The concept of commercial bribery and responsibility for it

Corruption is one of the most serious social “diseases”. Its manifestations are multifaceted and diverse and, unfortunately, have long accompanied almost all spheres of life in our society. Of course, this phenomenon must be combated, which is why various types of corruption have been declared criminal offenses and carry serious penalties.

What is commercial bribery as a crime ?

With the development of entrepreneurship in the Russian Federation, attempts are almost constantly being made to violate the laws of a market economy. One of the ways of such a violation is commercial bribery - a trade type of bribe.

Let's look at this type of criminal offense in more detail, determine what its features are, in contrast to a bribe, and what threatens the entrepreneurs convicted of it.

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.

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:

1. 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.
2. 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.

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

Subject of commercial bribery

The methods of illegal reward characteristic of commercial bribery can be different, often these are the same forms as in ordinary bribery:

• giving money (rubles or currency);
• transfer of ownership of securities;
• transfer of property assets (car, real estate, jewelry, other valuables);
• provision of services at inappropriate (reduced) prices;
• reimbursement of personal expenses of an entrepreneur or a person representing an organization;
• providing him with various property services;
• loan write-off;
• repayment of a loan taken by the bribe recipient;
• withdrawal of the lawsuit;
• "kickbacks";
• donation or sale at illegally low prices of raw materials, equipment, and other assets;
• inflated amount of fees to representatives of the other party, etc.

NOTE! From the point of view of the law, the subject of commercial bribery cannot be a thing that does not have a property valuation, representing only subjective value for the giving or receiving party, for example, a personal letter, photo, etc.

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.

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.

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.

Legislative framework for trade corruption

What is not expressly prohibited by law is considered permitted. Commercial bribery, according to the legislation of the Russian Federation, is considered a criminal offense, and some of its manifestations are considered an administrative offense.

The legal essence of commercial bribery is close to bribery, prosecuted under Art. 290 and 291 of the Criminal Code of the Russian Federation, however, it is qualified under another article - Art. 204 of the Criminal Code of the Russian Federation, adopted relatively recently - only in 1996. Articles relating to bribery are addressed to government and administrative employees, and under Art. 204 representatives of commercial structures may be persecuted.

REFERENCE! From 1997 to 2022, the number of people convicted under this article has increased more than 5 times, and this share of criminal offenses is gradually increasing.

Not only specific individuals, but also organizations as a whole can be liable for commercial bribery - this is the area of ​​federal legislation and administrative law:

• Art. 14 Federal Law of December 25, 2008 No. 273-FZ “On Combating Corruption”;
• Art. 19.28 of the Code of Administrative Offenses of the Russian Federation on the liability of legal entities for unlawful remuneration on behalf of the organization.

Comments on the article

According to commentaries on current legislation, it is possible to determine at what amount of commercial bribery criminal liability arises. The state determines the minimum material threshold for criminal prosecution starting from an amount of 10 thousand rubles. Also, comments to Article 204 of the Criminal Code of the Russian Federation clarify the following questions:

• both parties to the offense are liable for bribery;
• the object of the crime can be both the action and inaction of authorized officials;
• the subject of bribery is not only cash, securities, or other property, but also the provision of services of a property nature or the provision of any rights, relieving a person of the costs of renovating an apartment, purchasing a tourist package, paying for insurance;
• the crime is considered completed if at least part of the funds or rights are transferred;
• the subject of the offense is a capable citizen who has reached the age of 16;
• had extortion and blackmail, but the person reported this in a timely manner, the charges will be dropped.

Liability standards for commercial bribery

Criminal liability for commercial bribery under Art. 204 of the Criminal Code of the Russian Federation talks about measures against individuals convicted of this crime. What matters is the type of bribery, that is, the accusation of giving or receiving:

1. For providing improper remuneration faces punishment:
   an impressive fine - an amount that amounted to commercial bribery, increased by 10-50 times;
2. restriction of freedom up to 2 years;
3. three-year correctional labor.

The rules may be revised due to aggravating circumstances. As applied to this crime, the following are considered:

• preliminary conspiracy, not committed alone, action of an organized group;
• the object of bribery are actions that go beyond the law.

In this case, the law provides for the following penalty:

• a fine of 40-70 times the amount of bribery with deprivation of the right to certain positions or activities for up to three years;
• forced labor for up to 4 years;
• arrest from 3 months to six months;
• imprisonment up to 6 years.

• For receiving illegal funds as part of commercial bribery, the party faces: a fine in the amount of the bribe, increased by 15-70 times;
• disqualification (ban on certain activities or positions) for up to 3 years;
• arrest up to 3 years.

Here aggravating circumstances may be as follows:

• receiving an object of bribery by an organized group;
• the resulting bribe was actively extorted by the guilty party;
• For the bribe received, the “taking” party had to do something illegal.

In this case, the liability is as follows:

• a fine of 50-90 times the amount of bribery with removal from certain positions or activities for up to 3 years;
• imprisonment up to 12 years plus a fine up to 50 times the amount of bribery.

avoid criminal liability if a person belongs to one of the following categories:

• he was extorted money for performing legally required actions;
• the person actively participated in solving or proving the crime;
• the party itself informed law enforcement agencies about the planned bribery.

The administrative liability of organizations for this crime is also very serious: the enterprise may be subject to a fine of one hundred times the amount of the bribery committed.

Let's consider several real examples of prosecution under Article 204 of the Criminal Code of the Russian Federation.

In 2022, an entrepreneur from the Krasnodar Territory acquired the Kuban-Remstroybyt base, which was disconnected from the network due to an electricity debt of 3.5 million rubles. Wanting to recalculate the amount of debt, the businessman turned to the director, who offered to “resolve the issue” for 2 million rubles. 1 million rubles should have gone to repay the debt, and another 1 million personally to the account of the general director. The entrepreneur contacted law enforcement agencies, who detained the director of Krymskelektroset during a test purchase. Taking into account the fact that the man resisted the police officers, the court sentenced him to 5.5 years in prison.

And one more example

A student studying at the Saransk Cooperative Institute was unable to pass one of the exams on his own. Wanting to solve this problem, he turned to the teacher with an offer to give him a test for 30 thousand rubles. The teacher agreed, indicating that the funds needed to be transferred to her bank card using her phone number. Law enforcement officers learned about the agreement, and a criminal case was opened against the teacher under Part 5 of Article 204 of the Criminal Code of the Russian Federation (the article on bribery was not applicable in this case, since the university was a non-state educational institution). Taking into account the fact that the woman repented of her crime, the court imposed a lenient sentence - 2 years probation with a ban on teaching for 2 years.

Obviously, if you are suspected or accused of commercial bribery, you cannot do without an experienced criminal lawyer. The Specialist will make every effort to ensure that his Client avoids criminal liability: if this is not possible, the defense attorney will try to mitigate the punishment as much as possible and relieve the Client from additional sanctions.

Contact JSC “Trial Advocate”: our lawyers are ready to help around the clock!

Qualifying signs of commercial bribery

In order to classify this type of economic (commercial) crime to a certain degree of severity, the presence or absence of qualifying features is legally analyzed. There are two of them: group organization and extortion.

1. Preliminary agreement of the group. Giving (receiving) commercial bribery was committed by a group of persons who had previously organized and conspired for this purpose. In this case, this sign has several important nuances:
   group means participation in bribery of at least two persons charged with managerial functions;
2. these persons, before committing bribery, agreed on their actions, using their position at work;
3. if persons who do not perform managerial functions took part in the group, they are considered accomplices, instigators or even organizers of the crime, and their responsibility will not be for bribery as such (under Article 204 of the Criminal Code of the Russian Federation), but for complicity (under Part 4 of Art. 34 of the Criminal Code of the Russian Federation).
4. Extortion is a factor that exposes the illegality of transferring the object of bribery. It represents an insistent demand for the provision of assets or the performance of actions (inaction), supported by threats of harm to the interests of a person. This requirement was voiced by a manager representing the organization, as if on its behalf. An important nuance in the definition of extortion: the threat must really be dangerous to the law-protected interests of the citizen. So, if, for example, a fire inspector offers to “not notice” some violation for money, he does not extort this money, since the action that he offers to conceal does not cause damage to the director of the company. On the contrary, it realizes not legally protected, but illegal interests. But forcing a manager to act under threat to the health of his children has clear signs of extortion.

NOTE! Recidivism of this crime as a qualifying feature was abolished by the provisions of Federal Law of December 8, 2003 No. 162-FZ.

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…..

How to prove commercial bribery

Commercial bribery is an official crime of low or high severity; it is quite difficult to uncover and prove. In addition to inspections, there is only one option for informing authorized bodies about this offense: if a certain legal entity is trying to extort illegal remuneration from a citizen or representative of another organization for its services or inaction. Agreeing to these demands means becoming an accomplice to commercial bribery. But you can also contact law enforcement agencies; for this you need the following evidence base:

• audio or video recording of a conversation where illegal demands for bribes are voiced (it must necessarily state the purpose and conditions of payment, as well as the amount of remuneration);
• documentary evidence of events related to bribery (for example, a copy of the contract in relation to which a kickback was extorted).

FOR YOUR INFORMATION! In no case should the extortion record contain the initiative of the “giving” party, otherwise when considering the case this may be considered a provocation.

After writing the application, the applicant party cooperates with law enforcement officers: under their leadership, it is necessary to transfer the required bribe to the defendant, then the crime will be recorded.

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.

When commercial bribery only seems so

In some cases, commercial bribery cannot be legally established:

1. Unlawful demands for material or other remuneration for the action or inaction of commercial structures cannot be considered a crime until the funds have been transferred to the person demanding it. However, based on the requirements, it is possible to initiate a criminal case and prove commercial bribery.
2. If the action for which the “taking” party was given an illegal benefit was legal, then commercial bribery, even if other signs are present, is not identified. For example, the responsibilities of the department head include the distribution of certain equipment - providing it for temporary use to the manager's clients for the fact that he was among those who received the equipment. There is no commercial bribery here, since the equipment is distributed legally, although impartially.

ATTENTION! This apparent contradiction is due to the incompleteness of the wording of Art. 204, which does not contain a precise definition of the transfer of illegal remuneration.

3. The “giving” party promised an improper reward. Until she has transferred at least part of it to the “taking side”, there is no need to talk about bribery, even if the “taking” party has fulfilled everything for which it was promised a bribe. The absence of the fact of transfer is the absence of corpus delicti.