“Undue” Gifts for Public Employees: An Administrative and Criminal Law Analysis

Abstract

Both administrative law and criminal law set limits on public employees’ acceptance of gifts or other privileges. The core rules in these two areas of the law are the same. The elements of the crime of bribery refer essentially to the administrative law’s rules on the acceptance of gifts. It is probably the same underlying standard that constitutes the measure for the extent to which public employees can accept gifts. However, criminal law may require additional security and clarification in the cause of action for liability. Acceptance of gifts in a number of cases can only be sanctioned under administrative law and not criminal law. This article will analyse these issues and will attempt to define the criteria for determining when the acceptance of gifts is impermissible under both administrative law and criminal law.

Gifts for a Public Servant: Whether It Is Worth to Comply With the Rules

“…; b) in the aspect of comparative legal analysis through the example of several states (Zimneva, Chumakova, 2015) or a significant number of states (Kolomoiets, Verlos, Pyrozhkova, 2018); c) with the emphasizing of one or several problematic aspects of regulation (for example, the normative definition of a gift and its place in the contiguous conceptual series, the variety of gifts, the rules of gifts handling in different circumstances, the differentiation of principles of legal responsibility for breach of "gift rules", etc. (Bonsing, Langsted, 2013). At the same time, despite Vol.…”

A Gift for a Public Servant – A Manifestation of Respect, Reward or a Means of Unlawful Influence

“…The Code of Conduct for EU Commissioners in section 1.11 establishes a prohibition on signs of hospitality, with the exception of those provided during official diplomatic events and as signs of courtesy (though, again, the appraisal concept is used). The participation of a commissioner in any event on an invitation should not be considered as hospitality (Sten Bonsing, Lars Langsted, 2013). In Brazil, in the Code of Conduct for Senior Civil Servants in the Federal Executive Branch, bans on gifts, rewards, signs of hospitality and services are fixed in general in separate articles, with the listing of their possible external forms of manifestation, though without official definitions.…”

“…At the same time, taking into account the specifics of the subject of obtaining gifts and his or her professional activity, it is impossible to underestimate the possibility of the gift's influence on the "purity" of the relevant activity. Especially since the legislation is over-saturated with such "grey zones" (Sten Bonsing, Lars Langsted, 2013), which create the basis for the diversified use of the gift resource for a public servant.…”

“…It is interesting to note the experience of Denmark, the legal position of its supreme court in relation to the conflict of provisions regulating the principles of "gift relations in the public service," as well as enshrined in various statutory legal acts (namely, the Criminal Code and a special anti-corruption law) is that there is the "limit of tolerance of violations," which can be equal to 40% of the cost of the allowed gift. Accordingly, a public servant who has received a gift, which value exceeds the cost of a permitted (for example, jubilee) gift by 40%, should not be criminally liable (Sten Bonsing, Lars Langsted, 2013).…”

“…Along with the clear criterion for determining the value limit of a gift for a public servant, the law of countries can simultaneously contain other provisions, namely: "minimal gifts," "traditionally small gifts," "gifts at very low cost," "socially acceptable gifts," "small gifts for special events," etc(Sten Bonsing, Lars Langsted, 2013). Certain questions also arise in relation to monitoring compliance with the law in determining the periodicity of accepting gifts by the person during the year, thus eliminating "systematic gift relations in the public service," which significantly threaten the impartiality and objectivity of the professional activities of a public servant.…”