The legislator identifies several offenses that provide for liability for abuse of power.
Article 201 of the Criminal Code of the Russian Federation Abuse of powers, Article 201.1 of the Criminal Code of the Russian Federation Abuse of powers in the implementation of a state defense order and Article 202 of the Criminal Code of the Russian Federation Abuse of powers by private notaries and auditors are similar in content in terms of hypothesis and disposition, the difference between them lies in the subject of the crime and qualifying criteria.
What is abuse of power
It is necessary to begin with the fact that, as mentioned above, abuse of powers can only be committed by a special subject who actually possesses these same powers.
In the context of Art. 201 of the Criminal Code of the Russian Federation is the head of a commercial or non-profit organization (which is not a state or municipal body or organization, that is, predominantly a privately owned organization), a structural unit or another person performing management functions, in the context of Art. 201.1 of the Criminal Code of the Russian Federation is the same person, but the abuse must occur in relation to the state defense order, and in the context of Art. 202 of the Criminal Code of the Russian Federation, the subject may be a notary or an auditor. The act itself as an abuse of power can be expressed in concluding an illegal transaction, giving instructions to a subordinate to carry out such a transaction, making an illegal decision, committing an illegal notarial act by a notary, issuing an untrue conclusion by an auditor, and other actions that are aimed contrary to the legitimate interests of the organization. obtaining benefits or advantages for oneself or other persons, and resulted in significant harm. Thus, the composition of Art. Art. 201 of the Criminal Code of the Russian Federation, 201.1 of the Criminal Code of the Russian Federation and 202 of the Criminal Code of the Russian Federation is formed in the presence of such characteristics as the proper subject (manager, manager, notary, auditor), unlawful use of powers contrary to the interests of the organization, the goal is to extract benefits, advantages for oneself or other persons, indicated the actions caused significant harm. CRIMINAL LAWYER call now: ☎ 8 (495) 532-75-40
Commentary to Art. 201 Criminal Code
1. The use of powers contrary to the legitimate interests of the organization, as an act constituting the objective side, involves both the commission of actions and inaction, when a person does not carry out the necessary actions of a managerial nature in the presence of an obligation and the possibility of performing them.
It is criminally punishable to commit actions within the limits of the powers formally granted to the person, but contrary to the legitimate interests of the organization, and to exceed the powers, i.e. performing actions that go beyond the powers formally granted to the person.
2. The crime is considered completed from the moment of causing significant harm. This concept is evaluative and is expressed in causing property and other economic damage.
3. The subjective side is characterized only by direct intent and an alternatively provided purpose for committing a crime: a) the purpose of obtaining benefits and advantages for oneself (i.e., for the perpetrator) or other persons, or b) the purpose of causing harm to other persons.
4. Special subject: a person performing managerial functions in a commercial or other organization (note 1 to the article). The content of legally significant features of this subject is disclosed in paragraphs 4, 5, 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and abuse of official powers.”
Organizational, administrative and administrative duties must be performed by a person permanently, temporarily or under special authority. The constant performance of the relevant duties involves their performance for an indefinite period of time or a period of time limited by law or regulation; temporary - their implementation for a short period specified by a by-law or contract (for example, replacing a temporarily absent head of an organization). Fulfilling duties under a special authority means performing certain actions that form these duties on the basis of a law, by-law, court decision or agreement. Persons performing organizational, administrative and economic responsibilities under special authority include, in particular, arbitration managers and heads of temporary administration during bankruptcy procedures and other procedures related to the latter; attorneys representing the interests of the state in the management bodies of joint-stock companies, part of the shares of which (no more than 50%) is assigned (located) in federal ownership.
5. The concept of grave consequences in Part 2 is evaluative and is expressed in the infliction of property and economic harm that goes beyond the essential.
Protection under Art. Art. 201 of the Criminal Code of the Russian Federation, 201.1 of the Criminal Code of the Russian Federation and 202 of the Criminal Code of the Russian Federation Abuse of power
The defense for abuse of power is based on the specific circumstances charged. Firstly, it is necessary to check whether the defendant had the powers charged with guilt, to look up job descriptions, an employment contract, and statutory documents. Find out what the abuse was, in the opinion of the prosecution. Secondly, the important thing is whether the actions were illegal, whether they were committed contrary to the legitimate interests of the organization, for example, was it possible to assume at the time of concluding any transaction, the commission of which is charged, that such a transaction would be extremely unprofitable and would cause significant harm. Thirdly, it is necessary to find out exactly what benefits the defendant or other person received as a result of such actions, what is the connection between the defendant and the beneficiary. In any case, it is necessary to pay attention to these components when carrying out a defense, however, defense tactics as an addition or as the main line can also be built on procedural violations, in the direction of establishing mitigating circumstances.
Commentary on Article 201 of the Criminal Code of the Russian Federation
1. The objective side of the crime is characterized by:
1) the use by a person of his powers contrary to the legitimate interests of the organization (socially dangerous act);
2) consequences in the form of significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state;
3) the causal relationship between the employee’s behavior and these consequences.
2. A socially dangerous act is realized both through action (committed within or exceeding one’s powers) and through inaction of an employee of the relevant organization, expressed in the use of managerial powers contrary to the legitimate interests of this organization.
The powers of a person performing managerial functions in a commercial or other organization may be determined by law or other regulatory act that does not contradict them with the organization’s charter, agreement (contract), order, regulation.
3. The use by a person of his powers contrary to the legitimate interests of a commercial or other organization should be understood broadly: as the commission of an act against the objectives of the organization’s activities defined in the law and in the constituent documents.
4. The crime is considered completed from the moment significant harm occurs as a result of abuse of power, which is established by the court in each specific case based on the circumstances of the crime. Being in its content both property (material) and any other (moral, physical, organizational), it can be caused to its organization, and therefore criminal prosecution for such a fact is carried out upon application or with the consent of the organization. If significant harm is caused to the interests of other organizations, as well as citizens, society and the state, then criminal prosecution is carried out on a general basis.
5. Special subject - a person who has reached the age of 16 years:
— performing the functions of the sole executive body, member of the board of directors or other collective body;
- permanently, temporarily or by special authority, performing organizational, administrative or administrative and economic duties assigned to him in the prescribed manner, in a commercial organization, regardless of the form of ownership, or a non-profit organization that is not a state, municipal body or institution.
6. It is recommended to include the organizational and administrative functions of managing the workforce (team management, placement and selection of personnel, organizing the work or service of subordinates, maintaining discipline, etc.), and the administrative and economic functions include the powers to manage and dispose of property ( making decisions on the calculation of wages, bonuses, monitoring the movement of material assets, etc.) (clauses 3 and 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery" <1>).
——————————— <1> BVS of the Russian Federation. 2000. N 4.
7. The fundamental difference between the crimes provided for in Ch. 23 of the Criminal Code, from those listed in Chapter. 30 of the Criminal Code consists of the characteristics of their object and subject.
8. The subjective side is characterized by direct intent and a special purpose - extracting benefits and advantages for oneself or other persons (relatives, loved ones, business partners, etc.) or causing harm to other persons.
9. The grave consequences (Part 2 of the article under comment) are not disclosed in the law. These include a major accident, causing material damage on a particularly large scale or a significant number of victims, loss of a significant number of jobs, etc. In accordance with Art. 27 of the Criminal Code, a crime that entails these consequences may be committed through negligence.
10. Note 2 of the article establishes a special procedure for initiating criminal prosecution.
Lawyer under Art. Art. 201 of the Criminal Code of the Russian Federation, 201.1 of the Criminal Code of the Russian Federation and 202 of the Criminal Code of the Russian Federation Abuse of power
An abuse of power lawyer will provide the necessary assistance at all stages of criminal prosecution. Taking into account the specifics, a criminal lawyer when defending under Art. Art. 201 of the Criminal Code of the Russian Federation, 201.1 of the Criminal Code of the Russian Federation and 202 of the Criminal Code of the Russian Federation must understand special areas of law, corporate, financial, contractual, since it is on such circumstances that charges can be based and without understanding the specifics it is impossible to provide high-quality legal assistance in this category of cases. Criminal prosecution for abuse of power quite often begins with a conflict between a manager (director, manager) and beneficiaries (founders), when controversial views on certain decisions or transactions arise. If such a conflict becomes heated, law enforcement agencies usually get involved. It is advisable to be prepared for this in advance. The sooner you contact a criminal lawyer and carefully develop your position, the more confident you will be in contact with law enforcement agencies, who, if they have reasoning, will no longer make a hasty and thoughtless decision to initiate criminal prosecution. To contact an abuse of power lawyer, call the phone number listed on the website.
Punishments for abuse of power
Alternative sanctions under Part 1 of Article 201 of the Criminal Code of the Russian Federation:
- a fine of up to 200 thousand rubles (or in the amount of the income of the convicted person for a period of up to 1.5 years);
- up to 480 hours of compulsory work;
- up to 2 years of repairs;
- up to 4 years of forced labor;
- up to 6 months of arrest;
- up to 4 years in prison.
If the crime entails serious consequences, the punishment, of course, becomes more severe. In this case, the manager risks ending up in a colony for up to 10 years, and additional sanctions may include a ban on holding certain positions for 3 years.
