The Institute of donation has been known to legal science for a long time, since the time of Roman law. Donation (Latin — donatio) is reflected in the text of the main source of Roman law — Justinian’s Digestum. As noted by the famous Spanish novelist Professor Garcia Garrido: «Donation was understood in Roman law as an act of generosity, which implies a certain depletion of the donor’s funds and enrichment of the recipient of the gift» [1, p. 762].
Note that the emphasis on giving was on generosity. «Generosity» in the explanatory dictionary of the Russian language (Ozhegov S. I., Shvedova N. Yu [2, p. ]) is interpreted as providing selfless help to others, the absence of avarice. A generous person is contrasted with a stingy person who avoids spending or spending. Indeed, the transfer of a gift is always an expense or a decrease in the property of the giver and an increase in the property of the donee. From the interpretation of the concept of «generosity» follows one of the main signs of giving-selfless character. Thus, generosity is alien to profit or material benefit.
In the modern legal literature, including foreign ones, the main feature of donation is highlighted in the study of donation-unselfish character.
A gift is defined as the transfer of things by the giver to the donee, when the donee is not required by agreement or law to transfer anything specific back to the giver.An anonymous donation to the victims of a disaster or a toy for a small child are clearly gifts, because nothing is expected in return.
But can we talk exclusively about selflessness in giving? Is the purpose or motive of giving a gift always a desire to help your neighbor.
It seems that the intention to help does not always drive the giver selflessly, sometimes it may be gratitude, sometimes a desire to benefit in the future (for example, a profitable acquaintance in a certain area).
Therefore, considering the legal nature of giving, it is necessary to note the ambiguity of gifts. First, let’s analyze the category of «gift», as it is understood in the everyday, literal sense, when one person gives the object of desire directly to another person. Secondly, it’s necessary to challenge the assumption that gifts are always, or even usually are of a selfless nature.
According to E. A. Posner, it is important to distinguish between gifts that are made for the purpose of giving attention (iconic), and gifts that are given by quid pro quo (from the English «service for service») in trust relations [3, p. 567]. Iconic gifts correspond to formal gifts that are ritualistic (in connection with an event or phenomenon) and clearly of little value, such as New Year’s gifts. These gifts are motivated by the desire to establish or continue a relationship of trust. Other types of gifts may be motivated by a desire to meet the terms of the relationship in order to continue to benefit from it. Quid pro quo (exchange) gifts benefit the giver more than they cost the giver; token gifts do not necessarily cost the giver more than they benefit the giver.
By analyzing various motives, let’s assume that people who give gifts show their usefulness in this way. Since gifts are the result of different motives and since the motives are hidden from the recipient, it is never clear why the giver makes the gift. But sometimes the situation in which the gift is made clarifies the motives of the giver.
According to Melvin Aron Eisenberg, a gift is a voluntary transfer that is made or will be made in the future for moral reasons such as love, affection, friendship, camaraderie, gratitude, or to satisfy moral aspirations such as benevolence or generosity that is not directly conditioned by mutual exchange [4, p.821].
Professor Posner suggests three possible reasons why people are engaged in gifts: to improve the welfare of the donee; to increase the status of the giver (for example, as a benefactor); to create or strengthen exchange relations [3, p. 567]. In other words, «through giving, a person increases their usefulness by increasing the well-being of someone they care about (altruism)… or by communicating their desire to enter into an exchange relationship, or by receiving benefits from others in accordance with these relationships, they expect others to reciprocate» [3, p.569]. Therefore, a gift, like a contract, is a form of maximizing utility.
Prohibition of donation is the inadmissibility of entering into a gift contract in cases established by law.
This peculiarity exists in relation to the subject matter of the gift contract and consists in the fact that in relation to some subjects of civil law, it is impossible to make a gift.
The existing prohibition of giving and its limits in civil law lead to the need to consider situations where giving a gift requires a response, perhaps implicitly. For example, the essence of the obligation of reciprocity («the theory of reciprocity», given by the American psychologist Robert Cialdini [5, p. 34-35]. He noticed that at airports, members of the Krishna sect were more successful in collecting donations when they first gave people flowers as» gifts » than when they simply asked for donations.
People almost always gave a donation of a few dollars after receiving a flower that was practically useless. So strong is the obligation of reciprocity that potential donors of donations will go to great lengths to avoid receiving flowers (by changing their routes or not accepting flowers), but will not simply refuse to pay after receiving a flower. This example and similar examples in the sociological literature show that reciprocity is a deep-rooted and powerful norm of human behavior.
Reciprocity determines the presence of a counter-transfer, or the expectation of another counter-action. Any gift is gratuitous, and if the gift is due to the Commission of any actions by the other party, it leads to a bribe. A bribe is always transferred and received for any actions or omissions, and is of a retributive, mutual nature.
Given the «theory of reciprocity», gifts that were not given free of charge, but were conditioned and mediated by some actions in the interests of the giver, will be «bribes-thanks» [6, p. 60].
As S. A. Kirakosyan and A.V. Vlasova correctly point out, motives in the gift contract, like in any other civil law contract, are of key importance for the correct qualification of legal relations arising between the parties. Through the evaluation of motives, it is possible to judge the actual desire of the donor to increase the property of the donee, without receiving any material benefits, compensation or other counter-provision. These authors associate the establishment of limits in the civil legislation of the prohibition of giving to certain subjects with the motive (intention) of the donor [7, p.37].
A number of other scientists believe that the ban on giving between certain subjects is established due to their special status, so making a gift between them can lead to further abuse by these subjects or against them [8, p.45; 6, p. 60].
Among the areas of social significance that are prohibited from giving (with the exception of ordinary gifts), such as medicine, education, municipal and public services, as well as relations between commercial organizations in civil turnover, special attention should be paid to the prohibition of giving to civil servants. After all, the effectiveness of countering corruption in the public service system ultimately determines the quality of life of society and public administration.
Russian legal scholars have repeatedly called attention to the contradiction of item 3 of part 1 of article 575 of the Civil code of the Russian Federation (further – GK the Russian Federation)  and paragraph 6 of part 1 of article 17 of the Federal law of 27 July 2004 № 79 «On state civil service of the Russian Federation» (hereinafter-the Law on civil service) . The law on the state civil service prohibits a civil servant from receiving remuneration from individuals and legal entities in connection with the performance of official duties (gifts, monetary remuneration, loans, services, entertainment, recreation, transport expenses, and other remuneration).
However, article 575 of the civil code allows civil servants to receive ordinary gifts, the cost of which does not exceed three thousand rubles [11, p. 9]. This situation, according to A. Erdelevsky: «decriminalizes the acts provided for in articles 290 and 291 of the Criminal code of the Russian Federation  -receiving and giving a bribe-remuneration, if it is an ordinary gift» [13, p. 4].
Thus, there is a conflict between the provisions of the Criminal code, the Law on civil service and article 575 of the civil code.
A literal interpretation of paragraph 3 of part 1 of article 575 of the civil code leads to the conclusion that giving the usual gifts whose value doesn’t exceed three thousand roubles, allowed to persons holding state positions of the Russian Federation, public offices of constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, employees of the Bank of Russia, even «in connection with their official position or in connection with the performance of their official duties.»
As it was noted in the article, almost all gifts actually involve some form of reciprocity. The obligation of reciprocity is quite complex and involves a psychological aspect. Officials, in connection with their official position or the performance of their official duties, no one gives any gifts just like that. It is difficult to talk about the unselfishness of the donor’s motives when transferring even an ordinary gift to an official, since gifts to such persons bring even if not obvious, but benefit to the donor, or at least the donor will count on it.
The absence in law enforcement practice of uniform criteria for the legal distinction between an «ordinary gift» and a bribe indicates that this problem is still not fully resolved. There is no consensus in the assessment of the current legal situation and possible ways to resolve this conflict among Russian scientists and specialists in the latest scientific research [14, p. 115].
Rethinking once again the structure of the article 575 of the civil code on the prohibition of donation [15, p. 151], which to date is insufficiently elaborated from the point of view of the experience of domestic civil law and wealth of modern jurisprudence, we proposed to exclude paragraph 3 of part 1 about the possibility of giving the usual gifts to public servants.
References1. Roman private law: incidents, claims, institutions. Translated from Spanish / Garcia Garrido M. H.; Ed.: Kofanov L. L. - M.: Statute, 2005. - 812 p.
2. Ozhegov S. I., Shvedova N. Yu. Explanatory dictionary of the Russian language. - M.: Azbukovnik, 1997. - P. 410.
3. Posner E.A., 1997. Altruism, Status, and Trust in the Law of Gifts and Gratuitous Promises. Wisconsin Law Review. S. 597-609.
4.Eisenberg M.A., 1997. The World of Contract and the World of Gift. Cal. L. Rev. S. 821-866.
5. Cialdini R.B., 2009. Influence: Science and practice (5th ed.). Boston: Allyn & Bacon. P. 34-35.
6. Articles from magazines and collections. Korsakov K. V., sazhaeva M. A. On the issue of distinguishing the concepts of "gift" and "bribe" / / Russian justice. - 2018. - No. 2. - P. 60 - 62.
7. Articles from magazines and collections. Kirakosyan S. A., Vlasova A.V. The prohibition of donation and its limits in Russian civil law // Legal world. - 2016. - no. 7. - P. 34 - 38.
8. Articles from magazines and collections. Murashkin I. Y. problems of implementation of anti-corruption legislation on gifts // The Russian justice. - 2016. - No. 9. - P. 43 – 45.
9. Legal materials. Civil code of the Russian Federation (part one) No. 51-FZ of November 30, 1994 // Collection of legislation of the Russian Federation. - 1994. - No. 32. - St. 3301.
10. Legal materials. On the state civil service of the Russian Federation: Federal law No. 79-FZ of July 27, 2004 // Collection of legislation of the Russian Federation. – 2004. - No. 31. - St. 3215.
11. Articles from magazines and collections. Voronova S. V. Receiving gifts by civil servants: legal regulation in Russia and Germany // Academic law journal. - 2014. - №1(55). - Pp. 4-9.
12. Legal materials. Criminal code of the Russian Federation of 13.06.1996 N 63-FZ // Collection of legislation of the Russian Federation. - 1996. - No. 25. - St. 2954.
13. Articles from magazines and collections. Erdelevsky A. beware of Greeks bearing gifts! // Business lawyer. - 2000. - no. 21. - p. 4.
14. Articles from magazines and collections. Zimneva S. V. Prohibition on giving gifts to civil servants in the legislation of the Russian Federation and the Republic of Belarus // Problems of civil law and process: collection of scientific articles / Grodno state University. Kupala Univ.; ed.: I. E. Martynenko (chief editor) [and others]. - Grodno : Grsu, 2018. - Pp. 108-116.
15. Articles from magazines and collections. Zimneva S., Chumakova А. Legal Regulation of Civil Servants in Russia and Germany Receiving Gifts // Russian Law Journal. - 2015. - № 3. - 142 - 151.