Melnichenko Roman Grigorjevich, "Bribe or questionable remuneration" Society against corruption:collected articles / editorship by A. E. Chernomorec, Volgograd, 2003. Translator: Gaydenko Elena
Any juridical duty has its limit as subjective law. Also the duty not to attempt somebody's life is not boundless. For example military man has not only right but also duty to kill people during the military operations or preventing of acts of terrorism. And what is more he gets such encouragements as awards, prizes, valuable presents for the maximum numbers of killed.
The same we can say about such concept as the bribe. Everything, what is behind this limit, may be called as a "questionable remuneration". Questionable remuneration is a blessing, which is passed to other person not because of personal sympathy. It can be showed by means of following law-terms: "hospitality", "small presents", "standard presents", "symbolical signs of attention", "souvenirs", "as a token of respect", "on the important occasion" etc.
It is very important to define correctly the limit, which divides bribe and questionable remuneration. To do it - it's mean to adjust more rightly social relations.
We note at once, that the society regard to the bribe variously. For example folklore is very negative to the bribe-takers: "We are right but one hundred rubles bribed", "If you come to a court, slip hand in pocket", "If you throw to the dog a bone, it will not bark". However there is not such negative attitude to the bribe in some proverbs: "he is a poop cook that cannot lick his own fingers", "An emply hand is no lure for a hawk".
There are such cases in legal history, when officially the bribe is not considered as an offence. So there were "bribe accounts department" attached to the Ministry of Finance in the Ottoman Empire in the XVII century. The function of this department was the keeping books of bribes, which official accepted. They had to deduct money to the treasury.
The modern Russian legislation as well as the foreign legislation doesn't contain a total prohibition of bribe. For example there are such concepts in the legislation of European countries as "usual hospitality" and "small presents". There are similar regulations in the Russian law.
Erudite persons, who studies criminal law, conduct debate, how to delimit bribe and questionable remuneration. The authors define the questionable remuneration like this: "Of cause, this prohibition doesn't deprive public service workers of possibility to receive symbolical signs of attention, presents and souvenirs according to the generally accepted norms of politeness and hospitality". Referring to the article 575 of Civil Code of Russian Federation, this author restricts the present to the five minimal charge rates of labour and points, that the cost of present is appraised for the dwelling houses, flats, dachas and other buildings and apartments, and also for the carriers based on market value of this objects. It is very difficult for us to imagine very little house and grounds, which may cost 2250 rubles (5 minimal charge rates of labour). Some authors show, that 5 minimal charge rates of labour are that limit, which delimits present and bride.
All authors notice the clash between the regulations of federal statute "About the basis of public service in the Russian Federation" (paragraph 8, article 11), Civil Code of RF (paragraph 3, article 575) and Criminal Code RF (article 290). According to the one normative act it is in principle allowed to accept bribe in some cases (Civil Code of RF) and to another - it is not allowed (Criminal Code RF).
Most authors are negative related to the relevant situation: "It decriminalizes preappointed by the article 290 and 291 of Criminal Code acts - the bribing and the bribe accepting - remuneration, if it is normal present, because the article 575 of the Civil Code defines the gift of such present to the public service worker as a legitimate action, what is excluded it's criminality".
Thereupon it is significant, that there were not always place a bottom limit in the legislation of Russia. So it was pointed in the code about the criminal and correctional penalty (redaction of 1885 year) that a person, who would take as a gift money or something else, and it didn't matter how little the price of a present were, had to be imposed a penalty.
We agree that any bribe or questionable remuneration is harm in principle. If the law doesn't take the real state of affairs into consideration, so it will become formally to the defined good wish. There will be soon in the society such phenomena, which will be contiguous with a bribe, as questionable remuneration. It is necessary to settle accounts with it.
Let's single out some by the State approved questionable remuneration or questionable remuneration, to which the state shuts one's eyes. Usually these relations are regulated not so much legal texts as tradition.
Presents, which officials get during realization of state foreign policy functions. Modern international relations can not exist without such ancient institution as a presentation to the officials. For example according to the procedure of funds spending on the foreign figure reception and service, which were confirmed by the government of Russian Federation, it is laid out on the souvenirs and presents up to 400 rubles per man, on the flowers - 800 rubles. Foreign guest shouldn't eat at one's own expense. Russian state lays out for him as a questionable remuneration with 370 rubles on breakfast, dinner or supper.
As for the actual state of affairs, especially if it is refer to the superior officials, so we know by means of mass media what for questionable remuneration they receive. Official receptions, valuable presents, rewards and ctr. - these all is questionable remuneration, if to call things by their right.
Not only state structures, but also local authorities understand that it is nothing to do without a present in the international relations. So according to the calculation of costs, which are connected with the official delegation visit of Volgograd administration to partner city Kiev because of the City day celebration, which was on the 9-12 July 2002, it was laid out on the official present to the city Kiev 3000 rubles, and on the souvenirs to one delegation member 270 rubles, to another - 145.
Presents, which officials get on the occasion of holidays and jubilees. If you come to the building of court, administration, Office of Public Prosecutor during the holidays, you will see well-dressed people who entered these institutions with huge posies, paper-bags, candy-boxes etc. This conforms to circumstances, which refer to the possibility of getting questionable remunerations. These stations were elaborated in practice. So presentation must be held officially, the present must be accounted and based properly, superior officers must be informed about the fact of the presentation.
There are also other rules of getting questionable remunerations by the officials. According to the design of the state employee conduct code: "If the state employee doesn't know, has he or she right to receive present or to take advantage of the hospitality, he or she has to ask about the opinion of the direct chief".
This situation is encouraged by a majority of officials. As they say, if the official will not, the man doesn't come in the cabinet with a present.
To supervisory pilots or superior bodies accorded hospitality. Traditional State employee is allowed to use host side service by placing, nourishment organization, and freight service within the limits of aim tour during the business, inspection trips. Similar services from other organizations or citizen may be accepted just like usual hospitality. And Russian people have a reputation for their hospitality. So when the concept of "true people's hospitality" concurs with concept of "questionable remuneration", than the host side incurs sizeable and constant expense according to such hospitality.
Presents to doctors and lawyers. Today it is not possible to imagine their activity without presentation to these persons. Presents are given after discharge of their duty as well as during it. What is more, present refusal can entail sincere resentment of a grantor.
Organization of banquets during the State examinations and defending of thesis for a Doctor's degree and Ph.D. thesis. Such phenomenon as questionable remuneration doesn't escape teaching and scientific effort as a sort of the public work. In the most academies of our country it is like a tradition by students to lay the table as a maximum, and to organize fruits and mineral water at the least for the members of state entrance examination. Of cause, we can suppose, that students give to a teachers such presents because of respect, but something prompts, that it is not so. Similar situation but in larger extent has formed by the getting of academic degree in the academic council.
Let's try to define possible social value of the questionable remuneration. We can find function of the encouragement and the establishment of favorable relationship.
Encouragement. As an encouragement questionable remuneration plays a part of the extra incentive. As specialist in Ancient Rome legal history note, mandatum was accordingly encouraged - to give some present to stimulate in a worthy (which didn't disgrace a confidant) the carrying-out of commission, if it was connected with long trouble and peculiar competence of a confidant (for example personal merit - intellect; or professions - doctor, teacher, lawyer) in complicated situations. Than this presents came into practice and were named "honorary reward" - "honorarium".
Establishment of favorable relationship. Presents are of dominant importance for the work bridging. Good mood by a supervisory pilot, teacher, and official will make the intercourse with the person, who gives a presents, more optimistic. In day-to-day life it is called like insinuate a person.
Furthermore it can be found other positive sides of questionable remuneration. However I would like to try to separate usual present from questionable remuneration: "if the person, who gives a presents, finds at the same time satisfaction in this action, so it is not questionable remuneration, it is real present as a sign of respect and thankfulness".
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