Otillbörlig förmån - En undersökning av lagstiftningen beträffande mut- och bestickningsbrotten med fokus mot otillbörlighetsrekvisitet

Sammanfattning: The Swedish Bribery Legislation in use today was written in 1977 and is consequently neither completely modern nor crystal clear. There are no legal definitions on what constitutes a bribe or what is giving rise to corruption and the verdicts are instead made on a case by case basis. The Swedish Bribery Legislation has over the years received a lot of criticism as it is seen as unpredictable and difficult to interpret. The penal provisions on bribery and corruption are relatively complex with many objective conditions and cross-references. Criticism has mainly been focused on the essential elements of the concept of the inappropriate. According to both the legislative history and the doctrine, what should be regarded as an unfair reward changes from time to time and a detailed assessment of the concept of unfair reward has therefore not been able to be specified in the legislation. This is the foundation of my work. Since there is no definition of unfair reward in the legislation, my main objective has been to investigate the condition closer and to clarify the current legal situation. In order to find further guidance when interpreting the concept of the inappropriate, I have in my presentation chosen to investigate the necessary condition in a number of different contexts. The purpose with this has been to clarify how one has chosen to deal with the concept of the inappropriate when used in other legislations, to thereby check whether one can learn something from this. I have examined three areas: unfair marketing in the Marketing Practices Act, unfair safety concept in tax law and, finally, market manipulation. My petition indicates both the advantages and disadvantages in the way chosen to deal with the concept of the inappropriate in the law that I have investigated. What I found throughout my work is that the critique against the legislation concerning corruption is justified and that a new legislation is much needed. The penal provisions on corruption is according to me flawed from a legal perspective as it is not possible that, after a detailed analysis of the legislation, form a satisfactory idea of what behaviors that may lead to a criminal liability. This ambiguity is, in my opinion, among other things due to the undefined term of unfair reward. In a report that the Corruption Committee published in the fall of 2010, a number of changes are suggested in an attempt to create a clearer law. One of the suggestions is an enterprise code that I welcome. This is since I during my research discovered that more guidance is needed in assessing the concept of the inappropriate and that such a guiding code could be a step in the right direction. Another proposed change by the Corruption Committee is that the word "bribe or other unfair reward" is replaced by the term “unfair influence". Also this suggested change is something that I welcome as a reward indicates that it would concern money or other benefits, which is incorrect. The impropriety should instead be attributed to the transaction in full, something that the proposed reformulated phrase better describe. I am eagerly looking forward to inspect the upcoming legislation and the Court's future application of the concept of the inappropriate. My hope is that a clearer guidance in the legal text and legislative history also will lead to clearer verdicts which ultimately results in a regulatory environment that lives up to the principle of legality and operating efficiency.