Article 171.2 of the Criminal Code of the Russian Federation. Illegal organization and conduct of gambling
Criminal Code>Section VIII of the Criminal Code of the Russian Federation. ECONOMIC CRIMES>Chapter 22 of the Criminal Code of the Russian Federation. CRIMES IN THE FIELD OF ECONOMIC ACTIVITY>Article 171.2. Illegal organization and conduct of gambling
1. Illegal organization and (or) conduct of gambling using gaming equipment outside the gambling zone, or using information and telecommunication networks, including the Internet, as well as communications, including mobile communications, or without receiving the established procedure for permission to carry out activities related to the organization and conduct of gambling in the gambling zone -
shall be punishable by a fine in the amount of up to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, or by compulsory labor for a term of one hundred eighty to two hundred and forty hours, or by restriction of liberty for a term of up to four years, or by imprisonment for a term of up to two years.
2. The same acts:
a) committed by a group of persons by prior conspiracy;
b) associated with the extraction of income on a large scale, -
shall be punishable by a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or by imprisonment for a term of up to four years with a fine in the amount of up to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three years or without it.
3. Acts provided for in parts one or two of this article, if they:
a) committed by an organized group;
b) are associated with the extraction of income on a particularly large scale;
c) committed by a person using his official position, -
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 five years, or by imprisonment for a term of up to six years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years or without it and with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years or without it.
Note. In this article, income on a large scale is income the amount of which exceeds one million five hundred thousand rubles, and in an especially large amount - six million rubles.
< Article 171.1. Production, acquisition, storage, transportation or sale of goods and products without labeling and (or) application of information provided for by the legislation of the Russian Federation
Article 171.3. Illegal production and (or) circulation of ethyl alcohol, alcoholic and alcohol-containing products >
Illicit income: a problem of calculation
On December 4, AG published news about a package of bills introduced by the Government of the Russian Federation to the State Duma aimed at preventing the creation of cartels, including by tightening criminal liability (bill No. 848392-7).
In my opinion, the fundamental problem of implementing criminal liability for cartels is establishing the degree of social danger of the act, to which criminal liability would be proportionate. In this regard, the question arises about the procedure for determining income, the extraction of which forms the material composition and determines the qualification of the act.
In the proposed version of the draft amendments to the Criminal Code of the Russian Federation (draft bill No. 848246-7), the Federal Antimonopoly Service of Russia directly proposes to count income without taking into account expenses incurred. That is, if, as a result of collusion at the auction, the winner (who is also a cartel participant) concluded and fulfilled a contract, then the entire amount of money received for the goods supplied (work performed, services rendered) will be considered income for the purposes of qualifying the act as a criminal offense - neither will be taken into account direct costs of the supplier (contractor, performer) for the manufacture or purchase of goods, materials, their delivery, compensation of workers, insurance, payment of loans, etc., nor indirect costs.
That is, a cartel participant (the winning bidder) who did not reduce the price at the auction by an additional 0.5% from the initial maximum contract price (despite the fact that, due to objective economic reasons, the maximum possible reduction for him could not exceed for example 1 or 1.5%). Nevertheless, such a supplier delivered a quality product, fulfilled its obligations under the contract in full and on time, and its costs and profit margins did not exceed normal market levels under comparable circumstances.
What are the prerequisites for this approach of the FAS Russia?
In fact, there are only 7 crimes in the sphere of economic activity, the obligatory element of which is the extraction of income: illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation), illegal organization and conduct of gambling (Article 171.2), illegal banking activities (Article 172) , restriction of competition (Article 178), market manipulation (Article 185.3), obstruction or illegal restriction of the rights of security holders (Article 185.4), unlawful use of insider information (Article 185.6).
The first three articles directly indicate the illegality of a particular activity, therefore there are no difficulties in distinguishing legal income from illegal income in judicial practice - it is a priori illegal, since the activity that brings it is initially illegal.
The definition of income for the purposes of applying legislation regulating the specifics of criminal liability for crimes in the field of business and other economic activities is contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 15, 2021 No. 48 (clause 15). For the purposes of monetary compensation, income is recognized as the total amount of illegal enrichment received as a result of the commission of a crime (without deduction of expenses incurred), in cash (cash, non-cash and electronic funds in rubles and (or) in foreign currency) and (or) in kind (movable and immovable property, property rights, documentary and uncertificated securities, etc.).
However, this definition is given exclusively for the purposes of monetary compensation as part of the implementation of a program for exemption from criminal liability in connection with compensation for damage (Article 76.1 of the Criminal Code of the Russian Federation). The Resolution of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004 No. 23 “On judicial practice in cases of illegal entrepreneurship” (hereinafter referred to as Resolution of the Plenum of the Supreme Court No. 23) uses a slightly different construction of the definition, which, due to its special subject, cannot be freely extended to another corpus delicti (clause 12): under income in Art. 171 of the Criminal Code of the Russian Federation should be understood as revenue from the sale of goods (work, services) during the period of illegal business activity without deducting the expenses incurred by the person associated with the implementation of such activity.
Territorial OFAS, guided by the Methodological recommendations on organizing interaction between the FAS Russia and interested law enforcement agencies to identify, disclose and investigate crimes related to restriction of competition (Article 178 of the Criminal Code of the Russian Federation), approved by Order of the FAS Russia dated August 8, 2021 No. 1073/ 19, identify a cartel with a deliberately illegal activity: “The anti-competitive activities of a cartel, directed against fair competition, are prohibited by the legislation of the Russian Federation and are, in essence, a type of illegal business activity. In this case, income should be understood as revenue from the sale of goods (work, services) within the framework of an anti-competitive agreement during the period of its existence without deducting expenses incurred by the person.”
. In accordance with paragraph 13 of the Resolution of the Plenum of the Supreme Court No. 23, when calculating the amount of income received by an organized group of persons, one should proceed from the total amount of income received by all its participants" (decision of the Komi OFAS Russia dated May 23, 2021 No. 02-01/3838 in case No. A18-10/18).
The only case of a differentiated approach to calculating illegal income is the composition of Art. 185.3 of the Criminal Code of the Russian Federation, where income is defined not in “pure” form, but as excessively received. Paragraph 2 of the notes to the article directly states: “Excess income in this article is income defined as the difference between income that was received as a result of illegal actions and income that would have been generated without taking into account the illegal actions provided for in this article.”
Thus, the question of what income is for the purposes of qualifying restrictions on competition under Art. 178 of the Criminal Code of the Russian Federation, does not have a clear answer. However, FAS Russia proposes to follow the approach used in cases of illegal entrepreneurship, enshrining it in the norm of criminal law. This, in my opinion, will lead to a catastrophic reduction in the standard of proof for criminal cartels. Thus, the basis for conducting a forensic examination before establishing income at the stage of initiating a case will actually be eliminated (after all, no special knowledge is needed to establish how much money the supplier (contractor, performer) received for the contract). However, in order to take advantage of the criminal liability program, a person must return illegally obtained income or otherwise compensate for the harm caused to him.
One can only imagine what the “price of freedom” will be. It appears that such conditions are incommensurate even with the conditions of exemption from liability for crimes in the field of tax evasion. Why can’t the construction of “excess income received” be used for cartels by analogy with Art. 185.3 of the Criminal Code of the Russian Federation, the developer does not explain. Although, in my opinion, it would most fully correspond to the goals of legal regulation and criminal policy in the field of competition protection.
Among other things, the mechanism for “synchronizing” the program for exemption from liability in a case of an administrative offense and in a criminal case now, in fact, does not exist. The first cartel participant (business entity) to “surrender” runs the risk that the head of another cartel participant will “reach” the investigator before he receives release in an administrative offense case.
It seems that the program of exemption from criminal liability for cartels in the context of the proposed legislative changes will not significantly affect the situation with the detection and suppression of cartels due to the significant legal risks that entrepreneurs face.
Official website of local government bodies of the city of Nizhnevartovsk
Article 5 of the Federal Law of December 29, 2006 N 244-FZ “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation” establishes that gambling establishments can be opened exclusively in gambling zones. At the same time, gambling zones cannot be created on the lands of populated areas.
Article 171.2 of the Criminal Code of the Russian Federation provides for criminal liability for the illegal organization and conduct of gambling.
Thus, organization and (or) conduct of gambling using gaming equipment outside the gambling zone, or without a license obtained in the prescribed manner to carry out activities for the organization and conduct of gambling in bookmakers and sweepstakes outside the gambling zone, or without permission obtained in the prescribed manner to carry out activities related to the organization and conduct of gambling in the gambling zone, or using information and telecommunication networks, including the Internet, or communications, including mobile communications, with the exception of cases of acceptance of interactive bets by organizers of gambling in bookmakers offices and (or) betting shops, as well as the systematic provision of premises for illegal organization and (or) conduct of gambling, is punishable by a fine in the amount of three hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to three years. , or by compulsory labor for a term of one hundred eighty to two hundred and forty hours, or by restriction of liberty for a term of up to four years, or by imprisonment for a term of up to two years.
Bringing violators to administrative liability is regulated by Art. 14.1.1 of the Code of the Russian Federation on Administrative Offences.
Thus, organization and (or) conduct of gambling using gaming equipment outside the gambling zone, or without a license obtained in the prescribed manner to carry out activities for the organization and conduct of gambling in bookmakers and sweepstakes outside the gambling zone, or without permission obtained in the prescribed manner to carry out activities related to the organization and conduct of gambling in the gambling zone, or using information and telecommunication networks (including the Internet) or communications (including mobile communications), with the exception of cases of acceptance of interactive bets by organizers of gambling in bookmakers and (or) sweepstakes shall entail the imposition of an administrative fine on legal entities in the amount of eight hundred thousand to one million five hundred thousand rubles with confiscation of gaming equipment.
The Code also regulates the liability of premises owners who offer premises to violators for carrying out these activities.
Thus, the provision of premises for illegal organization and (or) conduct of gambling entails the imposition of an administrative fine on legal entities in the amount of eight hundred thousand to one million five hundred thousand rubles.
Memo for the public on combating illegal gambling activities
The Federal Law of the Russian Federation “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation” provides the basic concepts used in regulating these legal relations.
Gambling is a risk-based agreement to win, concluded by two or more participants in such an agreement between themselves or with the organizer of the gambling game according to the rules established by the organizer of the gambling game.
Activities for organizing and conducting gambling - activities for providing services for concluding risk-based winning agreements with gambling participants and (or) organizing the conclusion of such agreements between two or more gambling participants.
Gaming equipment - devices or devices used for gambling.
A gambling zone is a part of the territory of the Russian Federation, which is intended for carrying out activities related to the organization and conduct of gambling and the boundaries of which are established by law.
A bookmaker's office is a gambling establishment in which the organizer of gambling makes bets with participants in this type of gambling.
Tote is a gambling establishment in which the organizer of gambling organizes betting between participants in this type of gambling, as well as the payment of winnings from the amount of bets accepted from participants in this type of gambling, minus the amount of remuneration charged by the organizer of this type of gambling.
It has been established that gambling zones are created in the territories of the following constituent entities of the Russian Federation:
- Republic of Crimea;
- Altai region;
- Krasnodar region;
- Primorsky Krai;
- Kaliningrad region.
It has been determined that bookmakers, sweepstakes, and their betting points (with the exception of those opened in gambling zones) can be opened exclusively on the basis of licenses .
Activities for organizing and conducting gambling in bookmakers, betting shops, and their betting points can also be organized outside gambling zones.
For the illegal organization and (or) conduct of gambling using gaming equipment outside the gambling zone, or using information and telecommunication networks, including the Internet, as well as communications, including mobile communications, or without receiving it in the prescribed manner The procedure for permission to carry out activities related to the organization and conduct of gambling in the gambling zone establishes administrative liability under Art. 14.1.1 of the Code of the Russian Federation on Administrative Offenses, the maximum penalty for which for legal entities is provided in the form of a fine of up to one million rubles with confiscation of gaming equipment.
The use of gaming equipment at betting points, through which betting is made in the absence of a gambling establishment employee, is also grounds for bringing to administrative liability under the above article.
Most “underground” gambling establishments use counterfeit gaming equipment, the possibility of winning on which is almost impossible.
For illegal organization and conduct of gambling, individuals are subject to criminal liability under Art. 171.2 of the Criminal Code of the Russian Federation.
Criminal liability for illegal business
Clarification of legislation
“Criminal liability for illegal business”
Criminal liability for illegal business activities is established in Art. 171 of the Criminal Code of the Russian Federation, which provides that carrying out business activities without registration or without a license is subject to criminal liability in cases where such a license is required, if this act has caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale.
In accordance with the note to Art. 170.2 of the Criminal Code of the Russian Federation, large income and large damage are recognized as damage, income or damage in an amount exceeding two million two hundred fifty thousand rubles.
Paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 N 23 “On judicial practice in cases of illegal business” indicates that such income should be understood as revenue for the entire period of illegal business activity without deducting expenses incurred by the person associated with the implementation illegal business activities.
This crime is classified under Part 1 of Art. 171 of the Criminal Code of the Russian Federation and entails 3 possible types of liability: a fine in the amount of up to 300 thousand rubles or in the amount of the wages or income of the convicted person for a period of up to two years; compulsory work for up to 480 hours; arrest for up to 6 months.
Part 2 Art. 171 of the Criminal Code of the Russian Federation contains qualifying features of this crime: commission by an organized group and extraction of income on an especially large scale.
In accordance with the note to Art. 170.2 of the Criminal Code of the Russian Federation, income on an especially large scale is income exceeding nine million rubles.
When committing a crime under Part 2 of Art. 171 of the Criminal Code of the Russian Federation, the legislator establishes the following types of liability: a fine in the amount of 100 to 500 thousand rubles or in the amount of wages or other income of the convicted person for a period of one to three years; forced labor for up to five years; imprisonment 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 the wages or other income of the convicted person for a period of up to six months, or without it.
The Supreme Court of the Russian Federation in paragraph 13 of Resolution No. 23 of November 18, 2004 “On judicial practice in cases of illegal business” indicates that when calculating the amount of income received by an organized group of persons while carrying out illegal business activities, the courts should proceed from the total amount income received by all its participants.
The subject of the crime, based on the provisions of Art. Art. 19 - Criminal Code of the Russian Federation, in accordance with the disposition of Art. 171 of the Criminal Code of the Russian Federation can be:
1) a person who has the status of an individual entrepreneur;
2) a person carrying out entrepreneurial activities without state registration as an individual entrepreneur;
3) a person who has been entrusted with the responsibilities of managing the organization, or a person who actually performs the duties or functions of the head of the organization - in the case of illegal business activities carried out by a legal entity.
Based on the meaning of Art. 171 of the Criminal Code of the Russian Federation, illegal business activity can be expressed in four forms:
1) business activities carried out without state registration;
2) business activities carried out in violation of the rules of state registration;
3) business activities carried out in the absence of a special permit (license);
4) business activities carried out in violation of licensing conditions.
Thus, carrying out business activities without registration occurs in the following cases:
— in the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs there is no record of the creation of such a legal entity or there is no record of an individual acquiring the status of an individual entrepreneur;
— the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs contains a record of the liquidation of a legal entity or the termination of the activities of an individual as an individual entrepreneur.
In the third case, there is no license, i.e., as defined by clause 2 of Art. 3 of the Federal Law of May 4, 2011 N 99-FZ “On licensing of certain types of activities” (hereinafter referred to as the Law on Licensing), a special permit for the right to carry out a specific type of activity.
In this case, the license is issued on paper or in the form of an electronic document signed with an electronic signature.
In accordance with Part 4 of Art. 9 of the Law on Licensing, the license is valid for an indefinite period, however, Art. 20 of the Licensing Law indicates that the license may be suspended, the license may be cancelled, and also that the license may be terminated due to the termination of the type of activity of the licensee for which the license was granted.
Thus, in the absence of a license initially or in the event that an already issued license does not have legal force, carrying out business activities will be illegal.
In the fourth case, a situation arises when a license is available, but the conditions for its provision are violated: the conditions for the products are not met, the technical requirements for carrying out a particular activity are not met, etc.
Considering the fact that entrepreneurship is the driving force of a market economy, the legislator makes a number of concessions in terms of attracting citizens to appropriate types of punishment under criminal liability.
So, in accordance with Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation, a person who has committed a crime under Part 1 of Art. for the first time. 171 of the Criminal Code of the Russian Federation, is exempt from criminal liability if it compensated for the damage caused to a citizen, organization or state as a result of the commission of a crime, and transferred to the federal budget monetary compensation in the amount of twice the amount of damage caused, or transferred to the federal budget the income received as a result of the commission of a crime. crime, and monetary compensation in the amount of twice the amount of income received as a result of the crime, or transferred to the federal budget an amount of money equivalent to the amount of losses that were avoided as a result of the crime, and monetary compensation in the amount of double the amount of losses that were avoided in as a result of the commission of a crime, or transferred to the federal budget an amount of money equivalent to the amount of the committed act provided for by the relevant article of the Special Part of this Code, and monetary compensation in the double amount of this amount.
At the same time, in accordance with paragraph 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27, 2013 N 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability”, in order to terminate criminal prosecution, compensation for damage and the transfer of income and monetary compensation to the federal budget must be carried out in full until the court leaves the deliberation room. The very amount of damage subject to compensation is determined on the basis of primary accounting documents, civil contracts, statements (certificates) of current accounts, information on transactions using electronic means of payment, etc.
In relation to a person or group of persons who have committed a crime for the first time under Part 2 of Art. 171 of the Criminal Code of the Russian Federation, exemption from criminal liability on the basis of Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation is not provided for.
Art. assistant prosecutor of Chelyabinsk
Junior Counselor of Justice E.Yu. Blinovskikh
