Three Essays on Anti-Corruption Legislation and Reform

In Section I disadvantages are identified that traditional measures as repression, prevention and transparency inhere in and that put their clout for the fight against corruption in question. Against this background, three novel anti-corruption approaches are developed. Their conception is motivated by the fact that bribe agreements are particularly characterized by a high risk of opportunism. Double-dealing, whistle-blowing and extortion are uncertainties that corrupt actors are in many cases exposed to. Legislation has to account for this in order to avoid being abused for the enforcement of bribe agreements. What is more, legislation can also take advantage of these chinks to fight corruption effectively. In Section II it is demonstrated in a formal-theoretical manner how the instrument of a voluntary disclosure program can be applied strategically to break the pact of silence between a bribe-taker and a bribe-giver and to simultaneously further opportunism. It is shown that a bribe-taker should be penalized less for taking bribes and more for reciprocating a bribe. Accordingly, leniency should be conceded to a bribe-taker only if he reports his misconduct after having obtained a bribe. Likewise, it is pointed out that a bribe-giver should be punished for giving a bribe, but not for accepting the bribe-taker’s reciprocity. Self-reporting should result in leniency only if a bribe-giver was successful in obtaining the requested favor. Ultimately it is stated that leniency itself can become the biggest deterrence for corrupt actors. The formal-theoretical findings in Section III result in policy recommendations for voluntary disclosure programs. For this purpose the Turkish Penal Code and the provisions of the United Nations Convention against Corruption (UNCAC) are used as benchmarks. In addition, the respective legal provisions from 56 countries are studied. The cross-section analysis suggests that the elements of active and passive bribery are largely part of penal codes, in stark contrast to voluntary disclosure programs. Less than half of the 56 countries make use of this instrument, and even only three do so for passive bribery. The cross-section analysis therefore shows significant deficits in the implementation but also in the design of voluntary disclosure programs. In contrast to the preceding sections, Section IV is devoted to civil law and its function for preventing corruption. Particularly, nullity and voidability of contracts induced by means of bribery are analyzed. It is stated that both nullity and voidability run counter to effective anti-corruption. Therefore, it is argued that contracts induced by means of bribery should be valid. Furthermore, it is expounded that other (civil law) instruments are more suitable for preventing corruption. Section V concludes.

Level thesis:degree_level

thesis.doctoral

Grantor dc:publisher

Universität Passau

Year

2008

Author dc:creator

• Nell, Mathias

Contributors dc:contributor

• Graf Lambsdorff, Lambsdorff, Johann

• Corruption
• Self-Reporting
• Contracts
• Nullity
• Voidability
• Validity

Statement dc:rights

• Standardbedingung laut Einverständniserklärung

Repository record source_url

https://opus4.kobv.de/opus4-uni-passau/frontdoor/index/index/docId/91

OAI identifier oai:identifier

oai:kobv.de-opus4-uni-passau:91