Korupcija privačiame sektoriuje

• Lietuvos teisės institutas: knygos tekstas

• Ambrazevičiūtė, Kristina
• Kavoliūnaitė-Ragauskienė, Eglė
• Ragauskas, Petras

LTKorupcija privačiame sektoriuje – įvairiuose diskursuose pastaruoju metu vis daugiau dėmesio sulaukiantis fenomenas, kuris tapo ne tik aktualia socialine tema, bet ir įvairių tyrimų (įskaitant mokslinius) bei teisinio reguliavimo objektu. Vis dėlto šios temos aktualizavimas nėra visuotinis ir juo labiau visa apimantis1. Dar visai neseniai apie korupciją privačiame sektoriuje apskritai nebuvo kalbama arba kalbama tik nedaug ir gerokai labiau rezervuotai nei apie korupciją viešajame sektoriuje. Iki šiol daugumos žmonių sąmonėje bei ją išreiškiančioje kalboje korupcija ir ypač kyšininkavimas asocijuojasi su valdžios įgaliojimais piktnaudžiaujančiu pareigūnu2. Tačiau Lietuvoje dar 1994 m. situacija imta suvokti kitaip ir itin plačiai kriminalizuodami korupciją privačiame sektoriuje anuomet tapome lyderiais, pirmeiviais. Netrukus problema aktualizavosi Europos Sąjungos ir pasauliniame kontekste, o tuo pat metu Lietuva šioje srityje neišlaikė ne tik lyderystės, betir padarė tam tikrą atžangą. Todėltolydžiai vis gausėjančios tarptautinių ir supranacionalinių organizacijų iniciatyvos sprendžiant su korupcija privačiame sektoriuje susijusias problemas mums ėmė kelti toli gražu nebe lyderiams būdingų klausimų [...]. [Iš Įvado]

ENCorruption in the private sector is a phenomenon that has recently received increasing attention in various discourses and has become not only a relevant socialtopic, but also an object of various research (including scientific) and legal regulation. However, the actualization of this topic is not universal and all the more comprehensive. Even to date, corruption and especially bribery in the minds of most people and in the language that expresses it have been associated with an abuse of official authority. Back in 1994 by widely criminalizing corruption in the private sector Lithuania became the pioneer at that time. While the problem soon became acknowledged in the European Union and global context, and at the same time Lithuania not only wasn’t able to maintained its leadership in this field, but also made some setbacks. It is in this context a special research program “A New Approach to Corruption: Challenges and Opportunities Beyond the Public Sector” was initiated and carried out by researchers of the Lithuanian Law Institute and also funded by the Lithuanian government. This monograph is a kind of quintessence of the research carried out during the implementation of the mentioned program, and its aim is a generalized assessment of the problem of corruption in the private sector in the Lithuanian context. To achieve this goal, two tasks had been set, which are reflected quite clearly in the structure of the monograph: (a) formulation of the problem of corruption in the private sector (including definition of the phenomenon, assessment of the relationship with public sector corruption, separation from related phenomena and damage); (b) analysis of the main measures to address corruption in the private sector in Lithuania (including criminal law, labor law, civil law and private sector self-regulation). So let us go through the main findings presented in this monograph.The concept of corruption in the private sector, which is officially used in Lithuania, is characterized by legal uncertainty and even controversy. Although the general concept of corruption is defined in Lithuanian law, it is in principle incompatible with the private sector as such (which is in fact notlegally defined). There is, in principle, no reason to attribute the extent of the damage caused by corruption in itself to whether it occurs in the public or private sector. The extent of damage depends largely not on the sector as such but on incidental occurrence of the specific vulnerable interests in the context of given sector and the number of persons who have actually suffered damage. The changing concept of corruption related offenses includes competition offenses in its content elements. For example, anti-competitive agreements are characterized by all the necessary elements of corruption: abuse of existing (acquired) powers, seeking profit and harm. However, liability for infringements of competition law is not criminal in nature, it does not lie with specific individuals who intend to do so (who may have benefited not even the business but from themselves or their relatives) but with the undertaking itself, which is subject to economic sanctions. Thus, the factual initiator and perpetrator remain largely unpunished.In order to increase the effectiveness ofthe prevention of such violations, it is appropriate to consider the adoption of the principles of investigation and application of liability for corruption offences in the investigation of competition violations and application of liability for their commission.Corruption has significant similarities to lobbying. While lobbying cannot be said to presuppose corrupt mechanisms in itself, the line between non-transparent lobbying and corruption is sometimes very narrow. In lobbying, the greatest risks of corruption are related to the trade of influence and bribery. Trade of influence is closer when lobbying is carried out by a person other than the beneficiary, in which case there is an intermediary who interacts with the politician or other decision-maker and advocates the interests of his client. The risk of bribery arises when a person who intends to influence a politician or decision-maker addresses that person directly and there is a likelihood that he or she will be rewarded or intends to be rewarded for doing so. The distinction between lobbying and trading in influence is largely determined by two things: (a) a person's ability to influence politicians or decision-makers is determined by that person's professional situation, social ties, kinship or in-laws, etc.; (b) the benefit accruing to the politician or other decision-maker is unlawful. In the case of the separation of gifts and bribes, the legal and social rules do not overlap in all respects. The following differences can be distinguished when assessing social attitudes: a)the specificity of the expected behavior (in the case of a bribe, a quick result is expected, in the case of a gift, an uncertain one); (b) social injustice (where the practice of 'gifts' creates an order that enables some to become rich at the expense of others and thus distorts social justice) and a sense of harm; (c) ownership of the good used for the exchange (in cases where the good belonging to others is placed on the plates of the exchange scales in exchange for a good for oneself, a bribe should be seen, not a gift) [...]. [From the publication]