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

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 

* 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.