公務員倫理と汚職 (<シンポジゥム>「政治倫理 : その法的政治的課題」)

抄録

"Corruption" means public servants' committing irregularities by abusing their positions or authorities such as receiving a bribe. Such an act may corrupt the administrations, injure people's trust on the government and may bring about internal collapse of the democratic state. Therefore if public servants, who are entrusted with the administration of the country by people, distort the national administration by receiving money, such an act must be reprimanded severely as they have betrayed people's trust. And the law stipulates that such an act is the target for punishment as a specific crime. That is to say, the crimes such as bribery (Article 197-198), a misfeasance, forgery of documents, an usurpation and breach of trust are punishable by the criminal laws. However, although those crimes are punished by cruelest restrictions on human rights, the administrative vice minister as well as the professor of the national university had hand in a bribery case. Under those circumstances it is necessary to review the function and meaning of punishment. The public servants' ethics is regarded as the extension of morals as human geings in Japan, while, generally speaking, in other developed countries it is understood and provided individually as somethins special based on politicians' or public servants' status, as something that demands specific and practical duties. Therefore bribery tends to be punished by various special laws or by the parliament itself unlike Japan, where most of bribery cases are punished as a crime. So it is necessary to form public servants' ethics by not only actively applying punishment but also by improving and thoroughly applying expansive preventive measures such as education trainint, opening or personal assets to the public, internal and external administrative monitoring system and others. Also at this stage punishment must not be given as formal, administrative punishment. Instead, punishment must emphasize the formation of publi servants' ethics of not committing minor wrongdoings based on the belief that minor wrongdoings will lead to major wrongdoings. For that purpose it is necessary to clarify the specific line between illegal acts and legal acts by presenting public servants more specific norms of acts and obligate them to follow such norms, instead of merely depending on individual person's sense of morality. After making public servants understand the framework of their ethics by such a specific obligation, severe punishment must be given to a bribery case according to the criminal law based on the concept that a major crime cannot be tolerated, because in such a case the ethical order is violated by going beyond this framework. In this case attention must be paid to the iprovement of criminal laws and ordinances and the need of their more active application. That is to say, what is necessary is not only active intrepretation of the criminal laws and ordinances but also the establishment of punishment aganst bribery by the third paurty who acts as a mediator of prorit taking by taking advantage of one's positions, extension of a prosecution and prescription period, mandatory submission of testimonies and evidences according to the provision of an assumed proof and the establishment of the provision of crimial exemption, the public servants' obligation of waiver of their non-disclosure right in relation to their jobs. Taking into account the fat that most of the bribery cases start with a briber's side today, severer punishment must be given to a briber. Furthermore bribers are often corporatons, so the provision of punishing both a recipient and a briber and also provision of punishing a corporation must be considered. This paper contains the following items: 1. Introductoin (1) Provision of a bribery case (2) True nature and punishability of a bribery case 2. Form and

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