What is commercial bribery? Let's explain in simple words

Strictly speaking , commercial bribery is a criminal offense against the interests of service in commercial or other organizations. The maximum penalty under the Criminal Code of the Russian Federation is 12 years in prison.

Simply put , let's look at it with an example. The landlord agreed to sign a lease agreement, but with the condition: every month, in addition to the cost of the agreement, a certain amount must be paid into his pocket. People call this a kickback - an analogue of a bribe. In the language of the criminal code, this is commercial bribery.

Usage examples in "The Secret"

“Investigators may be bluffing. One entrepreneur participated in interrogation under the article “Commercial bribery” . The investigator looked at photographs in front of him, allegedly recording the transfer of a bribe. The interrogated saw them only from the reverse side, but decided that they proved his guilt, and confessed.”

(Managing partner Alexander Selyutin talks about how investigators apply pressure during interrogations.)

“I didn’t waste any money, I didn’t manage budget funds, I didn’t receive any money as a commercial bribe . I devoted nine years of my life to this project and never put my interests above the interests of the business.”

(Former head of the “Construction Directorate in the Far Eastern Federal District” Andrei Poplavsky, sentenced to 12 years in prison.)

What is commercial bribery

All means are good for competition, except illegal ones. Entrepreneurs have the right to use any legally permitted economic instruments, being sophisticated in their use to ensure access to resources, finance, influence and other assets, which ultimately guarantee an increase in profits - after all, this is the ultimate goal of business.

Question: What are qualified (i.e. aggravating, increasing the size of the sanction) elements of commercial bribery? View answer

When funds are obtained illegally, they speak of corruption. The meaning of this action is quite clear: wanting to receive some benefit, one party stimulates the other to perform an action or, conversely, encouraging inaction. In this case, stimulation can be both material (finance or other assets) and intangible (response actions or inaction).

What is the subject of bribery (Articles 290, 291, 291.1, 291.2 of the Criminal Code of the Russian Federation) and commercial bribery?

If improper remuneration for an action or inaction is transferred to the executive(s) representing the organization, it is not just a bribe, but a commercial bribery .

ATTENTION! The harm from commercial bribery is not only moral, this offense negatively affects the principle of competition that should guide a healthy economy. In addition, such an act undermines the authority of a particular commercial company.

Nuances

Responsibility for commercial bribery lies with both the one taking the kickback and the one giving it.

The amount of the fine and the severity of the punishment depend on the methods and size of commercial bribery. The most serious punishment - 12 years in prison with a fine of up to 50 times the amount of commercial bribery - is imposed for bribery on an especially large scale, committed by a group of persons, combined with extortion and illegal actions.

A significant amount of commercial bribery is recognized as an amount, the cost of securities, other property, services or rights exceeding 25,000 rubles, a large amount - over 150,000 rubles, an especially large amount - over 1 million rubles. As a rule, business owners rarely turn to law enforcement agencies if their managers are caught in commercial bribery, Vladislav Tsepkov, senior partner of the Yurlov and Partners law firm, told The Secret.

According to him, the owners prefer to quietly get rid of thieving directors. Many businessmen themselves approve of kickbacks when selling their products. Subordinates perceive this as a signal to do the same, but in their own interests.

Responsibility for bribery and commercial bribery

It must be remembered that criminal liability can be brought not only for receiving a bribe, but also for transferring it.

Commercial bribery

Punishment for transferring money (Part 1 of Article 204 of the Criminal Code of the Russian Federation):

• a fine in the amount of ten to fifty times the amount of commercial bribery with deprivation of the right to hold certain positions or engage in certain activities for up to two years;
• restriction of freedom for up to two years;
• forced labor for up to three years;
• imprisonment for up to three years.

If several people participated in commercial bribery, the punishment is more severe (Part 2 of Article 204 of the Criminal Code of the Russian Federation):

• a fine 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 up to three years;
• forced labor for up to four years;
• arrest for a term of three to six months;
• imprisonment for up to six years.

Punishment for receiving money (Part 3 of Article 204 of the Criminal Code of the Russian Federation):

• a fine in the amount of fifteen to seventy times the amount of commercial bribery with deprivation of the right to hold certain positions or engage in certain activities for up to three years;
• forced labor for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years;
• imprisonment for a term of up to seven years with a fine of up to forty times the amount of commercial bribery.

If several people participated in the crime, they will be punished with a fine 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 three years, or imprisonment for a term of up to twelve years with a fine of up to fifty times the amount of the bribe (Part 4 of Article 204 of the Criminal Code of the Russian Federation).

note

If you can prove that money was extorted from you, then perhaps criminal liability can be avoided. This is stated in the note to Article 204 of the Criminal Code. But this rule will only work if you are charged under Part 1 or 2 of this article.

Object of commercial bribery

The object does not mean the reward itself, but the area at which the purpose of bribery is directed, that is, the management of the organization. This activity:

• is carried out by specially authorized employees, whose responsibilities for its implementation are appropriately stipulated in their employment contracts;
• designed to serve the legitimate interests of citizens of the Russian Federation;
• strictly regulated by legislative provisions and internal acts of the organization.

Thus, as a crime, commercial bribery infringes on the normal functioning of the management apparatus of a commercial organization.

Commercial bribery Art. 204 of the Criminal Code of the Russian Federation or common signs with BRIBERY (PART 4).

Dear Colleagues! I believe that many of you will be interested in reading the current judicial practice in criminal cases of a crime under Art. 204 of the Criminal Code of the Russian Federation in our region, the position of the Armed Forces of the Russian Federation, which has many common features with bribery (receiving a bribe and giving a bribe).

Commercial bribery - Art. 204 of the Criminal Code of the Russian Federation - has many common signs of the objective side with bribery (receiving a bribe and giving a bribe). The distinction between bribery and commercial bribery should be carried out according to the object and subject of the crime.

When committing crimes under Art. 204 of the Criminal Code of the Russian Federation, illegal remuneration of a property nature is received by a person performing managerial functions in a commercial or other organization that is not a state body, local government body, state or municipal institution; in this regard, the object of these crimes are the interests of the service, which include, in particular, ensuring that a person, when performing managerial functions in a commercial or other organization, is guided by the legitimate interests of this organization, and not by the possibility of receiving illegal remuneration for this activity.

According to the disposition of Part 3 of Art. 204 of the Criminal Code of the Russian Federation, the subject of this crime is a person performing managerial functions in a commercial or other organization.

According to approx. 1 to st. 201 of the Criminal Code of the Russian Federation, these should include a person performing the functions of a sole executive body, a member of the board of directors or other collegial body, as well as a person who permanently, temporarily or by special authority performs organizational, administrative or administrative functions in a commercial or other organization, and also in a non-profit organization that is not a government body, local government body, state or municipal institution.

Thus, with the above, as well as the explanations contained in paragraphs 3-7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 16, 2009 No. 19, the responsibilities associated with managing the activities of other people are generally considered organizational and administrative (management in general of a commercial or non-profit organization, structural unit, area of ​​work, production activities of employees). Organization and planning of work, personnel selection, hiring and firing, organizing the work of subordinates, monitoring and verifying performance, maintaining discipline, and so on.

Administrative and economic responsibilities include the disposal and management of property, making transactions, concluding contracts on behalf of the organization, establishing procedures for storing, processing and selling property, accounting and control over the expenditure of material assets, organizing the sale or purchase of goods and services, receiving and issuing funds and documents.

When deciding whether a person’s actions contain corpus delicti under Art. 204 of the Criminal Code of the Russian Federation, it should be assumed that under a commercial organization in accordance with Art. 50 of the Civil Code of the Russian Federation should be understood as an organization (legal entity) that pursues profit as the main goal of its activities (business partnership - society, production cooperative, state and municipal unitary enterprise).

It is necessary to take into account that a unitary enterprise, being by virtue of Art. 113 of the Civil Code of the Russian Federation, a commercial organization is not vested with the right of ownership to the property assigned to it by the owner (founder), in respect of which it carries out only economic management or operational management (Articles 114 -115 of the Civil Code of the Russian Federation).

A non-profit organization that is not a state or local government body, a state or municipal institution, in accordance with civil law, includes a consumer cooperative, a public association or religious organization, charitable and other foundations, as well as an institution that is created by the owner to carry out management, socio-cultural or other functions of a non-commercial nature (Articles 50, 120 of the Civil Code of the Russian Federation).

Institutions are recognized as organizations created by the owner to carry out managerial socio-cultural or other functions of a non-commercial nature and financed by him in whole or in part (Article 120 of the Civil Code of the Russian Federation). These, for example, include educational institutions: schools, gymnasiums, lyceums, universities; cultural institutions: theaters, libraries, museums; healthcare: hospitals, sanatoriums, clinics, science, social services and social protection of the population.

Institutions can be created on the basis of any form of ownership, and accordingly can belong to the state, local governments, public and religious associations, and private owners.

Under Part 3 of Art. 204 of the Criminal Code of the Russian Federation applies only to employees of such institutions that are not state bodies, local government bodies, state and municipal institutions.

Let's look at a few examples.

1. Thus, in the opinion of the court, he was rightly recognized as the subject of a crime under Part 3 of Art. 204 of the Criminal Code of the Russian Federation, Elsakov S.S. - otolaryngologist, non-state health care institution "Departmental polyclinic at Solvychegodsk station" of the open joint-stock company "Russian Railways", which, having organizational and administrative functions, in particular - the authority to issue certificates of incapacity for work, has intent to illegally receive money for performing actions in the interests of the giver in connection with his official position, deliberately, for selfish reasons, illegally, without an examination, for a monetary reward of 1000 rubles each, issued certificates of incapacity for work to citizens of L. and L. who applied to him . (Kotlas City Court, case No. 1-256-2011)

2. In the court verdict against Tyupin M.A., leading engineer of the procurement group of the procurement department of the procurement department of the Kotlas branch of Ilim Exim LLC, who then held a similar position in OJSC Ilim Group, convicted of committing 9 crimes under Part .3 tbsp. 204 of the Criminal Code of the Russian Federation, the court indicated that the culprit performed managerial functions in a commercial organization and his powers, according to the instructions, included providing inventory to the Kotlas Pulp and Paper Mill and subsidiaries in assigned niches, participating in the conclusion of contracts for the supply of inventory, and conducting market monitoring purchased goods and materials, coordination of technical conditions, specifications, ensuring the confidentiality of information relating to the supply activities of the enterprise, conditions, timing and volumes of supplies, drawing up a financial plan and budget for the planning period for its group of goods and materials. (Koryazhemsky City Court, case No. 1-7-2011 )

The list of powers of the convicted person given in the verdict, in the opinion of the higher court, did not reveal exactly what administrative, economic or organizational powers he possessed.

From the case materials it follows that M.A. Tyupin has the authority. included management of a group of department engineers, control of the work of procurement department specialists for the purchase of goods and materials for investment objects supervised by him, i.e. organizational and administrative powers, as well as administrative and economic powers, which included monitoring compliance with the rules for storing inventory, holding competitions for the purchase of goods and materials, while he had the right to independently select companies for the competition, draw up a competitive list and give an opinion on whether , which of the companies satisfies the enterprise in terms of the combination of price and quality of supplied goods and materials, had the right to draw up a financial plan for payment for contracts for the supply of products, independently deciding on payment under a particular contract in full or in part, as well as drawing up an application for payment, which As a result of its introduction into the automatic financial settlement system (AFRS), it was transformed into a payment order, according to which payment for goods and materials received by the enterprise was made.

3. In the court verdict against B.N. Taburin, who was the director of transport and logistics of Savinsky Cement Plant OJSC, the court came to the conclusion that the latter performed organizational, managerial and administrative functions at the enterprise, since his duties according to The job description included taking measures for the timely conclusion of contracts for the supply, cleaning of cars, operation of the access track and other documents regulating the relationship of the enterprise, organizing repairs for the middle and lifting repairs of railway access roads, carrying out work to improve the operation and maintenance of the enterprise's transport. (Plesetsk District Court, case No. 1-120-2011).

According to the job description, Taburin B.N., in addition, managed the services subordinate to him, as well as managed the activities of the enterprise in the field of transport support for the enterprise with rolling stock, i.e. fully possessed organizational and administrative functions.

3. Thus, in one of the criminal cases there were no grounds for the subject to recognize the crime provided for in Part 3 of Art. 204 of the Criminal Code of the Russian Federation, S.S. Formalev, who was a representative at the Arkhangelsk airport, whose responsibilities included operational control of compliance with airline standards by ground service providers, operational control of passenger check-in, baggage check-in and completeness of payment for the transportation of excess baggage. These responsibilities are professional, not organizational and administrative. (Oktyabrsky District Court, case No. 1-295-2011)

To be continued…..

The difference between commercial bribery and bribery

In meaning, these crimes are almost identical; they have many similar features:

• the moment of completion of the crime is the transfer or receipt of at least a small share of the unlawful reward;
• the purpose of these offenses is self-interest;
• the guilt of the participants is their conscious intent, that is, the person understood that this action carried a public danger, and still committed it.

However, there are a number of procedural differences between a bribe and commercial bribery. Let's compare bribe and commercial bribery in the following table.

Concepts close to commercial bribery

The term “ commercial bribery ” is legally defined as a type of undue influence on management processes and the functioning of organizations or the activities of entrepreneurs. Commercial bribery poses a public danger. In everyday life there are well-established words and expressions that call this phenomenon:

• commercial bribe;
• corruption in the non-state sphere;
• trade “greasing”;
• bribe.

The results of the analysis of criminal cases of bribery and commercial bribery in the housing and communal services sector make it possible to identify and illustrate the most typical ways of committing this group of crimes. Being one of the important elements of the forensic characterization of crimes, the method of committing bribery and commercial bribery in the housing and communal services sector allows us to establish the characteristics of other elements that have their own characteristics, taking into account the specifics of the sphere of economic activity under consideration. What are the typical methods of committing bribery and commercial bribery in the housing and communal services sector? View answer