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Bribes, Constructive Trusts, and the Proceeds of Crime Act 2002

Year of Publication: 2024
Month of Publication: 6
Author(s): Tan Weiming
Research Area(s): Tort
Journal Name: The Law Quarterly Review
Volume Number: 140
Abstract:

The prevailing orthodoxy is that when a fiduciary accepts a bribe, he holds it on trust for his principal. Much of the academic and judicial discussion has focused on whether this should be so, or rather that the principal’s claim for the bribe should be merely a personal one. The discussions are often confined purely to equitable doctrines. However, a fiduciary’s corruption is not only equity’s problem, but also the concern of the State. This article rejects the proposition that an immediate trust arises over the bribe as soon as the fiduciary receives it. More fundamentally, it challenges the assumption that the principal has an entitlement to the bribe in specie. Properly conceived, the law is confronted with four possible claims to the bribe. The interests of the State, the bribe-giver, the principal, and the fiduciary’s unsecured creditors deserve closer scrutiny. This article investigates their respective interests by considering the statutory and criminal dimensions, as well as the latest developments on the doctrine of illegality.

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