Organized Crime In The New Millennium

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 bribegiver
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
favorable decision.
Government
Article II, Section 4 of the United States
Constitution
A grey area may exist when payments to smooth transactions are made. United States
law is particularly strict in limiting the ability of businesses to pay for the awarding of
contracts by foreign governments; however, the Foreign Corrupt Practices Act contains
an exception for "grease payments"; very basically, this allows payments to officials in
order to obtain the performance of ministerial acts which they are legally required to do,
but may delay in the absence of such payment. In some countries, this practice is the
norm, often resulting from a developing nation not having the tax structure to pay civil
servants an adequate salary. Nevertheless, most economists regard bribery as a bad
thing because it encourages rent seeking behaviour. A state where bribery has become
a way of life is a kleptocracy.
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