BRIBERY

Bribery is an act of giving money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty.

The bribe is the gift bestowed to influence the recipient's conduct. It may be any money, good, right in action, property, preferment, privilege, emolument, object of value, advantage, or merely a promise or undertaking to induce or influence the action, vote, or influence of a person in an official or public capacity.

In economics, the bribe has been described as rent. Bribery in bureaucracy has been viewed as a reason for the higher cost of production of goods and services.

Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. Agreement consists of an offer by an indication of one person (the "offeror") to another (the "offeree") of the offeror's willingness to enter into a contract on certain terms without further negotiations. A contract is said to come into existence when acceptance of an offer (agreement to the terms in it) has been communicated to the offeror by the offeree and there has been consideration bargained-for induced by promises or a promise and performance.

The offer and acceptance formula, developed in the 19th century, identifies a moment of formation when the parties are of one mind. This classical approach to contract formation has been weakened by developments in the law of estoppel, misleading conduct, misrepresentation and unjust enrichment.

A gift or a present is an object given without the expectation of payment. Although gift-giving might involve an expectation of reciprocity, a gift is meant to be free. In many human societies, the act of mutually exchanging money, goods, etc. may contribute to social cohesion. Economists have elaborated the economics of gift-giving into the notion of a gift economy. By extension the term gift can refer to anything that makes the other happier or less sad, especially as a favor, including forgiveness and kindness.

Many types of bribes exist: tip, gift, sop, perk, skim, favor, discount, waived fee/ticket, free food, free ad, free trip, free tickets, sweetheart deal, kickback/payback, funding, inflated sale of an object or property, lucrative contract, donation, campaign contribution, fundraiser, sponsorship/backing, higher paying job, stock options, secret commission, or promotion (rise of position/rank).

One must be careful of differing social and cultural norms when examining bribery. Expectations of when a monetary transaction is appropriate can differ from place to place. Political campaign contributions in the form of cash, for example, are considered criminal acts of bribery in some countries, while in the United States, provided they adhere to election law, are legal. Tipping, for example, is considered bribery in some societies, while in others the two concepts may not be interchangeable.

In some Spanish-speaking countries, bribes are referred to as "mordida" (literally, "bite"); in Arab countries they are Baksheesh or Bakshish. However, Bakshish is more akin to tipping. French-speaking countries often use the expressions "dessous-de-table" ("under-the-table" commissions), "pot-de-vin" (literally, "wine-pot"), or "commission occulte" ("secret commission" or "kickback"). While the last two expressions contain inherently a negative connotation, the expression "dessous-de-table" can be often understood as a commonly accepted business practice (for instance, on the occasion of a real estate transaction before the notary, a partial payment made between the buyer and seller; needless to say, this is a good way to launder money). In German, the common term is Schmiergeld ("smoothing money").

The offence may be divided into two great classes: the one, where a person invested with power is induced by payment to use it unjustly; the other, where power is obtained by purchasing the suffrages of those who can impart it. Likewise, the briber might hold a powerful role and control the transaction; or in other cases, a bribe may be effectively extracted from the person paying it, although this is better known as extortion.

The forms that bribery take are numerous. For example, a motorist might bribe a police officer not to issue a ticket for speeding, a citizen seeking paperwork or utility line connections might bribe a functionary for faster service.

Bribery may also take the form of a secret commission, a profit made by an agent, in the course of his employment, without the knowledge of his principal. Euphemisms abound for this (commission, sweetener, kick-back etc.) Bribers and recipients of bribery are likewise numerous although bribers have one common denominator and that is the financial ability to bribe.

Bribery around the world is estimated at about $1 trillion (£494bn).

As indicated on the pages devoted to political corruption, efforts have been made in recent years by the international community to encourage countries to dissociate and incriminate as separate offences, active and passive bribery. From a legal point of view, active bribery can be defined for instance as the promising, offering or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions. (article 2 of the Criminal Law Convention on Corruption (ETS 173) of the Council of Europe). Passive bribery can be defined as the request or receipt [by any public official], directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions (article 3 of the Criminal Law Convention on Corruption (ETS 173)).

The reason for this dissociation is to make the early steps (offering, promising, requesting an advantage) of a corrupt deal already an offence and, thus, to give a clear signal (from a criminal policy point of view) that bribery is not acceptable. Besides, such a dissociation makes the prosecution of bribery offences easier since it can be very difficult to prove that two parties (the bribe-giver and the bribe-taker) have formally agreed upon a corrupt deal. Besides, there is often no such formal deal but only a mutual understanding, for instance when it is common knowledge in a municipality that to obtain a building permit one has to pay a "fee" to the decision maker to obtain a favourable decision.

Date: 2015-01-29; view: 939