A GIFT FOR A PUBLIC SERVANT – A MANIFESTATION OF RESPECT, REWARD OR A MEANS OF UNLAWFUL INFLUENCE

Abstract

The article, based on analysis of scientific works and legislation of different countries, singles out problematic issues of legal regulation of relations connected with the reception of gifts by public servants. It is substantiated that in modern conditions a gift, unfortunately, can be used not only as a manifestation of respect and gratitude but also an unreasonable enrichment of public servant and unlawful influence on him, his official activity. Fragmentation, contradiction in the content of the “gift” legislation, its saturation with its evaluative and generalizing provisions predetermines the existence of “grey” zones in the legal basis of the use of a gift resource for public servants. Analysing existing prohibitive, restrictive, permissive models of “gift relations in the public service”, the expediency of introducing an absolute prohibition on gifts for public servants is justified. It is proposed to provide exceptions for “ordinary” gifts, “official” gifts, and gifts on the occasion of special personal events, with the definition of limits of allowed behaviour. The mandatory declaration of all gifts received by a public servant, indicating its sources, seems expedient. The normative definition of a “gift” is proposed to be fixed in a special anticorruption legislative act, focusing on its disinterested symbolic, non-systematic nature, the legitimacy of acts of the servant as the basis for the gift, and the absence of any arrangements for its provision between the public servant and the “donor of a gift.” As a result, it eliminates its mistaken association with unlawful benefits, public servant’s labour compensation, incentive, and indemnity payments. Taking into account the specifics of “official” (“business”) gifts, detailed regulation of rules of conduct with them is proposed, including the possibility of their redemption, with the priority of realization and protection of public interest. The necessity of unification of legal principles of regulation of “gift relations in the public service” and coordination of provisions of anti-corruption (in the part of special prohibitions and declaration as a means of preventing conflicts of interest in the public service), tax (in terms of declaration of incomes and determination of the legality of their sources), and tort (liability for breach of established regulations) legislation is grounded. It is considered appropriate to form uniform legal standards for the implementation of “gift policy in the public service.”