article 91 CPT.

Thus, the criterion of distinction between the two texts is the acceptance or not of the civil servant of the gifts suggested. In case where there was approval the applicable sorrows are heavier since it reached there effective with the public office.

Remain finally the subparagraph two of article 92 CPT which lays out : « If the attempt at ways in fact or threats did not have any effect, the authors will be punished two years of imprisonment and two miles dinars of fine ». In this case it is not a question of attempt at active corruption which did not have effects but of an attempt at ways in fact or threats deprived of effects in other words ; An attempt to attack the physical or moral integrity of the public servant.

In short, one can note that in Tunisian right, the attempt does not exist as regards passive corruption since the infringement famous is consumed by the simple request or the approval of the offers by the public servant or assimilated. This solution exists since the promulgation of the Tunisian Penal code in 1913 whereas it appeared in France only after the law of 1943. However, the attempt exists as regards active corruption since the consumption of the infringement is placed in the execution of the pact of corruption. From where a voluntary desistance from the corrupter can intervene effectively only before this stage of the infringement and if it occurs after the execution of the illicit market it would be deprived of effects^137(*). One can say that the Tunisian legislator devotes the idea retained by part of the doctrines in France^138(*) and according to which the infringement is consumed at the object time of the illicit market.

With our direction, it would be preferable that the Tunisian legislator gives up the use of the concept of attempt as regards active corruption, such as it is the case in France since the ordinance of February 8, 1945. It is enough that it considers the infringement consumed at the time of the proposal of the offers and not at the time of the conclusion of the illicit market or its execution.

B- The interposition of a third person 

In spite of the distinction of the two legislations between the active corruption and the passive corruption, the solution planned for the interposition of a third person is not identical. Indeed, if it is regarded as being a complicity in French right (1) it is the subject of an autonomous infringement in Tunisian right (2).

1- A complicity in French criminal law 

The French criminal law chose the solution which makes of the corrupter the author of a distinct offense. It establishes two principal chiefs, constitutive of distinct offenses, one for the corrupted, the other for the corrupter. This system has as consequences, inter alia, that the corrupting act is not an act of complicity. The corrupter is punished not like the accomplice of the passive corruption but like the principal author of the active corruption.

He results independence from it from the legal treatments of each agent of the offense. Each activity has as a principal author an independent agent ; the corrupted in the passive corruption and the corrupter in the active corruption. These two offenses are perfectly autonomous and it is necessary to exclude any idea from complicity between the active agent and the passive agent^139(*).

Actually, the exclusion of the concept of complicity is not absolute since it can be applicable to the thirds, mixed with the corrupting operations, and whose intervention prepared or facilitated the traffic of the function or employment^140(*).

Thus, a third can be continued like accomplice according to the common right of articles 121-6 and 121-7 CPF. The participation of the accomplice can take several forms : to intervene to put in relationship two partners or to serve as intermediary in the transactions between the corrupter and the corrupted. It can be a question of that which provides to the corrupter the means of the corruption, for example the handing-over of cash intended to corrupt.

The cases of complicity are far from being rare. But there are very few court orders^141(*). In 1882 the Court of criminal appeal of the Supreme court of appeal had to decide for the woman of a prison warder, which received letters and money intended for the prisoners and gave them to her husband, who had let himself corrupt by these prisoners^142(*).

In the business of the scandal of Panama a certain CABLEWAY had been convinced of complicity to have helped or have assisted Minister BAIHAUT in the acts having prepared or facilitated its corruption^143(*). Or the case of lawyer condemned on November 9, 1995 by the Court of criminal appeal of the supreme court of appeal. It had worked out, on behalf of the corrupter, the financial arrangement which was to mask the payment of the occult commissions envisaged by the corrupting pact. It is a complicity by instructions according to the decision of the Supreme court of appeal which raises in addition that : « if the offense of corruption is consumed dice the conclusion of the pact between the corrupter and the corrupted, it is renewed with each act of execution of the pact. It follows that the assistance or the assistance with full knowledge of the facts of these acts of execution constitutes the complicity of the offense^144(*) ».

2- An autonomous infringement in Tunisian criminal law 

Article 91 subparagraph 2 CPT lays out : «. This sorrow is applicable to any person having been used as intermediary between the corrupter and the corrupted ». Article 93 CPT lays down, of dimensioned sound, « Is exonerated the corrupter or the intermediary which, before any continuation, voluntarily reveals the fact of corruption and, at the same time, brings back the proof of it ».
Thus, the interposition of a person between the active and passive agent constitutes a punished autonomous infringement of the same sorrow planned for the active corruption by persuasion with knowing ; five years of imprisonment and five thousand dinars of fine.

The penal code does not specify the components of the interposition but it envisages only the applicable sorrow. In the absence of such a precision, the Tunisian Supreme court of appeal^145(*) determined into 1982 the components of the interposition as regards corruption, it raises in addition that : «... the intermediary is a third nobody whose role is limited in the comparison of the corrupter and corrupted from where it is necessary, so that there is an interposition, the presence of three parts ; corrupter, who corrupted and intermediate... ».

Thus, the intermediary is the person who carries of the assistance or the assistance to the corrupter or corrupted in order to facilitating the realization of the active or passive corruption.

Of another dimensioned, the intermediary must carry its contest with full knowledge of the facts, i.e., in an intentional way while knowing the consequences of its act, failing this it cannot see its committed penal responsibility^146(*).

It is noticed that the requirements of jurisprudence and the doctrines are very close to those planned for complicity to know ; need for the assistance or assistance with the authors before the consumption of the infringement as well as the guilty intention. However the intermediary is not punished as an accomplice since he is the author of an autonomous infringement and he is punished five years of imprisonment whatever the form of the corruption (passive or active).

Let us announce that, if the person who was used as intermediary between the corrupter and the corrupted was considered in Tunisian right accomplice, it would be punished ten years even twenty years of imprisonment if it is accessory to the author of the passive corruption^147(*) and five years of imprisonment if it is accessory to the author of the active corruption since it is the system of loan of penalty which is devoted by the Tunisian legislator.

In conclusion, contrary to his French counterpart, the Tunisian legislator does not consider the person who was used as intermediary like accomplice in spite of the distinction of the two legislations between the active corruption and the passive corruption. The solution adopted in Tunisian right identical to that is devoted in Egyptian right which does not envisage the two forms of corruption and regards the latter as being a single infringement.

This difference of the Tunisian and Egyptian right, compared to the French right, seems to be explained by the Moslem right. Indeed, this right, while being based on Hadith of the prophet^148(*), bench a distinction enters the corrupter, corrupted and the intermediary. Moreover the writers of the Tunisian Codes, at the beginning of the twentieth century under protectorate, took account of certain legal principles of the Moslem right.

SECTION II : THE GOAL OF THE CORRUPTING OPERATIONS 

The purpose of the corruption is obtaining of the achievement or the abstention from an act from the function or an act facilitated by the function. The comparison will relate to the goal of the corrupting operations in French right (para 1) and in Tunisian right (para 2).

PARA I : The goal of the corrupting operations in French right 

The goal of the corruption is obtaining the achievement or the abstention from an act of the function. It is necessary that there is between the gift or the promise and the act or the abstention which it remunerates a bond of causality direct and unquestionable. The supreme court of appeal decides that the proof or the report which the abstention is the result of a promise is not enough. It should be noted that this result was the required goal^149(*). The texts of repression of the corruption distinguish two kinds of acts : acts suitable for the function (A) and acts facilitated by the function (B).

Achievement or abstention from acts of the function has 

The aim by the delinquents can be the achievement of an act of the function or the abstention from such an act. This act can result in the achievement of a positive act, the such abatement on the assessed incomes agreed by an inspector of the taxes^150(*), but also by a simple abstention ; it will be the case, for the competent person, not to draw up the report of the noted infringement^151(*). It is a condition which must be met so that there is corruption. The request and approval are punishable only if the goal is the achievement or the abstention from acts of the function.

It does not matter that the or not accomplished achieved act is right or unjust. Article 432-11 of the Penal code is dumb on this point. But the solution of old article 177, which accused indifferently the act right and the unjust act, remains valid. The act right is that which the function imposes on the corrupted. The unjust act is the act prohibited by the function^152(*).

The penal code largely conceives the notion of the act of the function. Article 432-11 contains, like already wrote it professor VITU, one « general provision, penally sanctioning any remunerated violation of the duties of obedience, probity, discretion and fidelity... »^153(*) of the function.

Jurisprudence largely interprets this concept. It includes/understands the acts resulting from the legal and lawful provisions which organize employment, but also, more largely, all the acts imposed by the discipline of the function ; even if they result only from « unformulated deontology » but « some » and not of texts^154(*). The acts or abstentions from the function are thus those which appear in attributions expresses of the holder of the load, but also those whose duties of its load make him the obligation to abstain from.

This definition includes, on the one hand, the acts of the personal competence of corrupted and the acts of concurrent competence that it accomplished in contest with others, but still the acts with the preparation of which it takes part, without being able to achieve them itself. It includes also the abstentions with the duties from its load. It is not necessary that the accomplished act is of its exclusive competence. If it agreed to adulterate competence that it does not only hold, there is corruption. Because it adulterates its share in the collective capacity. It is already the case for the elected officials.

It does not matter the active or negative share that the corrupted could take in the final decision. Indeed, the law punishes the market of the service without holding any account of its execution.

It is not, either, necessary that the corrupted achieves itself the act of which it adulterates. It is enough that it enters its attributions. Thus, when the civil servant is qualified to prepare the achievement of the act adulterated by preliminary acts, reports/ratios or development of files etc, it could be justiciable to the infringement of corruption. It is the case of a head of department to the general supply which, to receive a rebate on the benefit, had threatened the manager of a dairy power station to make him withdraw its management if it did not have his rebate. It pled its capacity to take administrative opinions and claimed that its opinions could have a decisive influence on the situation of the manager^155(*).

In practice the cases of abstention from the act of the function are easier to prove^156(*). The abstention from the holder of the function constitutes a presumption of corruption. If the investigation reveals the existence of the handing-over of the gifts or « gifts » there would be certainly offense. The jurisprudential examples do not miss. They are very numerous^157(*).

The definition of attributions of corrupted as conceived by the French right excludes nevertheless the completely foreign acts with attributions from the holder of the function or relating to imaginary facts. In this case there is not corruption. This solution is imposed by the Penal code (articles 432-11) and the article L. 152-6 of the Fair labor standards act which speak about « act of its function, its mission ». The doctrines worked out under the empire of old article 177 of the Penal code admitted this solution. But at the beginning of the XIXe century, there were serious difficulties in jurisprudence. The solution of article 177 on the definition of the act of the function was discussed in jurisprudence^158(*).

Also constitute the offense makes it seek the achievement or the abstention from acts facilitated by the function.

B Achievement or abstention from acts facilitated by the function 

Until 1943, the traffic of the acts facilitated by the function was unpunished. To cure it, jurisprudence had widened the concept of act of the function which it extended to the acts not appearing in clean attributions of the corrupted. In the business « Bonny », it confused the trading of favors to the corruption relating to an act facilitated by the function and decided that there was trading of favors^159(*).

This confusion disappeared with the law from March 16 1943 which, modifying article 177 Al 3 of the old Penal code, accused in particular the traffic of the acts facilitated by the function.

Moreover, it is advisable to distinguish these acts from the acts prohibited by the function. The prohibited act is possible because of function even whereas the act facilitated by the function is random.

The corrupted which provides information, whose access is authorized to him, achieves an act of its employment (act prohibited by the function). That which gives information to which it does not have access normally, but benefits from its situation to consult the files achieves an act facilitated by its function. It is difficult to imagine the abstention act facilitated by the function in practice. The concrete examples of jurisprudence exclusively relate to the positive acts, whose achievement is made easy by exerted employment.

It is the case of the industrial espionage which can be carried out via an employee « inferior », for example a caretaker or an employee of household, « from which one requests commercial information which it is not in their functions to hold or use, but that they could be brought to know fortuitously »^160(*).

Jurisprudence former to the ordinance of 1945 extended the penalties of the corruption to these intrigues by describing them as acts of the function.

This important distinction under the old Penal code was to be made in a precise way ; the penalties were more severe for the acts of the function. The new Penal code gave up. It states identical sorrows for the two categories of acts^161(*).

However, it remains a legal interest to continue to define what is an act facilitated by the function. This interest lies in the need for knowing, the principle of the legality of the offenses and the sorrows requiring it, until where can extend the incrimination of passive corruption, and where the zone of impunity starts.

Para 2 : The goal of the corrupting operations in Tunisian right 

The Tunisian legislator widened the goal of the corrupting operations with the law of May 23, 1998. Indeed, old article 83 CPT laid down this goal while laying out : «... to make an act of its function, even just, but not subject with wages... », whereas the new article lays out : « ... is to achieve an act related to its function, even just, but not subject with counterpart or to facilitate the achievement of an act in connection with attributions of its function, or to abstain from achieving an act of its function, to which it is held... «.

It is noticed that the goal of the corrupting operations was limited before to the achievement of an act of the function (A) whereas, following this reform, it was widened to include/understand, the achievement of the acts facilitated by the function and the abstention to achieve an act of the function (B).

A- the achievement of an act of the function 

Article 83 CPT (new) provides that the gifts or the promises were approved, or requested for « to achieve an act related to its function, even just, but not subject with counterpart ».

Thus, they are the positive acts achieved by the public servant or assimilated in the exercise of the function which are envisaged by this article.

The acts of the function are the acts of the personal competence of the corrupted. However, it is not necessary that the accomplished act is of its exclusive competence since acts of concurrent competence that it achieved in contest with others, as well as the acts with the preparation of which he takes part, without being able to achieve them itself belong to the acts of the function.

It does not matter that the accomplished act is right or unjust. Article 83 CPT expressly lays down this point by the use of the terms « even just, but not subject with against part ». There is, however, an exception since the achievement of an act just related to the function requiring a counterpart, imposed by the laws or the payments, does not constitute an infringement of corruption. As example, certain public civils servant can achieve the acts related to the function only in the condition which a counterpart is versed with the Treasury^162(*), in this case it is not about corruption.

It is noticed that article 432-11 CPF is dumb on this point, contrary to the solution of old article 177 which accused indifferently the act right and the unjust act.

It is not, either, necessary that the corrupted achieves itself the act of which it adulterates. It is enough that it enters its attributions. Thus, when the civil servant is qualified to prepare the achievement of the act adulterated by preliminary acts, reports/ratios or development of files etc, it could be justiciable to the infringement of corruption^163(*).

Let us announce finally that the public servant can see himself continued for the achievement of an act which is foreign with its competence since it made believe in the corrupter who it is qualified^164(*). This allowed solution by Tunisian jurisprudence is different from that devoted by the French courts^165(*). With our direction, the position of Tunisian jurisprudence, on this point, is criticizable since the exact qualification is that of the swindle.

In conclusion, there are not great divergences between the two legislations as for the achievement of the function. However, if the abstention to achieve an act of the function and the acts facilitated by the function appear in the French legislation, before the promulgation of the new Penal code, they appear in Tunisian criminal law only since the reform of May 23, 1998.

B- New goals envisaged by the reform of 1998 

The law of May 23, 1998 modified article 83 CPT which lays down two new goals of the corrupting operations. This article lays down initially the approval of corrupted gifts in order to « to facilitate the achievement of an act in connection with attributions of its function ». According to certain authors^166(*), this goal was added in order to fill the legislative vacuum which existed before. Deus remarks must be made on this level :

Of with dimensions, only the achievement of an act facilitated by the function is repressed by this article, on the other hand the abstention to achieve an act facilitated by the function is not reprehensible. We think that it would be preferable that the Tunisian legislator adds it in article 83 CPT such as it is the case in article 432-11 CPF.

Of another with dimensions, Tunisian jurisprudence did not have the occasion yet to apply the new text to this point, but we think that it can take as a starting point the the solutions worked out by French jurisprudence.

Article 83 CPT lays down also the case of the public servant who approved gifts for « to abstain from achieving an act of its function, to which it is held. ». This sentence was introduced into this article, by the reform of 1998, for the same reasons quoted before, namely ; the filling of the existing legislative vacuum.

However, the legislator envisaged a limit, indeed, the abstention must relate to the achievement of an act of the function to which it is held. Thus, the abstention to achieve an act of the function, to which it is not held, does not constitute an infringement of corruption.

Concerning the acts of the function to which the public servant is not held to achieve them, they are in fact the acts for which he or not has a margin of appreciation as for their achievement. On the other hand, for the acts of the function of which it has the obligation to achieve them, it does not have any margin of appreciation.

Such a distinction does not exist in the French Penal code which represses the abstention to achieve an act of the function, mission or mandate.

In practice, the Tunisian Supreme court of appeal condemned a senior police officer which received an amount of money in order to abstain from drawing up a verbal lawsuit at the time of an offense against the highway code^167(*), as well as an agent of the customs which closed the eyes on the fraudulent intrigues of a traveller n the other hand of an amount of money^168(*).

Let us announce finally that, contrary to the French legislation the abstention to achieve an act facilitated by the function is not repressed by article 83 CPT, which is, with our direction, regrettable.

SECOND PART : COMPARISON RELATING TO REPRESSION 

Let us announce first of all, that in France, beside the properly repressive means set up in the Penal code, there are other processes intended for the prevention. These processes impose more strict controls and a larger transparency in the principal sectors of the political, administrative and economic life. Indeed, a procession of laws having the aim of introducing a greater transparency into various sectors^169(*). The most important text is the law n° 93-122 of January 29, 1993^170(*) relating to the prevention of the corruption and the transparency of the economic life and the public procedures. This law modifies the rules on the financing of the election campaigns and the parties and created in addition a central service of prevention of the corruption, charged with centralizing the information necessary to the detection and the prevention of the facts of corruption and interference and misappropriation, trading of favors.

Such processes of prevention do not exist yet in Tunisia. Thus, the comparison between the two legislations will be limited to repression.

The study of repression is duplicated. It is necessary, indeed, to study the right of form initially to study the basic right then. Thus the comparison will relate to the procedure (chapter 1st) then on the sorrows (chapter 2).

* ¹¹⁰ See case. crim., June 30, 1955: Bull. crim., n°330, D. 1955, p. 655 - Nov. 17, 1955: Bull. crim., n°494 - 6 févr. 1969: Bull. crim., n°67; Rev. Sc crim. 1969, p.871, obs. A. VITU - 23 janv. 1973: Bull. crim., n°29; JCP 1973 ED. G, IV, P.93; D. 1973, inf. rep. p.36, rev. Sc crim. 1973, p.684, obs. A. VITU - CA Paris, 14 janv. 1988: Rev. Sc crim. 1989, p.123, obs. P. BOUZAT..., quoted by VITU, J - CL, Penal, Art 432 - 11, n°87, p.16.

* ¹¹¹ Case. crim., 5 janv. 1933: Gas. Stake. 1933, 1, p.411 - 22 avr. 1937. Gas. Stake. 1937, 2, p.272, quoted by VITU, J - CL, Penal, Art 432 - 11, n°87, p.16.

* ¹¹² Case. crim., 7 janv. 1808: Bull. crim., n°3, quoted by VITU, J - CL, Penal, Art 432 - 11, n°87, p.16.

* ¹¹³ The payment of a nite of tailor, case. crim., Sept. 7, 1935, 2, p.694 - reception of a percentage on certain anticipated profits by the corrupter case. crim., 14 janv. 1949: Bull. crim., n°9, JCP 1949, ED. G, II, 4866, note A. COLOMBINI, D. 1949, p.96..., quoted by VITU, J - CL, Penal, Art 432 - 11, n°88, p.16.

* ¹¹⁴ A civil servant of the Highways Departments threatened a contractor to exclude it from all the public markets of the Highways Departments unless it lays off an employee whom the civil servant had designated. See Case. crim., Nov. 14, 1975: Bull. crim., n°356, JCP 1978, ED. G, IV, p.28, D. 1978, inf. rep., p.139: Gas. Stake. 1978, 2, somm, p.295; Rev. Sc crim. 1978, p.623, obs. A. VITU. In addition, it seems that the promise of sexual intercourse that a civil servant requires for price of his corruption be considered by Professor André VITU as a subjective advantage, heard the way in which he speaks about it. Indeed, it speaks about it at once after having spoken about the satisfaction about a hatred in the heading «favors subjective» (VITU, J - CL, Pénal, Art. 432 - 11, n°89, p.16.).

* ¹¹⁵ Trib. Sarreguemines children, May 11, 1967: JCP 1968, ED. G, II, 15359, note P.A. SIGALAS; Rev. Sc crim. 1968, p.329, obs. A. VITU, quoted by VITU, J - CL, Penal, Art 432 - 11, n°89, p.16.

* ¹¹⁶ Trib. Sarreguemines children, May 11, 1967, préc

* ¹¹⁷ The Italian right understands by thing offered any material, intellectual or social advantage, it indicates the thing offered or requested term, very vague, of «utility» (J-CL, Pénal, Art. 177 to 183, n°82, p.14).

* ¹¹⁸ See on these difficulties VITU Andre, J-CL, Penal, art 432 - 11, fasc. 20, COp cit., n°31, p.6.

* ¹¹⁹ Formulate used by Vitu A, J-CL PEN, art 432-11 n°93.

* ¹²⁰ Crim case 13 DEC 1972 bulldozer crim n°391 quoted by Vitu A.

* ¹²¹ Vitu A, J-CL PEN, art 432-11 n°93.

* ¹²² Penal code Italian art 318.

* ¹²³ Vitu A, J-CL PEN, art 432-11 n°93.

* ¹²⁴ See its observations in rev. Sc crim 1987, p 685.

* ¹²⁵ Vitu A, J-CL PEN, art 432-11 n°93.

* ¹²⁶ Case. crim., 6 févr. 1968: Bull. crim., n° 37 city by Vitu.

* ¹²⁷ DELMAS-SAINT-HILAIRE  ; Rev. Sc crim 1987, p 685

* ¹²⁸ this addition was fought by the government which estimated on the one hand that this provision was against the French traditional design of the corruption and on the other hand that the acts of remuneration a posteriori could always be continued under the chief of abuse social goods for the corrupter etde concealment of abuse social goods for the corrupted.

* ¹²⁹ See, W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166.

* ¹³⁰ Proposal of Andre Vitu.

* ¹³¹ See for example, Minnow, corruption, trading of favors, illegal catch of interests, favoritism  : R J COM, Nov., 2001 p38.

* ¹³² Jondi Abdelmalek  ; penal encyclopedia Volume IV p 13.

* ¹³³ The sorrow is same whatever the moment of remuneration, namely ten years of imprisonment (see art 432-11).

* ¹³⁴ GARRAUD.R, theoretical and practical Treaty of the criminal law French T. IV: Sirey, 3rd ED., n° 1518 S.

* ¹³⁵This is divided by Blanche, Chauveau and F. Hélie.

* ¹³⁶ Vitu A, J-CL PEN, art 432-11 n°144.

* ¹³⁷ Kmamkem Ridha  ; the range of the reform of May 23, 1998 as regards corruption p 60.

* ¹³⁸ White, Hélie.

* ¹³⁹ Jondi Abdelmalek  ; penal encyclopedia Volume IV p16.

* ¹⁴⁰ Case. Crim. Nov. 16, 1844: Bull. crim., n° 376; S. 1845, 1, p. 39. quoted by Vitu, J-CL art 432-11 n° 147.

* ¹⁴¹ Ibid

* ¹⁴² Case. crim., 21 févr. 1882: Bull. crim., n° 52; S. 1884, 1, p. 351 city by Vitu J-CL art 432-11 n° 147.

* ¹⁴³ C. sitted the Seine, March 21, 1893: Gas. trib. March 22, 1893 city by Vitu J-CL art 432-11 n° 147.

* ¹⁴⁴ Case. crim., Nov. 9, 1995: Bull. crim., n° 346; D. 1996, somm., p. 259, obs. J. Pradel; JCP G 1996, IV, 513.

* ¹⁴⁵ Case crim n°6398 of March 17, 1982 Bull C. Case 1982 p 131.

* ¹⁴⁶ Jondi Abdelmalek  ; penal encyclopedia Volume IV p18.

* ¹⁴⁷ The passive corruption is punished twenty years of imprisonment if the public servant caused and ten years of imprisonment if it approved the offers suggested.

* ¹⁴⁸ See introduction.

* ¹⁴⁹ Case. crim., Nov. 21, 1972, Bull. crim., n° 350, quoted by VITU, J - CL, Penal, Art 432-11, fasc. 20, n° 34, p. 6.

* ¹⁵⁰ Crim. March 28, 1955, Bull, n° 181, quoted by VITU, J- CL, Penal, Art 432-11, n° 101, p. 18.

* ¹⁵¹ Crim. June 10, 1948, S. 1948, I, 117, note Mr. ROUSSELET and MR. SHOE- Feb. 6, 1968, Bull, n° 37, quoted by VITU, J- CL, Penal, Art 432-11, n° 101, p. 18.

* ¹⁵² The positive definition of the acts of the function includes/understands, in addition, the acts whose duties of office make to the holder the obligation to abstain from  : to see Case. crim, 20 janv. 1927  ; D.H. 1927, p.151  ; Gas. Stake. 1927, p. 602 on the corruption of an employee of trade which sold at houses which was not in business connections with its employer and abnormally advantageous reports, in spite of a prohibition of its owner

* ¹⁵³ VITU (A), J CL., Penal, art 432-11, n° 100, p. 18.

* ¹⁵⁴ Ibid formulas borrowed from Professor VITU. See also Case. crim., 6 févr. 1968, préc.

* ¹⁵⁵ Case. crim, 14 janv. 1949 préc. Comp. Crim, 19, juill. 1951 (J CL, Penal, art 432-11, n° 105, p. 19).

* ¹⁵⁶ VITU (A), J CL, Penal, art 432-1, p. 18.

* ¹⁵⁷ Case. crim. March 28, 1955 préc.  ; Case. crim., Dec. 13, 1945  : JCP 1946, ED G, IV, p. 17 - June 10, 1948  : Bull. crim, n° 154, JCP 1948, ED. G, II, 4433, cf VITU (A), J CL, Penal, art 432-11, n° 101, p.18.

* ¹⁵⁸ See for this discussion  : VITU, J CL, Penal, art 432-11, COp cit., n° 111, p. 19.

* ¹⁵⁹ Business of the orderly who worked with the Ministry of Labor. Once in the office of a head of department absent, it had affixed on certificates of recruitment of two Italian workmen the lawful seal and the visa (Case. crim, 4 May 1935, quoted by VITU, J CL, Penal, art 432-11, COp cit., n° 113, p. 20).

* ¹⁶⁰ VITU (A.), J CL, Penal, art 432-11 fasc. 20, n° 38, p. 7.

* ¹⁶¹ For the many jurisprudential illustrations of the two concepts, See VITU (A.). J CL, Penal, art 432-11, n° 116, p. 20, and art 432-11 fasc. 20, n° 143 and 144, p 7 and 8.

* ¹⁶² This counterpart can take the form of a payment of species, a check, a money order or a purchase of revenue stamps. In general, they are sums symbolic systems.

* ¹⁶³ A clerk who accepts gifts in order to allow the adjournment of a business in progress.

* ¹⁶⁴ Crim case of October 27, 1995 Bull C. case 1995 p98.

* ¹⁶⁵ See «  the goal of the corrupting operations in French right  »

* ¹⁶⁶ Kmakehem Ridha  ; the range of the reform of May 23, 1998 as regards corruption p21.

* ¹⁶⁷ Case crim n°73507 of April 16, 1999.

* ¹⁶⁸ Case crim n°84618 of May 20, 2000.

* ¹⁶⁹ For more precise details  ; See VITU J-Cl PEN art 432-11 CPF n° 49.

* ¹⁷⁰ the law n° 93-122 of January 29, 1993, JCP 1993, III, 65957.