INTRODUCTION

The corruption constitutes an endemic evil which one raises the demonstrations at all the times and in all the countries of the world. It exists whatever the economic level of the countries and whatever the political régime or the level of remuneration of the civils servant. It is thus inadmissible to think that the corruption is only the problem of the poor countries and that the rich countries escape from it. It acts, indeed, of a phenomenon of which width and the development constitute a legitimate ground of concern for the States considering its economic and social cost and its attacks with the principles of the democracy.

However, this phenomenon of corruption precedes the legislators since it revêt so various forms which make its apprehension difficult. Moreover, the continuations diligentées on this kind of businesses often reveal the existence of true gangster networks allowing the dissimulation of the facts of corruption. Indeed, the recent universalization of the economy and the anarchistic development of the Third World countries opened new fields with the corrupting operations, in particular as regards public works, of exploitation of the raw materials and supply of military armaments.

This « incapacity » of the legislators to frame juridically is also explained by the fact that the corruption does not constitute until now, with the eyes of the citizens, a sufficiently serious threat against the life since it injures only impersonal interests. Of another with dimensions, the high cost that would represent the continuation and the sanction of the facts of corruption contributes not to encourage the authorities to invest itself fully in the fight against the corruption.

One can thus wonder, vis-a-vis this situation, if the legislators could determine this evolution and if the texts in force make it possible to fight effectively against the corruption ?

Before answering this question, it is advisable to define the concept of corruption as a preliminary, (I) to recall the history of this infringement in particular in the French right and the Tunisian right, (II) to release the interest of the study of this question (III).

I- The definition of the concept of corruption :

Let us open initially a dictionary, for example small Larousse, and we observe that the word « corruption » has three directions. To know : 1) Rotting ; 2) Fact of being corrupted, of being dépravé or of being perverted ; 3) Action to corrupt somebody by bribing it so that it acts against his duty ; fact of being corrupted. Let us announce that the French word « corruption » comes from the Latin word « corruptio » which means deterioration, seduction or attempt at vice. This drifting word of the verb « corrumpo, corrumpere » which has the following directions : 1) to destroy, destroy ; 2) To spoil, deteriorate, physically or morally. Thus, the corruption seems « a germ of death, physics or moral^1(*) ».

In the language running like in the legal terminology, the corruption is the dealing by which an invested person of a determined, public or deprived function, requests or accepts a gift, an offer or a promise in order to achieve, delay or omit to achieve an entering act, in a direct or indirect way, within the framework of its functions. According to others, it is about a violation, made by the culprit, of the duties of his load, in other words ; a kind of breach of trust^2(*).

This definition was not enough to avoid certain difficulties which can appear when it is necessary to distinguish the corruption from certain infringements against the private individuals who suppose, like it, a certain moral pressure or a fraud as example the blackmail or the swindle. Or even when one does not want to confuse it with intrigues concerned with the group of infringements against the public administration like misappropriation or the trading of favors. It thus appears necessary to trace the borders which separate the corruption from different infringements.

It is initially important to distinguish the corruption well from the swindle. The latter supposes, in the French legislation like Tunisian, that the culprit made use of a false name or a false quality or that it employed fraudulent schemes, in order to misleading the victim and to determine it to give from the funds, values or an unspecified good, to provide a service or to authorize an operative act obligation or discharge. It is noticed that contrary to the corruption, the culprit does not have the quality of civil servant which it prevails oneself wrongfully, nor capacity to act that it pleads; it cannot thus adulterate of one function to which it is actually foreign.

This criterion of distinction does not make it possible to avoid in an absolute way confusion between the two infringements. Taking the example of a request, emanating from a civil servant, who is accompanied by a true setting in scene such as it is the case in many situations of swindle. Which would be the qualification selected ?

On this assumption, it is about a real office plurality of infringements, and the facts must be retained under their the most raised penal expression^3(*), that of corruption.

Being then the blackmail, this infringement supposes the threat of revelations or the charge of facts likely to attack the honor or to the reputation of the victim^4(*). However certain acts achieved by civils servant are revealing facts which can ruin the reputation of the person that they aim ; for example official reports or police reports noting of the infringements. Thus a police officer can be made pay not to draw up a report in which it notes an infringement : which would be the qualification retained on this level, the corruption or the blackmail ?

For some, the solution consists in distinguishing according to whether the act used or not attributions of the culprit. If the answer is by the positive one, no doubt that one must raise a corruption. If the answer is by the negative one, for example the police officer claimed to note an imaginary infringement, one cannot any more speak about act of the function and it is the qualification D blackmail which must be retained.

This criterion of distinction is not always reliable, especially in the legal systems which regard the constraint as being an average generator of the corruption, as example ; Tunisian right^5(*).

Being finally the infringements against the public administration, one finds the misappropriation and the trading of favors. Concerning misappropriation^6(*), the latter divides with the corruption the same legal basis since it is about the prohibition made to the representatives of public bodies benefit personal from the capacities of which they are invested. However there is a criterion of distinction between the two infringements which lies in the title to which the civil servant receives punishable remuneration. Thus, if it receives or requests a remuneration as the price of an act which it is committed to achieve, be delaying or not to achieve and who belongs to his function, it commits an offense of corruption. If on the contrary the culprit received gifts like a thing allegedly due as tax, there is misappropriation^7(*). In other words ; in misappropriation, the civil servant is the author of the infringement and the private individual his victim. In the corruption, corrupter and corrupted is both culprits.

With regard to the trading of favors^8(*), the links between this infringement and the corruption are close. Indeed, they have almost the same components except that the goal of the two infringements is different. In the corruption, the civil servant accepts the gifts in order to achieve or abstain from achieving an act of the function or an act facilitated by this one, whereas in the trading of favors the goal of the punishable operations consists primarily of what the guilty person deceives her influence, real or supposed, in order to obtain with the profit of the interlocutor certain favors, and that near authorities on which must be exerted the influence of which it is adulterated^9(*).

The borders, which separate the corruption from close infringements, thus traced, it is thus appropriate to point out the history of this infringement.

II the history of the infringement of corruption :

The history reveals that the corruption is an old plague which existed since old civilizations. In the very old Roman law, the corruption and misappropriation were confused and they were included in same and single severe repression. Indeed, they were held for so serious crimes, especially if they were the fact of magistrates. The latter could incur until the death penalty^10(*). Moreover at the time of Jules césar, the culprit was punished of a fine of the quadruple of the received things^11(*).

The Islamic company knew the offense of corruption, which involved the definition of this infringement, the determination of its conditions as well as the applicable sorrows. In this direction, the Imam El Ghazali defined as « the expenditure of the money with an aim of a prohibited act or a definite duty » and it adds « it is what people are obliged to give like money, gifts, services and goods in the forms of gifts with benevolence or flattery by requesting favors to become partial. What means to return the illicit licit one and the licit illicit one. Thus, the corruption can occur in connection with a duty to achieve or avoid and takes place either by the constraint, or by complicity or a mutual agreement between the corrupter and the corrupted for the realization of their contrary personal interests to the interests of the community ».

The jurisconsults of the Islamic religion were unanimous to condemn the corruption, the corrupter, the corrupted and the intermediary which intervened between the two. They were based for the judgment of the corruption on arguments resulting from the tradition or founded on the reason.

Coran affirms : « do not dissipate your wealths of useless expenditure between you, do not carry them either to the judges with an aim of consuming the good of others wrongfully ^12(*)». Some exégètes were based in the judgment of the corruption on this quotation of Coran : « they lend obviously the ear to the lies, they seek the defended mets^13(*) ». By « put defended » it is necessary to hear the corruption or any prohibited acquisition.

In the tradition (Hadith) the prophet declares : « Curse of God on the corrupter and the corrupted in the judgment » and in another version « curse of God on the corrupter, the corrupted and the intermediary who intervenes between the two ».

It is told that « Amor Ibn Abdelaziz^14(*) » a gift proposed in an occasion had refused and when it was said to him that the prophet accepted it, it answered : « It was a gift for him and a corruption for us, because one wanted approached his prophecy not for his authority. However for our case, one approached us for our authority ».

Amor Ibn Khattab^15(*) wrote with his governors « you keep gifts offered ; it is corruption ».

Moslem jurisprudence defined the fundamental elements on which are pressed this offense. First of all, the purpose of the culprit was to be invested capacity to direct the businesses of the Moslems, moreover the corruption was to be the achievement of a service. Finally it insisted on existence necessary of intention guilty at corrupter, in other words, this the last had to be fully conscious that he quoted, which was to be accepted by the corrupted, in the intention to corrupt. Thus if the guilty intention were missing, there would be offense.

In France, the legal concept of corruption really became autonomous only starting from the Penal code of 1971, being confused before with misappropriation. This code had envisaged severe sorrows going until the capital punishment of the time, namely ; the death penalty^16(*).

The Penal code of 1810 followed the example of the revolutionary legislator by maintaining the distinction between the corruption and misappropriation. However, in its primitive provisions, it punished criminal sorrow of the yoke and a fine any public servant having made facts of corruption.

An important evolution occurred since 1863, of the successive laws have deeply affected the articles of the old Penal code relating to the corruption^17(*). This evolution translates double running of the French criminal policy.

On the one hand, there was an extension of progressive of repression due to the widening of the incriminations of corruption as for the people concerned and the acts of the function whose these people adulterate. This is explained by the enormous increase in the modes of intervention of the public power in the contemporary life as well as the upheaval of the economic situations due to the two world wars^18(*).

Of another share, there was, following the law of March 16, 1943, a correctionnalisation of the infringement of corruption since a ten years imprisonment replaced civic degradation.

Knowing that the provisions of common right, relating to the corruption, were grouped in the old Penal code in a single unit, formed of articles 177 to 182. This block of texts was broken up by the legislator into several distinct pieces following the appearance of the New Penal code in 1992. One of them, concerning the corruption of paid private companies, was moved in the Fair labor standards act where it appears under the new article L. 152-6. The other groups were dispersed in the new Penal code. One finds in article the 432-11 incrimination of the passive corruption made by people exerting a public office. Article 433-1 is relative, as for him, with the repression of the active corruption made by private individuals. Article 434-9 is devoted, him, with the corruption, passive and activates, of the magistrates and other people intervening in the exercise of the judicial offices. A last variety of corruption, aimed by article 441-8, concerns the people who, in the exercise of their profession, establish certificates or certificates making materially false established fact. The others have their place in different codes, for example the corruption as regards election, of customs etc....

In Tunisia, the Tunisian Penal code of 1913 envisages the corruption in the second section of the third chapter of the second book. This chapter is devoted to the infringements made by the civils servant public or assimilated in the exercise or at the time of the performance of their duties, one finds there the corruption, misappropriation, the diversions made by the public agents and the abuse of authority.

The provisions relating to the corruption are envisaged by articles 83 to 94 CPT. These provisions were modified twice by the legislator. A first reform of 1989, having a general range, removed the sorrow of work forced of all the Penal code and more precisely of articles 88 and 89 CPT relating to the corruption of magistrates. The second reform intervened in 1998 following the law number 33-1998 of May 23, 1998 relating to the fight against the corruption^19(*). It is the first reform devoted exclusively to the corruption since the promulgation of the Penal code in 1913.

This reform had two objectives, of dimensioned, it widened the incriminations since they were limited before to the public civils servant and the magistrates. Of another with dimensions, it worsened the applicable sorrows in the event of corruption. These modifications are explained by the necessary modernization of the Tunisian criminal law as regards corruption and by the requirements of protection of the public office.

It should be noted that the Tunisian criminal law as well as the French criminal law, in spite of the successive reforms, did not break with the former right since they maintained the distinction traditional between active corruption and passive corruption. The passive corruption is that seen of with dimensions of the corrupted : it is the act by which this one accepts or requests a gift or a promise to achieve an act of the function or facility by it. As for the corruption seen the with dimensions one of the corrupter activates ; it is the act by which this one obtains or tries to obtain from the person concerned an act of her function or facility by it. Why this duality ?

It is necessary to recall to this level which there are three possible systems for the repression of the corruption. One can initially consider that, of the corrupter and the whom corrupted civil servant, guiltiest of both is the second who voluntarily ignores his duties of fidelity and probity. Thus, the corrupted must be regarded as the author of the infringement, the corrupter being only his accomplice. The disadvantage is here in the event of attempt at complicity, the corrupter escapes repression since in the two legislations the attempt at complicity is unpunishable; it is the ransom of the loan of criminality^20(*). The second system considers the corrupter and the corrupted as joint authors of the same infringement. In this system^21(*) the infringement would be fully carried out when the agreement is concluded between the two joint authors, one can also delay the commission of the infringement until the moment of the achievement of the act of the function. However this system remains criticizable and one can reproach him for not distinguishing sufficiently between one and the other from the characters, the corrupted being generally more blâmable that the corrupter. To avoid the disadvantages of the first two systems, one called upon a third system which makes corruption a complex of two distinct infringements : ascribable active corruption with the corrupter and ascribable passive corruption with the corrupted. It is the latter system which was admitted by several legislations as example ; French, Tunisian and German right.

III-L' interest of the study :

In France, during last years, appeared scandalous businesses which shook the public opinion and in which were mixed, of the heads of undertakings, the businessmen, the civils servant belonging to various administrations of the State or the public bodies, and also of the politicians of all levels, including ministers in exercise and characters placed very high in the hierarchy of the Republic^22(*). Indeed, It is not day when the press does not give a report on businesses of corruption charged to these tops placed, moreover, the gravity of the evil is such as all the «political community» became suspect with the eyes of the public^23(*).

In Tunisia, the corruption is at the same time known and statistically negligible as for the number of procedures treated by justice. Indeed, the jurisprudence of the Tunisian repressive courts remained dumb on several interrogations of the doctrines. The latter worked out, strong unfortunately, few work relating to the question. As for the Tunisian legislator, should it be recalled that it intervened only once to modify the repressive texts relating to the corruption since the promulgation of the Penal code in 1913 ? Thus, it would be useful to study the Tunisian right in the light of the French right which are fed by a rather dense jurisprudence and by a doctrinal intesive work as regards corruption.

Let us announce finally that the corruption does not prevail only inside the national borders: it also affects very seriously the international trade and blames of the foreign public agents. One speaks from now on about the international corruption which involved the installation of legal means suitable to facilitate the fight against the corrupting operations as well on a world level as on the European level.

On a worldwide scale, the United Nations launched a total programme of fight against the corruption to incite the governments of the Member States to set up of the coordinated means of action and to exchange all useful information^24(*).

In the European scale and more precisely on the level of the European Union two conventions were signed in Brussels in order to fight effectively against the corruption. The first convention of July 26, 1995^25(*) encourages the Member States to punish the bleaching of the capital coming from the frauds or the corruption. The second convention is of May 26, 1997^26(*) obliges the States of the European Union to accuse the corruption, which it carries or not reached to the financial interests of the European Communities.

One notices thus that there is a will common tending to the harmonization and the unification of the legislations on an international scale in order to allow to determine the phenomenon of corruption. The French right and the Tunisian right tend, in particular following the reforms quoted previously, to carry out these objectives. Indeed, the compared study of these two legislations gave us profitable information on the infringement of corruption by the bringings together which it causes as by the oppositions that it underlines. It also caused our reflection and allowed us to discover new aspects, constants and tendencies which would undoubtedly be unperceivable with isolated observations.

Thus, the use of the comparative method can give us the ambition, beyond the differences which distinguish the two countries, to release the features common to both legislations. For the highlighting of these common features, we limited our study, considering the significant number of the repressive texts on the matter, with the passive and active corruption of the people exerting a public office as well as the magistrates. Other categories of people being able to be continued for facts of corruption were, for needs for clearness and precision, treated within the framework of this work.

Let us announce finally that, the essential goal of this work is to contribute as much as possible to carry out a synthesis of the infringement of corruption in the two legislations in order to determine the points of convergence and divergence existing in the two rights. Thus, the comparison will relate on the incrimination (Titer1) and repression (Title 2).

FIRST PART: COMPARISON RELATING TO THE INCRIMINATION 

We find as well in the Tunisian legislation as the French legislation the same components, it is necessary to initially quote the quality of the corrupted person (Chapitre1) who constitutes a prerequisite for the constitution of the infringement of corruption. This quality is envisaged by a distinct article in the Tunisian Penal code, whereas it is envisaged by several articles of the French Penal code. Then the unit comes from the means which reveal the corruption and which are likely to give him body (Chapter 2). They are, indeed, the material elements of the infringement.

Let us announce that the intentional element was not envisaged by the two legislators in the texts relating to the corruption, moreover they do not have to mention it since it results from two general provisions. The first is that which is envisaged by article 121-3 CPF, according to which «there are not a crime or offense without the intention to make it ». Second is envisaged by the Tunisian Penal code and more precisely by article 37 CPT according to which « no one can be punished only for one accomplished fact intentionally ». It acts, in these two articles, of the fraudulent intention which, here does not have an autonomous existence, because it is contained implicitly in the combination of the other elements.

CHAPTER 1: THE QUALITY OF THE CULPRIT 

In the two legislations the corrupted must be covered with an official quality. It acts initially, of the people exerting a public office (Section1). Comes then from other people (Section2), being able to be continued for facts of corruption, which are repressed by special texts, for example the employees.

SECTION 1: A PERSON EXERTING A PUBLIC OFFICE 

In France, the culprits of the offense of corruption passivates were designated by article 177 ACPF which gave an enumeration that the successive reforms of the text had gradually enriched. Initially this article aimed only the corruption of the civils servant of the order administrative or legal agents and employees of the public administrations, they is what pushed the courts to be resorted to definitions flexible and extensive which involved criticisms of doctrines attached to the letter of the penal text.

The French repressive courts thus included in the category of civils servant, the agents and employees of the public administrations like all the members of the administration, whatever their place in the hierarchy, since they exerted, under the impulse and the monitoring of their superiors, of attributions of the administrative or legal order. One thus could apply articles 177 and following to all the representatives of the administrative hierarchy, from the minister to the holders of least low stations^27(*). The efforts of jurisprudence were reinforced by the legislator who carried out the extension of the list of the people likely to be corrupted by successive stages.

The first text which came to supplement the incrimination with regard to the civils servant is that of the law of May 13, 1863. It added to the administrators and judges, the referees and the experts. Indeed, the referee is a true judge. The expert, as for him, prepares the court order by the opinion that it expresses in his reports/ratios. The considerable recourse to the arbitration and the development of the expertise made necessary these new provisions.

Then, the extension was made to the doctors by the law of March 9, 1928 then to the surgeons, midwives by the ordinance of February 8, 1945. This is explained by the role growing of the medical professions on social matters. ^28(*)

Lastly, and especially the law of March 16 1943 which added the agents and employees of the administrations placed under the control of the public power and the citizens in charge of a ministry of public utility. And the law of February 8 1945 which added the invested people of an elective mandate. Thus, one distinguishes in the light of his jurisprudential and legislative solutions three assumptions under the empire from the old French Penal code.

- invested people D `an elective mandate :

Like specifies it jurisprudence, the people concerned are in particular the members of the Parliament, the general advisers or the city council men.

- civils servant of the administrative and legal order, servants and employees of the public administrations :

Are aimed, on this level, the members of the government, the civils servant of the departmental or^29(*) communal tax authorities^30(*), the magistrates, the members of the legal profession when they contribute to the work of justice. It appears that the quality of public servant must be largely heard and includes/understands any citizen invested of the prerogatives of public power, of a public office which contributes to the management of the public affairs.

- employees and agents of the administrations placed under the control of the public power :

Under this qualification, the old Penal code aimed for example the agents of the social security^31(*) or the president of a guild chamber^32(*) which has according to jurisprudence « the quality of an agent of an administration placed under the control of the public power ». One can wonder whether the New Penal code maintained this distinction ?

The new Penal code limited the applicability of article 432-11 to the only people exerting a public office^33(*); more precisely the text concerns only the people agents of the public authority, the people in charge of a mission of public utility, and those finally which are invested of a public elective mandate. One understands by «agent of the public authority «the person who is titular of a constraint and decision-making power on the individuals and the things, capacity which it expresses in the exercise of the functions, permanent or temporary^34(*), of which it is invested by delegation of the public power. In this respect, it should be specified that invested people the «of a public elective mandate», undoubtedly added for more precision to article 432-11, are not other than the agents of the public authority.

As for the person in charge of a mission of public utility, it can be defined like the person who, without to have received or a drifting command decision-making power of the exercise of the public authority, is charged to achieve acts or to exert a function whose finality is to satisfy a general interest.

The Tunisian penal code as written in 1913, like the French criminal law, devotes an extensive definition of the public servant in the section first of the third chapter of the book first. This definition reflects the tendency of the legislator to include the greatest number of people concerned. Of another dimensioned, the legislator had envisaged a definition distinct from that envisaged by the administrative law, which insists on the legal bond between the public servant and the State, since this quality can remain existing on the penal level in spite of the defects blaming its existence on the administrative level^35(*).

The definition of public servant appeared in old article 82 of the CPT provided that « Are famous public civils servant taking into consideration code this, all our subjects, which, under a denomination and in an unspecified measurement, are invested of an even temporary, remunerated or free mandate, whose execution binds to an interest of law and order and who, for this reason, contribute to the service of the State, the public administrations, the communes or even of the publicly-owned establishments.

Are comparable to the civils servant public, the people chosen by the private individuals or delegated by justice in the capacity as experts, referees or interpreters »^36(*).

The study of this old article before its modification by the law of May 23, 1998 shows that two criteria were envisaged by the legislator to determine the quality of public servant, initially, it uses the terms « all our subjects », then it adds which « are invested of a mandate... whose execution binds to an interest of law and order ».

According to the doctrines, this definition which goes back to 1913 is not more compatible with the requirements of the modern life and this from the economic and social point of view, especially after the appearance of new categories of people concerned with the corruption, others that civils servant and the magistrates, who escape repression since the quality of public servant is missing in spite of the bond of causality which exists between their functions and the public utility or the general interest^37(*). The same idea was taken up at the time of the parliamentary debates relating to the adoption of the bill concerning the modification of certain provisions of the penal code relating to the infringements of corruption and more exactly in the response of the government to the fourth question : « the definition envisaged in current article 82 of the penal code is not compatible any more with the development of the concept of public office and the methods of direction of the public services »^38(*).

The law n° 98-33 of May 23, 1998 modified this article by removing the terms « all our subjects » as well as the terms « of a mandate... whose execution binds to an interest of law and order ». However, it added new legal institutions such as « nobody agent of the public authority » and it « nobody taking part in the management of a public utility ». The Tunisian legislator, following this reform, founded legal institutions of administrative law in order to include their holders by the provisions relating to the corruption and to harmonize the two orders (penal and administrative).

Thus, according to the new drafting of article 82 of the CPT « Is a famous public servant subjected to the provisions of this law, any person agent of the public authority or exerting functions near one of the services of the State or a local community or an office or a publicly-owned establishment or a public company, or exerting functions near any other person taking part in the management of a public utility.

Is compared to the public servant any person having the quality of officer public or invested of a mandate elective of service or indicated by justice to achieve a legal mission »^39(*).

One notices on this level that the Tunisian legislator, at the time of the reform of the provisions relating to the infringements of corruption, took as a starting point his French counterpart by using the same criteria envisaged by article 432-11 of the new French penal code to knowing ; a person « agent of the public authority » or « taking part in the management of a public utility ». For part of the Tunisian doctrines the reform of 1998 did not make great modifications to the old drafting since terms « agent of the public authority » and « taking part in the management of a public utility » were included by the terms « law and order » and « general interest » which is the base of the two first^40(*).

With our direction, the new drafting allows the extension and the clarification of the concept of public servant as well as a better application of the texts by the repressive jurisdictions, of the another with dimensions inspiration of the Tunisian legislator of his French counterpart is not absolute since if the two rights consider that the people agents of the public authority and the people in charge of a mission of public utility as public civils servant (para1) there is a divergence between the two legal systems as for the invested people of an elective mandate (para2).

PARA 1: Common elements of determination of the quality of public servant 

The two legislations devote the same elements to determine the quality of public servant as well article 432-11 CPF as of article 82 CPT. These articles make it possible to note that the people agents of the public authority (A) as well as the people in charge of a mission of public utility (B) are regarded as public civils servant.

A- a person agent of the public authority 

According to VITU, One understands by «agent of the public authority «the person who is titular of a constraint and decision-making power on the individuals and the things, capacity which it expresses in the exercise of the functions, permanent or temporary, of which it is invested by delegation of the public power^41(*). In France, the doctrines distinguish four categories of people agents of the public authority.

The first is that of the representatives of the State and the local authorities. It includes/understands on the one hand, the president of the Republic, the ministers, the Secretaries of State and under-secretarys of State, the prefects and sub-prefects, as well as the representatives of France near international organizations or Étrangers country: ambassadors, consuls^42(*).

In addition, the invested people of a public mandate elective who are added « undoubtedly for more precision in article 432-11 » and which is only agents of the public authority^43(*).

The second group is that of the civils servant of the administrative order and in particular the representatives of the police force. Article 432-11 CPF concerns the civils servant of the administrative order only since the legal civils servant of the order are envisaged by article 434-9 CPF which concerns the magistrates and comparable (sworn, expert or referee) contrary to article 177 of the old code which included the civils servant of the administrative or legal order. Thus article 432-11 could be applied to the members of teaching^44(*). It concerns also the members of the tax authorities, like the customs officers^45(*). Are also concerned the civils servant of the services of police force like the police chiefs of police force^46(*) and also the civils servant and servants of the prefectures, sub-prefectures and town halls.

The third group ; that of the members of the legal profession, includes/understands the intermediaries or agents of the private individuals who have the monopoly of the achievement, in the interest of the private individuals, of the instruments, like the usher^47(*).

Lastly, the fourth and last category are that of the other people exerting of the functions of authority, but which do not have the quality of civil servant. It is the case of the soldiers and assimilated, the sworn in agents of the SNCF, abilities to be raised of the infringements to the police force of the railroads, as well as the sworn in agents of the RATP, of the presidents and assessors of the polling stations etc....

In Tunisian right, one finds the same definition envisaged by the French doctrines, in particular that of professor Vitu. Thus, of L `public authority any person is an agent who has a decision-making power and constraint on the individuals and which with the possibility of resorting for the use of the police force^48(*).

The Tunisian Constitution, from dimensioned sound, distinguishes three authorities ; legislative, legal and executive which all is of the public authorities and all those which their belong are considered as agents of the public authority.

However, the concept of public authority should not be limited to the constitutional law. It is enough to re-examine the parliamentary debates^49(*) of the law of May 23, 1998 to determine the concept of  nobody agent of the public authority : « it is a concept identical to that adopted by the French legislator in the new Penal code... and it concerns all the people who exert a function of authority whatever her nature ; administrative, jurisdictional or different and whatever the statute of the person (deprived or public). It appears as well as the terms « any person agent of the public authority » do not limit themselves to the agents of the public office envisaged by the law n°112 of December 12, 1983 but they include other agents such as the soldiers, the police officers, the servants in charge of the protection of the president of the Republic and the magistrates^50(*) ».

It is noticed that the two legislators tried to widen the definition of public servant in order to allow the application of the repressive texts titular people of functions having a bond with the public utility or the general interest without they having the quality of public servant.

B- People in charge of a mission of public utility 

Article 177 of the old Penal code aimed, not the people in charge of a mission of public utility, but «the citizens in charge of a ministry of public utility», who were added by the law of March 16, 1943. According to the jurisprudence worked out for the application of this article, the quality of citizen in charge of a ministry of public utility nominates «the people invested in an unspecified measurement of part of the public authority, and not the persons who do not take part in this authority, although a public interest sticks to their services^51(*)». As professor André Vitu observes it, this definition is not fully satisfactory since the criterion drawn from what the citizens concerned are invested of part of the public authority does not make it possible to clearly distinguish them from the people agents of the public authority. With the new penal code these terms were replaced by the «person in charge of a mission of public utility», which can be defined like the person who, without of having received a decision-making power or of drifting command of the exercise of the public authority, is charged to achieve acts or to exert a function whose finality is to satisfy a general interest^52(*).

Thus, contrary to the person agent of the public authority, the person in charge of a mission of public utility has, neither a capacity which is conferred to him under the terms of a delegation of the public power, nor a constraint and decision-making power on the individuals and the things. However, this person is charged to exert a function or to achieve acts the purpose of which are to satisfy a general interest. Among these people, one will quote: assignees in bankruptcy, sequestrations, guards of seals, interpreters^53(*), a principal inspector of the RATP, intervening in the granting of work to companies^54(*).

For this list, it is necessary to add the people who belong to various commissions established officially and charged delivering opinions to the public authority or with ruling themselves on requests, files, projects, which require authorizations, approvals or official enablings for example ; Members of the regional Commissions and the national commission of the social and medico- institutions social, Members of the Commissions which play a central part purse bank like the Securities and Exchange Commission (C.O.B).

It should be specified finally that the employees and agents of the administrations placed under the control of the public power, added by the law of March 16, 1943 to old article 177 of the ACP STATE, can be regarded as people in charge of a mission of public utility. It is the case also members of the companies placed under the control of the public power by way of requisition. Indeed, all these people morals, whose statute approaches that of the public civils servant appreciably, are comparable with the latter as for the obligations of fidelity and probity.

The study of recent jurisprudence shows that the repressive courts do not hesitate to consider a person as being in charge of a mission of public utility since it exerts a function having for finality the general interest. Thus, an engineer in the Commissariat à l' Énergie Atomique, placed at the disposal of the national Agency of valorization of the research, which had in particular the role of assisting its in a regional delegate in the instruction of the files of request for assistance to the innovation, was considered by the court of criminal appeal a person in charge of a mission of public utility, within the meaning of articles 432-11 and 432-12 of the Penal code, since it was charged to achieve acts having for goal to satisfy the general interest, it does not matter that it does not have any decision-making power^55(*). Of another dimensioned, journalists freelance journalists, employed by a chain of public utility of the audio-visual communication were regarded as having the quality of people in charge of a mission of public utility within the meaning of article 432-11 of the Penal code. While accepting, of the money sums of the organizers of a pedestrian race having profited from the diffusion of advertisements, pursuant to a pact occurred before the race, these journalists made themselves guilty of passive corruption^56(*). One can wonder whether these solutions are identical to those envisaged by the Tunisian legislator?

In Tunisian right ; new article 82 of the CPT lays down : « Is a famous public servant subjected to the provisions of this law, any person.... exerting functions near one of the services of the State or a local community or an office or a publicly-owned establishment or a public company, or exerting functions near any other person taking part in the management of a public utility ». It is noticed that this article lays down some conditions which make it possible to speak about a person in charge of management with a public utility.

Of dimensioned, article 82 CPT refers to « any person... exerting functions near one of the services of the State or a local community », this condition is envisaged by the legislator in Tunisia on several occasions by laws external with the penal code like the law relating to the general statute of the personnel of the State and the local communities and the publicly-owned establishments related to administration as well as other special texts^57(*). According to these texts the exercise of the functions near one of the services of State or the local communities must be permanent and nontemporary contrary to the French right which is indifferent as for the permanent or temporary character of the exercise of the functions.

Of another dimensioned, it adds « any person....exerting functions auprès... of a publicly-owned establishment or a public company, or exerting functions near any other person taking part in the management of a public utility ». Thus, the quality of anybody in charge of the management of a public utility is recognized with any person near a publicly-owned establishment related to administration or any other person taking part in the management of a public utility i.e. the establishments related to commercial industrial and.

Are also regarded as people in charge da management of a public utility the civils servant of « public companies ». In general these civils servant are subjected to the provisions of the penal code and not to the provisions of the general statute of the public companies of August 5, 1985 when it is about the corruption.

The Tunisian Supreme court of appeal, to determine if the person is in charge of the management of a public utility or not, uses the criterion of the general interest while considering which it is the angular stone of the public utility^58(*). According to this stop, the management of a public utility thus tightens with the realization of a general interest the people in charge of such a management who seek the realization of a contrary personal interest to the first door reached with the mission and probity. This level a question is posed ; that is what the general interest ?

Neither the legislator nor the doctrines specified this concept, however the bringing together of this one with close concepts allows its delimitation. Among these concepts ; that of law and order and public utility which are in their turn without unanimous definition.

The general interest is a component of the law and order^59(*), thus, if the corruption undermines the general interest it carries obligatorily reached to the law and order. Of another dimensioned, since the reform of May 23, 1998 article 82 CPT lays down it expressly « public utility » which aims at the general interest. This reform will make it possible from now on the courts to continue new subjects for facts of corruption such as the civils servant of publicly-owned establishments not Etatiques which manage a public utility tightening with the realization of a general interest for example the agents of the banking houses^60(*).

PARA2: A divergence as for the invested people of an elective mandate 

Contrary to the French right (A), the Tunisian legislator does not regard the invested people of an elective mandate civils servant public but as equivalents (B).

A- Public civils servant in French right 

It resulted from article 177 ACP STATES that only the representatives of the administrative capacities or the judicial power were aimed. It was thus necessary to apply the text not only to the civils servant themselves, i.e. the direct delegates of the public authority to manage or judge, but to all these auxiliaries, all the employees of the public administrations, i.e. ; « all people framed in the administrative organization or legal^61(*) ». A hesitation appeared concerning the members of the deliberating assemblies, which received their delegation of the election, which is not charged to manage or judge, but simply to deliberate and vote. The latter not being able to be regarded as civils servant of the administrative or legal order from the point of view of article 177.

The Supreme court of appeal, as for it, did not hesitate to extend the provisions of article 177 ACP STATES to members of the Parliament and at general or municipal advisers^62(*), however the text aimed only the people who had the capacity to manage or judge, but not those which had a capacity to deliberate or vote. The solution of jurisprudence, on this point, was logical and in conformity with the penal policy of the corruption since the capacity is expressed by the administrative offices and legal as well as the functions legislative or deliberating.

The difficulty was overcome by the legislator who added the invested expression «nobody (...) of an elective mandate» by the ordinance of February 8, 1945. This ordinance extended the application of article 177 ACP STATES to the elected officials.

With the new penal code, article 432-11 shows an expression very close to that added by the ordinance of 1945, it acts from now on of the «invested person (...) of a public elective mandate». This expression designates not only the members of the Senate, of the French National Assembly but also the people who belong to the regional assemblies, departmental and communal. The same would apply to those of the French citizens who are elected members of the European Parliament^63(*), elected members of certain publicly-owned establishments like the Chambers of Commerce and Industry, the Rooms of agriculture, the Guild chambers, including the Head of the State.

It is noticed that this third category of anybody envisaged by article 432-11 CPF is a doubled bloom of the first category since the invested people of a public elective mandate are only agents of the public authority. According to professor Vitu ; the invested people of a public elective mandate are «  undoubtedly added for more precision to article 432-11 »^64(*). Another part of the doctrines considers that this third category is a defect and it reproaches the legislator that « under cover of precise details... (it) dilutes in streaked prose a concept which could hold in a few words, that is to say a person, named or elected, exerting a public office^65(*) ».

B- Compare to the public civils servant in Tunisian right 

The Tunisian legislator gave a definition of compared to the public servant in new article 82 of the penal code ; under the terms of this article : « Is compared to the public servant any person having the quality of public officer, or invested of an elective mandate of public utility or indicated by justice to achieve a legal mission ».

One notices, by making the comparison with the old drafting, the existence of differences between the two texts. Indeed ; article 82 CPT, before the reform of May 23, 1998, enumerated the compare to the public civils servant. They were the people chosen by the private individuals or delegated by justice in quality experts, referees or interpreters. With the new drafting, the legislator removed the enumeration by posing criteria which allow the acquisition of such a quality. This leads us to saying that the French legislator^66(*), like his Tunisian counterpart, with the recent reforms, avoided the enumeration and they replaced it by broad texts which can adapt to the requirements of modernization.

New article 82 compares the invested person of an elective mandate of public utility to the public servant. It is noticed that the Tunisian legislator took again the same expression used by the reform of February 8, 1945 in France with knowing ; «nobody (...) invested of an elective mandate». However it added the terms « of public utility ».

The invested person of an elective mandate of public utility is the person who does not have the quality of public servant but who exerts a public office for example the members of the regional and communal assemblies^67(*) and members of the national assembly. It is noted thus, that the quality of compared to the public servant is granted by any invested person of an elective mandate of public utility and this because of the mission which it exerts and who has as an aim the realization of a general interest.

This level, a remark must be made : as in French right; The invested people of an elective mandate of public utility are agents of the public authority. One can thus ``reproach ``with the Tunisian legislator that this category of people is a doubled bloom of the category of the people agents of the public authority and that of the people taking part in the management of a public utility at the same time. The same explanation of professor Vitu can be taken again here ; the Tunisian legislator added this category for more precision and to allow the repressive courts to reach people exerting of the functions of general interest but which do not have the quality of public servant by regarding them as equivalents.

Lastly, it should be specified that two other categories are regarded as compare to the public civils servant ; they are the people having the quality of officer public, or appointed by justice to achieve a legal mission (article 82 alinéa2 CPT).

The people having the quality of public officer are the notaries, the ushers and the nontraining practicing lawyers. Concerning lawyers, they can be considered, with our direction, as public officers since since the law of August 6, 1992, modifying the code of the rights in rem Tunisian, the drafting of the acts and conventions subjected to the inscription on the land book are from now on of their competence whereas it was limited before to the notaries and the conservatives of the land and buildings. For certain lawyers, this idea is not in conformity with the statute of the lawyer function who insists on the liberal character of this trade and nonthe subordination of lawyers to an administrative structure.

As for the people designated by justice to achieve a legal mission, they are the sworn in experts, interpreters^68(*), the referees and the official liquidators.

In conclusion one notices that it is not a question of a true divergence between the two legislations but of a simple difference as for quality of the invested person of an elective mandate. Indeed, this category of anybody, in Tunisian right like the French right, is very close to the category of the people agents of the public authority.

SECTION II : OTHER PEOPLE HAVING THE QUALITY OF THE CULPRIT 

Our study will relate, on this level, to certain categories of people having the quality of the culprit as regards corruption, namely ; paid magistrates and (para 1) and foreign civils servant (para 2).

PARA I : Magistrates and employees

The corruption of magistrates is envisaged by the two legislations (A) contrary to the corruption of paid which is not expected that by the French right (B).

A- Magistrates

In the old French penal code, the corruption of the elected officials, magistrates and civils servant concerned a single whole of penal provisions, namely ; articles 177 and following. With the appearance of the penal code of 1992, the writers withdrew the magistrates and the other people revolving within the legal thing and they inserted the incriminations of the active or passive corruption with regard to them in the Chapter IV, which treats «Attacks with the action of justice» and, more precisely, inside section 2 entitled «Of the obstacles to the exercise of justice», where they are the object of article 434-9. The bursting of the primitive block of incriminations relating to the corruption, imposed by the Penal code of 1992, however did not destroy the old bonds which existed between the various texts which were envisaged by the Napoleonean code. Indeed, the material intrigues characteristic of the corruption as well as the goal to which these intrigues tend find identical in spite of the bursting of the texts.

In Tunisian right, as in the old French Penal code, the corruption of the magistrates appears in a single whole of repressive provisions which concerns the civils servant and the elected officials, namely article 83 and following CPT inserted in the Chapter III, who treats «infringements made by the civils servant public or assimilated in the performance or at the time of the exercise of their duties» and, more precisely, inside section 2 entitled» Of the corruption» where it is the object of articles 88, 89 and 90.

1- Guilty magistrates in French right 

The corruption puts in presence, on a side an ordinary person and other a magistrate or a person comparable by article 434-9.

In the active corruption, the third takes the initiative of the punishable steps and it can involve the ignorance of a magistrate or a comparable person, in whom it State put his confidence, of the duties of her function. In the passive corruption, the third yields to the requests emanating of the magistrate.

The quality of third must be recognized with any person who does not belong to the group of the magistrates and comparable people. It is important little that this third is a civil servant or not, justiciable or not, friend or relative intervening for others^69(*). This third can be also an individual acting as quality of body or representative of a legal entity and engaging her own penal responsibility then. A precision must be made on this level; the penal responsibility for the legal entity could not be blamed by the intrigues of its body or its representative, because article 434-47 concerning the responsibility for the legal entities at the time of the various offenses of attack to the action of justice does not mention corruption repressed by article 434-9. This difficulty was overcome by the law n°2004-204 of March 9, 2004, said law PERBEN II, which removed the principle of speciality as for the infringements engaging the penal responsibility for the people morals. From now on, the penal responsibility for the legal entity can be committed for all the infringements made by a body or a representative acting on his behalf^70(*).

Article 434-9 enumerates the people guilty and being included in the category of magistrate or comparable. Initially, there are the magistrates and sworn, of with dimensions magistrate who can be defined like «any person who, by profession, has as a task to ensure in a permanent way the administration of justice within the legal or administrative jurisdictions, of common right or exception^71(*) ». The term « magistrate » must be included/understood in its broadest direction ; i.e., magistrates of the seat and magistrates of the parquet floor as well as the members of Parliament elected to sit at High the Court of Justice or the Court of Justice of the Republic. Of another with dimensions, article 434-9 lays down sworn which sits at the Court of bases since they come to a conclusion about the culpability of marked and the sorrows which theirs are applicable.

Then, article 434-9 adds the people «sitting in a jurisdictional formation ». It acts, indeed, of the people who return decisions covered of the authority of the final decision but which do not have the quality of professional, as example members of the jurisdictions of proximity created by the law n° 2002-1138 of September 9, 2002 known as « law PERBEN I ».

Then, the law adds certain auxiliaries of justice such as ; Experts and referees. The experts, thanks to the reports/ratios which they write, exert a very great influence on the litigations even if the conclusions of these reports do not bind the repressive judges, from where the need for protecting them from the corruption. As for the referees, who have the capacity to slice litigations, they must be protected or repressed for the same reasons as the experts in the event of corrupting operations.

Lastly, article 434-9 aims at the people charged by the legal authority of missions of conciliation or mediation. Initially, it `S acts of the conciliators who are charged by the legal authority with intervening in the small civil litigations, commercial or social. In the second place, they are the mediators who are designated by the public prosecutor in order to regulate the conflicts born of modest infringements, before any continuation, and they must be independent of the magistrates of the Public Ministry or their subordinates. The term « mediation » also the mediation repair planned for the minors concerns and who can be entrusted to a mediator at every time of the procedure^72(*).

Guilty 2-magistrates in Tunisian Right 

The corruption of the magistrates is envisaged in articles 88, 89 and 90 of the CPT. A first remark must be made, all these articles, contrary to article 434-9 CPF, do not enumerate the guilty people but they use general terms, one speaks indeed about « ... judge who..., let himself corrupt... (Article 88) », « ....the corrupted judge... (Article 89) » or « Any judge. (Article 90) ».

The quality of the judge must be included/understood in his broadest direction. The magistrates of the jurisdictions of common right and jurisdictions of exception are thus concerned whatever their formation ; collegial or with single judge. The judges of the jurisdictions of instruction are also concerned such as the examining magistrate or the court of criminal appeal. The magistrates of the Public Ministry are finally concerned and their subordinates as example a member of the parquet floor can be corrupted in order not to exert the grounds for appeal against a stop of end of information emanating from the jurisdictions of instruction or against a stop of the jurisdictions of judgment to the profit or the detriment of prevented^73(*).

The study of articles 82 and following CPT relating to the corruption, shows that the legislator planned for the judges a derogatory legal status with that of the public civils servant.

The judges can be regarded as public civils servant in accordance with the requirements of article 82 CPT since they are agents of the public authority and more precisely they are agents of the legal authority but they obey a special mode. This idea is confirmed by the general statute of the personnel of the State which lays out in its article first that « this statute does not apply to the magistrates^74(*) » .Ce derogatory mode is explained by the importance of the legal authority which is the guardian of the personal freedoms. Thus, a management dishonest person of the legal function by the judges will carry reached to these freedoms.

However this special mode applies only for the corruption of judge seized by a penal business and this limit can be deduced from article 88 CPT which decides : « Is punished twenty years of imprisonment, the judge who, at the time of an infringement likely to involve for its author the imprisonment with life or the death penalty, let itself corrupt, either in favor, or with the damage of the accused » and of article 89 CPT which adds « Is punished the corrupted judge of the same sorrow pronounced against warned by the effect of the corruption, provided that the sorrow pronounced towards this judge is not lower than ten years of imprisonment ». One can deduce from these two articles that the seized judge of a civil case or commercial does not see himself applying articles 88 and following relating to the corruption of the magistrates but the articles relating to the public civils servant, i.e., articles 83 CPT and following.

With our direction, it is regrettable that the Tunisian legislator posed this limit and qu `it should have generalized, with the reform of May 23, 1998, the application of articles 88 CPT and following to all the cases of corruption of judges even if they are seized by civil cases or commercial. It would be preferable that our legislator uses terms as envisaged by article 434-9 CPF which punished any magistrate who solicits or approved unspecified advantages « for the achievement or the abstention from an act of its function » without making the distinction between the penal businesses and the other businesses of different nature whose judge can be seized.

Another remark must be made, contrary to article 434-9 of the CPF which enumerates the magistrates and comparable who can be the subject of continuation on the basis of the aforesaid article, the Tunisian penal code limits the application of articles 88 and following to the only magistrates quoted above. As for the other people who carry their contest to the action of justice without having the quality of magistrate, they are regarded as compare to the public civils servant in accordance with the requirements of the second subparagraph of article 82 CPT which lays out : « Is compared to the public servant any person having the quality of public officer, or invested of an elective mandate of public utility or indicated by justice to achieve a legal mission ». The people designated by justice to achieve a legal mission are as example ; experts, referees official liquidators, syndics as regards bankruptcy etc....It is extremely regrettable, with our direction, that these people do not see themselves applying the provisions planned for the magistrates, who are characterized by the aggravation of the sorrows, and see themselves applying less severe sorrows in spite of the important role in the action of justice.

Another divergence, relating to the interpreters, exists between the two rights, the latter are regarded as people designated by justice to achieve a legal mission in Tunisian criminal law whereas the French legislator omitted to mention them in article 434-9 CPF beside the experts, referees and other comparable people with the magistrates. « This legal lapse of memory has only one reduced importance^75(*) ». Indeed, in a judgment delivered for the application of article 177 of the Penal code of 1810, the interpreters were arranged in the category of the civils servant^76(*). According to professor Vitu this solution can be re-used nowadays by regarding the interpreters as invested people of a mission of public utility in accordance with article 432-11 CPF^77(*).

B- Employees

In its primitive drafting, the Napoleonean Penal code was unaware of the corruption of paid and more precisely the occult remunerations paid by the suppliers with the employees of the commercial firms and the industrial companies with which they are in business connection, while it repressed the corruption of the civils servant. This gap had been largely exploited, especially since the First World War. It should well be recognized that, in many companies, it « bribe » had become of a constant and regular use. The employees charged to buy the goods, or to take delivery of them, touched of a supplier a secret remuneration to support them or for évincer its competitors^78(*). It thus appeared necessary to create an incrimination counters of such intrigues, such was the object of the law of February 16 1919 which was modified by the law of February 8, 1945.

Of the two characters who appear in any pact of corruption there the guilty third of active corruption is which does not deserve a particular explanation since it can be whoever. On the other hand, the corrupted person deserves some explanations.

Article 177 ACP STATES, as modified by the law of February 16, 1919 and the law of February 8, 1945, aimed « very made, employed or appointed paid or remunerated in an arbitrary form ». This article gave place to two different interpretations, one is broad and the other and restrictive. The broad design regards as paid any person linked with a private company or a private individual. It was proposed by part of the doctrines and allowed^79(*). Certain stops of the supreme court of appeal have it allowed^80(*). According to these doctrines the enumeration of old article 177 aimed any person linked to a private company or a private individual, « whatever was the nature of the bond that it attached to it : contract of work or training or contract of mandate or any other contractual bond... ». The only condition was the existence of remuneration in an arbitrary form ; because words « remunerated in an arbitrary form » did not appear in the governmental project. They would have been added expressly by the House of Commons to include in the legal forecasts the employees, but also the administrators and managers of company^81(*).

The broad design was criticized by the partisans of the restrictive design which considered that the legal enumeration nominated only the persons related to the employer by a contract of employment, i.e. those which were placed at its regard in a state of legal subordination more or less narrow such as ; the operation, the semi-skilled worker, the office worker etc ... what excluded the application from article 177 to the person bound by a contract of another nature to the company, and in particular those who are agents or administrators of companies: they are then leaders, and not employees^82(*). This design is based on the same terms employed by article 177 ACP STATES « clerks, employees or appointed ».

With the appearance of the new Penal code the provisions relating to the corruption of employees appear from now on in the fair labor standards act and more precisely in the L152-6 article. This article, to clarify the situation, speaks about « any director or paid » what gave birth to a debate on the range to be given at the end of director. Is necessary it to give in this term the direction of leader in order to extend the range of this article to the administrators, presidents or general managers of companies which are  « truly the Masters of the companies and are placed at the head of the hierarchy^83(*) ». The wording even of this article forces to answer by the negative one. It speaks, indeed, of the fact, «for a director... to solicit... without the knowledge and without the authorization of its employer... of the gifts... ».

The directing word thus has the direction of a subordinate, because it is submitted to the employer who could refuse to him or to give him the authorization to receive gifts... ». Professor Vitu concludes from it that «  the court of criminal appeal should not persist in the position which it had adopted... ^84(*)».

It should be specified finally that the article L 152-6 of the Fair labor standards act is not applicable to all the employees who are in a situation of legal subordination with respect to the employers. , Indeed, all the employees are excluded from the private administrations placed under the control of the publicly-owned establishments for example ; the Chamber of Commerce and Industry as well as the public officers who raise of article 432-11 CPF since they are people in charge of a mission with been useful public. However employees of the nationalized companies, like S.N.C.F, E.D.F etc...., are regarded as employees concerned with the article L 152-6 of the Fair labor standards act since these companies are private companies.

In Tunisian right, contrary to the French right, no incrimination is provided by the legislator for the corruption of the employees that it is in the penal code or other legislative texts in particular the Tunisian Fair labor standards act. This can be explained, with our direction, by historical reasons since Tunisia did not know, during the First World War, the abuses which were made in France by employees commercial and industry which accepted bribes to support certain purchasers or suppliers with the detriment of competitors.

According to part of the doctrines^85(*), the reform of May 23, 1998, founded implicitly the corruption of paid in article 82 CPT relating to the definition of public servant who envisages « is a famous public servant....any person... exerting functions near any other person taking part in the management of a public utility ». Indeed, terms « near any other person » are used, according to this design, by the legislator to designate the employees of the private companies.

We think that this interpretation is extensive and contrary for submission to the author of the reform of 1998 since nothing in the bill, nor in the parliamentary discussions or the circular of Tunisian the Prime Minister, refers to the penal responsibility for paid for facts for corruption. Moreover article 82 CPT relate to the definition of the public servant and comparable and not that of paid private companies.

With our direction, the Tunisian legislator should have created a new incrimination relating to the corruption of paid companies deprived in the Tunisian fair labor standards act, at the time of the reform of May 23, 1998, especially with the rise of the privatization of the publicly-owned establishments which is increasingly frequent nowadays in Tunisia. This privatization involves, indeed, the impunity of the employees belonging to the companies become private since they are not considered any more as public civils servant but as of paid who escape the application from the provisions of the Penal code relating to the corruption.

PARA II : Foreign civils servant

In France, the fight against the corruption encounters many difficulties. The preparatory investigations and instructions are long and delicate and this because of the clandestinity of the facts of corruption or the intervention of the political powers. The misdeeds of the corruption are not limited on a national scale but they affect all the other States. This situation is explained by the recent universalization of the economy and the modernization of the exploitation and production, means of transport.

Up to one recent time, the French criminal law accused only the corruption activates and passive civils servant or French magistrates concerning administrative or legal institutions French and the corruption of paid in the private companies but it did not accuse the attacks with the interests of the foreign States. Professor Vitu, in 1960, provided that « the development of the international organizations, with which the civils servant are in charge of temporary missions in France or even are established in a permanent way in our country, will lead one day or the other, to widen the terms of the enumeration of the article 177du penal code (the old code), to include these foreign representatives there^86(*) ».

Indeed, the universalization of the economic reports/ratios and the increasing importance of the Community organizations in the construction of Europe did not make it possible any more to be unaware of more a long time the dangers of the corrupting practices blaming of the Community civils servant or the foreign public servants^87(*).

This pushed the United Nations to recently launch a total programme of fight against the corruption to encourage the governments of the Member States to set up of the coordinated means of action and to exchange all useful information^88(*).

At the international level several initiatives were taken to fight against the phenomenon of corruption, whose principal ones are three conventions which organized the protection of the financial interests of the European Communities and the fight against the international corruption inside or outside the European Union. The first convention of July 26, 1995 (known as convention CONK), is signed in Brussels and supplemented by three protocols, the protection of the financial interests of the European Communities ensures against the behaviors of fraud and the acts of corruption of national and international civils servant insofar as these behaviors carry reached to these interests; it encourages moreover the Member States of the European Union to punish the bleaching of the capital coming from the frauds or the corruption and to consider, in this respect, the penal responsibility for the people morals. Second is signed in Brussels on May 26, 1997 and it obliges the States of the European Union to accuse the corruption, which it carries or not reached to the financial interests of the European Communities. These two conventions pose the principle of the assimilation, which obliges the signatories to accuse and punish the corruption of the Community civils servant or the servants of another State under the same conditions as the corruption of the national civils servant^89(*).

Lastly, the third convention relates to the fight against the corruption of foreign public agents in the international commercial transactions, it was adopted on December 17, 1997 with bets by the Organization for Economic Cooperation and Developm.

To satisfy these international engagements the French Government presented a bill in which it intended to apply the principle of assimilation strictly and to extend repression to the international actors of the corruption, this project became the law n° 2000-595 of June 30, 2000. The new law adds to the Penal code, in Title III of the Book IV, a Chapter V entitled «Of the attacks to the public administration of the European Communities, Member States of the European Union, other States foreign and public international organizations». This chapter is composed of articles 435-1 to 435-6.

In articles 435-1 and 435-2, taken for the application of the Convention of Brussels of May 26, 1997 relating to the fight against the corruption within the framework of the European Communities or the Member States of the European Union, same and single enumeration nominates various persons belonging all to the European Community framework or civils servant of Member States of the European Union (A). On the contrary, articles 435-3 and 435-4, translation of the Convention of Paris of the 17décembre 1997 on the fight against the corruption in the international commercial transactions, concern only people depending on international organizations others that the European Community institutions or on foreign States to the European Union (B).

A remark must be made on this level. Of dimensioned, no initiative of the Tunisian government tended to the repression of the corruption apart from the own territory. D `another with dimensions, aucunes of above mentioned conventions was not ratified by Tunisia. This situation can be explained, with our direction, by the fact why Tunisia, does not belong to a union whose importance is similar to that of the European Union. However, this governmental position remains regrettable since Tunisia, like any other State in the world, is concerned with universalization. Moreover, the misdeeds of the corruption carry inevitably reached to its interests from where need for paying attention to this infringement apart from the national borders.

Has to them people belonging to the European Community framework 

The people likely to be implied in operations of corruption are envisaged by articles 435-1 and 435-2 CPF. According to the order retained in these articles, it acts :

- Community civils servant : In accordance with the definition that the article of it 1st-B Convention of May 26, 1997 gives^90(*), two categories of people are aimed cumulatively by the single expression of « Community civil servant »; initially, any person who with the quality of civil servant or servant engaged by contract within the meaning of the Staff Regulations of the officials of the European Communities or the conditions of employment of other servants of the European Communities. These people are recruited directly by the competent authorities of these Communities; they concern the Court of Justice in the event of litigation concerning their administrative status. Then, any person availability of the European Communities by the Member States or any public or deprived organization and which exerts functions equivalent to those of the civils servant or other servants of the Communities. By its administrative statute, it continues to raise of its body of origin. - National civils servant of other Member States of the European Union : articles 435-1 and 435-2 do not give a precise definition of this category. Is necessary it to apply the criteria of the national law French ? Or on the contrary, is necessary it to be turned over to the criteria imposed by the national law of the civil servant in question ? The article 1st-C of the Convention of May 26, 1997 seems imposed the second solution, thus, at the time of a continuation carried out in France of the chief of corruption passivates or activates and putting for example causes some an Italian civil servant, the French judge will have to question the Italian law to know if, pursuant to his national law, the interested party has or not the quality of civil servant^91(*).

- Members of the Commission of the European Communities : This commission includes/understands members having the nationality of the Member States of the European Union and it has as a role to present at the Council proposals or projects of Community acts and implements the application of the decisions of this Council; in particular, it stopped the regulation necessary to the implementation of these decisions by the Member States. The protection of this commission of the corruption of its members is explained by the importance of the role of this one within the European Union.

- Members of the European Parliament : the deputies of this Parliament are elected for five years, by the direct vote for all, by the nationals of the Member States of the Union, according to specific electoral methods to each State. The role of this Parliament consists with the development of the Community budget, its adoption and its execution, like the development of the decisions taken by the Council of Ministers or the Commission. As for the Members of the Commission of the European Communities, it is the importance of the role of the European Parliament which explains the extension of the application of articles 435-1 and 435-2 CPF to the deputies.

- Members of the Court of Justice of the European Communities : this jurisdiction has as a function to interpret and apply the Treaties which founded and developed the European Union. The reasons which pushed the French legislator to accuse the corruption of the French magistrates explain the protection of the function of member of the Court of Justice of the Communities against any operation of corruption.

- Members of the Court of Auditors of the European Communities : This court has as a role to control the accounts of the Communities and the bodies created by the European institutions. Its role is fundamental to detect the cases of embezzlement or corruption; still it is necessary that none of its members can be suspecté to solicit or to accept promises, gifts or advantages constitutive of corruption^92(*).

What changes on this level, compared to the national law, it is the quality of the corrupted person since the articles aim either the Community civil servant, or the civil servant of another Member State of the European Union, or the member of the institutions of the communities. Concurrently to these initiatives at the European level, the fight against the corruption on an international scale seems « a requirement of safeguard of our nations vis-a-vis the proliferation of this new criminality which must be brought here closer to organized criminality^93(*) ». However, the French legislator limited repression to the active corruption of the foreign public agents in the international commercial transactions.

B people not raising of the European Community framework 

This category of people is aimed by articles 435-3 and 435-4 CPF which are taken for the application of the Convention of Paris of December 17, 1997. These two articles have a range limited compared to articles 435-1 and 435-2 CPF relating to the people concerned with the European Community framework since they do not concern that the active corruption made either towards foreign people exerting a public office, or towards invested foreign people of a judicial office or a close function. Moreover they apply only to the corruption which occurs in the international trade.

Article 435-3 CPF relates to the active corruption of the people having the quality of foreign public agent, as for article 435-5 CPF it relates to the active corruption of the foreign and comparable magistrates.

Acting, initially, of article 435-3 CPF which defines the foreign public agent as being the person agent of the public authority, or in charge of a mission of public utility, or invested of a public elective mandate. Three remarks must be made on this level :

First relates to the terminology employed by the legislator, this last used the same terms employed in a rather great number of provisions of the current Penal code and in particular in articles 432-11 and 433-1 repressing the corruption of French public agents. Thus, the definition envisaged in national law by the doctrines^94(*) for the people agents of the public authority, or responsible for a mission of public utility, or invested of a public elective mandate is valid to clarify the range of article 435-3 CPF.

Second relates to the comparison between these agents and those of the national law and more precisely the people aimed by articles 432-11 and 433-1 CPF. Indeed, the people aimed by article 435-3 CPF must in charge or be invested of their functions in a foreign country other that one of the Member States of the European Union or within a public international organization other than those of the European Communities.

The third remark relates to the comparison of conventions which inspired the French legislator at the time of the reform of the 30juin 2000. It is noted, indeed, that while it « Convention of May 26, 1997 concerning the corruption made in the Community orbit returns to the legislation of each Member State of the European Union the care to determine with which must be recognized the quality of «national civil servant», Convention OECD of December 17, 1997 relating to the corruption at the time of the international trade precise which with the quality of foreign public agent within the meaning of this Convention ^95(*) ». the article first of this one defines the foreign public agent as being it « nobody who holds a legislative mandate, administrative or legal in a foreign country, that it was named or elected, any person exerting a public office in a foreign country, including a public company or an organization and any civil servant or servant of a public international organization^96(*) ». According to professor Vitu, the definition of the public agent envisaged in the aforementioned convention was taken again by the French legislator « In a more synthetic way », but while omitting to mention the invested people of a grant of representation. This lapse of memory is explained by article 435-4 CPF which is reserved for this category of people.

Article 435-4 CPF mentions the magistrate, sworn or any person sitting in a jurisdictional formation, the referee or the expert named either by a jurisdiction or by the parts, and the person charged by the legal authority of a mission of conciliation or mediation. It is noticed that the French legislator took again the same enumeration envisaged by article 434-9 CPF relating to the corruption of a French magistrate, the only difference lies in the membership of the magistrates aimed by article 435-4 CPF in a foreign State other that a Member State of the European Union or to a public international organization other than one of the institutions of the European Communities.

It is also noticed that the definition given by this new provision is extremely detailed, whereas the article 1st of the Convention of December 17, 1997 evokes only the invested person of a «grant of representation».

In conclusion, we think that it is regrettable that articles 435-3 and 435-4 CPF repress only the active corruption and that they apply only to the corruption occurring in the international trade. Thus for example a Spaniard (nobody concerning the European Community) corrompt in Paris a Tunisian civil servant (nobody not raising of the European Community) : first is punishable but not the second whereas it is often the author of the passive corruption which is guiltiest. According to part of the doctrines ; it is a gap of the French national law which is « the consequence of international engagements^97(*) ».

The quality of the culprit thus determined, it is thus appropriate to specify the material elements of the infringement.

CHAPTER II : MATERIAL ELEMENTS 

The material elements of the corruption require, a punishable material activity (Section1), emanating either from the corrupter or of the corrupted, indicated by the doctrines by the terms « corrupting operations ». The purpose of these operations are (Section2) obtaining of the achievement or the abstention to achieve an act of the function or an act facilitated by the function.

SECTION I : The PUNISHABLE MATERIAL ACTVITE 

The study of the punishable activity deserves to specify its aspect in the first time (para1), to be able to determine these average generators (para2). We will bring, finally, some explanations on problems of basic criminal law (para3).

PARA I : The aspect of the punishable activity

For better determining the aspect of the punishable activity, it would be preferable to distinguish between the passive corruption (A) and the corruption activates (B).

With- the aspect of the punishable activity in the passive corruption 

Two verbs are used to indicate, in French and Tunisian right, the attitude reproached the invested person of a public office and which pours in the passive corruption ; the culprit solicits or approved gifts, present or other advantages. However, a divergence exists between the two legislations ; if they regard both approval as component of the infringement (1), it is different for the request which is regarded as aggravating circumstance in Tunisian right (2).

1 - Approval  : A component in the two legislations

The term «approval» indicates acceptance and the reception at the same time. Initially, acceptance ; it is the fact for the corrupted of accepting which is quoted to him by the corrupter. Then, reception ; it is the fact of receiving the promised gifts.

In French right, the term « approval » appears on several occasions in the texts relating to the corruption passivates, thus, article 432-11 CPF, relating to the passive corruption made by people exerting a public office, lays out « ... The fact is punished... of approving. ». Article 434-9 CPF relating to the corruption of magistrates employment the same term, it lays down indeed « the fact for a magistrate... of approving... ». Lastly, the articles 435-1CPF and following relating to the passive corruption within the framework of the European Community show the same formula employed by the two preceding articles. It is noticed that the concept of approval does not exist in articles 435-3 CPF and following since they relate to the active corruption, and not passivates, of the people concerned with foreign States others that the Member States of the European Union.

Approval is, quite simply, the execution of the agreement of wills which was formed between the corrupter and the corrupted. However, a remark must be made on this agreement, the offense is consumed at the time when the assents are exchanged between the corrupter and the corrupted. Thus, it is essential little that the corrupted person gives up the execution of the agreement occurred or if she restores the things which she had received for price of her corruption.

The above mentioned articles are not limited to the concept of approval but they add that this one must be formulated « without right ». This requirement, imposed by the repressive texts, is highly criticized by the doctrines, for professor Vitu : « The legislator would have been better inspired not to mention approval formulated '' without right ''^98(*) «since it lets think that the approval of an unspecified advantage to achieve an act of the function can be licit whereas any approval, when it is made by a person exerting a public office, is by illicit nature.

This requirement can be explained, as professor Vitu underlines it, for the corruption of employees since approval must occur without the knowledge of the employer so that the offense is consumed. Thus, the employer cannot thus call upon a violation of the obligation of fidelity which the employee must respect, if it were informed of the handing-over of a remuneration and y agreed^99(*).

With our direction, the expression '' without right '', as it is the case of the expression '' invested people of a public elective mandate '', was undoubtedly added for more precision, with articles 432-11, 434-9 and 435-1 CPF and not to be regarded as a defect affecting the offense of corruption^100(*).

In Tunisian right, the corruption passivates is also based on the concept of approval. Article 83 CPT relating to the passive corruption of the public or comparable civils servant lays out : « Any person having the quality of public servant or comparable...., which will have approved....is punished. ». Article 85 CPT uses, as for him, the terms according to : « If the public servant or comparable accepted... ». Finally it it article 94 CPT provides that « in all the cases of corruption, the things given or received are confiscated with the profit of the State ». It is noticed that the Tunisian legislator, like his French counterpart, made use of the concept of approval even if it employs the expression of acceptance or reception which remains very related to the first since by acceptance it is necessary to hear ; the fact for the corrupted of accepting the offers suggested by the corrupter and the reception ; the fact of receiving the promised gifts.

According to the Tunisian doctrines, approval is the acceptance of corrupted of the offer of the corrupter the purpose of who is the achievement of an act of the function^101(*). However, approval must be formulated in a free and intentional way to be able to speak about corruption. Moreover, it is essential little that the reception of the promised things was carried out or not, or that the public servant or assimilated gives up the execution of the agreement occurred since the infringement is consumed during the exchange of wills between the corrupter and the corrupted^102(*).

The Tunisian legislator required, like his French counterpart, that approval be formulated '' without right '' and this in the article 83CPT which lays out : « Any person.... who will have approved, without right... ». However, this requirement is not envisaged in all the articles relating to the corruption passivates, such as it is the case in French right, but she limits herself in this article.

The same critics who were formulated higher concerning this expression remain valid on this level, however we think that it was added by the legislator for more precision.

In conclusion, one notices that great similarities exist between the two rights as for approval as being a component of the infringement but these similarities are missing with regard to the request since it is regarded as an aggravating circumstance in Tunisian right.

2-La request : An aggravating circumstance in Tunisian right 

Within the framework of the passive corruption in France, the material element is the request or the approval of offers or promises, the gifts, of the present or unspecified advantages, the whole without right.

The request implies a step of corrupted which plays an active part thus. This last invites its interlocutor, in a direct way or by diverted means, to understand that it must «pay» to obtain the achievement or the not-achievement of the act of the function or act facilitated by it^103(*).

The request is envisaged, on several occasions, in the texts relating to the corruption passivates, thus, article 432-11 CPF, relating to the passive corruption made by people exerting a public office, lays out « ... The fact is punished... of soliciting. ». Article 434-9 CPF relating to the corruption of magistrates employment the same term, it lays down indeed « the fact for a magistrate... of soliciting... ». Lastly, the articles 435-1CPF and following relating to the passive corruption within the framework of the European Community show the same formula employed by the two preceding articles.

The simple request of unspecified advantages is enough to characterize the offense of passive corruption, which is consumed as of the emission of this one. It is thus of no importance which the request had no effect on the person concerned, or that the promised advantage was not finally versed^104(*). One notices on this level that the request as approval involve the consumption of the offense.

The request, such as it is the case of approval, must be formulated '' without right ''. This expression can be the object of criticisms made previously. One recalls to this level that we think that this expression was added for more precision.

In Tunisian right, the request and approval do not appear in the same article. Approval is envisaged by article 83 CPT whereas the request is envisaged by article 84 CPT. It should however be specified that the legislator did not use this term in an explicit way, such qu it is the case in the French legislation, but he makes use of the following expression '' If the public servant or comparable caused offers or promises, the handing-over of gifts or present... ''. The provocation must be heard as being the catch of initiative by the person exerting a public office which invites its interlocutor to understand that it must yield to his requests.

This step of the civil servant or comparable is the subject of an independent article, contrary to the French penal code which envisages approval and the request in the same text. Article 84 CPT lays out indeed : «  If the public servant or comparable caused the corruption, the sorrow envisaged in article 83 of this code will be carried to the double ». Knowing that ten years article 83 punished of imprisonment the approval of the public servant of which is quoted to him, this sorrow will be increased to twenty years of imprisonment if it is the latter which had taken the initiative.

It is noticed thus, that the Tunisian legislator considers that the request is more serious than approval and than it deserves a heavier sorrow. With our direction, this distinction is useless since the request and approval undermine the same statutory value to knowing the duty of probity.

It should be specified that the Tunisian legislator does not use the expression of request in the other texts relating to the corruption as example article 88 CPT relating to the magistrates lays out : « the judge who.... let itself corrupt... is punished ». It is noticed that the legislator uses the expression '' let himself corrupt '' which carries to believe, at first sight, that the text relates to only the active corruption. With our direction, this article relates to the passive corruption and activates, even if it does not specify if the judge plays an active or passive part in the step. From where the aforementioned expression can include the request and approval. This idea can be confirmed by the reading of the Arab text (which was badly translated), having the primacy in the event of discordances between the two versions, which envisages the corruption in its two forms passive and active.

To note finally, that the simple request of unspecified advantages is enough to characterize the offense of corruption passivates It is thus of no importance, that the request did not have any effect on the person concerned or that the promised advantage was not finally versed.

B The aspect of the punishable activity in the active corruption 

The activity by which the author of an active corruption intervenes with an invested person of an official function is indicated differently by the two legislations. It is of the proposal and the consent with the requests in French right (1) and about persuasion and the constraint in Tunisian right (2).

1 it proposal and the consent with the requests in French right

Article 433-1 CPF uses two different terms to indicate the activity by which the author of an active corruption intervenes with a person exerting a public office. The corrupter proposes unspecified offers, present or advantages, in case where it is him which took the initiative of the illicit conversations, or, if in fact the corrupted began the punishable step, the article precise that the private person yields to the companies of her interlocutor.

These two terms are used by the legislator on several occasions in the texts relating to the active corruption, thus one finds them in article 434-9 CPF, relating to the active and passive corruption of the magistrates and assimilated, which envisages : « the fact, constantly, of yielding to the requests of a person aimed to the preceding subparagraph, or of proposing offers, promises, gifts.... ». Article 435-2 CPF relating to the active corruption of the civils servant concerned with the framework of the European Community and articles 435-3 and 435-4 CPF relating to the active corruption civils servant and magistrates not raising of the framework of the European Union use, them also, the same terms employed by the article433-1CPF.

Like the word «to solicit», the verb «to propose» indicates a positive step of the corrupter who seeks to obtain the agreement of the civil servant; it is essential little that this step succeeds or fails: the offense of active corruption is fully consumed as soon as gets under way the punishable operation^105(*).

As for the expression «to yield to the requests» of the whom corrupted civil servant, it indicates the agreement by which the third agrees to enter the sights of its interlocutor: this agreement is enough to constitute this third in a state of offense, even if if thereafter the corrupted civil servant gives up achieving the promised act, it acts, indeed, of a late repentance which does not have any positive effect for the civil servant.

It is noticed that, within the framework of the active corruption, it is this time about the proposal of the same advantages as those envisaged with the title of the passive corruption and than the legislator believed good to also add for the corruption activates the expression '' without right '' with regard to the civils servant, the European public agents and the foreign public agents. And one finds without surprised same criticisms as those previously exposed about the passive corruption.

2 it persuasion and the constraint in Tunisian right 

Persuasion and the constraint constitute the aspect of the punishable activity in the active corruption in Tunisian right. Article 91 CPT lays out in its subparagraph first : «  Is punished five years of imprisonment and five thousand dinars fine, any person who will have corrupted or tried to corrupt by gifts or promise of gifts, or present or advantages of some nature that it is one of the people concerned has article 82 (new) this code... ». And it adds in the last subparagraph : « The sorrow will be carried to the double if the people aimed to article 82 (new) were forced to achieve the above mentioned acts by ways in fact or threats exerted on them personally or on one of the members of their family ».

It is noticed that the first subparagraph relates to the active corruption by persuasion, even if the text does not use this expression but it uses the '' terms which will have corrupted or tried to corrupt ''. The concept of persuasion was mentioned by the government, during the preliminary works, at the time of a question put by the commission of the laws relating to the significance of the expression « who will have corrupted ». In its answer, the government had specified that this expression indicated the situation of a private person who tries to persuade a public servant to approve the offers suggested^106(*).

Let us announce that this concept of persuasion is very close to the concept of proposal, allowed in France, and that it can be considered, to our direction, like a component of this one. One cannot speak, indeed, of persuasion if it is not to precede by proposal.

Another remark is essential on this level : no mention of the verb « to yield to the requests » does not exist in the text relating to the active corruption in the Tunisian penal code, however one can refer in article 84 CPT, which lays down the request of the offers by the public servant, for saying that the Tunisian legislator envisaged the consent of the person deprived with the requests in an implicit way.

The last subparagraph of article 91 CPT lays down the constraint as verb indicating the activity by which the author of an active corruption intervenes with a person exerting a public office. The legislator specifies that the constraint can be carried out «  by ways in fact or threats exerted on them (people having the quality of public servant or assimilated) personally or on one of the members of their family ».

The constraint, like means of active corruption envisaged by the legislator, is criticized by most of the doctrines which think that it is insupportable to regard the public servant as being corrupted in the event of constraint. This current puts forward another argument ; articles 125 to 130 CPT relating to the insults and violences with public servant and comparable^107(*).

Of another with dimensions, the admission of the constraint as average of active corruption can involve a difficulty as for the qualification of the facts and as for the applicability of the repressive texts envisaged by the Penal code, as example article 116 CPT lays out : « imprisonment for six months is punished and of a fine of 200 francs, whoever exerts or threatens to exert violences to resist a civil servant acting in the regular performance of its duties or any person legally necessary to assist the aforementioned civil servant. He is the same whoever exerts or threatens to exert violences to force it to make or not to make an act of his functions ».

Let us announce finally, that the constraint by ways in fact or threats existed before in the old French Penal code within the framework of the corruption of anybody exerting a public office and the active corruption of paid but the new penal code purged the corruption of violence by creating a section entitled «  threats and acts of intimidation made against the people exerting a public office ». Of another dimensioned, the article L. 152-6 of the code of work^108(*), relating from now on to the corruption of employees, made disappear the mention from these means of violence, which are by nature foreigners with the concept of corruption^109(*). However, article 441-8 CPF concerning the establishment of certificates of false certificates still mentions the ways in fact and the threats like means of active corruption.

With our direction, it would be preferable that the Tunisian legislator takes as a starting point the the French right and gives up the constraint like means of active corruption. We think that this means should be replaced by '' the consent with the requests '' which does not appear in an explicit way in article 91 CPT.

Para II : average generators of the corruption 

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).

CHAPTER FIRST : COMPARISON OF THE PROCEDURE 

The comparison of the procedure implies the study of the engagement of the continuation

(Section 1) and the difficulties of setting opens this one of it (section 2).

SECTION FIRST : The ENGAGEMENT OF the CONTINUATION 

The study of the engagement of the procedure requires the determination of the qualified parts (para 1) to engage this one as regards corruption and the determination of the courts of jurisdiction (para 2).

PARA 1 : Qualified parts to institute the proceedings 

Normally, it rests with the public Ministry to start the public action (A), however, other parts have this capacity (B).

To it public Ministère has

Article 40 Al 1 of the CPPF lays out : « The public prosecutor receives the complaints and the denunciations and appreciates following their giving it ». Thus, the parquet floor appreciates the advisability of continuing or not the denounced facts. However several abusive denunciations to see in practice untrue appear with the approach of elections, in particular for local elections. It thus rests with the parquet floor to take into account this practice and to act as function.

As regards corruption, as for all infringements, the parquet floor is dominated by the principle of the appropriateness of the continuations which enables him to choose between the release of the continuations or the classification without continuation. But considering the clandestinity of the facts of the corruption and the difficulty of proving them^171(*), it is important that the parquet floor continues since a denunciation proves to be founded. One notices as well as the parquet floor, which receives the complaints and the denunciations, is the principal part having the capacity to engage a continuation for facts of corruption.

In Tunisian right, the Tunisian legislator took as a starting point the the French legislator with regard to the functions of the public ministry. Indeed, article 20 CPPT lays out « the public ministry puts moving and exerts the public action ». Moreover article 30 of the CPPT lays out : «The public prosecutor appreciates it action to be taken for the complaints and denunciations which it receives or which are transmitted to him ». 

Thus, it is the public ministry which engages the continuation and it is, in its turn, governed by the principle of the appropriateness of the continuations and the facts of corruption are brought to its attention by the means of the denunciations and the complaints.

It is noticed, that in French right as in Tunisian right, it is the parquet floor, which receives the complaints and the denunciations and which it rests with to him to engage or not a continuation. But there are other parts which can institute the proceedings ?

B them other parts which can engage the continuation

It was seen that the facts of corruption are made available of the public ministry by the means of the complaints and the denunciations. Indeed, the complaint is only one particular form of denunciation ; It is the denunciation made by the victim.

The concept of victim as regards corruption raises two types of difficulties, the first tends to be questioned if there is really a victim of the corruption ? The second tends, once the existence of a shown victim, to determine which are the people allowed to act ?

1-Y does it have a victim of the corruption? 

According to the article 2CPPF, the victim is the person who personally suffered from a damage directly caused by an infringement and it with the possibility of constituting civil part for repair. As regards corruption the damage is not inevitably detected by the victim considering the clandestinity of this infringement and its effects, in more in the majority of the cases the damage is not undergone by a well defined person but by an abstract group people. As example, a representative of a local authority can conclude a pact from corruption with a company at the time of a public market ; the cost of the corruption will be supported by the taxpayers. Those suffer an unquestionable but undetectable injury^172(*).

In Tunisia, the article 2CPPT concerning the public action lays out « it (the public action) can also be put moving by the injured part ». It is noticed that the victim of the infringement of corruption can engage civil left continuation while being constituted, but the practice proved the ignorance of the part injured in the majority of the cases, the existence of the damage undergone for the same above mentioned reasons.

Moreover, the doctrines raised the following question ; Can one regard the corrupter or the corrupted as victim of the corruption having the capacity to engage the public action while constituting himself left civil ?

In France, the Court of criminal appeal admits the civil proceeding of the person who took part in the offense provided that it did not cause the offense and that it is not accessory. However, it dismisses the action of the person who, from bad time gave from the money to the principal author of the offense in order to obtain a favorable decision^173(*). In conclusion the court of criminal appeal dismisses the action of the unworthy victim.

In Tunisian right this possibility is envisaged in an implicit way. Indeed, the corrupter or the intermediary can denounce the act of corruption, before any continuation, in order to escape repression in accordance with article 93 CPT. And according to the Supreme court of appeal, they can constitute civil part if they are in good faith^174(*).

This possibility is open only to the corrupter and with the intermediary, in other words, the possibility of denunciation is not opened with the author of the passive corruption.

Thus, it is noticed that the corrupter can see himself acquiring the statute of victim in the event of denunciation and engaging a continuation in accordance with the article2CPPT.

The existence of a victim of the corruption thus shown, another question is posed ; Which are the allowed people to institute the proceedings ?

2 them people allowed to act 

In Tunisia, in addition to the possibility of starting the continuations by the corrupter or the intermediary, certain special laws such as the law n°83-112 promulgated the 12 décembre1983^175(*) provide that « if the made fault constitutes an offense or a crime and especially in the case of passive corruption, it is necessary to inform the public ministry immediately ». It is noticed that this text takes again the same terms of article 40 CPPF subparagraph 2 which lay out : « Any authority made up, any public officer or civil servant who, in the performance of his duties, acquires the knowledge of a crime or an offense is held to deliver opinion without delay to the public prosecutor and to transmit of them to this magistrate all the information, official reports and acts which are relative there ».

This text aims at the administration in general which is seen in the obligation to inform the public ministry in order to put moving the public action and this in the event of damage undergone following a passive corruption. This is explained by the need for transparency of the public office which touches with the law and order and the general interest.

This special law expressly poses the same obligation with the agents of the customs, in other words the general administration of the customs is seen in the obligation to start the public action, while being constituted left civil, in the event of damage undergone following the passive corruption.

Other special laws envisage the possibility for certain ministries of starting the public action while being constituted left civil, such as the ministry for the interior represented by the Minister of Interior Department, indeed, this last can engage a continuation in the event of corruption within the framework of its ministry. This prerogative is also planned for the Minister for justice.

In France, if jurisprudence admits the existence of a civil proceeding it restricts the concept of victim of the corruption by making reduced application of the article 2CPPF.Il would be preferable to quote some victims of the facts of corruption :

Initially, concerning the local authorities ; The infringements of corruption made by a territorial civil servant or an elected official of the local authority are likely to cause an injury with this one from where they are allowed to constitute civil part.

Then, concerning the administration which employs the author of the facts, depending directly on the State. The court of criminal appeal decides that it can constitute civil part against one of its corrupted civils servant but only in the event of moral wrong resulting from the attack to its reputation^176(*).

Then, concerning the private employer ; Nothing makes obstacle, when an employee is corrupted, so that its employer constitutes civil part since it suffers an unquestionable and personal injury. But the question which installation is if this action is possible when the employee is corrupting ?

The employee can cause a material loss with the company since it can be declared civilly responsible for the facts made by its employee. Moreover, the facts of the corrupting employee involve the penal responsibility for the leader and can involve the penal responsibility for the legal entity. We thus think that the employer can suffer a personal and direct injury whose it will be able to ask repair in front of the repressive jurisdictions while being constituted left civil^177(*).

Lastly, with regard to the speaker with the offense ; The court of criminal appeal of the supreme court of appeal admits the civil proceeding of the person who took part in the offense when it is established that she did not cause the offense and that she is not accessory^178(*).

It is noticed that French jurisprudence and the Tunisian legislator allow the intermediary and the speaker with the facts of corruption of constituting civil part while imposing conditions which return the recourse to this possibility very limited to the level of the practice since the constitution of civil part, in this case, imposes the good faith of the intermediary or the speaker.

PARA2 : Courts of jurisdiction

The jurisdictions of the common right are exclusively qualified as regards corruption (A), however jurisdictions of exception can recognize infringements of corruption in cases envisaged by the law (B).

Has to them jurisdictions of the common right

In France as in Tunisia, the competence of the jurisdictions of the common right is fixed according to the gravity of the continued facts and their qualifications of crimes, offenses or of infringments.

In Tunisia, article 27 CPPT lay out : « The criminal court is only qualified to know crimes » . Article 122 CPPT, of dimensioned sound, precise that are described as crimes, the infringements which the laws punish of death, or of imprisonment during more than five years .

The same article adds that offenses are qualified ; The infringements which the laws punish of the one duration imprisonment higher than fifteen days and not exceeding five years and a fine of sixty dinars (40 euros). As for the courts of jurisdiction E matter of offenses, article 124 CPPT adds that the court of first authority and more precisely the correctional room in the first resort know all offenses except for those which are competence of the cantonal judge to knowing ; punished offenses of a sorrow of imprisonment not exceeding a year.

Knowing that for the infringement of corruption, in Tunisia, the legislator envisaged sentences of emprisonment of which the duration varies according to cases', which involves the competence of the various courts.

In France, one finds the same distinction between crimes, offenses and infringments. This resemblance N `is not the fact of the chance but it is explained by the tendency of the Tunisian legislator to take as a starting point the the legislation and the French penal policy.

This resemblance is not absolute, indeed, article131-1 CPF relating to the crimes envisages one ten years minimal duration of criminal reclusion for this type of infringements, contrary to the Tunisian right which envisages one five years minimal duration.

Of another with dimensions, article 131-3 CPF and following relating to the offenses envisages one duration maximum ten years of imprisonment for this type of infringements, contrary to the Tunisian right which envisages one duration maximum five years.

It should be known that since the promulgation of the law of March 16, 1943, the criminal character was removed with the infringement of corruption in French criminal law, in other words, there was a correctionnalisation of this one. One speaks consequently about the offense of corruption, which causes exclusive competence of the correctional court. But this law and the new code left an aggravating circumstance leaving a criminal character to the corruption ; It is the case of article 434-9 CPF relating to the magistrates or comparable guilty of passive corruption for the benefit or with the detriment of a person being the subject of criminal continuations, the principal sorrow is fifteen years the criminal reclusion, which involves the competence of the court of bases.

We would study on this level the competence of the various courts.

1 them courts of competent jurisdiction to judge the infringement of qualified corruption of crime 

has the criminal court 

In Tunisia, it is the criminal court, located in each Court of Bankruptcy, which is qualified to judge the crimes ; punished infringements of a sentence of emprisonment not being able to be lower than five years. Thus, the criminal court is qualified for the cases of articles 83 CPT relating to the public servant or comparable who, either personally, or by intermediary, for itself or others, approved offers or promises or receives gifts or present to achieve an act of his function, even just, but not subject with wages, then, article 84 CPT relating to the public servant or assimilated who caused these offers, promises or the handing-over of gifts or present. In these cases the sorrow of imprisonment is ten years in the first case and twenty years in the second.

Of another with dimensions, the criminal court is qualified also for the passive corruption of the magistrates envisaged in articles 88 and 89 CPT which lay down a sorrow of ten years imprisonment (89 CPT) and twenty years (88 CPT).

Lastly, the criminal Court is qualified in the event of active corruption of the public civils servant accompanied by constraint or attempt at constraint by ways in fact or threats punished ten years of imprisonment, in accordance with article 91 CPT.

Let us announce that, after the reform of May 23, 1998, the criminal court became qualified for the majority of the infringements as regards corruption. This widened competence is explained by the aggravation of the sorrows following the aforementioned reform.

B Court of bases 

In France, the law of March 16, 1943 had for principal effect the correctionnalisation of the corruption. However, this law as well as the new Penal code left the criminal character to this one on the assumption envisaged in article 434-9 CPF.

This article, in its third subparagraph lays out that when a magistrate is guilty of passive corruption for the benefit or the detriment of a person being the subject of criminal continuations, the incurred principal sorrows are fifteen years the criminal reclusion. It is noticed that the infringement of corruption, in this case, is described as concerning crime jurisdiction of the court of sat in accordance with the article 231CPPF.

By making the comparison between the two legislations, one on the other hand notices that the court of sitted is qualified only in one case of corruption, the criminal court is qualified in the majority of the cases. This is explained by the tendency of the Tunisian legislator to worsen the repression of the corruption since the infringements are qualified crimes in Tunisia if they are punished of a sentence of emprisonment higher than five years.

2 it correctional Room and the correctional court (offenses) 

to it correctional Chambre has 

In Tunisia, the correctional room is qualified as regards offenses (article124CPPT). Thus, is spring of the aforesaid the room, the active corruption envisaged in article 91 CPT subparagraph 1st which lays out : « Is punished five years of imprisonment and five thousand dinars fine, any person who will have corrupted or tried to corrupt by gifts or promises of gifts, present or advantages of some nature that it is one of the people aimed to article 82 of this code (public servant or assimilated)... « this same article adds that the same sorrows are applicable to any person having been used as intermediary between the corrupter and the corrupted. Thus, it is the correctional room which is qualified in this case.

Another offense which appeared with the reform of May 23, 1998 and which is competence of the correctional room, it act of the offense to grant others an unjustified advantage by a contrary act with the legislative and lawful provisions having the aim of guaranteeing the freedom of participation and the equal opportunity in the last markets envisaged by article 87 (a) CPT.

The sorrow planned for this offense is five years of imprisonment whereas in France it is punished two years in accordance with article 432-14 CPF. With our direction, the sorrows envisaged in the two legislations are not compatible with the gravity of the facts complained of.

Lastly, the correctional room is also qualified for the offense envisaged in article 85 CPT which lays out :  « If the public servant or comparable accepted gifts or present in reward of what it did or of what it did not make, it is punished imprisonment during five years and of a fine of five thousand dinars ».

This offense is made up once the civil servant accepted gifts or present after the achievement or not of the act of the function, which distinguishes it from the case envisaged in article 83 CPT relating to the acceptance of the gifts before the achievement of the act.

Article 85 CPT lays down a five years sorrow of imprisonment following the law of May 23, 1998 instead of one year of imprisonment before the promulgation of the aforesaid the law, which affirms the repressive policy pursued to Tunisia as regards corruption.

B it correctional Court 

In France, it is the correctional court which is qualified as regards offenses and the latter is qualified for all the offenses of corruption since the correctionnalisation of this infringement by the law of March 16, 1943, except for article 434-9 CPF, previously studied, which envisages fifteen years the criminal reclusion what implies the competence of the court of bases.

It is noticed that in France the correctional court has an exclusive competence as regards corruption contrary to the correctional room in Tunisia which is only one competent limited to well defined cases.

3 it cantonal Court in Tunisia (offenses envisaged by the law) 

We specified that the cantonal court in Tunisia knows in last spring of the infringments and in the first resort knows punished offenses of a sorrow of imprisonment not exceeding a year or of a sorrow of fine not exceeding thousand dinars (700 euros) per application of article 123 CPPT.

Consequently, this court is seized in the event of attempt at corruption which did not have any effect in accordance with article 92 CPT new which lays down a sorrow of one year imprisonment and a fine of thousand dinars.

In practice, the courts do not apply the sorrows envisaged in a strict way in the event of attempt. This position of Tunisian jurisprudence is regrettable because, with our direction, the attempt at corruption represents the same dangers as the corruption itself.

If one proceeds to a comparison with the old drafting of article 92 CPT, one notes that the cantonal court was qualified in two cases ;of with dimensions, for the attempt at ways in fact or threats and another with dimensions for the attempt at corruption which did not have any effect. With the reform previously quoted the legislator the attempt at ways in fact or threats of the competence of the cantonal court removed.

It is noticed that in France, the police court, which has almost the same role that the cantonal court, is not qualified as regards corruption but this incompetence is explained by impossibility, for this one, to pronounce sentences of emprisonments : essential sorrows for the infringement of corruption.

In conclusion, the jurisdictions of common right have a very important role and an exclusive competence as regards corruption.

4- Exemptions from the terms of reference 

In France, the normally qualified jurisdictions can see dispossessions following the creation of specialized jurisdictions (A) and the existence of rules allowing an exemption from the jurisdiction ratione loci (b).

to it creation of specialized jurisdictions has

In front of the rise of the delinquency of businesses known as « in white collar », a law n°75-701 of August 6, 1975 added to book VI of the CPPF a title XIII heading: «Of the continuation, the instruction and the judgment of the infringements in economic and financial matters». This law instituted jurisdictions specialized for the infringements in economic and financial matters. From now on, in each spring of Court of Appeal, one or more Courts of Bankruptcy comprising of the specialized magistrates who are qualified for the instruction and the judgment of these infringements and those being related to them.

These infringements are envisaged by article 704 CPPF and one notices that the list of this article aims only the offenses.

Article 704 CPPF was modified by the law of December 1 1994 which added the corruption and the trading of favors, in their two forms active and passivates, in the long list of the infringements which can be submitted with the Courts of Bankruptcy specialized for the continuation, the instruction and the judgment of the infringements made in economic and financial matters.

The law of December 1, 1994^179(*) carried, moreover, two other important modifications. Of dimensioned, it founded in article 705 CPPF the technical process of one « concurrent territorial competence » between the correctional jurisdiction of common right and the specialized jurisdiction. This expression has two directions. It wants initially to say that the specialized magistrates have an additional competence, being added to that which they already have pursuant to the rules pursuant to the rules of the common right. It wants to say, then, that these magistrates are only one optional competent : it is necessary, indeed, that these businesses are of a great complexity so that they are allotted to these magistrates^180(*).

Of another with dimensions, the aforementioned law modified the rules of sasine of these jurisdictions. Previously, the law of August 6, 1975 charged the president of the court of criminal appeal of the capacity to allot the businesses to the jurisdiction specialized, on request of or the examining magistrate public prosecutor. With the reform of 1994, that it is about a procedure followed on information or in preliminary investigation, the public prosecutor can seize the specialized jurisdiction. It is the Attorney General close the Court of Appeal where the specialized jurisdiction has its seat, which makes the decision. If it is about a procedure of information, the examining magistrate seizes his qualified colleague.

It is necessary to announce, of another with dimensions, the contribution of the law of June 30 2000 which widened the list of the infringements coming under the responsibility of the specialized jurisdictions envisaged by article 704 CPPF. Indeed, the law adds the cases of active and passive corruption of the only Community civils servant (articles 435-1 and 435-2 CPF)^181(*). Moreover these two infringements, since the aforementioned law, appear in the list of the infringements giving to the French courts a universal jurisdiction in accordance with article 689-8 CPPF^182(*).

According to certain authors, these specialized jurisdictions did not really show their effectiveness on the practical level, fault of having in their center sufficient truly specialized magistrates^183(*). For this reason, the law of March 9, 2004^184(*) appreciably improved the treatment of the economic and financial infringements by extending the scope of the jurisdictions specialized as well as the statute of the specialized assistants^185(*).

This law modified article 704 CPPF which lays out, from now on : « the territorial scope of a Court of Bankruptcy can be also extended to the spring of several courses of call for the investigation, the continuation, the instruction and if they are offenses, the judgment of these infringements, in the businesses which are or would appear of a very great complexity, because in particular of the great number of authors, accomplices or victims where geographical spring on which they extend ».

Thus, the specialized jurisdictions have, following the reform of March 9, 2004, an interregional competence since it is extended to the spring of several courses of call.

In Tunisia such a specialization is not envisaged by the Code of penal procedure, which is, to our direction, regrettable considering the complexity and the clandestinity of the facts of corruption.

B it exemption from the jurisdiction ratione loci

Two exemptions from the terms of territorial reference can be mentioned on this level,

First to the local councillors the second relates concerns the foreign civils servant who do not belong to the framework of the European Community.

Being the local councillors, a law of July 18, 1974 modified article 681 CPPF, it was about an exemption from the terms of territorial reference allowing that the local councillors are automatically continued or considered in front of a jurisdiction being located apart from their district. The purpose of this rule was principal to guarantee the impartiality of the jurisdiction by avoiding the risk of pressures on the local jurisdictions.

This law envisaged a procedure complexes likely to delay the investigations. Moreover the bad drafting of the text led to cancellations of procedure which shocked the public opinion. Thus the legislator decided to remove this text, by the law of January 4, 1993, in order to preserve the respect of the equal treatment of the justiciable ones. From now on, the elected officials automatically raise of the jurisdictions territorialement qualified, except if they ask an expatriation of the file by the procedure of reference in the interest of a good administration of the justice envisaged by article 665 CPPF. Expatriation can be ordered only on request of the Attorney General meadows the Supreme court of appeal or of the Attorney General meadows the Court of Appeal in which is the seized jurisdiction^186(*). In this case the reference is ordered by the Court of criminal appeal.

In order to avoid such a request of dispossession near the Supreme court of appeal, the law of March 9, 2004 added a new subparagraph to article 43 CPPF which lays out : « When the public prosecutor is seized by facts blaming, as author or victim, a person agent of the public authority or responsible for a mission of public utility which is usually, from her functions or her mission, in relation to the magistrates or civils servant of the jurisdiction, the Attorney General can... transmit the procedure to the public prosecutor of the Court of Bankruptcy nearest within the competence of the Court of Appeal. This jurisdiction is then territorialement qualified to know the business... ».

One notices thus, who this new procedure is faster than the preceding one since it makes it possible an impartial jurisdiction to know businesses blaming the people quoted previously without requiring a request in dispossession near the Supreme court of appeal^187(*).

As for the public agents and the foreign magistrates not raising of the framework of the European Union^188(*). The law of June 30, 2000 envisaged in a new article 706-1 CPPF that for the continuation, the instruction and the judgment of facts of corruption activates concerning these people, the public prosecutor, the examining magistrate and the correctional court of Paris exerts a concurrent competence with that which results from the normal rules of the jurisdiction ratione loci.

One notices that there was a concentration^189(*), between the hands of the Court of Bankruptcy of bets, of the businesses of international corruption to the imitation of what was envisaged by article 706-17 CPPF for the facts of terrorism.

In Tunisia, one finds an exemption from the jurisdiction ratione loci neither in favor of the local councillors nor in favor of certain civils servant. They automatically concern the jurisdictions territorialement qualified, and this is explained by the concern of respecting the principle of equality.

B them jurisdictions of exception

Two jurisdictions will be the object of the comparison on this level, they are the courts of jurisdiction to know infringements made by politicians (1) and military jurisdictions (2).

1 them politicians

Certain political personalities are justiciable to jurisdiction of exception. It is about High the Court of Justice for the president of the Republic and the Court of Justice of the Republic for the Ministers in France (A) and of the High court for the members of the government in Tunisia (b).

has to them qualified jurisdictions of exception in France 

Being initially the president of the Republic, article 68 of the Constitution stipulates : « The president of the Republic is responsible for the acts achieved in the performance of his duties only in the event of high treason. He can be put in charge only by the two assemblies ruling by a vote identical to the open vote and absolute of the members the component. He is judged by High the Court of Justice ».

The doctrines discussed on the interpretation of this article because of its wording which is neither clear nor precise. Some, considered that the two sentences formed an indivisible whole ; advanced that the President of the Republic was justiciable to High the Court of Justice only in the event of high treason, and was justiciable to the jurisdictions of common right for all the acts detachable or former to the exercise of the functions. Others considered that the two sentences were dissociable, supported that the second sentence devoted a privilege of jurisdiction to the profit of the Head of the State.

Pursuant to the second interpretation, all the infringements, including the facts of corruption, made by the Head of the State would be competence of High the Court of Justice.

The calling into question of the current President of the Republic, Jacques Chirac gave importance to these interpretations. Indeed, the question was solved in two times. The first time by the constitutional Council in a decision of 22 January 1999portant^190(*) on conformity with the Constitution of the convention of Rome of July 18, 1998 bearing statute of the international penal Court. In this decision the council recognizes with the president a privilege of jurisdiction by considering that « furthermore, throughout its function its penal responsibility can be blamed only before High the Court of Justice ».

This interpretation of the constitutional council was modified by L `assembled plenary^191(*) of the Supreme court of appeal when it had to come to a conclusion about the possibility of hearing the president of the Republic like witness. It decides that this last can neither be continued, nor judged throughout all its mandate and it adds that the regulation of the public action is suspended throughout all mandate. It profits, consequently, of a temporary inviolability and either of a privilege of jurisdiction.

One notices as well as the facts of corruption cannot be repressed throughout mandate by High the Court of Justice and which they are competence of the jurisdictions of common right when this mandate arrives in the long term.

As for the Ministers, since the constitutional law of July 27, 1993, the members of the government are judged by the Court of Justice of the Republic and either by High the Court of Justice. The procedure followed in front of this jurisdiction is relatively heavy and complex.

Indeed, the person who claims herself injured must imperatively carry felt sorry for attached to the commission of the requests. This commission has the capacity to classify without continuation or to transmit the file to the Attorney General meadows the Supreme court of appeal, in other words, it has a capacity of filtering. A commission of instruction is seized to inform in rem and personam since the instruction in this case does not concern that the Minister blamed and not these accomplices or its joint authors. It should finally be announced that no constitution of civil part is allowed in front of this jurisdiction^192(*).

Following this constitutional reform article 68-1 of the constitution provides that the court is qualified for the acts achieved by Ministers in the exercise of the functions and qualified crimes or offenses at the time when they were made.

Before the stop of the Supreme court of appeal of 26 June 1995^193(*) relating to the Carignon business, jurisprudence did not make the distinction between the acts achieved in the exercise of the function and the acts achieved at the time of the exercise of the functions. What had as consequences which the suspected ministers were justiciable to this jurisdiction of exception.

At the time of the Carignon stop, the Supreme court of appeal specified that « the acts made by a minister in the performance of his duties are those which have a direct relationship with the control of the businesses of the concerning State these attributions, other than the behavior concerning the private life or the local elective mandates ».

From now on the Supreme court of appeal, in businesses blaming of the Ministers for facts of corruption^194(*), considers that the acts achieved in the exercise of the functions do not include/understand the acts achieved at the time of the exercise of the functions but they cover only those having a direct report/ratio with control with the businesses with the State.

Consequently, the facts of corruption do not raise any more competence of the Court of Justice of the Republic unless they do not have a direct relationship with the control of the businesses of the State.

Being finally the members of Parliament, they concern the jurisdictions of common right and not of a jurisdiction of exception. However, the proceedings could be instituted, before, only with the authorization of the assembly whose the member of Parliament belonged during the sessions or with the authorization to the office to this assembly except session. This mode of inviolability was modified by the constitutional law of August 4, 1995^195(*). From now on, only to authorization of the office of the assembly privative or restrictive measurements of freedom out the case are subjected of obvious offense or final judgment.

B it High court in Tunisia 

There is only one jurisdiction of exception relating to the politicians in Tunisia. It is about the High court envisaged by article 68 of the Tunisian Constitution which lays out that this one is qualified to judge the members of the government in the event of high treason. The competence of the High court was determined by the law of April 1 1970^196(*) which includes in its article the first same terms of the Constitution but it adds in its article 2 a definition of the high treason. It is indeed about « ... acts achieved in the exercise of the functions and qualified crimes or offenses at the time when they were made and which undermine the reputation of the State ».

With our direction this article, in its French version, was badly translated since it lets believe that the acts achieved in the exercise of the functions are those having a direct relationship with the control of the businesses of the State whereas the Arab text envisages the competence of the High court when the person, having the quality of Minister, makes qualified acts of crimes or offenses.

Thus, the High court has an exclusive competence to judge the members of the government contrary to the Court of Justice of the Republic in France which is only one concurrent competent with that of the repressive courts.

Consequently, this jurisdiction of Tunisian exception is qualified to judge the facts of corruption, which they have a direct relationship with the control of the businesses of the State or not, since they are made by Ministers.

As for the president of the Republic, article 41 of the Constitution^197(*) lays out that : « The President of the Republic profits from a jurisdictional immunity during the performance of his duties. He also profits from this jurisdictional immunity after the end of the performance of his duties with regard to the acts which he achieved at the time of the performance of his duties ». Thus, no continuation is possible against the Head of the State.

As for the members of Parliament, they concern the jurisdictions of common right and not of a jurisdiction of exception. However, they profit from a mode of inviolability since the continuations can be committed only with the authorization of the assembly whose the member of Parliament belongs during the sessions or with the authorization to the office to this assembly except session. One notices on this level that it is the same mode of inviolability which existed in France before the constitutional reform of August 4, 1995.

2-Le military Tribunal

Being the French legislation. A distinction, relating to the qualified military jurisdictions, is made between the time of peace and the time of war.

In times of peace, the military infringements and the breaches of law made by the soldiers acting in the service are in theory judged by the jurisdictions of common right in accordance with article 697-1 CP as modified by the law of July 21, 1982. However, there are still military jurisdictions in times of peace, for example the courts with the armies which operate abroad and which know infringements of any nature, including the corruption, made by the soldiers or the people with their continuation, as well as infringements against the French Army forces or against their establishments^198(*).

In the event of state of siege or urgently declared, the infringements of any nature, including the corruption, made by the soldiers and the infringements against the armed forces are competence of the territorial courts of the armed forces which are established on the territory main road^199(*).

In times of war, competence is that of the territorial courts of the armed forces which know infringements made by the soldiers as well as crimes or offenses against the fundamental interests of the nation and of the infringements which are related for them^200(*).

In Tunisia, it is the military tribunal which is qualified to know certain infringements made by soldiers. The organization and the competence of this jurisdiction are envisaged by the decree of January 10, 1957^201(*).

No article of this decree expressly lays down the facts of corruption as being an infringement coming under the responsibility of the military Tribunal. However article 5 of the aforesaid decree lays out that this court is qualified to know infringements made against the interests of the army.

One can imagine that a soldier solicits or approved offers in order to achieve acts which are against the interests of the army. Nothing is opposed, in this case, so that the military tribunal is qualified to know facts of corruption made by a soldier.

SECTION 2 : PROBLEMS RELATING TO THE IMPLEMENTATION OF THE CONTINUATION 

The clandestinity of the facts of corruption, as one already evoked, has for principal effect ; The difficulty in proving these facts, consequently, the infringement remains unpunished (para1). To this difficulty of the proof comes to be added the regulation which can be in its turn an obstacle with repression (para2).

PARA 1 : The clandestinity of the facts of corruption and the difficulty of proof 

The apprehension of the facts of corruption requires a specialization since the infringement is dissimulated in apparently regular countable data, as for the authors are hidden by companies screens. It is necessary whereas the investigators are specialized and trained for the search for all that is licit. This specialization if it exists in the French legislation (A), it is missing in Tunisian right (B).

To it specialization in the research of the evidence in France has

Specialization in the discovery of the facts of corruption is not limited to the jurisdictions of judgment, indeed, it exists in all the phases of the procedure, i.e., investigation, continuation, instruction and judgment.

The specialization of the bodies of the investigation does not relate to only the facts of corruption but all the infringements in economic and financial matters enumerated by article 704 CPPF. In addition, specialization relates to the services of police force and gendarmerie:

The central direction of the Criminal Investigation Department, whose agents can carry out investigations into the whole of the territory, comprises two specialized divisions. The division known as of the infringements to the right of the businesses, in charge of the repression of the infringements to the company laws, of tax evasion and the corruption. Second is; the central office for the repression of the great financial delinquency which treats the infringements related to commercial economic, and financier related to organized criminality.

As for the specialized jurisdictions, the law of August 6, 1975^202(*) modified by the law of February 1, 1994 previously quoted, instituted in each spring of Court of Appeal, one or more Courts of Bankruptcy comprising of the magistrates specialized and qualified for the instruction and the judgment of these infringements and those being related to them. The sasine of these jurisdictions can intervene dice the first elements of the investigation; It thus appears a specialized parquet floor. Thus, the specialized jurisdictions can see their competence widened to include all the phases of the procedure.

These specialized jurisdictions saw their effectiveness reinforced because of creation of the specialized assistants^203(*), whose statute was improved by the law of March 9, 2004 known as law Perben 2, it acts people having acquired, during their professional course, of matter competences economic and financial, as example of the agents of the taxes, customs etc These specialized assistants follow an obligatory formation preliminary to their entry in function. They can henceforth assist the examining magistrates or the legal senior police officers acting on letter of request in all the acts of information, as well as the magistrates of the public Ministry in the exercise of the public action.

In conclusion, the specialized jurisdictions have an additional competence, since it comes to be added to the competence of the jurisdiction of origin which remains seized and it is optional since the jurisdiction will be seized only if the business appears of a great complexity to the originally qualified magistrate.

B-L' absence of specialization in the research of the evidence in Tunisia

In Tunisia, if one analyzes the articles relating to the corruption, one notices that the legislator did not specify a well defined means of proof to apply in the event of facts of corruption. Thus they are the general rules envisaged in articles 150 CPPT and following which are applicable.

The proof of the facts of corruption is one of the major problems that a judge can meet, this is explained by the clandestinity of these facts and the prudence of the authors of such an infringement. The difficulty in proving the corruption results in regrettable to make obstacle with repression especially if the request relates to an object which has only one moral interest.

Thus, the facility of proof of the facts of corruption depends on nature on the interests received by the author on the infringement and nature on the corruption, in other words, passive or active.

If the advantage envisaged in the pact of corruption is a promise or a recommendation, it would be difficult to prove this infringement. The judges, of their dimensioned, to exceed such a difficulty refers to the presumptions of fact collected by the examining magistrates, as an example, the expenditure of a public servant which does not correspond to its resources, however they are held to justify their decisions. It should be specified that the motivation of the decision is obligatory and this obligation is due to a constant jurisprudence.

Of another dimensioned, the task of the judge, in the research of the truth, is facilitated by the role of the examining magistrate, knowing that in Tunisia the instruction is obligatory as regards crimes and optional as regards offenses, from where the instruction is obligatory in the case of passive corruption envisaged by articles 83 and 84 CPT and in the case of active corruption envisaged by article 94 CPT, but it remains optional in the other cases since they are qualified offenses.

In his turn, the examining magistrate sees his role facilitated by the information carried out by the administration to which the public servant belongs, indeed, the administration opens administrative information against this last in order to accumulate the evidence relating to the corruption.

With the end of this administrative information, the senior in rank of the administration decides, either the classification without continuation, or the pronunciation of an administrative sorrow.

Administrative information makes it possible to the examining magistrate to be enlightened on the facts, however, in the event of pronunciation of a disciplinary sorrow by the senior in rank of the administration, this decision does not bind the examining magistrate as for the action pursuant which it will take to legal information that it opened.

During the legal instruction the examining magistrate proceeds to all the acts necessary for the manifestation of the truth such as the hearing of the witnesses, the searchings, of the expertises, however, the instruction remains optional whenever the infringement of corruption is described as offense in accordance with article 47 CPPT which lays out : « the preparatory instruction is obligatory as regards crime ; except special provisions, it is optional offense infringment. » and nothing in the code requires an obligatory education if the corruption constitutes an offense. It is noticed that article 47 CPPT shows the same terms of article 79 CPPF concerning the cases in which the preparatory instruction is obligatory.

It is regrettable, with our direction, that the instruction is not obligatory in all the cases of corruption considering the gravity of this infringement which undermines the transparency of the public office. In addition, it would be preferable that the Tunisian legislator takes as a starting point his French counterpart and creates jurisdictions of investigation, instruction and judgment specialized.

PARA 2 : Regulation of the public action

The flow of time involves the regulation of the public action so that the author escapes repression and cannot be continued. The mechanism of regulation exists in France and in Tunisia and justifies itself by the idea that at the end of a certain time, better is worth to forget the infringement than to revive the memory. Moreover, the flow of time involves the loss of the evidence and multiplies the risk of miscarriage of justice.

In spite of the justifications of the regulation, an increasing hostility towards this one emanates from the judges as well as legislators and who bases themselves on the refusal of impunity of the author of the infringement. This hostility is more important when they are infringements of businesses which are characterized by the clandestinity which returns their discovery within three unacceptable year^204(*).

Thus the regulation seems an obstacle with the continuation, however French jurisprudence, contrary to Tunisian jurisprudence, tried to find a means to surmount this obstacle by delaying the starting point of the term of limitation (B).

To note, that if the term of limitation is fixed at three years since the correctionnalisation of the corruption following the law of 1943 in France, this time is variable in Tunisia according to whether the infringement is described of crime or offense (A).

Has to them terms of limitation 

According to, article 8 CPPF « As regards offense, the regulation of the public action is three years completed » and article 7 CPPF adds that the starting point of this one is the day of the commission of the infringement.

Thus, the offense of corruption is prescribed by three years completed as from the day of its commission.

In Tunisia, the infringement of corruption is qualified in certain cases of crime and in other cases of offense, this has for principal effect to vary the term of limitation of the public action according to the qualification of the aforesaid the infringement. Article 5 CPPT lays out « Except special provisions of the law, the public action which results from a crime is prescribed by ten years completed, that which results from an offense by three years completed. and this as from the day when the infringement was made... ».

Thus, is described as offense of corruption, whose term of limitation is three years completed ; active corruption envisaged in article 91 CPT subparagraph 1st which lays out : « Is punished five years of imprisonment and five thousand dinars fine, any person who will have corrupted or tried to corrupt by gifts or promises of gifts, or present or advantages of some nature that it is one of the people aimed to article 82 of this code (public servant). ». Then, the offense to grant others an unjustified advantage by a contrary act with the legislative and lawful provisions having the aim of guaranteeing the freedom of participation and the equal opportunity in the markets passed, envisaged by article 87 (a) CPT, and finally, the offense envisaged in article 85 CPT relating to the civil servant who accepts gifts or present after the achievement or not of the act of the function.

In addition, the term of limitation is increased to ten years completed if the infringement of corruption is described as crime, as example ; the cases of articles 83 CPT relating to the public servant or comparable who, either personally, or by intermediary, for itself or others, approved offers or promises or receive gifts or present to make an act of its function, even just, but not subject with wages, then, article 84 CPT relating to the public servant or assimilated who caused these offers or promises or the handing-over of gifts or present.

Then, the corruption passivates magistrates envisaged in articles 88 and 89 CP and finally, the case of active corruption of the public civils servant accompanied by constraint or attempt at constraint by ways in fact or threats, in accordance with article 91 CPT.

It was already seen that the offense of corruption in France as in Tunisia is prescribed by three years, this time proved in practice as obstacle with the repression from where solutions were found by French jurisprudence.

B it delayed-action of the starting point of the term of limitation by jurisprudence 

The Supreme court of appeal French, in spite of the absence of texts, anxious as much as possible to delay the starting point of the term of limitation, worked out and developed a jurisprudence not making run the term of limitation of certain instantaneous infringements of the day of their consumption. Two forms of instantaneous infringements are concerned with this jurisprudence those which are carried out in the form of successive handing-over of funds or reiterated acts, and those which are occult or are accompanied operations by dissimulation which make them difficult to discover^205(*).

Being initially the infringements being accompanied operations by dissimulation, the typical example is that of the abuse social goods. Indeed at a rate of the occult nature of this offense, a term of limitation three years as from the day of its consumption would not have allowed, in the majority of the cases, to exert continuations against its author who would have thus profited from an unacceptable impunity. This is why the Supreme court of appeal endeavoured to delay the starting point of the regulation. This jurisprudence knew an evolution which proceeded in three phases.

Initially the Supreme court of appeal delayed the starting point of the triennial regulation at the day when the offense appeared and could be noted, i.e. at the day of the discovery^206(*).

In the second time the Supreme court of appeal specified that the starting point of the triennial regulation must be fixed at the day when the offense appeared and could be noted under conditions allowing the exercise of the public action, in other words, by the only people entitled to put this action moving: victims and the public ministry^207(*).

Finally the court of criminal appeal was based on the provisions of the Commercial law to decide that the term of limitation of the public action of the chief of abuse social goods does not start to run, except dissimulation, that as from the presentation of the annual statements by which the litigious expenditure is put unduly at the load of the company^208(*).

Being then the instantaneous infringements which are carried out in the form of successive handing-over of funds or reiterated acts, one can quote the swindle, the trading of favors, the offense of illegal catch of interest and the offense of corruption^209(*). Concerning this last offense, it is admitted, since the reform of 1943, which it is fully consumed, as soon as the civil servant requested gifts, present or promises or as soon as the corrupter formulated illicit proposals.

However it is this delayed starting point of the term of limitation which posed a problem. The difficulty appears a punishable pact especially in the case of going up with more than three years, but whose spread out execution currently continues: doesn't the activity present of the corrupter and corrupted escape the public action, with the pretext which the initial agreement is now out of attack of the criminal law^210(*)?

To prevent the possible achievement of the regulation, the Supreme court of appeal decided that if the offense of corruption is an instantaneous infringement, consumed as of the conclusion of the pact of corruption between the corrupter and the corrupted, it renews with each act of execution of the aforesaid pact. This solution was taken again by several stop which uses the same formula, namely : «Of the successive offenses renewed themselves as a long time as existed the fraudulent concert»^211(*).

According to professor Vitu This solution contradicts by no means the assertion, always exact, that the corruption of people in charge of a public office is an instantaneous infringement. It adds that the legislator « équivalemment attach the qualification of corruption consumed to the request of a remuneration, the acceptance of offers or promises, and to the reception of gifts or present: these various moments, which can be separate in time by more or less long intervals, characterize all identically the achievement of the corruption; with each manifestation of the guilty will, the offense appears again completely^212(*) ».

With our direction, two remarks must be made on this level. First relates to the Tunisian legislator who does not delay the starting point of the instantaneous infringements. This solution complies certainly with the rule of the strict interpretation of the law but it has as a disadvantage of preventing the repression of the facts of corruption.

Second is intended to the two legislators, it is time, indeed, that the terms of limitation are lengthened in order to prevent that they are an obstacle with repression. We propose that this time is increased at five years as regards offense and fifteen years as regards crime.

CHAPTER II : THE COMPARISON OF THE SORROWS 

The majority of the substantive laws classify the sorrows in principal sorrows and complementary sorrows, it is the case of the Tunisian right and the right French. To these two sorrows come to be added other sorrows, as example ; the additional sorrows, which do not appear any more in the new French penal code, then alternative sorrows and sometimes and in certain legislations of the disciplinary sorrows. Thus, the comparison will relate to the principal sorrows (section 1) and the other sorrows (section 2) to knowing ; complementary, additional and disciplinary.

SECTION I : PRINCIPAL SORROWS 

Today like yesterday, in France, the principal sorrows are primarily the loss of liberty and the fine. With these two principal sorrows is added, in Tunisia, the death penalty, which were abolished in French right, and the work of general interest. As regards corruption, in France as in Tunisia, the principal sorrows applied are ; the sentences of emprisonment (para 1) and amends it (para2).

PARA I : Sentences of emprisonment

If, in France, the infringement of corruption is described as offense since its correctionnalisation in 1943, this qualification, all the time, is not retained in Tunisia since the infringement can be described of crime or offense according to sorrows' envisaged and who can be criminal or criminal. Thus, the correctional sorrows (A) and the criminal reclusions will be studied (B).

Has to them correctional sorrows

In Tunisia, the correctional room is qualified as regards offenses (article124CPPT). Thus, is spring of the aforesaid the room all the infringements of corruption which are punished of a sentence of emprisonment not exceeding five years of imprisonment. As example ; active corruption envisaged in article 91 CPT subparagraph 1st which lays out : « is punished five years of imprisonment ....., any person who will have corrupted or tried to corrupt by gifts or promises of gifts, or present or advantages of some nature that it is one of the people aimed to article 82 of this code (public servant). » and this article adds that the same sorrows are applicable to any person having been used as intermediary between the corrupter and the corrupted.

Five years a correctional sorrow of imprisonment is planned for the offense to grant others an unjustified advantage by a contrary act with the legislative and lawful provisions having the aim of guaranteeing the freedom of participation and the equal opportunity in the last markets envisaged by article 87 (a) CPT.

With our direction, the sorrow planned for this offense is not compatible with the gravity of the facts complained of.

Lastly, the offense envisaged in article 85 CPT which lays out : « . If the public servant or comparable accepted gifts, promises, present or advantages of some nature that it is in reward of acts that it achieved... is punished five five years years of imprisonment... ».

This offense is made up once the civil servant accepted gifts or present after the achievement or not of the act of the function, which distinguishes it from the case envisaged in article 83 CPT relating to the acceptance of the gifts before the achievement of the act.

Article 85 CPT lays down a five years sorrow of imprisonment since the law of May 23, 1998 instead of one year before the promulgation of the aforesaid the law, which affirms the repressive policy pursued to Tunisia as regards corruption.

In France, since the correctionnalisation of the corruption by the law of March 16, 1943, the legislator envisages in all the cases of corruption a sorrow of ten years imprisonment, except for article 434-9 CPF which envisages fifteen years the criminal reclusion.

B them criminal reclusions

The law of March 16, 1943 had removed with the corruption of civils servant the character of crime which it had. However this law had left the criminal character to two assumptions of corruption. It acts in the first case of the corruption having for object a criminal fact comprising a sorrow stronger than the imprisonment, for example the corruption tending to the commission of a forgery in public writings. The second case is that of the passive corruption made by judges or sworn at the time of justice returned out of criminal matter. In fact the assumptions were envisaged in articles 180,182 ACP STATES. But in practice, this text did not receive an application.

Article 434-9 CPC let remain, only one of these causes of aggravation of the sorrows. Indeed, when a magistrate is guilty of passive corruption for the benefit or the detriment of a person being the subject of criminal continuations ; the incurred principal sorrow is fifteen years the criminal reclusion. Two differences separate this aggravating circumstance from that which it succeeded: on the one hand sworn is not mentioned any more; in addition, not only the judges are aimed sitting to the court of bases, but also all those which, with one moment or with another, are mixed with the continuation or the instruction with a criminal business: members of the parquet floor, examining magistrate, judges freedoms and detention, members of the court of criminal appeal^213(*).

This severity is explained by the gravity of the facts complained of to the magistrates, and the consequences disastrous, which such a pact between the parts can involve, on the freedom of the individuals and the maintenance of law and order.

It is necessary to underline the notable simplification of the current system, which does not make any more vary, contrary to the former right^214(*), repression according to whether the achievement or the abstention relates to an act facilitated by the function or an act of the function.

In Tunisia, there was not a correctionnalisation of the infringement of corruption, on the contrary, the Tunisian legislator worsened the duration of the sentences of emprisonment with the reform of May 23, 1998. It should be announced initially, that in Tunisia, the distinction between criminal reclusions and imprisonment do not exist since all the sentences of emprisonment, out of criminal or criminal matter are called ; sorrows of imprisonment.

Knowing that in Tunisian right the punished infringements of a sorrow of imprisonment higher than five years are qualified crimes, it is noticed that the criminal character of the aforesaid the infringement is more frequent in the Tunisian legislation compared to the French right which limits this character to the only case of passive corruption of the magistrates. It is advisable, therefore, to study the cases where the corruption is punished of a criminal sorrow of imprisonment.

It should be noted that even if the crimes are punished, in Tunisia, of a sorrow of imprisonment which cannot be lower than five years, the Tunisian legislator envisaged two stages which are far from the minimum envisaged (5 years).

The higher stage, is twenty years of imprisonment, relates to the public servant or comparable who caused the corruption envisaged by article 84 CPT and the passive corruption of magistrate envisaged by article 88 CPT which lays out : « is punished twenty years of imprisonment, the judge, who at the time of an infringement likely to involve for its author the imprisonment with life or the death penalty, either in favor, or with the damage of the accused » .

It is noticed that in the two legislations there is an aggravation of the sentences of emprisonment when the author of the infringement to the quality of magistrate. Moreover, in Tunisia, contrary to the French legislation, one always speaks about « the accused » instead of « put in examination » in spite of the attack engraves with the presumption of innocence.

The second stage, is ten years of imprisonment, relates to the passive corruption of public servant or comparable envisaged by article 83 CPT whereas the sorrow planned for this crime, before the reform of May 1998, was five years of imprisonment. Is punished ten years of imprisonment the active corruption of public servant or assimilated accompanied by constraint by ways in fact or threats exerted on them personally or one of the members of their family in accordance with the last paragraph of article 91 CPT.

It is noticed that, for this second stage, even if the infringement is described as crime in Tunisia, the duration of the sentences of emprisonment is the same one as in French substantive law which qualifies the infringement of offense. Thus, there is a divergence, between the two rights, as for the qualification of the infringement and a convergence as for the duration of the sentences of emprisonment.

PARA II : The fine 

The legislators use the fine as a sorrow which comes to be added to the sentence of emprisonment as principal sorrow. They decide, either to force the judge to pronounce them one and the other, or to give him the choice between the two. However, there are two techniques relating to the application of the fine ; the first is the technique of the fines proportional (A) and the second is that of the fixed fines (B). thus, the comparison relating to the fine will relate to the technique used by the legislators as regards corruption.

A- fines proportional

In France, in the old system, for the corruption of civil servant, the fine could be double value of the approved promises or things received or required. This technique of the fine proportional was given up by the new penal code which envisages fixed fines.

In Tunisia, the legislator, by the reform of May 23, 1998, increased the rate of the fines, in more it insisted on the obligation which they are applied by the judges at the time of the pronunciation of the sentence of emprisonment.

Thus, the fine minimum is thousand dinars (700euros), instead of thousand francs within the old provisions. And of twenty thousand dinars, for the maximum rate.

To note, that in Tunisia, in spite of the reform, the legislator uses the technique of the fines proportional and the technique of the fixed fines, contrary with the French legislator who limited himself to the last only.

The technique of the fines proportional is used twice within the framework of the corruption, initially one finds it for the passive corruption of public servant or assimilated (article 83 CPT) and if the passive corruption is due to the provocation of the public servant or comparable (84 CPT).

This level poses the problem of the nature of the approved or requested things, if they have a nonmaterial value as example ; a sexual relation, it would be impossible to apply the technique of the fines proportional. One can think of article 82 CPT which lays out : « Without it being able to be lower than ten miles dinars (seven miles euros) ». Thus, in this case it is the minimum envisaged by the law which will be applicable.

Concerning the application of the fines, the judge is held to apply them since the law of May 23, 1998, whereas it had the choice as for their application before what proves the repressive policy pursued by the Tunisian legislator as regards corruption.

B them fixed fines 

The new penal code 1994 replaced the technique of the fines proportional by fixed fines^215(*). From now on, there are four new stages ; The higher stage is of (225000 euros) which corresponds to fifteen years the criminal reclusion for the passive corruption of the magistrates envisaged in article 434-9 CPF. Then the stage comes (150 000 euros) and it systematically accompanies the ten years sorrow of imprisonment. Then, the stage of (75.000 euros) is twinned with the five years sorrow of imprisonment and finally, the lower stage of (30 000 euros) which goes hand in hand with the two years sorrow of imprisonment.

For certain authors, the technique of the fixed fines adopted by the legislator is regrettable and they ask the application of the old technique of the fines proportional^216(*).

In Tunisia, the legislator calls upon the two techniques, it uses on the one hand the fines proportional and on the other hand the fixed fines. There exists, as it is the case in France, four stages. The first stage is of ten miles dinars which corresponds to the active corruption of public servant in order to achieve an act related to its function but not subject with counterpart accompanied by constraint by ways in fact or threats.

The second stage is of five miles dinars which corresponds to the active corruption of public servant or comparable envisaged by article 85 CPT, as well as the active corruption of public servant in order to achieve an act related to its function, even just, but not subject with counterpart, or to facilitate the achievement of an act related to its function, or to abstain from achieving an act which it is of his duty to make. The fine is applied, in this case, for the attempt and it is marked against the intermediary.

The third stage is of two miles dinars and it is planned for the attempt at ways in fact or threats which did not have any effect. The last stage is thousand dinars fine and it corresponds to the attempt at corruption which did not have any effect.

One notices that in Tunisian right, contrary to the French right, the attempt is punishable, moreover any sorrow of fine is not planned for the corruption active or passive magistrates, the latter risk only the imprisonment like pains principal, which is regrettable, with our direction, considering the gravity of the facts which are reproached to them.

SECTION II : OTHER SORROWS 

Under the empire of the code of 1810, one spoke about the principal, complementary and additional sorrows. The additional sorrows are added automatically to the principal sorrow and they do not have to be expressly marked by the judge. After the promulgation of the new penal code it is advisable to speak about the principal, alternative and complementary sorrows^217(*).

In theory, the additional or automatic sorrows disappeared with the new penal code and this by application from article 132-17 which lays out : « no sorrow can be applied if the jurisdiction expressly did not pronounce it ».

In Tunisia, the distinction is made between principal sorrows and complementary sorrows. To note, that the Tunisian legislator if it uses the term « complementary » in the Arab text, it translates it in the French text of « additional sorrows ». This fault of translation must, with our direction, be modified considering the difference which exists between the complementary sorrows and the additional sorrows in compared right, as example, the French right.

The complementary sorrows, in Tunisia, are envisaged in article 5 CPT and some of them are included in the provisions relating to the corruption in articles 83 CPT and following. It is about the confiscation and prohibition to exert the public office.

In France, complementary sorrows come to be added to the principal sorrows. These sorrows are indicated by article 432-17 CPF.

It should be noted that in spite of the disappearance of the additional sorrows those remain as regards corruption in two cases. Thus, will be studied ; complementary sorrows (para 1) and additional sorrows (para2).

PARA I : Complementary sorrows 

Article 432-17 CPF lays down the applicable complementary sorrows as regards corruption, one starts with the prohibition of the civil laws, civic and of family, then there is prohibition to exert a public office or to practice the profession or social, then the confiscation and finally the posting or the diffusion of the marked decision. This last sorrow is envisaged in Tunisian right like pains complementary, indeed, article 5 CPT speaks about `'the publication, by extracts, certain judgments ''.

In Tunisia, the complementary sorrows are envisaged in article 5 CPT and two of them are included within the framework of the corruption ; confiscation and prohibition to exert a public office.

Thus, the comparison will relate to prohibition to exert a public office (A) and the confiscation (B).

A-L' prohibition to exert a public office

Prohibition to exert a public office or to practice the profession or social in the exercise or at the time of the exercise of which the infringement was made, envisaged by article 432-17 CPF can be final or for one five years duration. It exists for the corruption passive and active national civils servant but limited to five years, it is planned for the passive and active corruption European civils servant and for the corruption of public agents foreign but limited to five years and finally for the active or passive corruption for purposes to obtain fake certificates. On the other hand, this prohibition disappears in the case from the active or passive corruption from magistrate (art 434-44 CPF) and for the corruption from paid (art L 152-6 C Work).

According to certain authors ; '' it is really foolish to leave to officer a whom corrupted judge,... it can appear regrettable to be able to prohibit to them the exercise of an occupation^218(*) ''.

In Tunisia, prohibition to practice professions is envisaged in article 83 CPT, relating to the passive corruption of civil servant, who adds prohibition to manage the public services and to represent them. This prohibition applies only to the people having the quality of public servant or assimilated, from where the corrupter and the intermediary escape repression, which is, with our direction, regrettable since the author of the corruption activates or the intermediary can have the quality of public servant but they are not seen applying this complementary sorrow.

It is noticed that if this sorrow been only lacking for the active and passive corruption of magistrate and the corruption of paid in France, it is missing, first of all, in all the cases of corruption in Tunisia except the passive corruption of public servant. This lapse of memory was avoided by the Tunisian legislator.

Indeed, article 115 CPT lays out that « in all the cases envisaged in this chapter, the court will be able to make application of the additional sorrows, or one of them, enacted by article 5 CPT ». Knowing that the chapter mentioned above relates to the infringements made by the civils servant public or assimilated in the exercise or at the time of the exercise of the function, to which belonged corruption. As for article 5 CPT it enumerate the complementary sorrows among which one finds prohibition to exert a public office.

It is noticed that this article applies for all the cases of corruption and prohibition to exert a public office is not limited any more to the only case of passive corruption of civil servant envisaged by article 83 CPT.

In conclusion, prohibition to exert a public office if it is limited to well defined offenses of corruption in France, it can be applied by the Tunisian jurisdictions for all the cases of corruption.

B it confiscation 

According to article 94 CPT «» in all the cases of corruption, the things given or received are confiscated with the profit of the State ''.

This article speaks about the `'things given or received «», i.e. a benefit having a material value. This interpretation is not allowed by all the doctrines, certain authors think that the confiscation must carry on all the things given or received whatever their nature^219(*).

It is noticed that the confiscation is an obligatory sorrow which must be marked with each time the culpability of the authors is established and that it must be made with the profit of the State.

In the event of loss or of transfer of the received things it is the value of those which will be confiscated in accordance with article 29 CPT^220(*), but one sees badly how the value of a moral benefit such as a sexual relation will be given ?

In France, article 432-17 CPF lays down ; Confiscation, with the profit of the Treasury, the sums or the objects irregularly received by the author of the infringement, except for the suitable objects for restitution.

The confiscation posed a certain number of problems to which jurisprudence, under the empire of the old Penal code, brought solutions which keep their value for the application of the current texts.

Initially, the confiscation can be marked only if the culpability of the corrupter or that of the corrupted is retained, however because of the independence of the infringements of passive corruption and to active corruption, it is enough to the culpability of only one to justify measurement. Thus if the corrupter escaped the continuations or were discharged, the confiscation should however be pronounced and the corrupter would be without right to claim the delivered things^221(*).

Then, the confiscation can relate only to the delivered things or their value ; it cannot thus be ordered if the things were only promised^222(*).

Lastly, it is the thing itself which one must confiscate, but if this thing is not found in kind any more one the equivalent in value confiscates some^223(*).

Two remarks must be made on this level, first relates to all the complementary sorrows, on the other hand the second it is exclusively reserved for the confiscation.

All the above mentioned complementary sorrows are optional sorrows left consequently with the whole discretion of the jurisdiction since article 432-17 CPF lays out that « In all envisaged by this chapter, can be marked, with title complementary the following sorrows... ».

With our direction, it is regrettable, at least for the confiscation, which they are optional for the judge. It would be preferable that the French legislator forces the repressive judges to order the confiscation in all the cases of corruption such as it is the case in the Tunisian legislation.

It is noticed, in the second place, that the sorrow complementary to confiscation is envisaged in all the cases of corruption except for the corruption of employee, but in any form of corruption it is useful to remove with corrupted or the corrupter the benefit of his illicit market.

It would be preferable, therefore, to generalize this sorrow complementary to all the infringements of corruption such as it is the case in the Tunisian Penal code.

PARA II : Additional sorrows ; they still remain?

It was already seen that the additional sorrows are repealed by the new penal code. However, two additional sorrows remain in spite of their judgment in 1994(a).Ces applicable sorrows in an automatic way do not exist in the Tunisian legislation, but they are replaced by disciplinary sorrows which are pronounced by the administration to which the public servant (B) belongs

Has to them additional sorrows 

The constitutional Council Decision of March 15, 1999^224(*) considered contrary with the principle of need the sorrows automatic, known as also additional sorrows. However, there are two sorrows which are not touched by this famous decision.

The first of these sorrows is prohibition to follow a commercial or industrial occupation attached to a criminal sorrow for example the criminal corruption of the magistrates envisaged in article 434-9 subparagraph 3 CPF. Attached, in addition, with a judgment of at least three months firm of imprisonment for many correctional offenses what includes the offenses of corruption except for those of Community or foreign public agents. This prohibition is one five years minimal duration.

The second additional sorrow results from the L.7 article of the electoral code due to the law of January 20, 1995^225(*). This text deprives of the right to be registered on the electoral roll during a five years deadline from the date on which the judgment became final. But this sorrow is not applicable in the event of active or passive corruption of magistrate. One finds a sorrow complementary in right Tunisian, applicable as regards corruption, envisaged by article 5 CPT which approach this additional sorrow; it is about prohibition to exert the voting rights.

It is noticed that several complementary or additional sorrows are not applicable when it is about the corruption of magistrates, which represents, to our direction, a gap of the French substantive law.

B them disciplinary sorrows

According to article 51 of the law relating to the public office of 1983 the disciplinary sorrows are pronounced by the leader of the administration to which the public servant belongs. There are two types of sorrows ; initially the disciplinary sorrows of first degree, it is about the warning and blames. Then, the disciplinary sorrows of second degree, it is about retrogradation, the obligatory change, the temporary reference for one duration maximum three months with suspension of the payment of the wages and the final reference.

It should be noted that since a reform of 1997^226(*) the leader of the administration can delegate the power to impose disciplinary actions with certain substitutes.

Moreover, the administration must abstain from pronouncing a disciplinary sorrow if at the same time a public action is committed in front of the jurisdictions of common right and this until a final judgment is pronounced by those. In the event of decision of judgment pronounced by the judge of the common right, this one is imposed on the administration which must hold of it account at the time of the pronunciation of a disciplinary sorrow. Of another with dimensions, in the event of decision of payment pronounced by the jurisdictions of the common right, the administration is not obliged to hold some in account at the time of the pronunciation of a disciplinary sorrow. This solution is the fruit of the jurisprudence of the administrative court which is unanimous on this point^227(*).

PARA III : Inapplication of the sorrow : a characteristic in Tunisia 

Article 93 CPT lays out : «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 ». The legislator kept the contents of this article without modifying it even after the reform of May 23, 1998 and one notices that it relates to only the corrupter and the intermediary.

This article constitutes an exception to the repressive policy adopted by the Tunisian legislator, indeed, considering the difficulty in discovering the facts of corruption and to repress them, the legislator exonerated the corrupter or the intermediary of the sorrows if they allow the discovery and the proof of these facts.

The legislator limited the inapplication of the sorrows in the case of denunciation from where it is necessary to study his conditions (A) and its effects (B).

Has to them conditions of the denunciation

By the denunciation, the legislator wants to say, the information of the proper authorities of the commission of the infringement and his authors. It should be noted that the simple narration of the facts does not have any value since article 93 CPT require explicitly that the denouncer  « in the proof pays ». Thus, this last is held to inform the authorities of all the details, relating to the infringement, which make it possible to prove it and specify the role of each author^228(*).

Let us announce that the denunciation is limited to the passive corruption, even if the French text lays out « the fact of corruption » without specifying if it is about the passive corruption or activates, since the Arab text, of dimensioned sound, evokes the corruption explicitly passivates, and by application of the provisions of the code of civil procedure and commercial it is the Arab text which with the primacy on the French text which has only one indicative value. Thus, the author of an attempt at active corruption, which did not have an effect, is not free from sorrow if it denounces the facts because the goal of this provision is the discovery of the public servant corrupted in order to protect the public office.

Of another with dimensions, it is necessary that the denunciation is made before the discovery of the infringement by the proper authorities and the arrest of the authors and the opening of information against them in accordance with the French version of article 93 CPTqui lay out « before any continuation ». To note, that the Arab version requires, of dimensioned sound, that the denunciation is made before any judgment. One notices as well as the French version is in conformity with the concept of denunciation which, by logic, must be made before the phase of judgment and the discovery of the infringement. From where the need for modifying the Arab version of this article and for returning it conforms to the French version.

In right compared, certain legislations envisaged the denunciation like means of exemption of sorrows, as example the Egyptian right. Thus article 108 of the Egyptian Penal code lays out : « Is exonerated the corrupter or the intermediary which, before any judgment, voluntarily reveals the fact of corruption or acknowledges it ». It is noticed that this article lays down the denunciation and the consent which can be made constantly and even after the continuation. With our direction, this provision allows the impunity of the corrupter or the intermediary since they can escape repression, if the facts of corruption are discovered by the proper authorities, by acknowledging them^229(*).

B them effects of the denunciation 

According to article 93 CPT : «The corrupter or the intermediary is exonerated ». Thus the exemption of the sorrow concerns only the corrupter and the intermediary, on the other hand it does not relate to the corrupted. The inapplication of the sorrow must be obligatorily to pronounce of office by the judge in his decision, and the corrupter or the intermediary can evoke it with any phase of the procedure.

Of the another with dimensions corrupter or the intermediary is exonerated provided that the corrupted civil servant accepted the gifts or promises which are offered to him. Thus, in the event of refusal of acceptance of the gifts, the denunciation does not have any effect. Moreover, only the denouncer, the corrupter or the intermediary, will profit from the inapplication of the sorrow and it will not be granted to both. With our direction, it appears inadmissible that the corrupter is exonerated, if it is him which denounces the facts of corruption, and the intermediary, which has a role less important than the first, is punished.

Lastly, it was seen that the corrupted is not exonerated, and that the exemption of the sorrow relates to only the corrupter and the intermediary. For this reason certain Tunisian lawyers proposed to the legislator to once exonerate the corrupted of the sorrow it broke the pact and returned the gifts that it accepted of his full grée before achieving what was required of him and especially before any continuation.

Let us announce finally that the French legislator does not envisage this process as regards corruption, which is with our regrettable direction. We think that it could, and even due, to follow it upon the law of March 9 2004 which instituted a great number of exemptions and reduction of sorrow relating to certain infringements in the event of denunciation. The text of principle is article 132-78 CPT which envisages an indulgence on two levels. On the one hand, in the event of attempt of a crime or an offense, the participant is free from sorrow if while having informed the administrative or legal authority, it made it possible to avoid the realization of the infringement and, if necessary, to identify the authors and accomplices. Of another share, the case of consumed infringement, the duration of the sentence of emprisonment incurred by the participant is reduced to half if, having informed the proper authorities, it made it possible to put an end to the infringement, to prevent that the infringement does not produce a damage or to identify the other authors or accomplices.

This technique relates to several infringements.^230(*) However, the offense of corruption does not form part of it what is extremely regrettable since such a technique would make it possible to reach dissimulated or clandestine facts of corruption.

CONCLUSION

In conclusion ; it is noticed that the two legislations make corruption a complex of two distinct infringements : the passive corruption and activates, the first ascribable one to the whom corrupted person, the second with the corrupter. However, if these two infringements are punished same sorrows in French criminal law, it is different in Tunisian criminal law which punished the passive corruption more severely since it is considered more serious than the active corruption. Moreover, there was a correctionnalisation of the infringement of corruption in France since the law of 1943, whereas in Tunisia, following the reform of 1998, the majority of the infringements of corruption from now on are qualified crimes.

Of another with dimensions, if the corruption passivates consumes, in the two legislations, by the simple request or the approval of the gifts, the solutions are not identical with regard to the active corruption. Indeed, the latter famous is consumed in France by the simple proposal for offers or by the fact of yielding to the requests of the corrupted, whereas in Tunisia so that the infringement is consumed one needs the execution of the illicit market between the corrupter and the corrupted failing this one can speak only about attempt at active corruption.

One can also notice that the French legislator precedes his Tunisian counterpart by the fact of accusing the corruption of paid and the foreign civils servant, by the creation of qualified jurisdictions specialized in economic and financial matters and by the use of processes intended to prevent possible divertings and the conclusion of suspect operations such as the central service of prevention of the corruption, charged with centralizing the information necessary to the detection and the prevention of the facts of corruption.

French jurisprudence precedes, it also, that of the Tunisian repressive courts, it is enough to point out its position with regard to the starting point of the term of limitation, as regards corruption, which was delayed at the day of the execution of the illicit pact.

It would be thus preferable that the Tunisian legislator intervenes to put at foot equality the passive corruption and the active corruption and to widen these incriminations in order to include new categories of people such as the employees. As for the criminal law of form a jurisdiction specialized in economic and financial matters would be the welcome.

In France, it regrettable that the legislator of March 9, 2004 did not insert the offense of corruption in the list of the infringements of organized criminality, is envisaged by article 706-73 CPPF. These infringements obey strongly derogatory procedural rules with the common right allowing a better repression. It would be thus preferable that it is added to this list at the time of the next reform.

BIBLIOGRAPHY IN FRENCH LANGUAGE

I- GENERAL WORKS, DRAFTS AND HANDBOOKS

CORRUPTION OF the POLICE FORCE, «books of interior safety», ED. IHESI 2001.

E. BOY, «annotated Penal code»: Sirey, 2nd ED. by Mr. ROUSSELET, Mr. SHOE and Mr. ANCEL, art 177 S.

F. GOYET, «special criminal Law»: Sirey, 8th ED. 1972, by Mr. ROUSSELET, P. ARPAILLANGE and J. SHOE, n° 139 S.

F. HÉLIE, J. BROUCHOT, «Practical criminal of the courses and courts», criminal Law T. II: ED. techniques, 5th ED. 1948, n° 217 S.

G.GAETNER, «easy money»; Dictionary of the corruption in France Stock 1992.

J. CARTIER-BRESSON, and others, Practical and control corruption: ED. Montchrestien 1997.

J. and A.M. LARGUIER, «special criminal Law»; Dalloz, 10th ED. 1998, p. 270 S.

J.PRADEL «penal procedure» ED Cujas 2002/2003 n°124.

J.PRADEL, «general criminal Law», ED Cujas, 10th edition 2002/2003.

JEAN-LOUIS economic ROCCA, «corruption, Alternatives», éd.SYROS 1993.

Mr. MINNOW, «special criminal Law»; Masson, 6th ED. 1998, p. 280 S.

Mr. MINNOW, «criminal Law of the businesses, Armand Colin», collection Compact, 4th edition 2001.

MARC LEMAIRE - STEPHAN LEWDEN - DOMENICA STRAW, «health service of the armies»; The hidden face, éd.L' HARMATTAN 2002.

P. TELL and P. MAISTRE OF the CHAMBON, «Penal Procedure», Armand Colin, 3rd edition 2001.

P-A. LORENZI, «Corruption and imposture», Balland 1995.

PASCAL KROP, «the Republic of the money», ED. Flammarion2003.

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

R. VOUIN, M.-L. RASSAT, «special criminal Law»; Dalloz, 6th ED., 1988, n° 483 S.

RENE CHAPUS, «general Administrative law» Tome2/6th edition, ED. MONTCHRESTIEN 1992.

R. BLACKBIRD and A. VITU, Treaty of criminal right, special criminal Law, by A. Vitu: Cujas, 1982, n° 115.

W. JEANDIDIER, «criminal Law of the businesses»;Dalloz, 3rd ED. 1998, n° 30 S.

YVES MENY, «corruption of the republic», ED. FAYARD1992.

II SPECIAL WORKS AND THESES

E.ALT and I.LUC, «the fight against the corruption», Which do know I?, P.U.F. 1997.

F.FAROUZ CHOPIN, «the fight counters the corruption», thesis Aix Marseilles III 1998.

GANTSOU OSSEBI (Sophonie Lemec), «Corruption and trading of favors», thesis La Rochelle 1999.

MONIE STEPHANIE; corruption and penal procedure, memory DEA Sc Crim UT1 under the direction of Mr. marc segonds 2001/2002

NATHALIE LAVAL, «the penal judge and the local councillor», ED. L.G.D.J 2002.

SOPHIE CANADAS-BLANC, «the penal responsibility for the local councillors», ED. JOHANET, thèseUT1 1998.

III REPORTS/RATIOS AND STUDIES

CONFERENCE OF the NEW OBSERVER Sorbonne-Paris, «international corruption», éd.MAISONNEUVE & LAROSE 1999.

CENTRAL SERVICE OF PREVENTION OF the CORRUPTION, «Annual report 1997», ED. Editions of the Official Journals.

INTERNATIONAL TRANSPARENCY, «world report/ratio on the corruption 2003», special topic: the access to information, ED. KARTHALA.

IV CHRONICLES AND ARTICLES

DELMAS-SAINT-HILAIRE; «Criminal Cassation of May 14, 1986 criminal Bulletin n° 163» rev. Sc crim 1987 p 687.

DUCOULOUX-FAVARD, «fraudulent invoices and corruption»: D. 1996, chron. p. 352 S.

DUCOULOUX-FAVARD, and others, «Undertaken corruption»: Small posters 1996, n° 35.

E.DOMMEL (Maintenance), «Corruption: The report», rev. france fin.pub.2000 n°69 p.7.

J.PRADEL, towards a «aggiornamento» of the answers of the penal procedure to criminality, Contributions of the law N°2004-204 of March 9, 2004 known as law perben II. JCP, ED N°20 gene of May 12, 2004 p 881et sui vant.

J-F RENUCCI, «Infringements of businesses and regulation of the public action», DZ.1997, chron. P.23.

J. - P. ZANOTO, corruption, a combat without end: Rev. pénit. 2002, p. 43

L.GONDRE, «Of the High court in the Court of Justice of the Republic», penitentiary Review and of criminal law April 2000.

Mr. DELMAS-MARTY, S. MANACORDA, «corruption, a challenge for the State of right and the democratic company»: Rev. Sc crim. 1997, p. 696 S.

Mr. DELMAS-MARTY and P. TRUCHE, «the State of right the corruption proof» in «the Droit State» mixtures in the honor of GBRAIBANT, Dalloz 1996.

P. ROBERT, «French justice and businesses of corruption», Deviance and Company 1996 n°3 p.239.

INTERNATIONAL REVIEW OF POLICY COMPAREE, «corruption», ED. De Boeck & Larcier S.A. 1997.

W. JEANDIDIER, «Of the offense of corruption and the defects which affect it». JCP G 2002, I, 166

V- FASICULES OF PENAL JURISCLASSEURS

A. VITU Fasc. single: Attacks with the public administration of the European Communities, Member States of the European union, other States foreign and public international organizations.

A. VITU Fasc. 10: Passive corruption and trading of favors made by people exerting a public office.

A. VITU Fasc. single: Corruption of the legal authorities.

A. VITU Fasc. single: Active corruption and trading of favors made by private individuals.

A. VITU Fasc. 20: Corruption of the employees.

ALAIN BLANCHOT J-Cl Penal Procedure art 704 to 706 CPPF; jurisdictions specialized in economic and financial matters.

BERNARD CHALLE; J-Cl Art 7 to 9/Fasc. single: PUBLIC ACTION - Regulation.

F.LE GUNEHEC. JCP ED gén, n° 14 of March 31, 2004 in particular to p598.Voir article 125 of the law of March 9, 2004.

FREDERIC DESPORTES; J-Cl PEN: Discrimination by people exerting a public office

BIBLIOGRAPHY IN ARAB LANGUAGE

I- GENERAL WORKS, DRAFTS AND HANDBOOKS

AHMED FETHI SOUROUR, «Right of the sorrows», special part; attacks with the general interest.

HAFEDH BEN SALAH: «the unit of service» Tunisian House of edition.

JONDI ABDELMLMALEK; penal encyclopedia Volume IV.

Right MAHMOUD NEJIB HOSNI «of the sorrows» left special; infringements against the public interest

SALEM SHEIK, «administrative criminal Law», National School of Administration, ED. ENA research center and administrative studies 1996.

The CORAN, translated by Sadok Mazigh.

II SPECIAL WORKS, MEMORIES AND THESES

ARFA HICHEM «corruption active and passivates» memory of end of study to the E.N.M 1995/1996.

BACEM LAHMER, corruption and answers of the criminal policy, memory of end of study, faculty of legal sciences Tunis2.

KALDI HEJER; memory of end of study to the ENM 1998-1999; «new legislative provisions as regards corruption».

MOHAMED ELHESSINE ECHEBBI «the exemption of sorrow out of penal matter» memory of end of study DEA criminal sciences, and political science Faculty of Law of Tunis 1997/1998.

III REPORTS/RATIOS AND STUDIES

HAFEDH BEN SALAH; Court of administrative law 2nd year right 1995/1996. Faculty of Law Tunis I.

NEJI BACCOUCHE, «the protection of L `public authority in penal code Tunisian E.N.A», 1986.

NEJI BACCOUCHE, Repression penal and disciplinary in the Public office E.N.A, Tunis 1990.

TAKARI BECHIR;«Administrative Institutions and administrative law». Court of 2me Droit.1995 year/1996 Faculty of Law of Sfax.

IV CHRONICLES AND ARTICLES

KMAKEM RIDHA, «infringements of corruption as modified by the new law of 1998», Re-examined jurisprudence and of legislation June 1998.

* ¹ W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166.

* ² A. Chauveau and F. Hélie  ;Theory of the Penal code, T. II, Marchal and Billard, 5 ED. 1872, n° 833.

* ³ Pradel- J  ; general criminal law ED Cujas 2002-2003.

* ⁴ A. Vitu  ; J-CL PEN art 432-11 n°16.

* ⁵ See will infra  ; The aspect of the punishable activity in the active corruption.

* ⁶ See article 95 CPT and following. And article 432-10 CPF.

* ⁷ R. Garraud, theoretical and practical Treaty of the French criminal law, Sirey, T. IV: 3rd ED., n° 1500.

* ⁸ Contrary to the French right where the trading of favors is envisaged by the same article relating to the corruption, the Tunisian Penal code envisages it in a distinct article.

* ⁹ For more precise details, See A Vitu J-Cl PEN art 432-11 N°122.

* ¹⁰ The Law of the XII Tables. See in particular H. Arfa report of end of studies to the E.N.M «  active and passive corruption  » 95-96 p9.

* ¹¹ A. Chauveau and F. Hélie, Theory of the Penal code, T. II, Marchal and Billard, 5 ED. 1872, T. II, n° 831.

* ¹² The cow verse 184. Coran  : translated by Sadok Mazigh.

* ¹³ The been useful table verse 46. Coran  : translated by Sadok Mazigh.

* ¹⁴ Known Moslem Khalife under the name of «  Just  ».

* ¹⁵ Moslem Khalife and disciple of the Mahomet prophet.

* ¹⁶ This sorrow was applicable to the members of the legislature.

* ¹⁷ . In the chronological order  ; the laws of May 13, 1863, March 9, 1928, May 16, 1943 and schedules it of February 8, 1945.

* ¹⁸ See in this direction Has Vitu  ; J-CL PEN art 432-11n°  38 and following.

* ¹⁹ See appendices  : table of comparison between the old ones and new provisions of the Penal code relating to the corruption following the reform of May 23, 1998.

* ²⁰ Vitu A, J-Cl PEN art 432-11 n°26 and following.

See in particular article 32 CPT relating to complicity  ; who devotes the system of loan of criminality and penalty.

* ²¹ It is the solution which R. Garraud recommended  «  Theoretical and practical treaty of the French criminal law  » T. IV  »: Sirey, 3rd ED., n° 1518 S.

* ²² Vitu A, J-Cl PEN art 432-11 n°1 and following.

* ²³ Ibid

* ²⁴ International Transparency  ; world report/ratio on the corruption 2003. Special topic  : accesses to information, ED Karthla.

* ²⁵ OJ of the European Communities n° C 316, Nov. 27, 1995, p. 49.

* ²⁶ OJ of the European Communities n° C 195, June 25, 1997, p. 1.

* ²⁷ A. VITU, current concerns of the French criminal policy in the repression of the corruption, in the principal aspects of the modern criminal policy: Collection of studies to the memory of H. Donnedieu de Vabres, 1960, p. 134 S.

* ²⁸ ibid

* ²⁹ crim case December 26, 1929 bulldozer crim n° 287

* ³⁰ crim case July 7, 1949 bulldozer crim n° 229

* ³¹ crim case January 21, 1959 bulldozer crim n°59

* ³² crim case March 8, 1966 bulldozer crim n°83

* ³³ Vitu Penal J-Cl, Art 432-11 n°55

* ³⁴ Ibid

* ³⁵ Mahmoud nejib hosni «  handbook of right of the sorrows  » left special  ; infringements against the public interest p 17

* ³⁶ See appendix table of comparison of the provisions relating to the corruption following the reform of May 23, 1998

* ³⁷ kmakem ridah, infringements of corruption as modified by the new law, review of jurisprudence and legislation June 1998 p 11

* ³⁸ Official Journal of the Republic of Tunisia n° 29, May 6, 1998  ; parliamentary debates p5

* ³⁹ The law n° 98-33 of May 23, 1998

* ⁴⁰ kaldi hejer  ; memory of end of study to the ENM 1998-1999  ;  «  new legislative provisions as regards corruption  ».

* ⁴¹ Vitu Penal J-Cl, Art 432-11 n°55

* ⁴² See GATTEGNO Dr. PEN Spé, Paris, Dalloz 1995 n°600 p312

* ⁴³ to see will infra «  a divergence as for the invested people of a public elective mandate  ».

* ⁴⁴ , Case. crim., Oct. 16, 1985: Gas. Stake. 1986, 1, p. 152, concerning a student who had tried, without success, to corrupt a professor of the Faculty of Law in order to obtain from him a satisfactory note to an examination of DEUG

* ⁴⁵ Case. crim., Dec. 26, 1919: Bull. crim., n° 287.

* ⁴⁶ Case. crim., 22 févr. 1855: Bull. crim., n° 54.

* ⁴⁷ Case. crim., 8 juill. 1813: S. 1813, 1, p. 391 old article 177 had been applied to an usher, responsible for the execution of a civil imprisonment

* ⁴⁸ Hafedh Ben Saleh  : the unit of service p 6

* ⁴⁹ parliamentary debates relating to the law of May 23, 1998.

* ⁵⁰ the magistrates are considered as agents of the public authority in accordance with article 82 CPT but the legislator envisaged special texts concerning the corruption of magistrates (see art 88 and 89 CPT)

* ⁵¹ Frederic Desportes  ; J-Cl PEN: DISCRIMINATIONS BY PEOPLE EXERTING A PUBLIC OFFICE

* ⁵² Vitu  ; J-CL PEN art 432-11 N°57

* ⁵³ Case. crim., May 11, 1876: Bull. crim., n° 117

* ⁵⁴ Case. crim., 2 avr. 1998 note Marc Second Collection Dalloz 1999, Sommaires with accompanying notes p. 158.

* ⁵⁵ Case. crim., 27 févr. 2002: Bull. crim., n° 48.

* ⁵⁶ Case. crim., March 19, 2003 notes Marc Second Collection Dalloz 2004, Sommaires with accompanying notes p 315.

* ⁵⁷ Article 17 of the law N°112 of 12 DEC 1983 relating to the general statute of the personnel of the State and the local communities and the publicly-owned establishments related to administration.

* ⁵⁸ case crim PEN N°1925 of Oct. 7, 1977 B.C.Cass 1977 p156.

* ⁵⁹ Hafedh Ben Salah  ; court of administrative law 2nd year right 1994/1995.

* ⁶⁰Previously the supreme court of appeal did not consider the banking civils servant of houses not public Etatiques as civils servant under old art 82 CPT. according to the supreme court of appeal, in stop of 7-9-1961  «  the Tunisian company of bank is a legal entity subjected to special laws from where these civils servant cannot be considered as civils servant public or assimilated in accordance with article 82 CPT  ».

* ⁶¹ R. GARRAUD, theoretical and practical Treaty of the criminal law French T. IV: Sirey, 3rd ED., n°1522 S

* ⁶² A. VITU, current concerns of the French criminal policy in the repression of the corruption, in the principal aspects of the modern criminal policy: Collection of studies to the memory of H. Donnedieu de Vabres, 1960, p. 134 S.

- jurisprudence had not hesitated to extend old article 177 to elected officials: thus a member of the town council of Paris (Case. crim., May 29, 1886: Bull. crim., n° 19) and for members of the Senate or House of Commons (Case. crim., 24 févr. 1893: Bull. crim., n° 49)

* ⁶³ A. Vitu  ; J-CL PEN 432-11 n°61.

* ⁶⁴ ibid

* ⁶⁵ W. Jeandidier, Of the offense of corruption and the defects which affect it. JCP G 2002, I, 166

* ⁶⁶ See art 177 ACP STATES

* ⁶⁷ Takari Bechir  ; «  administrative institutions and administrative law  ». Court of 2me Droit.1995 year/1996

* ⁶⁸ to see article 14 of the law n°80 of 1994 relating to the organization of the function of interpreter sworn in  : «  the sworn in interpreter is regarded as compared to the public servant in accordance with article 82 of the CP and are applicable for him the articles83 and following same code  ».

* ⁶⁹ With Vitu, J-CL PEN art 434-9  ; CORRUPTION OF THE LEGAL AUTHORITIES N°5.

* ⁷⁰ the law n°2004-204 of bearing 9 March 2004 adaptation of justice to the evolutions of criminality  ; article 54.

* ⁷¹ A-Vitu COp cit

* ⁷² Pradel Jean, handbook of penal procedure 11th ED 2002  /2003 p491

* ⁷³ Arfa Hichem  «  active and passive corruption  » memory of end of study to the E.N.M 1995/1996

* ⁷⁴ Article first of the law N°112 of 12 DEC 1983 relating to the general statute of the personnel of the State and the local communities and the publicly-owned establishments related to administration

* ⁷⁵With Vitu, J-CL PEN art 434-9  ; corruption of the legal authorities n°11.

* ⁷⁶ Case. crim., May 11, 1876: Bull. crim., n° 117.

* ⁷⁷With Vitu, J-CL PEN art 434-9, COp cit

* ⁷⁸ Garraud  , Theoretical and practical Traité of the French criminal law Volume 4, 3rd ED, n°1524.

* ⁷⁹ E Boy, penal code annotated 2° ED. Art 177-178, n°151 and S.

* ⁸⁰ Case. crim., March 25, 1929: Bull. crim., n° 107.

* ⁸¹ J.O CH EPD, Oct. 16, 1918 p2687 quoted by VITU J-CL PEN art 432-11

* ⁸² R. Blackbird and A. Vitu, Treaty of criminal right, special criminal Law, by A. Vitu: Cujas, 1982, n° 1151.

* ⁸³ VITU J-CL PEN art 432-11fasc 20.

* ⁸⁴ Ibid concerning the adoption of the jurisprudence of the broad design.

* ⁸⁵ Kaldi hejer memory of end of study to the E.N.M 1998  /1999 p23.

* ⁸⁶ Andre Vitu, current concerns of the French criminal policy in the repression of the corruption, in the principal aspects of the modern criminal policy: Collection of studies to the memory of H. Donnedieu de Vabres, 1960, p137.

* ⁸⁷ Andre Vitu J-Cl PEN Art 435-1 to 435-6  : ATTACKS WITH THE PUBLIC ADMINISTRATION OF THE EUROPEAN COMMUNITIES, MEMBER STATES OF THE EUROPEAN UNION, OTHER STATES FOREIGN AND PUBLIC INTERNATIONAL ORGANIZATIONS, n°2.

* ⁸⁸ See the world report/ratio on the corruption 2003  ; special topic  : The access to information. International Transparency

* ⁸⁹ Vitu. J-Cl PEN Art 435-1 to 435-6  .

* ⁹⁰ the Convention of May 26, 1997  ; OJ of the European Communities n° C 195, June 25, 1997, p. 1

* ⁹¹ Example quoted by Andre Vitu, J-Cl PEN Art 435-1 to 435-6  : ATTACKS WITH THE PUBLIC ADMINISTRATION OF THE EUROPEAN COMMUNITIES, MEMBER STATES OF THE EUROPEAN UNION, OTHER STATES FOREIGN AND PUBLIC INTERNATIONAL ORGANIZATIONS, N°15.

* ⁹² Ibid

* ⁹³ Frederique Chopin  ; the adaptation of the fight against the corruption in French right to the European and international economic area. : Rev. pénit. 2002 p55.

* ⁹⁴ Andre Vitu, J-Cl PEN art 432-11 and 433-1CP.

* ⁹⁵ by Andre Vitu, J-Cl PEN Art 435-1 to 435-6  : ATTACKS WITH THE PUBLIC ADMINISTRATION OF THE EUROPEAN COMMUNITIES, MEMBER STATES OF THE EUROPEAN UNION, OTHER STATES FOREIGN AND PUBLIC INTERNATIONAL ORGANIZATIONS, N°17.

* ⁹⁶ Article first Conv. OECD, Dec. 17, 1997  : OJ Sept. 29, 2000.

* ⁹⁷ W. Jeandidier, Of the offense of corruption and the defects which affect it, JCP G 2002, I, 166.

* ⁹⁸ In this direction, Vitu Penal J-Cl, Art 432-11 n°87.

* ⁹⁹ Vitu J-Cl PEN Fasc. 20: corruption of paid n° 23.

* ¹⁰⁰ W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166.

* ¹⁰¹ Bacem Lahmer, corruption and answers of the criminal policy p 59.

* ¹⁰² Ahmed fathi Sourour, handbook of right of the sorrows, part special  ; attacks with the general interest p54.

* ¹⁰³ In this direction, Vitu Penal J-Cl, Art 432-11 n°83.

* ¹⁰⁴ Case. crim., Nov. 9, 1995: D. 1996, inf. rep. p. 1, 3 city by Vitu.

* ¹⁰⁵ In Vitu, active corruption and trading of favors made by private individuals. J-Cl PEN art 433-1 n°16.

* ¹⁰⁶ Preliminary works, COp cit.

Kmamkem Ridha  ; the range of the reform of May 23, 1998 as regards corruption p 29.

* ¹⁰⁷ Articles 125 to 130 CPT are laid down in a section entitled  : «  insults and violences with public servant or comparable  ».

* ¹⁰⁸ At the time of the development of the New Penal code, it appeared not very logical to maintain the bond formal which hitherto linked the corruption of the civils servant and the corruption of the employees, and to place the second with the first among the provisions concerning the attacks at the authority of the State (C. PEN., Livre IV, Titer III new) .Par its article 236, the law n° 92-1336 of December 16, 1992 relating to the entry into force of the new code (known as usually «Law of adaptation») inserted in the Fair labor standards act, with the Book Ier, Titer V, chapter II, a new section VI, entitled «Corruption», and composed of a single text, the article L. 152-6, repressing the corruption of the employees.

* ¹⁰⁹ Vitu J-Cl PEN Fasc. 20: corruption of paid n° 7.

* 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.

* ¹⁷¹ Monié stéphanie  ; Corruption and penal procedure, memory DEA Sc Crim UT1 under the direction of Mr. marc Second 2001/2002 p 16.

* ¹⁷² The infringement of corruption was regarded as being an infringement of general interest dice the beginning of the XX eme century. This theory was criticized by the doctrines (J. pradel procedure penal Cujas 2002/2003 n° 291 and S) as well as the court of criminal appeal in a stop of the 1déc 1992 considered that  «  if the offense of corruption passivates instituted by article 177 of the penal code were mainly in the sight of the general interest, it also tends to the protection of the private individuals who can... suffer an injury direct and personal they are founded to obtain repair in front of the penal jurisdictions  ». See in particular, Case. crim., Dec. 1, 1992: Dr. PEN. 1993, Com. n° 126, obs. Mr. Véron).

* ¹⁷³ Case Crim 1st DEC 1992COSTA, Dr. PEN 1992comm.126, obs M minnow. (1st species) and cases crim 7 fév 2001 Bull crim n°38 (2nd species).

* ¹⁷⁴ Case crim n°4322 of the 7 jan 1983 bulldozer Tunisian Court of case p56.

* ¹⁷⁵ law n°112 promulgated 12 décembre1983 .JORT 13 DEC 1983 relating to the Staff Regulations of public civils servant.

* ¹⁷⁶ Crim case 18 DEC 1996, J.C.P 1997 IV 926.

* ¹⁷⁷ We share the same progressive idea by Monié S  ; corruption and penal procedure, memory DEA Sc Crim UT1.

* ¹⁷⁸ Case. crim., Dec. 1 1992 COp Cit.

* ¹⁷⁹ Alain Blanchot J-Cl Penal Procedure art 704 to 706 CPPF  ; jurisdictions specialized in economic and financial matters.

* ¹⁸⁰ J. penal Pradel procedure Cujas 2002/2003 n°124.

* ¹⁸¹ Vitu A  ; J-Cl PEN 435-1CPF and following n°37.

* ¹⁸² the infringements which repress articles 435-1 to 435-4 CPF are frequently marked by one or more elements of extraneity. However, the ordinary rules of the international criminal law, where the principles of territoriality and personality prevail, would be often insufficient to reach them and repress them. It was thus necessary to avoid the difficulty by calling upon the principle of universal competence. See Vitu A  ; J-Cl PEN 435-1CPF and S.

* ¹⁸³J Pradel ibid

* ¹⁸⁴ article 21 of law 2004-204 of bearing 9 March 2004 adaptation of justice to the evolutions of criminality (OJ March 10, 2004 p4567).

* ¹⁸⁵ See article 706 CPPF as modified by the law of March 9, 2004.

* ¹⁸⁶ See for more precision. J Manual Pradel of penal procedure ED 2002/2003 n°121

* ¹⁸⁷ F. Gunehec. JCP ED gén, n° 14 of March 31, 2004 in particular to p598.Voir article 125 of the law of March 9, 2004.

* ¹⁸⁸ They are the people aimed by articles 435-3 and 435-4 CPF.

* ¹⁸⁹ Vitu A  ; J-Cl PEN 435-1CPF and following n°39.

* ¹⁹⁰ The Constit Council, 22 jan 1999 Dalloz 1999 p 285.

* ¹⁹¹ Case plé Oct. 10, 2001 dalloz 2002 p 237.

* ¹⁹² General rule relating to all the jurisdictions of exception.

* ¹⁹³ Crim case June 26, 1995, bulldozer crim n° 235, J.C.P 1995-IV-2380.

* ¹⁹⁴ The business Black 6 fév 1997, bulldozer n° 48 dalloz 1997 p 334 notes J F Renucci. /Affaire Elf 16 fév 2000 dalloz 2001 p 660 notes V Buck.

* ¹⁹⁵ Constitutional law n° 95-680 of August 4, 1995.

* ¹⁹⁶ The law n°10-1970 of April 1 1970relative at the High court.

* ¹⁹⁷ This article was modified by the constitutional law n°51-2002, of June 1, 2002.

* ¹⁹⁸ See article 59 and following Code of military justice.

* ¹⁹⁹ See article 700 CPPF and article 68 C.J.M.

* ²⁰⁰ See article 701 CP and article 68 CJM.

* ²⁰¹ JORT of January 11, 1957 p 50 and S.

* ²⁰² This law was amended on several occasions in particular by the law of June 30, 2000 and the law of March 9, 2004.

* ²⁰³ The specialized assistants are create by the law n°98-546 of July 2 1998. following the reform of March 9 2004 of new attributions theirs are entrusted Voir article 21 of the law.

* ²⁰⁴ J-F Renucci  ; infringements of businesses and regulation of the public action. Dalloz 1997 Chron p 23.

* ²⁰⁵ Bernard Challe; J-Cl Art 7 to 9/Fasc. single: PUBLIC ACTION- Regulation n°29.

* ²⁰⁶ a stop of December 7, 1967, Bull. crim., n° 321; D. 1968, jurispr. p. 617.

* ²⁰⁷ a stop of August 10, 1981 (Bull. crim., n° 244; Rev. plowshare 1983, p. 368, Bouloc note).

* ²⁰⁸ stop of May 5, 1997, Bull. crim., n° 159; Rev. plowshare 1997, p. 127, Bouloc note. - J. Larguier and P. Conte, criminal Law of the businesses: 10th ED., A. Colin, 2001, n° 379 S.

* ²⁰⁹ For more precision concerning these infringement, to see Bernard Challe; J-Cl Art 7 to 9/Fasc. single: PUBLIC ACTION- Regulation n°30et S.

* ²¹⁰ Vitu, J-Cl PEN art 432-11 of the penal code n°151.

* ²¹¹ Case. crim., 6 févr. 1969: Bull. crim., n° 67; Rev. Sc crim. 1969, p. 871, obs. A. Vitu. - Nov. 9, 1995: Bull. crim., n° 346.- Oct. 27, 1997: Bull. crim., n° 352; Dr. PEN 1998, Com. 16, note Mr. Véron; Small posters 1997, n° 134, p. 23, Ducouloux-Favard note. City by B Shawls.

* ²¹² Vitu, J. - Cl. Penal Code, Art 432-11, Fasc. 10, n°, 154 and Art. 433-1 and 433-2, n° 48 and 49).

* ²¹³ Vitu A, J-Cl PEN art 434-9 CPF n°18

* ²¹⁴ The sorrows carried were less strong when the corruption tended to the achievement of an act facilitated by the function. Vitu, J. - Cl. Penal Code, Art 432-11 n°118.

* ²¹⁵ In the old system, for the corruption of civil servant, the fine could be double value of the approved promises or things received or required. See art 177 Al 1st ACP STATE.

* ²¹⁶ W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166.

* ²¹⁷ Pradel J, handbook of general criminal law ED 2002/2003. n°571 and following.

* ²¹⁸ W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166

* ²¹⁹ Ahmed Fathi Srour  ; right handbook of the sorrows, COp cit p 146.

* ²²⁰ Article 29 CPT lays out  :  «  if the objects whose it orders the confiscation were not seized and are not given, the judgment determines of it the value for the application of the civil imprisonment  »

* ²²¹ Case. crim., August 10, 1854: Bull. crim., n° 254; DP 1854, 5, p. 200. quotes by Vitu J-Cl PEN art432-11n°144.

* ²²² This idea is supported by R. GARRAUD, theoretical and practical Traité of the criminal law French T. IV: Sirey, 3rd ED., n° 1518 S.

* ²²³ for more precise details. See A Vitu COp cit n°146.

* ²²⁴ Idiots const Decision of March 15, 1999  ; OJ Nov. 21, 1999, Dalloz 2000 somm p 116, obs Roujou de Boubée.

* ²²⁵ Quoted by W. Jeandidier, Of the offense of corruption and the defects which affect it JCP G 2002, I, 166.

* ²²⁶ Law n° 83-1997 of December 20, 1997. JORT of December 22, 1997 p 15.

* ²²⁷ Stop of the administrative court n°621 of Oct. 27, 1981  ; bulldozer of the trib adm of 1981 p 283.

Stop of the administrative court n°202 of the 27 décembre1978  ; bulldozer adm of 1978 p 237.

* ²²⁸ Mohammed Elhessine Echebbi «  the exemption of sorrow out of penal matter  » memory of end of study DEA criminal sciences, and political science Faculty of Law of Tunis 1997/1998 p 93.

* ²²⁹ This idea is not shared by Jondi Abdel malek which thinks that most important, on this level, is the corrupted repression of the civil servant and not that of the corrupter or the intermediary.

* ²³⁰ Pradel J, towards one «  aggiornamento  » of the answers of the penal procedure to criminality, Contributions of the law N°2004-204 of March 9, 2004 known as law perben II. JCP, ED N°20 gene of May 12, 2004 p 881et sui vant.