PART
VIII.  OFFENSES AFFECTING OCCUPATIONS



 



§708-880  Commercial bribery.  (1)  A
person commits the offense of commercial bribery if:



(a) He confers or offers or agrees to confer,
directly or indirectly, any benefit upon:



(i)  An agent with intent to influence the
agent to act contrary to a duty to which, as an agent, he is subject; or



(ii)  An appraiser with intent to influence the
appraiser in his selection, appraisal, or criticism; or



(b) Being an agent, an appraiser, or agent in charge
of employment, he solicits, accepts, or agrees to accept, directly or
indirectly, any benefit from another person with intent:



(i)  In the case of an agent, that he will
thereby be influenced to act contrary to a duty to which, as an agent, he is
subject; or



(ii)  In the case of an appraiser, that he will
thereby be influenced in his selection, appraisal, or criticism; or



(iii)  In the case of an agent in charge of
employment, that he will thereby be influenced in the exercise of his
discretion or power with respect to hiring someone, or retaining someone in
employment, or discharging or suspending someone from employment.



(2)  In this section:



(a) "Agent" means:



(i)  An agent or employee of another;



(ii)  A trustee, guardian, or other fiduciary;



(iii)  A lawyer, physician, accountant,
appraiser, or other professional adviser or informant;



(iv)  An officer, director, partner, manager, or
other participant in the direction of the affairs of an incorporated or
unincorporated association; or



(v)  An arbitrator or other purportedly
disinterested adjudicator or referee;



(b) "Appraiser" means a person who holds
himself out to the public as being engaged in the business of making
disinterested selection, appraisal, or criticism of commodities or services;



(c) "Agent in charge of employment" does
not include any person conducting a private employment agency licensed and
operating in accordance with law.



(3)  Commercial bribery is a misdemeanor,
except in the event that the value of the benefit referred to in subsection (1)
exceeds $1,000, in which case commercial bribery shall be a class C felony. [L
1972, c 9, pt of §1; am L 1979, c 173, §1]



 



COMMENTARY ON §708-880



 



  This section is an attempt to reinforce civil rules of
fidelity by penal sanction.  To a lesser degree the section serves another
secular function:  it helps secure independency of business judgment.  The
premise is that business decisions ought to be made on merit to insure the
optimal allocation of resources: bribery undermines this neutral
decision-making process in the same way it undermines public
administration.[1]  Society's interest in promoting civil or commercial
fidelity by penalizing those who intentionally violate those rules and in
promoting the proper allocation of resources justifies the imposition of a
misdemeanor sanction for this offense.



  Subsection (1)(a) covers bribe offerors in the commercial
context.  It covers both agents and appraisers.  "Agent" is defined
broadly in subsection (2)(a) to cover all areas where a duty of fidelity is
owed.  The nature and scope of such duties are defined by common and statutory
law regulating or creating the various legal relationships involved.  Thus, for
example, the duty of an employee to an employer may be not to give away trade
secrets, whereas the duty of a fiduciary to the fiduciary's beneficiary or a
union representative of an employee's welfare fund to employees may be to
exercise independent judgment.  "Appraiser" is defined broadly in
subsection (2)(b) to include, in addition to conventional forms of appraisal,
those forms of appraisal that have recently been involved in the
"payola" scandals; for example, the bribery of disc jockeys, cinema,
theatre and music reviewers, and the like, to "plug" or give
favorable reviews to a certain recording, movie, play, composition, etc. 
Inherent is an element of "consumer protection":  we are concerned
that the commodity which the appraiser purports to market, that is
independence, neutrality, and expertness of judgment, be protected from any
undue influences.



  Subsection (1)(b) covers commercial bribe solicitors or
receivers.  In addition to agents and appraisers, subsection (1)(b)(iii) adds a
third category: an agent in charge of employment.  The special abuses to which
those with power to hire and fire are prone warrant subsection (1)(b)(iii),
which sets forth a substantive rule that a benefit shall not be accepted with
the intent that some person's status with respect to a job shall be affected
thereby, regardless of whether the action constitutes a violation of a duty to
a principal.  Thus, even though an agent would probably be under a duty to
employ the best qualified applicant, acceptance of a benefit from such an
applicant should not be allowed.



  Previous Hawaii law recognized no penal offense for bribery
in the commercial context.  There were provisions affecting bribery of
appraisers and arbitrators, but these provisions were clearly concerned with
bribery of public or quasi-public officials, rather than with private commercial
bribery.[2]



 



SUPPLEMENTAL COMMENTARY ON §708-880



 



  Act 173, Session Laws 1979, amended subsection (3) to upgrade
the offense of commercial bribery to a class C felony in certain instances. 
The Legislature found that the practice of exchanging monetary consideration to
influence the discretion of officers in private corporations was perhaps more
prevalent and of greater public concern than misdemeanor classification would
warrant.  Senate Standing Committee Report No. 856.



 



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§708-880 Commentary:



 



1.  Cf. commentary to sections on bribery §710-1040.



 



2.  See H.R.S. §725-1.