Subject of commercial bribery
Article 204 of the Criminal Code says about responsibility for commercial bribery, which is analogous to bribery, but not in service and the public sphere and in the field of entrepreneurship. The subject of commercial bribery is the benefits that a corrupt official receives for committing a socially dangerous act.
What is meant by the term
The theory of criminal law treats the subject of a crime as a thing, an object of the material world, which is influenced by the attacker in the course of the crime. In any form of bribery, the subject will be the benefits that the perpetrator, corrupt official, government official or company engineer receives for committing significant actions or inaction in order to satisfy the interests of another person to the detriment of the needs of the service.
The subject of the crime differs from the object, it means social values that are damaged as a result of committing criminal acts, for example, the sovereignty of the state, public welfare, morality and ethics, the interests of the service. An object is what is left with fingerprints, which passes from the hands of the victim to the hands of the offender. The term was introduced into the legislation in order to differentiate the severity of the crime; it allows the introduction of such qualifying signs of a violation as its commission on a large scale or on an especially large scale.
Commercial Bribery Reward
Commercial bribery is committed against the interests of a business entity when an official, vested with certain powers, abuses office. Article 204.1 of the Criminal Code of the Russian Federation clearly defines the subject of commercial bribery as “illegal remuneration”. The 2003 UN Convention against Corruption treats it more broadly as any undue advantage, including property and non-property things and rights.
The meaning of the concept for the judicial review of commercial bribery is twofold:
- the crime is considered completed at the moment when the remuneration (money or things) were at the disposal of an official of a commercial organization, in direct possession or in a bank account. For the consideration of the case, it does not matter whether the offender got a real opportunity to use the property transferred as part of commercial bribery, clarifies the Resolution of the Plenum of the RF Armed Forces No. 24;
- the determination of the severity of the crime depends on the value of the remuneration. This rule works for all parties - for the bribe-giver, for the bribe-taker, or for the intermediary who organized the transfer of remuneration as part of the crime being committed (Article 204.1 of the Criminal Code of the Russian Federation).
Accordingly, the court must establish the circumstance whether the crime was completed, that is, committed, and what its real gravity is. In a normal situation, when money, things, property rights, property services are rendered illegal remuneration, questions will not arise. But in practice, there are more complex situations.
Determination of the value of remuneration in cases of commercial bribery
Sometimes, in order to determine whether a commercial bribery is committed on a large or especially large scale, it is necessary to estimate its value. If money was transferred in an envelope, then the court will have no doubts. The resolution of the Plenum of the RF Armed Forces also defines property services:
- issuance of a loan with a reduced interest rate;
- free or low cost tourist trips;
- apartment renovation or construction of a summer house;
- transfer of the car for use;
- debt forgiveness.
All these benefits can receive a real monetary value, and it will have to be done in a court session, if necessary, if it cannot be determined by calculation, with the involvement of an expert.
A completely different situation will arise if the objects of reward turned out to be:
- bitcoins or other cryptocurrency, the rate of which cannot be determined based on data from the Central Bank;
- antique values or things that do not have a specific assessment;
- employment of a relative;
- shares of participation in foreign companies that have passed from one nominal owner to another outside the Russian jurisdiction.
In each of these cases, it will be almost impossible to determine the real value of the item. A more complex examination will be required, the costs of which will be attributed to the offender, which will be in addition to the sanctions imposed within the framework of criminal liability.
Nuances with the moment the crime ends
At the moment when the remuneration transferred in the framework of commercial bribery is at the disposal of the criminal, the crime is considered completed. But the question arises as to how it should be qualified if there was an intention to receive a bribe on an especially large scale, and due to the actions of an intermediary or for other reasons, an amount that can only be recognized as a large amount will appear on the accounts of the bribe taker. With regard to bribery, the court calls for assessing the intention of a person performing managerial functions in a commercial organization to receive benefits in a certain amount, and the crime will be assessed by intent, and not by the actual receipt of funds. By analogy with the law, this position will be adopted by the court in relation to commercial bribery.
The second nuance is the need to detect the remuneration transferred within the framework of commercial bribery, if its location is unknown and it is impossible to reliably establish the fact of its receipt. It is impossible to consider the crime finished, it will be qualified only as an attempt.
The definition of the subject of the crime is necessary for its correct qualification, this is what leads to the fact that the objects of the transferred goods are becoming more complex and difficult to assess. So, it is extremely difficult to determine the cost of information or the moment of receipt of funds in bitcoins. This requires the improvement of information technologies that help law enforcement agencies in their work.
08.12.2020
