ST 204 of the Criminal Code of the Russian Federation.
1. Illegal transfer to a person performing managerial functions in a commercial or other organization of money, securities, other property, as well as illegal provision of property-related services to him, provision of other property rights (including when, at the direction of such a person, property is transferred or services of a property nature are provided, or property rights are granted to another individual or legal entity) for performing actions (inaction) in the interests of the giver or other persons, if these actions (inaction) are within the official powers of such a person or if, by virtue of his official position, he can contribute to these actions (inaction), -
shall be punishable by a fine in the amount of up to four hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to six months, or in the amount of five to twenty times the amount of commercial bribery, or by restriction of liberty for a term of up to two years, or by correctional labor for a term of up to two years, or imprisonment for the same period with or without a fine of up to five times the amount of commercial bribery.
2. Acts provided for in part one of this article, committed in a significant amount, -
shall be punishable by a fine in the amount of up to eight hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to nine months, or in the amount of ten to thirty times the amount of commercial bribery, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years, or without it, or restriction of freedom for a period of one to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it, or correctional labor for a period of one to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to three years with or without a fine of up to ten times the amount of commercial bribery and with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.
3. Acts provided for in part one of this article, if they are committed:
a) by a group of persons by prior conspiracy or an organized group;
b) for obviously illegal actions (inaction);
c) on a large scale, -
shall be punishable by a fine in the amount of up to one million five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or in the amount of twenty to fifty times the amount of commercial bribery, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it, or imprisonment for a term of three to seven years with or without a fine of up to thirty times the amount of commercial bribery and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
4. Acts provided for in part one, paragraphs “a” and “b” of part three of this article, committed on an especially large scale, -
shall be punishable by a fine in the amount of one million to two million five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years and six months, or in the amount of forty to seventy times the amount of commercial bribery, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years or without it, or imprisonment for a term of four to eight years with or without a fine of up to forty times the amount of commercial bribery and with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years or without it.
5. Illegal receipt by a person performing managerial functions in a commercial or other organization of money, securities, other property, as well as the illegal use by him of property services or other property rights (including when, at the direction of such a person, property is transferred, or property services nature are provided, or property rights are granted to another individual or legal entity) for performing actions (inaction) in the interests of the giver or other persons, if these actions (inaction) are within the official powers of such a person or if, by virtue of his official position, he can contribute to these actions (inaction) -
shall be punishable by a fine in the amount of up to seven hundred thousand rubles, or in the amount of wages or other income of the convicted person for a period of up to nine months, or in the amount of ten to thirty times the amount of commercial bribery, or by imprisonment for a term of up to three years with a fine in the amount of up to fifteen times the amount of commercial bribery. bribery or without it.
6. Acts provided for in part five of this article, committed in a significant amount, -
shall be punishable by a fine in the amount of two hundred thousand to one million rubles, or in the amount of wages or other income of the convicted person for a period of three months to one year, or in the amount of twenty to forty times the amount of commercial bribery, with deprivation of the right to hold certain positions or engage in certain activities. for a term of up to three years or imprisonment for a term of up to five years with or without a fine of up to twenty times the amount of commercial bribery and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
7. Acts provided for in part five of this article, if they:
a) committed by a group of persons by prior conspiracy or by an organized group;
b) are associated with extortion of the subject of bribery;
c) committed for illegal actions (inaction);
d) committed on a large scale, -
shall be punishable by a fine in the amount of one million to three million rubles, or in the amount of wages or other income of the convicted person for a period of one to three years, or in the amount of thirty to sixty times the amount of commercial bribery, with deprivation of the right to hold certain positions or engage in certain activities. for a term of up to five years or imprisonment for a term of five to nine years with or without a fine of up to forty times the amount of commercial bribery and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years.
8. Acts provided for in part five, paragraphs “a” - “c” of part seven of this article, committed on an especially large scale, -
shall be punishable by a fine in the amount of two million to five million rubles, or in the amount of wages or other income of the convicted person for a period of two to five years, or in the amount of fifty to ninety times the amount of commercial bribery, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to six years or imprisonment for a term of seven to twelve years with or without a fine of up to fifty times the amount of commercial bribery and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to six years.
Notes. 1. In this article and Article 204.1 of this Code, a significant amount of commercial bribery is recognized as the amount of money, the cost of securities, other property, services of a property nature, other property rights exceeding twenty-five thousand rubles, a large amount of commercial bribery - exceeding one hundred fifty thousand rubles, especially large-scale commercial bribery - exceeding one million rubles.
2. A person who has committed a crime provided for in parts one to four of this article is exempt from criminal liability if he actively contributed to the disclosure and (or) investigation of the crime and either extortion of the subject of bribery took place in relation to him, or this person voluntarily reported the crime committed to the authority that has the right to initiate criminal proceedings.
Commentary to Art. 204 Criminal Code
1. The commented article combines two independent elements of crime: giving commercial bribery (parts 1 - 4) and receiving commercial bribery (parts 5 - 8). The features of both crimes have much in common with the offenses of receiving and giving a bribe (Articles 290 and 291 of the Criminal Code); Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 9, 2013 No. 24 “On judicial practice in cases of bribery and other corruption crimes” is devoted to issues of their qualifications.
2. The subject of commercial bribery is defined in the law as money, securities, other property, services of a property nature, other property rights (clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013 No. 24).
3. The objective side of giving the subject of commercial bribery is the illegal transfer of the subject of bribery for the commission of actions (inaction) in the interests of the giver in connection with the official position held by the person.
The action (inaction) for which the subject of bribery is transferred must: a) be performed in the interests of the giver or other persons and b) be related to the official position held by the person. Action (inaction) in the interests of the transferor should be interpreted broadly, including in this concept not only specifically determined both legal and illegal action (inaction), but also general patronage or connivance in the service. The action (inaction) must also be related to the range of rights and obligations that the bribed subject is endowed with, or to his ability to facilitate the commission of actions (inaction) due to his official position.
The moment of transfer of the subject of bribery: before or after the commission of an action (inaction) does not matter (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013 No. 24).
4. The objective side of receiving the subject of commercial bribery is the illegal receipt of the subject of bribery for the commission of actions (inaction) in the interests of the giver in connection with the official position held by the person.
5. The transfer and receipt of property benefits for the formation of commercial bribery must be illegal, i.e. are not provided for by law or the employment contract or do not belong to a type of entertainment expenses (gifts).
6. The giving and receipt of the subject of commercial bribery are considered completed from the moment the recipient accepts at least part of the transferred values (clauses 10 - 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013 No. 24).
7. Qualified and especially qualified offenses of commercial bribery (as well as the punishment imposed on the person) are associated, among other things, with the assessment of the amount of commercial bribery, which requires in each case to accurately determine the amount of commercial bribery, including with the involvement of experts.
8. Note 2 to the article provides a special basis for exemption from criminal liability of a person who transferred the subject of commercial bribery if he actively contributed to the disclosure and (or) investigation of the crime and, alternatively, either extortion took place in relation to him, or if he voluntarily reported the bribery to the authority who has the right to initiate criminal proceedings.
Aggravating circumstances
The above acts can be committed:
- A group (organized) or persons who previously agreed.
- For knowingly illegal inaction/action.
- In large size.
Article 204 part 3 of the Criminal Code of the Russian Federation establishes for this:
- Fine up to 1.5 million rubles. or in the amount of receipts (income, salary) for 1 year or exceeding what was received by 20-50 times.
- 3-7 years in prison.
Additional sanctions are:
- A ban on carrying out activities, appointment to positions established by a judge, for a period of up to three years. This punishment may include a fine and imprisonment.
- A monetary penalty in an amount exceeding 30 times what was received. This fine can only be imposed in addition to imprisonment.
Second commentary to Art. 204 of the Criminal Code of the Russian Federation
1. The concept of “commercial bribery” covers two independent elements of crime - illegal transfer of remuneration, i.e. active bribery (parts 1-4 of the commented article), and its illegal receipt (parts 5-8).
2. The direct object is the normal functioning of the management apparatus of commercial organizations, as well as non-profit organizations that are not a state body, local government body, state or municipal institution, state corporation, state company, state or a municipal unitary enterprise, a joint-stock company, the controlling stake of which belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities.
An optional object may be the rights and legitimate interests of other organizations (commercial or non-profit), citizens, society or the state.
3. The subject of commercial bribery can be money, securities, any other property, as well as services of a property nature. The concept of services of a property nature is broken down in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2013 No. 24 “On judicial practice in cases of bribery and other corruption crimes” (clause 9).
4. Illegal transfer of remuneration (Part 1) from the objective side is characterized by the illegal transfer of money, securities or other property to a person performing managerial functions, or the illegal provision of property-related services to this person.
5. The analyzed crime is completed from the moment the person with managerial functions accepts at least part of the illegal remuneration or part of the services of a property nature.
An unsuccessful attempt to transfer illegal remuneration or illegally provide a property service, not completed for reasons beyond the will of the giver, should be qualified as an attempted commercial bribery.
6. The subjective side of this type of commercial bribery is characterized by direct intent and a special purpose: to induce a person performing managerial functions to perform any actions (inaction) in his interests in connection with his official position in a commercial or other organization.
7. The subject of this crime can be any person who has reached the age of 16 years.
8. The qualified corpus delicti of this crime (Part 2) means the illegal transfer of remuneration in a significant amount, i.e. for an amount over 25 thousand rubles. (note 1 to this article).
9. Particularly qualified personnel (Part 3) involves the commission of commercial bribery by a group of persons by prior conspiracy or by an organized group (Parts 2 and 3 of Article 35 of the Criminal Code), or for committing obviously illegal actions, or on a large scale (in the amount over 150 thousand rubles - note 1).
If illegal reward is given for the commission of criminal acts, the act should be classified as incitement to commit the relevant crime.
10. Illegal transfer of remuneration on an especially large scale (part 4) means that the value of the subject of commercial bribery exceeds 1 million rubles. (note 1).
11. Parts 5-8 of the commented article establish liability for the illegal receipt of remuneration by a person performing managerial functions in a commercial or other organization.
12. The objective side of this crime is characterized by the illegal receipt of money, securities, and other property, as well as the illegal use of services of a property nature for the commission of actions (inaction) in the interests of the giver in connection with the official position held by the offender.
This crime is considered completed from the moment of receipt of at least part of the property constituting the subject of bribery, or at least partial acceptance of a property-related service. The performance of retaliatory actions by a bribed employee in the interests of the giver goes beyond the objective side of the illegal receipt of a “commercial bribe”, and therefore does not affect the qualification of this crime.
13. The subjective side of the crime is characterized by direct intent. Selfish goals and motives are characteristic, but not obligatory features of this crime.
14. Subject - special: a person performing managerial functions in a commercial or other organization, i.e. possessing the characteristics provided for in Note 1 to Art. 201 CC.
15. Qualified personnel (part 6) - receiving illegal remuneration in a significant amount.
16. Particularly qualified types of passive bribery (Part 7) provide for the same circumstances as Part 3 of this article, and in addition - extortion of the subject of bribery. The content of this feature is disclosed in paragraph 18 of the above-mentioned resolution of the Plenum of the Supreme Court of the Russian Federation.
17. The most dangerous type of passive commercial bribery is receiving it on a particularly large scale, i.e. for an amount over 1 million rubles.
18. In note 2 to Art. 204 of the Criminal Code formulates the grounds for exemption from criminal liability of a person who illegally transferred remuneration or provided a property-related service to a person performing managerial functions in a commercial or other organization.
The culprit is exempt from criminal liability if he actively contributed to the disclosure and (or) investigation of the crime and at the same time: either extortion of the subject of bribery took place in relation to him, or he voluntarily reported the crime to the body that has the right to initiate a criminal case. It is important to note that the note to the article in question allows for the possibility of such a message not only about the committed, but also about the upcoming bribery.
Significant size
It recognizes a sum of money, the value of securities, other property, real rights, services exceeding 25 thousand rubles. For the above acts committed on such a significant scale, Article 204 Part 2 of the Criminal Code of the Russian Federation establishes the following penalties:
- Fine. Its size is up to 80 thousand rubles. or the amount of income of the culprit for 9 months. or exceeding the received one by 10-30 times.
- 1-2 years of correctional labor or restriction of freedom.
- Up to three years in prison.
In addition, it is possible to impose a ban on conducting activities or appointment to positions determined by a judge. When a fine is imposed, it is valid for 2 years, and in the case of restriction or imprisonment, as well as correctional labor, it is valid for 3 years.
Additionally
Article 204 part 4 of the Criminal Code of the Russian Federation establishes sanctions for acts committed in an amount recognized as particularly large. It is considered the amount of funds, the value of securities, other things, property rights, services exceeding 1 million rubles. Responsibility arises for the acts specified in part 3, paragraphs “a” and “b”, and is established in the form of:
- Fine. Its size is 1-2 million rubles. or the amount of income received by the offender for 2-6 months, or equal to 40-70 times the amount received. Additionally, a ban on holding positions or conducting activities established by a judge for 5 years may be imposed.
- 4-8 years in prison. Additionally, a monetary penalty is imposed in an amount exceeding 40 times the amount received, as well as the prohibition specified above.
Voluntary reporting of an act
Exemption from liability under the norm in question is allowed if the subject, of his own free will, notifies the body authorized to initiate criminal proceedings about the crime. This feature is realized under certain conditions. First of all, the message must be voluntary. This means that the person must independently decide on the need to notify the authorized body. Secondly, the message must be received by law enforcement agencies before they become aware of the crime from other sources. The reasons why a citizen notifies the authorized bodies do not matter. Particular attention should be paid to the fact that exemption from liability is allowed if the message is transmitted specifically to a specific body vested with the right to initiate criminal proceedings, and not to any government agency. Of course, the actions of the subject reporting the act should not contain signs of other crimes.
Qualifying features
Let's consider the aggravating circumstances that Article 204 of the Criminal Code of the Russian Federation provides for, with comments from lawyers. The first qualifying feature is the commission of an act by previously agreed persons. As experts point out, when considering it, it is necessary to pay attention to the fact that these subjects may also include citizens who do not perform managerial functions. An organized group may have a similar composition. As stated in the plenary Resolution of the Supreme Court of 2000, if there are grounds, such persons can be held accountable as accomplices, instigators and organizers. In such situations, the act will be considered completed at the moment the reward is accepted by at least one citizen exercising managerial functions.
Extortion
Removal of liability from a person is allowed if a citizen exercising managerial functions in a non-state or other organization demanded that he be given illegal remuneration (securities, money, other property) for bribery. Extortion, as a rule, is accompanied by threats to commit actions that could harm the interests of a person or create conditions under which he will be forced to commit an unlawful act in order to prevent likely consequences.
Subject of the act
What is meant by services that are considered commercial bribery (Article 204 of the Criminal Code of the Russian Federation)? The BC commentary indicates the following. Services within the framework of the norm under consideration should be considered actions that are aimed at eliminating costs. In particular, these may be activities (work) that must be paid for, but are provided free of charge. For example, renovation of a premises, construction of a cottage, etc. Judicial practice considers property rights for the illegal transfer of which Article 204 of the Criminal Code of the Russian Federation establishes liability to be:
- The possibility of a debtor filing a claim against a third party who has failed to fulfill an obligation towards him as a creditor.
- The right to rent real estate for a long period.
- The ability to make a claim under agreements on the alienation and use of exclusive rights to a product of intellectual work and a means of individualization.
Specifics of the attack
The corpus delicti is considered formal. The act is considered completed at the moment of receipt/transfer of at least some part of the values. If a person performing functions related to management activities at an enterprise refuses to accept property or rights, then the entity transferring them is held accountable for attempted crime. In some cases, the provision/receipt of valuables is prevented by circumstances beyond the control of the participants. In this case, their actions are regarded as an attempt to transfer/accept illegal remuneration during bribery.
Qualification Features
The stated intention to receive/transfer securities, money, other property, services, real rights is not considered as an act for which liability is provided for in Article 204 of the Criminal Code of the Russian Federation (“Commercial bribery”), if the subject did not take appropriate actions to implement it. The acceptance by a citizen performing managerial functions of these values, allegedly for behavioral acts that he cannot carry out due to the lack of necessary powers or the inability to use them, is qualified as fraud if there is an intent to acquire them. The owner of the property in such situations is liable for attempted bribery, if the appropriate conditions exist. In particular, it must be established that the transfer of values was carried out by a person for the purpose of the receiving entity performing actions/inactions in his favor.
Involvement with a bribe
A citizen exercising managerial functions who offers a subordinate to transfer illegal remuneration to an official in order to commit the desired inaction/action in the interests of the company will be liable as a perpetrator of a crime under Article 291. In this case, the employee who carried out the corresponding assignment will be punished as an accomplice. Article 204 of the Criminal Code of the Russian Federation will apply to a citizen performing managerial functions in an organization who has proposed to a subordinate in order to perform the desired inaction/action in the interests of the enterprise to transfer securities, money, and other property to an entity performing similar tasks in another company. The practice of applying the norm indicates that the employee who carried out the assignment will be liable as an accomplice. The person who offered the bribe is, accordingly, the performer. The norm in question mentions obviously illegal actions. These include behavioral acts that violate norms or are directly prohibited by law. An indication of knowingness means the subject knows that behavior is unacceptable.
Assistance in investigation
The note to the norm in question provides for the possibility of withdrawing charges of a crime from the subject. It is implemented if a citizen actively assists in the investigation or disclosure of an act. In particular, such actions are assumed by which a person helps to identify all citizens involved in a crime, to objectively and fully identify the circumstances of the event. For example, this could be an indication of the participants in the attack, truthful testimony, and so on.
