We analyze Art. 204 of the Criminal Code of the Russian Federation as amended on May 4, 2011 (Federal Law No. 97-FZ).
Object and subject of a criminal offense
As an offense, commercial bribery refers to a group of crimes against the legitimate interests of service in organizations.
Its direct object is recognized as normal, corresponding to current legislation and constituent documents, the work of a commercial or other organization - and first of all its administrative apparatus.
For clarity, we turn to the interpretation of the term "commercial organization". The official definition is given by the Plenum of the Armed Forces of the Russian Federation. A business is recognized as an organization whose activity is aimed at generating profit (production cooperative, business partnership, etc.).
Other organizations in this context are legal entities that have the right to carry out entrepreneurial activity strictly to achieve the goals specified in the constituent documents. The law prohibits the distribution of profits from such activities between participants in the organization.
The subject of this crime is understood quite widely: it is cash, cash in non-cash circulation, and securities of any kind, and property (equally movable and immovable), and property services. Money means not only Russian rubles, but also any foreign currency, as well as all types of payment documents (including in foreign currency).
It makes little sense to dwell on the meanings of the above terms, since they are all comprehensively described in civil law. It is only necessary to clarify that property within the meaning of this article of the Criminal Code of the Russian Federation can be both movable and immovable. As for the services of a property nature, they are understood as paid services, as an exception, provided to the administrative staff of the organization for free. Such services may include the repair of houses and cars, the provision of permits, the construction of garages, leasing and rental, opening a bank account.
The main thing is that all these actions lead to the emergence of a property right or a specific material benefit in the manager.
It should be borne in mind that acts of a non-property nature are not subject to commercial bribery (as is the case with bribery).
Two composition
Commercial bribery as a term of criminal law simultaneously covers two autonomous elements of a crime. These compositions have a single object and subject. The subject, as well as the objective and subjective sides, are independent and are indicated in different parts of the article.
Part one
In the first part of Art. 204 of the Criminal Code of the Russian Federation provides for a crime, the objective side of which may be alternative actions: the transfer of material goods to the person responsible for performing managerial functions in the organization, or the provision of property services to this person. The transfer of material goods and the provision of services is not disinterested, but in exchange for the manager to perform an action (inaction) in the interests of the proposer of value, and the action (inaction) can only be performed through work in the corresponding managerial position.
In simple words, the objective side of commercial bribery can be described as “illegal compensation”. In practice, the giver does not always benefit from the crime. Often, he represents the interests of an organization or enterprise.In many ways, the methods of transmitting such illegal remuneration, as well as the interests of the giver are identical to similar concepts as part of another crime, namely - giving bribes.
What is the difference between bribery and commercial bribery? The latter does not imply patronage or connivance at work.
Components of commercial bribery
- Subject - tangible assets (both cash and cash in non-cash circulation; any movable or immovable property; securities of all types). The subject of the criminal offense may also be property services.
- The above values are transferred to employees of commercial or other organizations (provided that these employees are responsible for performing managerial functions).
- The transfer of values, as well as the provision of services, takes place in exchange for an action or inaction directly related to the occupation of a certain official position.
- The actions of the “giver and the taker” are interdependent.
In the theory of criminal law, the composition of commercial bribery is considered formal. The crime is over from a fixed point in the transfer of illegal remuneration - even if not completely, but partially. To recognize this crime as completed, the commission of a specific action (inaction) by a person responsible for performing managerial functions in a commercial or other organization is not required.
If the transfer of remuneration did not take place for reasons beyond the control of the giver (force majeure), the deed is qualified as attempted commercial bribery.
The subject and subjective side of a criminal offense
The intent is direct, the purpose is special. The person offering the illegal remuneration is aware of the illegality of his actions, however, he wants to perform them in order to induce the manager to perform an action (inaction) related to his official position in the interests of the proposer of value.
Any person can become a subject, subject to sanity and sixteen years of age. That is, within the framework of such an offense as commercial bribery, the Criminal Code of the Russian Federation implies the possibility of benefiting almost any citizen.
Part two
The second part of the article spells out the qualified composition of commercial bribery.
Qualifying signs:
- The crime was committed by a group of persons in the presence of a preliminary conspiracy.
- The crime was committed by an organized group.
- The crime was committed for knowingly illegal actions (inaction) of the person responsible for the performance of managerial functions in the organization.
Special attention should be paid to the note to the article. According to the note, the offender is relieved of responsibility if he himself is a victim of extortion by the manager or if he voluntarily reported the commission of a crime to the body authorized to institute criminal proceedings under article 204 “Commercial bribery”.
Part three
The third part of this article of the Criminal Code of the Russian Federation provides for criminal liability for receiving illegal remuneration by a person responsible for performing managerial functions in an organization.
The objective side of the analyzed crime is expressed in one of the following alternative actions: there is either an illegal receipt of material goods, or illegal use of the offered property services for an action (inaction) in the interests of the person who offered the remuneration. Actions (inaction) should be directly related to the labor duties of the person accepting the values.
How can the perpetrator use his own official position? It is noteworthy that even the commission of inaction (that is, abstention from taking an active action, passivity), within the meaning of the law, should be the responsibility of the culprit.
An action (inaction) can be either illegal or simply unlawful (for example, an unjustified reduction in the value of a product).
Consequently, the signs of commercial bribery within the meaning of Part 3 of Article 204 of the Criminal Code of the Russian Federation include the following circumstances:
- Subject - material values (Russian and foreign currency in cash or non-cash, securities of all types, movable property and real estate) or specific property-related services.
- The above values are accepted by the employee of the organization performing managerial functions in it.
- Values are accepted in exchange for actions (inaction) that are directly related to the official position of the manager.
- The actions of the giver and receiver are interdependent.
The corpus delicti is recognized as formal. As a criminal offense, commercial bribery is terminated if the manager accepted at least part of the material goods or partially accepted the property service. Performing an action in the interests of the giver is not necessary to recognize the crime as completed.
The intent in such a crime is direct, since the perpetrator is aware of the criminality of his actions and still wants to commit them. Motives and goals in such a composition can be any, although it is obvious that self-interest is primarily driven by the guilty.
The subject of the crime is special, since he must occupy the appropriate official position in the organization.
Part four
In the fourth part of this article of the Criminal Code, commercial bribery is described as a crime with qualified personnel.
Signs of qualifying compounds:
- The crime was committed by a group of persons in the presence of a preliminary conspiracy.
- The crime was committed by an organized group.
- Crime involves extortion of illegal remuneration.
- The crime was committed for knowingly illegal actions (inaction).
The concept of “extortion” should be clarified here. It means that the manager either directly demands illegal remuneration, or deliberately puts the victim of a crime in a position in which the victim is forced to transfer illegal remuneration to the manager in order to avoid harm to his legal rights and interests.
Documents
If you are interested in commercial bribery, judicial practice and relevant explanations of the Plenum of the Armed Forces of the Russian Federation will help to understand in more detail the composition and features of this crime.
