Korupcijos privačiame sektoriuje (private-to-private corruption) daroma žala ; Private-to-private corruption and its harm

Abstract

It could be easily traced a stereotype in public discourse – corruption is thought to be the biggest evil when it appears in public sector. On the contrary the private sector is being seen as an autonomic sphere in which corruption doesn't make such a big harm. Or even almost any harm at all. At the most radical point of view corruption in the private sector even could not exist. Nevertheless we may see that at least some specific corrupt acts in private sphere (such as embezzlement) are being condemned and prosecuted by means of criminal law since quite a long time ago. Still such acts as bribery and abuse of power even at the end of the 20th century were held as hardly related to private sector. Analysis provided in the study shows that qualitative and quantitative attributes of harm which is being caused by corruption in private or public sector should not be related with the specific sector itself. It is not a sector which makes corruption more or less harmful, but the specific interests which are being exposed quite randomly in the context of one or another sector. This is why corruption in a private sector could not be treated a priori as "lesser evil". At least five factors has made a global breakthrough on the perception of the harmfulness of corruption in private sector: 1) some great recent scandals related to the corruption in private sector (affair of Jerome Kerviel related to the funds of Société Générale, affair of Arthur Anderson and Enron, affair related to corrupt acts of workers union of Volkswagen etc.); 2) better understanding of links between an abstract category of corruption in private sector and specific interests being abused by such corruption; 3) origin and development of wide and influential networks of active international and local anticorruption organisations and initiatives; 4) transformation and even some constraints in understanding of the privacy in western civilisation; 5) privatisation and outsourcing of public functions which has been seen for a decades and even centuries as an integral part of public administration. In the international level the European Union and its institutions has been the pioneers in activating the fight against corruption in private sector. From 1995 they equally related the concept of corruption with both private and public sectors. And they took the bold position not to be in line with such authorities in anticorruption policy as World Bank and Transparency International which held that corruption is related only to public office and powers. In this context Lithuania could also be held as a pioneer in criminalisation of wide range of corrupt acts in the private sector: even before the above-mentioned political acts of European Union institutions the Lithuanian Parliament has adopted laws criminalising general bribery and abuse of power in private sector. Unfortunately some later developments in Lithuanian criminal law or to be more specific in the practice of the Supreme Court of Lithuania significantly narrowed the broad concept of the above-mentioned criminalisation. The court decided that specific harm to the public interests should be established in order to convect a person for bribery and abuse of power in private sector. The study provides two basic criterion to provide a typology of corruption in private sector: (1) who is being specifically harmed and (2) what specific harm (negative consequences) is being made. Corruption in private sector could harm: (1) clients of private businesses; (2) companies when employees commits corrupt acts on their expense; (3) owners and shareholders of affected companies; (4) employees in affected companies, their families and dependents; (5) third-parties being directly aimed or affected by bribery or other corrupt act and also those being harmed by unfair competition caused by corruption in private sector; (6) the society, i. e. unspecified or hardly specified group of individuals; (7) the state. Also corruption in private sector could bring both pecuniary and nonpecuniary loss.