Establishment by an official of an organization carrying out entrepreneurial activities, or participation in the management of such an organization personally or through an authorized representative, contrary to the prohibition established by law, if these acts are related to the provision of benefits and advantages to such an organization or to patronage in another form, -
shall be punishable by a fine in the amount of up to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of wages wages or other income of the convicted person for a period of up to six months, or compulsory work for a term of up to four hundred eighty hours, or forced labor for a term of up to two years, or arrest for a term of up to six months, or imprisonment for a term of up to two years.
- Article 288. Assignment of powers of an official
- Article 290. Receiving a bribe
Commentary to Art. 289 of the Criminal Code of the Russian Federation
The object of the crime is the activities of state bodies and local government bodies carried out in accordance with the law.
According to Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law. The legislation of the Russian Federation prohibits civil servants and persons holding public positions from engaging in entrepreneurial activities and participating in the activities of the management body of a commercial organization.
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NW RF. 1994. N 32. Art. 3301.
Thus, this prohibition is established in Art. 17 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”. In accordance with Art. 6 of the Federal Law of May 8, 1994 N 3-FZ “On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation”, Art. 11 of the Federal Constitutional Law of December 17, 1997 N 2-FKZ “On the Government of the Russian Federation”, art. 3 of the Law of the Russian Federation of June 26, 1992 N 3132-1 “On the status of judges in the Russian Federation”, Art. 4 of the Federal Law of January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation” members of the Federation Council of the Russian Federation, deputies of the State Duma of the Russian Federation, members of the Government of the Russian Federation, judges, prosecutors do not have the right to engage in entrepreneurial or other paid activities, except for teaching, scientific or other creative activities, including participation in the management of an economic entity, regardless of its organizational and legal form. In accordance with Art. Art. 12, 18 of the Federal Law of October 6, 1999 N 184-FZ “On the general principles of organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation”, a deputy of the legislative body of a constituent entity of the Russian Federation cannot engage in other paid activities (except for teaching, scientific and other creative), if he exercises his powers on a professional permanent basis. The highest official of a constituent entity of the Russian Federation (the head of the highest executive body of a constituent entity of the Russian Federation) also cannot engage in other paid activities, unless otherwise provided by the legislation of the Russian Federation.
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NW RF. 1997. N 51. Art. 5712.
RG. 1992. July 29.
Gazette of the SND and the Supreme Soviet of the RSFSR. 1992. N 8. Art. 366.
NW RF. 1999. N 42. Art. 5005.
In accordance with Art. Art. 37, 40 of the Federal Law of October 6, 2003 N 131-FZ “On the general principles of organizing local self-government in the Russian Federation”, as well as Art. 14 of the Federal Law of March 2, 2007 N 25-FZ “On Municipal Service in the Russian Federation” the following persons are not entitled to engage in entrepreneurial and other paid activities: the head of the local administration; deputies, members of an elected local government body, elected officials of local government (if they exercise their powers on a permanent basis); municipal employees.
Violation of the prohibition established by the legislation of the Russian Federation entails disciplinary liability. However, if an official establishes an organization engaged in business activities, or participates in the management of such an organization and at the same time provides it with various benefits and advantages, he may be brought to criminal liability under Art. 289 of the Criminal Code of the Russian Federation.
The objective side of the crime consists in the commission of the following actions: 1) the establishment by an official of an organization engaged in business activities, contrary to the prohibition established by law, or: 2) the participation of an official in the management of such an organization personally or through a proxy, contrary to the prohibition established by law; 3) providing an established or managed organization with benefits and advantages or patronage in another form.
In the case of the establishment (creation) of an organization carrying out entrepreneurial activities, the official acts as a founder or co-founder. An organization carrying out entrepreneurial activities can be either a commercial organization that pursues making a profit as the main goal of its activities (business partnership, business society, production cooperative), or a non-profit organization that does not pursue such a goal, but has the right to carry out entrepreneurial activities insofar as it serves the purposes for which it was created.
Participation in the management of an organization means the participation of an official in making various kinds of decisions regarding the activities of the organization. Such participation may take place in the case of sole management of the organization by filling a management position or in the case of an official becoming a member of any management body of the organization. Participation in the management of an organization can also be carried out through a proxy (for example, a relative), when in fact decisions regarding the activities of the organization are made by the official.
An obligatory sign of an objective party is the provision of benefits and advantages to an established or managed organization or patronage in another form. The provision of benefits, advantages and other patronage occurs through the use by an official of his powers and can be expressed in the following: exemption of the organization from any inspection, from prosecution and the imposition of various types of sanctions, provision of customs, tax, export benefits, creation of conditions for victory organizations in a competition to obtain a government order, creating obstacles for competitors, etc.
According to the construction of the objective side, the composition of the crime in question is formal. The crime is completed from the moment the actions included in the objective side are committed.
The subjective side is characterized by guilt in the form of direct intent. The person realizes that it is illegal, contrary to the existing prohibition, to establish an organization or participate in the management of an organization, while providing it with benefits, advantages or patronage in another form, and wishes to commit such actions.
A special subject of a crime is an official in respect of whom the law has established a ban on engaging in entrepreneurial activities and participating in the management of an organization engaged in entrepreneurial activities. Thus, an official of a state or municipal institution is not the subject of this crime, since the legislation does not prohibit him from engaging in entrepreneurial activities and participating in the management of an organization (unless such an official belongs to the category of state or municipal employees). The subject of the crime is also not a deputy of the legislative body of a constituent entity of the Russian Federation who does not exercise his powers on a permanent basis. At the same time, the provision by such officials of benefits and advantages to organizations established (managed) by them or other patronage can be qualified under Art. 285 of the Criminal Code of the Russian Federation.
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Yes, Art. 7 of the Federal Law “On the Civil Service System of the Russian Federation” provides for law enforcement service (which is a type of federal public service), including in government institutions.
Judicial practice under Article 289 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 20, 2018 N 127-APU18-12
By the verdict of the same court dated December 26, 2008, Krasnobryzhy was convicted under Part 2 of Art. 289 of the Criminal Code of Ukraine (illegal possession of a vehicle, committed repeatedly) to 5 years 6 months of imprisonment, under Art. , part 2 art. 289 of the Criminal Code of Ukraine (attempted unlawful possession of a vehicle, committed repeatedly) to 5 years in prison, under Part 3 of Art. 357 of the Criminal Code of Ukraine (illegal acquisition by any means of a passport or other important personal document) to 3 months of arrest.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 3, 2019 N 5-APU19-54
law enforcement agencies of the Republic of Tajikistan for criminal prosecution under paragraph “d”, part 4 of art. 200, paragraph 4 of Art. , part 3 art. , part 2 art. 289 of the Criminal Code of the Republic of Tajikistan. Having heard the report of judge Shmotikova S.A. about the circumstances of the case and the arguments of the appeals, explanations of Akhmedov D.M. and the speech of lawyer I.V. Zhivov, who supported the arguments set out in the complaints, the opinion of prosecutor Z.L. Abramova. about the absence of grounds to satisfy the complaints, Judicial Collegium
Ruling of the Supreme Court of the Russian Federation dated January 29, 2019 N 309-KG18-23814 in case N A50-5418/2018
The courts proceeded from the fact that the company, as part of the second part of the application in the declaration, did not fully provide information in accordance with the requirements of the information card of auction documentation and the Law on the Contract System, namely, it did not declare information about the absence of a criminal record for criminal offenses provided for by the procurement participant Articles 289, 290, 291.1 of the Criminal Code of the Russian Federation. The information provided in the declaration with the listed requirements that the procurement participant meets allows for the possibility of its ambiguous interpretation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 4, 2017 N 127-APU17-3
— 07/21/2010 under Part 2 of Art. 289, part *** art. 185, part 2 art. 185, part 1 art. of the Criminal Code of Ukraine to 2 years of imprisonment, suspended, with a probationary period of 2 years, - 12/26/2011 under Part 2 of Art. 289, part 2 art. 185, part 3 art. 185, , Criminal Code of Ukraine to 5 years 6 months imprisonment,
Ruling of the Supreme Court of the Russian Federation dated September 7, 2018 N 309-KG18-13511 in case N A76-8376/2017
A similar provision stated by the company is contained in paragraph 2 of the said review, but cannot be applied to the situation under consideration, since it concerns the illegality of refusal of admission to participate in an electronic auction due to the participant’s failure to provide a separate document explaining what exactly is meant by the absence of a conflict of interest , while in the present case the participant in the application did not actually indicate information about the absence of a criminal record for crimes under Articles 289, 290, 291, 291.1 of the Criminal Code of the Russian Federation.
Ruling of the Supreme Court of the Russian Federation dated October 20, 2021 N 306-ES21-19043 in case N A55-21340/2020
Part 1 of Article 31 of Law N 44-FZ provides for uniform requirements for procurement participants, including the absence of a procurement participant - an individual or the head of a legal entity - a procurement participant having a criminal record for crimes in the economic sphere and (or) crimes provided for in Articles 289 — 291.1 of the Criminal Code of the Russian Federation (with the exception of persons whose criminal record has been expunged or withdrawn).
On judicial practice in smuggling cases
Taking into account the provisions of paragraph 2 of Article 101 of the Treaty, the terms used in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation “customs border of the Customs Union within the framework of the EurAsEC” (“customs border of the Customs Union”), “State border of the Russian Federation with member states of the Customs Union” union within the EurAsEC" should be understood accordingly as "the customs border of the Eurasian Economic Union" (hereinafter - the customs border), "The state border of the Russian Federation with the member states of the Eurasian Economic Union" (hereinafter - the state border).
2. Courts should take into account that the procedure for moving goods and other items across the customs border or state border, as well as prohibitions and (or) restrictions associated with such movement, along with the legislation of the Russian Federation (on customs, on the State Border of the Russian Federation, on currency regulation and exchange control, on export control and others) are established by the law of the Union (Articles 6 and 32 of the Treaty).
Union law also includes decisions and orders of the permanent regulatory body of the Union - the Eurasian Economic Commission, adopted within the framework of its powers (for example, decision of the Board of the Eurasian Economic Commission dated April 21, 2015 No. 30 “On non-tariff regulation measures”).
When considering cases of smuggling of cultural property, courts should take into account that the list of cultural property for which a permitting procedure for export from the customs territory of the Union has been established, the rules for their export from the Russian Federation to other states that are not member states of the Union are determined by decisions of the Board of the Eurasian Economic commissions.
3. When deciding whether a person’s actions contain signs of crimes provided for in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation, courts must establish that illegally transported goods or other items belong to the contraband items listed in these articles.
If special knowledge is required when establishing that illegally transported goods or other items are contraband, then the courts must have the appropriate opinions of experts or specialists.
4. When determining the value of contraband items illegally transported across the customs border or state border, courts should proceed from state regulated prices, if any; in other cases, the amount of the indicated value is determined on the basis of the market value of goods, with the exception of goods moved by an individual across the customs border for personal use, in respect of which the customs value determined in accordance with Chapter 49 of the Customs Code of the Customs Union is used. In this case, it is necessary to take into account legal norms that allow not to take into account that part of the value of illegally moved goods that is allowed to be moved without declaration and (or) was declared (for example, note 3 to article 2001, note 2 to article 2002 of the Criminal Code of the Russian Federation).
