Tarpininko kyšininkavimas ir jo kvalifikavimo klausimai

Abstract

The article deals with the bribery of an intermediary, which is a criminal act under the Criminal Code of the Republic of Lithuania. The act of bribery of an intermediary presents a new approach towards the problem of corruption. The Criminal Law Convention on Corruption draws a contemporary as well as a compulsory example of criminalization, which has to be followed by the Parties to the Convention. The Article 12 of the Convention “Trading in influence” states that “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision–making of any person referred to in Articles 2, 4 to 6 and 9 to 11 in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result.” As the official commentary to the Convention points out, the aim of such a provision is to tackle corruption of persons who are in the neighborhood of power and try to obtain advantages from their situation. Following the wording provided by the Convention, the Lithuanian lawmaker has drafted a provision related to the so–called bribery of an intermediary, Article No. 226 of the Criminal Code, 2000. While the provision is rather new and unconventional for the Lithuanian Criminal Law, few theoretical studies have been conducted and no official explanations have been provided. Nonetheless, law enforcement agencies encounter with facts of trading in influence and take steps to prosecute them.
The author of the study presents arguments in favor of the lawmaker and supports the introduction of the provision on the bribery via an intermediary, and on the other hand raises questions on the necessity to present conditions for such a provision. The article includes relevant issues pertaining to differences between bribery and bribery of an intermediary by drawing the comparison of the so–called object of a criminal infringement. The author analyses the provision provided for in Article No. 226 and discloses important elements of the corpus of the crime such as bribe and significant features to it (e.g. nature of the advantage to be considered as a bribe), influence and the promise to exert influence on persons or institutions favored by the bribe–giver.
The author presents definitions of the concept mentioned above and discloses their legal significance in criminal cases. The important part of the study is the analysis of criminal cases of bribery of an intermediary and the qualification of offenders’ acts. The author supports the arguments for and against the qualification and presents some valuable suggestions.
The important standpoint is related to the question of differentiating crimes of bribery of an intermediary and fraud. As long as the construction of bribery via an intermediary encloses some aspects of fraud, it is essential every time to estimate the will of the intermediary to act or fail to act in favor of the bribe giver in return for a bribe simply grabbing the advantage. The author points out the need of establishing the nature of the offender’s perception while committing a criminal act.