Commercial bribery extortion
Article 204 of the Criminal Code is the norm (Part 7), which describes the punishment for extortion of commercial bribery. The term "bribery" means a bribe or some kind of material benefit received by an official of a commercial organization for committing a certain action or refusing to commit it.
Corpus delicti
Article 204 of the Criminal Code of the Russian Federation equally persecutes a person who wants to reward an official of a non-governmental organization for taking any steps in his interests, and a person who receives material benefits. This point is considered in detail in part 5 of article 294 of the Criminal Code of the Russian Federation. If a company employee is caught in demanding a bribe, then part 7 begins to work, which toughens criminal liability.
When disclosing the term extortion in relation to commercial bribery, it is necessary to abandon the classical definitions implying the desire to obtain a certain benefit as a result of threats to the life of the victim or her relatives or under the threat of disclosing compromising data.
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 24 determines that extortion of commercial bribery should be understood as:
- the requirement of an official to transfer to him a reward with a threat to commit an action that would harm the interests of the victim (for example, under the threat of dismissal);
- deliberately creating conditions under which bribery is the only way to satisfy legitimate business interests, such as renewing a lease.
Considering the corpus delicti, it is necessary to determine all its elements: object, subject, objective and subjective aspects.
Object of the crime
In criminal law, this term refers to the public good that is being attempted. In the case of commercial bribery, such a benefit is considered to be the management processes of a commercial organization, its reputation, sometimes assets or profits, if the actions of the attacker are associated with the illegal disposal of the organization's property.
In addition, the object of the crime is public morality and morality, in the case of a demand for bribery by an employee - the reputation of the organization. International charters against corruption, for example, the UN Convention, which call for increased punishment for commercial bribery, see the greatest threat from this crime precisely in the drop in the level of public morality. This form of crime is of particular importance for international companies. It was introduced into national legislation on the basis of the Convention in order to avoid the requirement of bribes for the conclusion of contracts from Russian representative offices of international companies such as Siemens and other international concerns from employees of Russian counterparties.
Subject of the crime
The subject of a crime can only be an official of a commercial organization performing managerial functions, authorized to make decisions affecting the interests of other persons. This is the head of the company or a person performing his functions on the basis of an order or power of attorney. Judicial practice recognizes that the chief engineer can also be an official if his job duties involve the performance of significant actions. So, in 2019, in Orekhovo-Zuevo, the chief engineer of one of the organizations revealed the incorrect laying of Internet lines and demanded a bribe from the network owner for concealing violations.
Objective side
The objective side or actions taken by an official with the aim of claiming the amount of bribery is described in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 24. This is either a direct threat to commit actions or omissions affecting the interests of another person or organization, or the creation of conditions under which not to bribe means not to realize business interests. An example of such a situation is the constant loss of referrals or lack of communication, indicating a reluctance to fulfill official duties. The extortion itself as a call, appeal, refusal to contact or any other form of aggressive inaction in this situation is not punishable, the crime will be considered completed exactly at the moment of receiving the monetary reward.
Subjective side
This term defines the attitude of an official to a crime. The requirement of commercial bribery is always recognized as a crime committed with intent, imprudence in this situation is excluded. The intent is always direct: an employee of a commercial firm realizes that such activities are associated with a danger to the interests of society and the company in which he works. Interestingly, in the 2013 UN Convention, extortion is disclosed as a requirement not only for the benefit of the bribe taker personally, but also for any other person associated or not associated with the offender.
Features of a crime for a bribe-giver
The very fact of extortion of commercial bribery will become the basis for the judge to release from criminal liability the person who was forced to offer the bribe. This is stated in the footnote to Art. 204 of the Criminal Code of the Russian Federation. For example, in 2019 in Komsomolsk-on-Amur, an unknown person who introduced himself as a traffic police officer, as stated in a court order, “through the WhatsApp application installed on his mobile phone,” offered to pay money for the return of a license to a deprived citizen. Since there was extortion, and the culprit was not an official of the traffic police, despite the transfer of the amount of commercial bribery, the bribe-giver was released from liability.
Article 204 is not yet very active in cases pending in Russian courts; it is not always a complex set of circumstances, for example, the deliberate creation of conditions under which it is impossible or unprofitable not to transfer the amount of bribery, can be proven. More often, the fact of demand for bribery appears in judicial practice as a basis for exemption from criminal liability.
08.12.2020
