bribery
Bribery is the acceptance of benefits by public officials. It is a criminal offense according to § 331 ff. StGB with up to 5 years, in particularly serious cases with up to ten years imprisonment. It is part of the corruption .
Bribery is committed by anyone who is a public official (judge, civil servant, collective bargaining employee in the public service, etc.), a European public official (public official of the European Union ), a person particularly responsible for the public service or a soldier of the Bundeswehr (for foreign and international employees see below 335a StGB) offers, promises or grants an advantage for this person or a third party in return for having performed an official act (with which the public official violates his official duties ) or will do so in the future.
Not included is the even economic corruption called bribery and commercial bribery . Their criminal liability is regulated in § 299 ff. StGB.
The following criminal offenses related to bribery are listed in the Criminal Code :
- Acceptance of benefits ( § 331 StGB)
- Bribery ( § 332 StGB)
- Granting of benefits (Section 333 StGB)
- Bribery (§ 334 StGB)
- particularly serious cases of corruption and bribery (Section 335 StGB)
- Foreign and international employees (Section 335a StGB)
With the law to combat corruption of November 20, 2015 ( Federal Law Gazette I p. 2025 ), provisions of the European Bribery Act (EuBestG) and the law to combat bribery of foreign public officials in international business transactions ( IntBestG ) were incorporated into the StGB. This took into account demands that the equality provisions for employees of foreign and international authorities should not be regulated in ancillary laws, but in the StGB.
Advantage material and immaterial
The benefit can be materially measurable, but also of an immaterial nature. Examples: cash payments and gifts or a bribe with an order , a diploma or adopted by a nobleman for the purpose of gaining a nobility title .
“Bribery” describes the criminal liability of one part of such a relationship (giving an advantage in order to obtain an act contrary to duty). The other part (acceptance of an advantage in return for performing an act contrary to duty) is punished for “bribery”.
Tax treatment of bribes
In the past, “business benefits” (bribes / kickbacks) were tax-deductible in Germany. In some places, these grants were recorded as “useful expenses” (NA). Since September 1, 2002, bribery payments by German companies to foreign business partners have been a criminal offense - and are therefore no longer tax deductible. Until then, this only applied to domestic business transactions or the bribery of foreign public officials.
Bribery of parliamentarians
According to German law, MPs are not public officials, but mandate holders . You can therefore only be prosecuted for corruption if your immunity is lifted . So far, only buying votes has been punishable. This made Germany one of the few countries that did not yet criminalize bribery of members of parliament according to the standards of the relevant United Nations Convention against Corruption . Although this was the time of Brigitte Zypries signed (German justice minister during the grand coalition 2005-2009), but only on November 12, 2014 the Bundestag ratified after the Bundestag on 21 February 2014 in second and third reading, a tightening of the rules of MPs bribery had passed. Since this change in law came into force, bribery of parliamentarians has been punished with up to five years in prison. The same sentence also applies to members of the Bundestag and Landtag who accept bribes.
Known bribery affairs:
- the Siemens scandal of the early 20th century and the so-called Siemens complex , the corruption structures uncovered since November 2006
- the Lockheed bribery affairs
- as well as so-called donation affairs :
- the Flick affair in the 1980s
- CDU donation affair - the illegal donation practice of the CDU discovered in 1999 in the 1990s (see also Karlheinz Schreiber )
- Cologne donation affair : the Cologne SPD received donations from Trienekens to "promote" the construction of a waste incineration plant
- extensive donations to politicians by the Enron group, which were described as corruption in the sense of bribery
Combating Bribery
Whistleblowers can submit information about bribery to the police authorities as a criminal complaint or anonymously. According to the principle of legality , the police must also investigate anonymous reports. Knowledge carriers can protect themselves from the possible consequences of their report through anonymity.
The Baden-Württemberg police have been using an external, anonymous whistleblower portal to fight corruption since 2012 . The current Internet address is given on the homepage of the Baden-Württemberg police. The system is managed by the Baden-Württemberg State Criminal Police Office . A whistleblower can set up a post box when submitting information. Questions can be asked of the whistleblower via the post box. The volume of reports and the quality of suspicions should be increased through mutual anonymous communication with the whistleblower. The identity of the whistleblower cannot be determined.
Situation in other countries
United States
The United States is governed by the Foreign Corrupt Practices Act (FCPA) . It prohibits the bribery of foreign officials in order to initiate, conclude or continue business. In particular, it criminalizes the following actions:
- Influencing the actions or decisions of foreign officials in their official position.
- Influencing the actions or decisions of a foreign government.
- Violation of legal obligations, laws and regulations.
- Transfer of an unlawful benefit to the bribe recipient. The term bribery is broadly defined and includes the offer or the payment of "any valuable object", in particular money, goods, services, donations, hospitality, assurance of future employment or the acceptance of an offer. This list is not exhaustive.
The term “foreign civil servant” is also broad and includes in particular government employees, elected politicians, candidates for an elected office, employees of “international public organizations” (e.g. the United Nations ), employees of a political party, employees of a company owned or controlled by the government and intermediary agents or advisers working on behalf of a foreign official.
Great Britain
The United Kingdom has the Bribery Act 2010 (Anti-Corruption Act) . Similar to the US FCPA, it prohibits the bribery of foreign government officials. However, it also prohibits the payment of bribes to private companies. In particular, the following apply to criminal offenses
- Offering or paying a bribe to any person in the public or private sector.
- Granting a financial or other benefit in return for an improper act or decision.
literature
- Caracas: Responsibility in international group structures according to § 130 OWiG - Using the example of bribery in business dealings with no punishments abroad, Nomos Verlag 2014, ISBN 978-3-8487-0992-2
- Simona Kreis: Whistleblowing as a contribution to law enforcement, Ed .: Martina Benecke, Felix Hartmann, Sudabeh Kamanabrou, Hartmut Oetker. Mohr Siebeck, Tübingen, ISBN 978-3-16-154776-8 .
See also
- corruption
- Bribe Payers Index
- Anti-International Bribery Act
- Kickback
- Administrative ethics
- Commercial criminal law
- Compliance
Web links
swell
- ↑ http://www.handelsblatt.com/archiv/schmiergeldlösungen-ins-ausland-nicht-mehr-absetzbar-aufseher-haben-exportwirtschaft-ins-visier/2203170.html
- ↑ German Bundestag: Extension of the criminal offense of bribery of parliamentarians (PDF)
- ^ Paul Windolf : Corruption, Fraud and “Corporate Governance” in the USA - Notes on Enron. In: Leviathan. Vol. 31, No. 2, ISSN 0340-0425 , pp. 185-218, doi : 10.1007 / s11578-003-0010-4 .
- ↑ Anonymous whistleblower portal . State Criminal Police Office Baden-Württemberg. Retrieved February 15, 2019.
