Happy birthday, Mr. Public Officer! About the justification of the criminalization of accepting and offering gifts in the public field

• Autor(a) principal: Rusca, Bruno
• Data de Publicação: 2021
• Tipo de documento: Artigo
• Idioma: spa
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/83760
• topic: Gifts; Bribes; Harmfulness; Social appropriateness; Last resort principle; Regalos; Sobornos; Lesividad; Adequación social; Principio de ultima ratio; Presentes; Subornos; Nocividade; Adequação social; Princípio do último recurso

The paper contends that it is legitimate to punish public officers for accepting gifts in the course of their functions, and individuals for offering them to them; that is to say, when the benefit is given for mere consideration of the office, but does not involve a commitment on the part of the functionary to perform a certain act in return -quid pro quo-. Specifically, it is argued that because of the expressive function played by gifts, insofar as they favor the emergence of close relations among agents, they have the capacity to interfere with public officers’ decisions and thus can affect the normal functioning of the government. Furthermore, based on certain tools developed by the Continental theory of crime, the paper proposes guidelines for determining in which cases the acceptance and the offer of gifts fall outside the scope of the criminal offence. Finally, it poses some criteria that may be useful in practice to distinguish the acceptance and the offer of gifts from bribes.