Corruption: punishment without practice of the desired act? The Portuguese singularity
André Ferreira de Oliveira
University of Coimbra
In 2014 the annual estimated impact of corruption in EU was estimated in 1% of the wealth generated by all Member-States.
The Portuguese legislator punishes the “Undue receipt of advantage” in Article 372 of the Criminal Code.
The agent is punished even without proof of the concrete desired act, of the do ut des and the act being practiced, an original solution if compared with legislative options as Paragraphs 331 and 333 of Germany CC (Receipt Undue of advantage) or Article 422 of Spanish CC (Cohecho de facilitación).
The ponto cruxis of the criminal behaviour consists in the degradation of the rigour, independence and impartiality that must define any action mirrowing in the res publica, related with the social obligations of the State, even understood largely and when performed by agents of Private Law or with mix nature.
The protected legal interest is violated when reaches the public official’s knowledge that was offered an advantage to him or the citizen knows that the public official requested or accepted it; the legislator does not punish the action/omission of the public official or citizen itself but the result produced when the request/acceptance or offer reaches the recipient - although it can aggravate the punishment, the fact of the public official not act or omit the act translating the desired advantage does not relevates to the verification of the crime
The Portuguese legislator punishes the “Undue receipt of advantage” in Article 372 of the Criminal Code.
The agent is punished even without proof of the concrete desired act, of the do ut des and the act being practiced, an original solution if compared with legislative options as Paragraphs 331 and 333 of Germany CC (Receipt Undue of advantage) or Article 422 of Spanish CC (Cohecho de facilitación).
The ponto cruxis of the criminal behaviour consists in the degradation of the rigour, independence and impartiality that must define any action mirrowing in the res publica, related with the social obligations of the State, even understood largely and when performed by agents of Private Law or with mix nature.
The protected legal interest is violated when reaches the public official’s knowledge that was offered an advantage to him or the citizen knows that the public official requested or accepted it; the legislator does not punish the action/omission of the public official or citizen itself but the result produced when the request/acceptance or offer reaches the recipient - although it can aggravate the punishment, the fact of the public official not act or omit the act translating the desired advantage does not relevates to the verification of the crime
