Criminal law characteristics of commercial bribery
The concept of commercial bribery, according to Article 204 of the Criminal Code of the Russian Federation, includes illegal transfer and receipt of remuneration for personal gain. The transfer of money or other material values can be carried out by an attacker in relation to a person holding a managerial position to perform certain actions or inaction (part 1 and part 2 of article 204).
Commercial bribery is equated with bribery. The law recognizes any material value as the subject of a crime, including goods, services, real estate, etc.
The law emphasizes that the remuneration must be illegitimate, that is, it must be an unintended contract. Under the objective side of a crime, the law understands actions or inaction that must be associated with the position held. This includes the disclosure of commercially important information for the company, including about the adopted development strategies, the activities of employees, information concerning their relatives and spouses. An example of inaction is the deliberate delay in concluding a deal with potential partners.
Qualification of commercial bribery
The granting of preferences can be carried out by an attacker before and after the commission of an action (inaction) by a person holding a managerial position. An agreement (collusion) remains a necessary condition for the recognition of an act as criminal.
Material reward must precede the action or inaction of the subject. If there is no prior agreement between the parties, the transfer of wealth will not be recognized as commercial bribery.
The law recognizes the transfer of property values or the provision of services to an entity directly or through intermediaries as malicious acts. Preferences can also be granted to family members of a corrupt official on the condition that he is aware of the bribery. Bribery is considered to have been committed at the moment of acceptance of the subject of the crime by the head (manager).
Commercial bribery is criminalized even if there are no negative consequences for the organization. However, the injured company must draw up a statement initiating the criminal prosecution of the subject who accepted the bribe under Article 204 of the Criminal Code of the Russian Federation and contact the appropriate authorities with it.
Subject of commercial bribery
The law recognizes as the subject of accepting a bribe a person appointed as a permanent or temporary head (manager) performing organizational or administrative functions.
The subject of the transfer of remuneration is any person who has reached the age of 16 and acts in his own interests or the interests of the company, of which he is an employee.
The transfer of material values can be of selfish or any other intent. The person who accepts bribery usually has a selfish motive. Persons (a group of persons) are recognized as participants in a criminal conspiracy, while one of the parties accepts the remuneration, and the other provides it. The rest of the participants, who are intermediaries, informants, instigators, are considered accomplices by law. At the same time, a person who is part of an organized group will bear criminal responsibility in accordance with the current legislation.
Extortion as commercial bribery
Extortion is recognized as a type of commercial bribery in accordance with Part 4 of Article 204 of the Criminal Code of the Russian Federation. Extortion is a requirement to provide a service or reward that is valuable to the extortionist. In this case, threats can be used against the giver or his family members, relatives and colleagues. Extortion also involves the creation of conditions under which the giver is forced to act in the interests of the extortionist. A good example is the demand for preferences under the threat of dismissal.
The party subjected to extortion is exempt from criminal liability. Also, criminal liability does not apply to a person who voluntarily reported bribery to law enforcement agencies. The report must be made voluntarily and on the condition that the fact of the crime is not yet known to the authorities. Subject to these conditions, the motives and timing of the crime do not matter. It is important to note: a message that was made in the case when the manager received a remuneration, but did not fulfill the terms of the agreed transaction is considered voluntary.
The transfer of funds or property values, which does not entail aggravating circumstances, is classified as a criminal act of minor gravity. If there are qualifying circumstances, the offense can be considered a medium-gravity crime. The receiving party is usually recognized by the court as having committed a crime of average gravity.
08.12.2020
