The subjective side of the crime. Concept and signs of guilt

What is malfeasance?

Malfeasance is understood as socially dangerous actions or inactions committed by citizens vested with authority, or employees of commercial organizations, contrary to official interests, which leads to negative consequences for third parties, companies, society and government agencies.

Characteristics of malfeasance include the following:

• acts are committed by government officials and employees using their official position;
• the crime encroaches on public relations for the legal, fair and effective implementation of state and municipal services;
• Victims are any citizens who have suffered from the unlawful actions of an employee and received material, moral or physical harm.

All elements of malfeasance are combined in Chapter 30 of the Criminal Code of the Russian Federation, which is devoted to encroachments on public relations in the field of state and municipal services.

If an employee commits an offense not related to official powers, the act does not constitute an official crime and its qualification should be carried out under the articles of other chapters of the Criminal Code of the Russian Federation.

If you are charged with committing a crime in office, use the help of SKP lawyers. We specialize in this category of case and help clients reduce or eliminate criminal sanctions as much as possible.

The concept of commercial bribery as a crime

Lawyer Antonov A.P.

From the point of view of economics and legal doctrine, bribery in the process of carrying out commercial activities is a socially dangerous act for the reason that it encroaches on the normal course of market relations in society and undermines the activities of persons performing managerial functions in commercial organizations. Due to bribery, the decision-making process based on purely market logic is distorted, since when using commercial bribery, an illegal way of influencing its subjects is used.

Russian criminal legislation formulates the concept of commercial bribery and establishes the corresponding liability for its commission - Art. 204 of the Criminal Code of the Russian Federation.

By commercial bribery, the legislator understands the illegal transfer of money, securities, or other property to a person performing managerial functions in a commercial or other organization, as well as the illegal provision of property services to him, the provision of property rights, for committing an action (inaction) in the interests of the giver or others persons, if the specified actions (inaction) are within the official powers of such person or if, by virtue of his official position, he can contribute to the specified actions (inaction). Commercial bribery in accordance with this article also includes the situation when, at the direction of a person performing managerial functions, property is transferred, services of a property nature are provided, property rights are granted to another individual or legal entity for performing actions (inaction) in the interests of the giver or other persons .

At the same time, in accordance with Art. 204 of the Criminal Code of the Russian Federation, commercial bribery is divided into both the illegal transfer of money, securities, and other property, the provision of services of a property nature and the provision of property rights (Part 1 of Article 204 of the Criminal Code of the Russian Federation), and the illegal receipt of money, securities, and other property, use of property services and property rights (Part 5 of Article 204 of the Criminal Code of the Russian Federation).

In accordance with the notes to Art. 201 of the Criminal Code of the Russian Federation, a person performing managerial functions in a commercial or other organization is recognized as a person performing the functions of a sole executive body or a member of the board of directors or other collegial executive body, as well as a person who permanently, temporarily or by special authority performs organizational, administrative or administrative functions. -economic functions in these organizations.

Paragraph 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 07/09/2013 N 24 “On judicial practice in cases of bribery and other corruption crimes” clarifies what is considered the illegal provision of services or the provision of property rights. The illegal provision of services of a property nature means the provision of any property benefits to an official as a bribe, including the release of him from property obligations, for example, the provision of a loan with a reduced interest rate for the use of it, apartment renovation, construction of a summer house, debt forgiveness, etc. . Receiving a bribe in the form of illegally granting property rights to a person is understood as the emergence of a legally enforceable opportunity for a person to take possession or dispose of someone else’s property as his own, to demand from the debtor the fulfillment of property obligations in his favor, to receive income from the use of uncertificated securities or digital rights, etc. .

The elements of this crime are formal. In accordance with paragraphs 10, 11 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 07/09/2013 N 24 “On judicial practice in cases of bribery and other corruption crimes”, the receipt and giving of illegal remuneration in commercial bribery will be considered completed from the moment of acceptance by the person performing managerial functions in a commercial or other organization, at least part of the values ​​transferred to him (for example, from the moment they are transferred personally to an official, credited with the consent of the official to the account specified by him, “electronic wallet”), regardless of whether the specified person received a real opportunity to use or dispose of the values ​​transferred to him at his own discretion.

In cases where the subject of receiving or giving a bribe or commercial bribery is the illegal provision of services of a property nature, the crime is considered completed from the beginning of the execution, with the consent of an official or person performing managerial functions in a commercial or other organization, of actions directly aimed at acquiring property property. benefits (for example, from the moment of destruction or return of a promissory note, transfer of property to another person to fulfill the obligations of the bribe-taker, conclusion of a loan agreement with a deliberately reduced interest rate for its use, from the beginning of repair work at a deliberately reduced cost).

Clause 11.1 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 07/09/2013 N 24 “On judicial practice in cases of bribery and other corruption crimes” stipulates that if the bribe giver intended to transfer, and the official intended to receive, a bribe in a significant or large or especially large amount, However, the illegal reward actually accepted by the official did not amount to the specified amount; the act must be qualified as a complete giving or receiving of a bribe, respectively, in a significant, large or especially large amount. For example, when a large bribe was supposed to be handed over in several stages, and the bribe-taker was detained after the first part of the bribe was handed over to him, which did not amount to such a size, the act should be qualified under paragraph “c” of Part 5 of Art. 290 of the Criminal Code of the Russian Federation.

Qualified (i.e. aggravating, increasing the size of the sanction) elements of commercial bribery are:

1) commission of commercial bribery in a significant amount. In accordance with the note to Art. 204 of the Criminal Code of the Russian Federation, a significant amount of commercial bribery is recognized as the amount of money, the cost of securities, other property, property services, other property rights exceeding 25,000 rubles;

2) commission of commercial bribery by a group of persons by prior conspiracy or by an organized group.

In accordance with paragraph 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 07/09/2013 N 24 “On judicial practice in cases of bribery and other corruption crimes”, the subject of commercial bribery is considered to have been received by a group of persons if two or more persons performing managerial functions participated in the crime who have agreed in advance to jointly commit this crime by accepting each of the group members part of the illegal reward for the commission of actions (inaction) by each of them in favor of the person who transferred the illegal reward or the persons represented by him.

In this case, the crime will be considered completed from the moment the illegal reward is accepted by at least one of the persons in the group. It does not matter how much money each member received, or whether the person transferring the illegal reward was aware that several people performing management functions were involved in receiving it.

Also, paragraph 16 of this Resolution of the Plenum of the Armed Forces of the Russian Federation indicates that an organized group, which, unlike an ordinary one, is characterized by stability, a high degree of organization, distribution of roles, the presence of an organizer and (or) leader, may also include persons not possessing the characteristics of a special subject of receiving commercial bribery;

3) committing commercial bribery on a large scale. In accordance with the note to Art. 204 of the Criminal Code of the Russian Federation, a large amount of commercial bribery is recognized as an amount of money, the cost of securities, other property, property services, other property rights exceeding 150,000 rubles;

4) commission of commercial bribery by a group of persons by prior conspiracy or by an organized group on an especially large scale. In accordance with the note to Art. 204 of the Criminal Code of the Russian Federation, an especially large amount of commercial bribery is recognized as the amount of money, the cost of securities, other property, property services, other property rights exceeding 1,000,000 rubles;

5) committing commercial bribery for obviously illegal actions (inaction);

6) coupling of commercial bribery with extortion of the subject of bribery.

In accordance with paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2013 N 24 “On judicial practice in cases of bribery and other corruption crimes”, extortion of the subject of bribery must be understood not only as a requirement to transfer illegal remuneration associated with the threat of committing actions ( inaction) that may harm the legitimate interests of a person, but also the deliberate creation of conditions under which a person is forced to transfer this remuneration in order to prevent harmful consequences for his legally protected interests.

To qualify the offense, it does not matter whether the person performing managerial functions had a real opportunity to carry out this threat, if the person who transferred the subject of commercial bribery had reason to fear that this threat would be carried out.

In clause 13.1 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 07/09/2013 N 24 “On judicial practice in cases of bribery and other corruption crimes” it is explained that a promise or offer of a person to transfer or accept illegal remuneration for committing actions (inaction) must be considered as intentional creating conditions for the commission of a corresponding corruption crime in the case when the intention expressed by a person to transfer or receive the subject of commercial bribery was aimed at bringing it to the attention of other persons for the purpose of giving them or receiving from them valuables, as well as in the event of reaching an agreement between these persons. If other actions aimed at realizing a person’s promise or offer to transfer illegal remuneration for performing the necessary actions (inaction) were not performed due to circumstances beyond his control, then the act is qualified as preparation for commercial bribery (Part 1 of Article 30 and Part 3 - 4 or parts 7 - 8 of Article 204 of the Criminal Code of the Russian Federation).

At the same time, commercial bribery as such must be distinguished from a number of other crimes, since by its nature it is externally similar to the crimes provided for in Art. 204.1 of the Criminal Code of the Russian Federation (mediation in commercial bribery), Art. 204.2 of the Criminal Code of the Russian Federation (small commercial bribery), art. 290 of the Criminal Code of the Russian Federation (taking a bribe), Art. 291 of the Criminal Code of the Russian Federation (giving a bribe) and Art. 184 of the Criminal Code of the Russian Federation (exerting unlawful influence on the result of an official sports competition or spectacular commercial competition).

Let us consider, first of all, Art. 204.1 of the Criminal Code of the Russian Federation.

The object of the crime in this case coincides with the object of the crime provided for in Art. 204 of the Criminal Code of the Russian Federation, i.e. normal, legally regulated management activities of commercial and other organizations.

The difference between Art. 204 of the Criminal Code of the Russian Federation and Art. 204.1 of the Criminal Code of the Russian Federation lies in the subject of the crime. If in Art. 204 of the Criminal Code of the Russian Federation, it is a person performing managerial functions in a commercial or other organization, then in Art. 204.1 of the Criminal Code of the Russian Federation, a subject is a person performing the functions of an intermediary, i.e. a person who transfers the subject of commercial bribery on behalf of the one giving or receiving the bribe, or who otherwise facilitates the achievement or implementation of an agreement between them on the transfer and receipt of bribery. The intermediary differs from the recipient or transmitter of the subject of commercial bribery in that he does not act in his own interests and not on his own initiative.

Regarding Art. 204.2 of the Criminal Code of the Russian Federation, then the object of the crime here is similar to the object of the crime of Art. 204 of the Criminal Code of the Russian Federation. There are differences regarding the specification of the objective side of the act in Art. 204.2 of the Criminal Code of the Russian Federation - committing commercial bribery in an amount not exceeding 10,000 rubles. In addition, in accordance with the explanation in question 2.1 of the Answers to questions received from the courts on the application of Federal Laws of July 3, 2021 N 323-FZ - 326-FZ, aimed at improving criminal liability for corruption crimes and economic crimes, and also the grounds and procedure for exemption from criminal liability (approved by the Presidium of the Supreme Court of the Russian Federation on September 28, 2016), the norms of Art. 204.2 of the Criminal Code of the Russian Federation contain special rules in relation to the provisions of Art. 204 of the Criminal Code of the Russian Federation.

Now let's turn to Art. 290 of the Criminal Code of the Russian Federation and Art. 291 of the Criminal Code of the Russian Federation, which establish liability for receiving and giving a bribe. Commercial bribery differs from them in two ways: in the object and subject of the crime.

Thus, in commercial bribery, the object of the crime is the normal exercise of rights and obligations in the process of exercising managerial functions of a commercial or other organization. When receiving or giving a bribe, the object is the normal and correct work of state authorities and local self-government. As for the subject of the crime, in commercial bribery the subject of the crime is the person performing the functions of managing a commercial organization or other organization. When receiving a bribe, the subject is an official, under whom, in accordance with Note 1 to Art. 285 of the Criminal Code of the Russian Federation, it is necessary to understand a person who permanently, temporarily or by special authority exercises the functions of a representative of government or performs organizational, administrative, administrative and economic functions in state bodies, local governments, state and municipal institutions, state corporations and companies, state and municipal unitary enterprises, joint-stock companies, the controlling stake of which belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

Article 184 of the Criminal Code of the Russian Federation establishes liability for the illegal transfer of money, securities, and other property, as well as the provision of property services, the provision of other property rights in order to exert unlawful influence on the result of an official sports competition or spectacular commercial competition. Comparing this crime with commercial bribery, we also discover a different object and subject of the crime. The object of the crime under Art. 184 of the Criminal Code of the Russian Federation will be normal activity in organizing sports competitions or an entertaining commercial competition. The subject will be persons who accept property provision or related services, rights in order to influence the results of a competition or competition: athletes, coaches, judges, managers, jury members, organizers of a competition or competition, etc.

Thus, in order to correctly qualify an act as commercial bribery, it is necessary to distinguish its composition from related elements of the crime.

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For what types of official crimes are people held criminally liable?

The main types of malfeasance include abuse of official position and abuse of official authority.

Abuse of official powers is understood as the use by a citizen of his powers contrary to the goals of his official activities with a selfish motive, which leads to material, physical and moral harm for citizens, companies and the state.

Exceeding official authority is the actions of a citizen that clearly go beyond the scope of his official regulations and relate to the powers of another employee.

If you are accused of exceeding official authority or abusing it, you should promptly contact a qualified lawyer. Investigative authorities are not always able to prove a crime, as our specialists are well aware of. We will help you reclassify the offense to a less serious one, and also tell you how to be released from punishment if there are grounds for this.

Who can be the subject of a malfeasance?

The subject of the crime is an official, that is, an employee vested with certain authority.

Within the framework of Chapter 30 of the Criminal Code of the Russian Federation, the following are recognized as officials:

• representatives of the authorities;
• employees with organizational and administrative powers;
• employees of administrative and economic structures.

The accused must work for government agencies, municipalities, state-owned companies or joint stock companies. This category also includes military personnel of all branches of the armed forces.

If you work in these structures, you must comply with job regulations and regulatory requirements. Violation of them may result in criminal liability. If you have any doubts about the legality of your actions, we recommend that you contact our lawyers. We will analyze your situation and advise you on the possible consequences of your action.

Legal advice on criminal liability for malfeasance

A timely contact with a qualified lawyer allows you to most competently build relationships with investigative authorities, prepare evidence of your innocence, and find mitigating circumstances. To obtain effective protection from criminal liability for malfeasance, contact the lawyers of SKP. Our experience and extensive practice in resolving such issues allow the client to get out of the situation with minimal losses. To receive legal assistance, fill out the feedback form or call. We will answer your questions at any convenient time.

References

Regulatory acts

1. Constitution of the Russian Federation. Adopted by popular vote on December 12, 1993 // Russian newspaper. 1993 (as amended in 2021)
2. Criminal Code of the Russian Federation No. 63-FZ of June 13, 1996 (as amended on March 14, 2019).
3. Civil Code of the Russian Federation. Part one. Federal Law of November 30, 1994 No. 51-FZ (as amended on October 4, 2019)
4. Resolution of the Plenum of the Armed Forces of the Russian Federation No. 15 of December 22, 1992 “On judicial practice in cases of premeditated murders” (reference and information system Consultant +)

Basic literature and electronic resources

1. Composition of the crime - Wikipedia. [electron. resource]: Access mode - https://ru.wikipedia.org/wiki/Corpus_delicti Date of access: 04/12/2020
2. The subject of the crime and the subject of the crime as signs of the object and objective side of the crime / Vinokurov V.N. / M.: 2021. No. 13.
3. Criminal law. General part: textbook./ Ivanov V.D/. — Rostov-on-Don: 2021.
4. On the corpus delicti / Chernov R.P. / Advocate. 2021. No. 10.
5. Russian criminal law. Lectures. Part General./ Tagantsev N.S./ M., 1994.1 volume
6. Theoretical issues of criminal liability./ Santalov A.I./ L.: 2021.
7. Object and objective side of the crime [electronic. resource]: Access mode - https://www.zapros-otvet.ru/obekt-i-obektivnaya-storona-prestupleniya-page2.html. Access date 04/12/2020
8. The subject and the subjective side of the crime [electronic. resource]: Access mode - https://www.zapros-otvet.ru/subekt-i-subektivnaya-storona-prestupleniya.html. Access date 04/12/2020

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