There are many definitions of bribery, but what they all have in common is that it involves a person in a certain position, such as a public official, who is acting voluntarily, unlawfully or unethically, in exchange for an benefit. The benefit does not necessarily involve a payment, but may also come in the form of generous gifts, hospitality, a favour or other benefits (taxes, services, donations, courtesies, etc.). Bribery therefore belongs to the family of corruption, which can generally be defined as an abuse of a position of trust. The aim of bribery is to obtain benefits, whether tangible or intangible, to which there is no legal entitlement.
There are generally two types of bribery:
- active bribery: §§ 333, 334 of the Penal Code (StGB)
- passive bribery: §§ 331, 332 of the Penal Code (StGB)
Active bribery refers to those who offer, promise or grant an advantage to a public official or a third party. Passive bribery, however, focuses on the public official, i.e. the actual recipient of the benefit. The latter claims or accepts the benefit. It also depends on whether the service of the public official would have been lawful (simple bribe) or not (serious bribe) without the bribe.
In addition to the moral principles that are violated here, criminal regulations must also be observed. In Germany, bribery is punishable under §§ 331 ff. StGB with up to 5 years imprisonment, which must be taken seriously. § 334 StGB states the following:
“Whoever offers, promises or grants a public official, a European official, a person entrusted with special public service functions or a soldier in the Federal Armed Forces a benefit for that person or a third party in return for the fact that they have performed or would in future perform an official act, and thereby breached or would breach their official duties, incurs a penalty of imprisonment for a term of between three months and five years. In less serious cases, the penalty is imprisonment for a term not exceeding two years or a fine.”
Mere business courtesies or small gifts which are only of small value are not regarded as attempts at bribery. Companies are, however, advised to create a so-called Gift Register to protect employees and companies from accusations of bribery.
See Impulse Medien GmbH at: https://www.impulse.de/recht-steuern/rechtsratgeber/compliance-geschenke/7311636.html (accessed on 03.06.2020).