Qualifying features of commercial bribery
Commercial bribery (Article 204 of the Criminal Code.) - crimes against interests of service in commercial organization and expressed in obtaining material reward for an act or omission of an official in the interests of the briber. Qualifying features are characteristics of a crime that alter the severity of the punishment. For commercial bribery, they are specific, not completely identical to other crimes related to property.
The concept of qualifying signs of a criminal offense
The standard aggravating signs of a crime in the Special Part of the Criminal Code of the Russian Federation include:
- systematic or repeated;
- causing grave consequences;
- causing damage on a large or especially large scale;
- committing a crime with the use of violence or threats;
- the presence of a preliminary collusion;
- commission of a crime by an organized group;
- commission of a crime against two or more persons.
Usually, an article of the Criminal Code has several parts, each of which sequentially reveals one of the signs, gradually increasing the severity of the punishment. The corpus delicti are divided into simple and qualified, containing aggravating signs. Simple compositions include, for example, Art. 136 of the Criminal Code “Violation of the equality of human and civil rights and freedoms”, where there are no signs of aggravating responsibility. Art. 204 of the Criminal Code of the Russian Federation contains eight parts.
Qualifying signs of commercial bribery
For the composition of commercial bribery, the legislator provides for two subjects - a person who bribes an employee of the company, and a person who receives a bribe and performs managerial functions in a commercial or other organization. For the first, five attributes aggravating responsibility are provided, for the second - six.
The guilt of the person who transferred the bribery amount will be consistently increased if:
- it has a significant size (25 thousand rubles, as indicated in the notes to the article);
- the bribery was carried out by a group of persons in a preliminary conspiracy or by an organized group;
- bribery was offered for knowingly committing illegal actions or inaction;
- money or property transferred on a large scale (150 thousand rubles);
- an especially large amount of bribes was recorded (more than 1 million rubles).
The liability of an official who has received property benefits increases in the following positions:
- received funds in a significant amount;
- extortion was present;
- the funds were received not by one person, but by several, a group of persons by prior agreement;
- funds were transferred for illegal actions or inaction;
- funds received on a large scale;
- property benefits were transferred on an especially large scale.
Aggravating signs of commercial bribery for the recipient are increased by an additional one - extortion of an amount.
Analysis of the qualifying features of commercial bribery
When analyzing signs that aggravate responsibility, several points can be identified that are worth paying attention to. So, considering the size of the amount from significant to very large (25 thousand, 150 thousand, 1 million), you can see that in other articles of the Criminal Code of the Russian Federation, the term is given other meanings. For fraud, which will turn into commercial bribery, if the intended actions are not performed, they will, respectively, amount to 10 thousand, 3 million, 12 million, and this is about damage, and not about the transferred bribe.
For ordinary extortion, and not associated with commercial bribery, large damage is the amount of 250 thousand, and especially large - 1 million rubles. The minimum amount of bribe is 10 thousand rubles. If it is less, liability will arise under another article, for petty commercial bribery (Article 204 of the Criminal Code of the Russian Federation).
The criterion of legality or illegality of actions is explained in the Resolution of the Plenum of the Armed Forces No. 24:
- actions that a person performing managerial functions were obliged to perform on the basis of official or official duties are recognized as legal;
- illegal - actions that are not directly included in official duties, contradict or directly harm the interests of the service, or have signs of another crime or offense, for example, excess of authority or illegal distribution of commercial secrets.
In the signs of commercial bribery aggravating liability, there is no indication of damage and its size. The composition, based on its interpretation in the Resolution of the Plenum No. 24, belongs to the formal group, although some judges take a different position. If it is considered as formal, the proof of harm caused to the interests of the service or commercial organization takes place within the framework of proving the existence of a sign of illegality. In practice, this is necessary if the court, within the framework of the consideration of the case, establishes the fact of causing damage to the organization, this will additionally give it the right to later file a civil claim for its compensation.
Often the courts within the framework of the consideration of Art. 204 of the Criminal Code of the Russian Federation pre-seize the accounts and funds of the offender in ensuring compensation for damage caused to the company by the committed crime, which makes it necessary to prove its existence and size. For the person offering bribery, an additional formulation arises about the knowingness of illegal actions. This means that when entering into a corrupt deal, he initially understands that he is pushing the other side to commit illegal steps.
Such an aggravating sign of liability, such as the presence of a preliminary collusion, is considered as present if the persons who had previously agreed on their intentions participated in giving the amount of remuneration. The presence of an intermediary in the transfer of the subject of commercial bribery does not create the presence of this feature. The actions of the mediator will be qualified according to an independent article of the Criminal Code of the Russian Federation, 204.1. An organized group is understood as a sustainable formation created by persons who have united in advance to commit several crimes, functions are distributed among the participants in it.
With regard to persons committing a crime, the sign of an organized group is often used by the courts. So, a person performing managerial functions in an organization can involve an accountant, an engineer and other employees in repair or construction companies in his activities. When giving a bribe, an organized group can arise, for example, in the case of creating schemes for obtaining an advantage when winning tenders for a fee.
Extortion as an aggravating sign of commercial bribery has also received an exhaustive definition in Resolution of the Plenum of the Armed Forces No. 24. The article of the Criminal Code of the Russian Federation refers to extortion as a threat to harm the life, health, property of the victim or her family members, or to disclose defamatory information. And extortion as a sign of commercial bribery is a threat to commit actions that may harm the interests of a citizen, regardless of whether these actions are part of the official duties of the extortionist, or create such problems and conditions in which it will be impossible not to transfer a bribe. In the second case, an example is terror and the pressure of a colleague at work, in which only commercial bribery will help prevent dismissal.
The listed qualifying signs show the degree of social danger of an act infringing on the interests of service in a commercial organization, public morality and morality.
08.12.2020
