What is the danger of commercial bribery

 
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In 2017, Russia ranked 16th in terms of corporate corruption among 41 countries in the EMEIA region (Europe, the Middle East, India and Africa). According to a study by Ernst & Young, 66% of employees of large Russian companies believe that they often face manifestations of corruption in business.

Forms of corporate corruption

Corruption in the private sector of the economy manifests itself in the form of misuse of insider information; illegal receipt and disclosure of commercial, tax or banking secrets; unauthorized access to IT resources. The current Russian legislation classifies all these forms as criminal offenses.

Let's give another example: the transition of a top manager to competitors. From the point of view of the law, this is not a crime. Even if the top manager used inside information as a "pass" to a new job, because he had legal access to confidential files. However, in such a situation, there are all the "symptoms" of corruption. In fact, the employee used his official position to get a higher position with a higher salary in a new job, or, in other words, to get personal gain. And this is the main sign of corruption.

A hidden form of corruption: commercial bribery

Forms of corporate corruption based on commercial bribery pose a serious threat to business. Firstly, due to the fact that they penetrate any company or organization. The risk arises where there is a “signatory” employee who is empowered to make decisions.

Secondly, this form of corruption is notable for its latency, that is, it is difficult to reveal and prove the fact of bribery. Up to 90% of cases of commercial bribery in Russia remain unresolved, despite the fact that they refer to serious malfeasance.

The publication "Director General" provides statistics of the Ministry of Internal Affairs for the period from July 2015 to July 2016. According to the figures, commercial bribery is one of the five articles under which top managers of Russian companies are most often prosecuted. However, the number of cases initiated under Article 204 of the Criminal Code “Commercial Bribery” is 114 times less than the number of cases under Article 159 “Fraud”.

ARTICLES under which CEOs were more often prosecuted from July 2015 to July 2016

  Article of the Criminal Code of the Russian Federation Number of cases
Fraud 159 199,039
Production and sale of goods, works and services that do not meet safety requirements 238 5501
Tax avoidance 199 2097
Commercial bribery 204 1,750
Non-payment of wages 145.1 F 1 302

A rare example of a commercial bribery case is the trial of a former Rossiya airline pilot. He was found guilty of buying a commercial pilot's license and providing services that did not meet safety requirements. According to the investigation, the pilot (a former military pilot) received fake documents from the director general of a non-state aviation training center for 150 thousand rubles. After - he already officially graduated from the retraining courses and got a job at the airline. He managed 48 commercial flights as a co-pilot before being charged with commercial bribery and 48 incidents of providing unsafe services. As a punishment, the court imposed a fine of 6 million (canceled by amnesty) and banned him from engaging in professional activities for 2 years.

Commercial bribery crimes remain in the shadow of public attention. The media are more likely to get stories of fraudulent use of official powers. For example, the trial of the former head of the Federal Penitentiary Service (FSIN) of Russia, who was found guilty of fraud in the purchase of electronic bracelets.

How is commercial bribery different from a bribe or kickback?

In fact, commercial bribery, “classic” bribery, or kickback in the commercial realm is a crime against corporate interests. The distinction between offenses begins at the border between state (bribery) and private (commercial bribery). The fundamental difference is the moment of transmission of "gratitude". Bribes and kickbacks are given or received at any stage of the process, it can be an advance payment or a final settlement. Commercial bribery is distinguished by an advance payment method, that is, it always precedes a decision.

As in the case of bribery, according to the Criminal Code, all participants in commercial bribery face punishment: the one who gives, the one who receives, and the one who acts as an intermediary. Here lies another difference between commercial bribery and bribery or kickback.

According to the law, it is possible to classify a corruption scheme as commercial bribery only if the recipient performs managerial functions, his decisions are binding and his powers are enshrined in local regulatory documents: charter, order, regulation, power of attorney.

In the case of a Rossiya airline pilot, the second participant in the "deal" is the general director, whose signature is on forged documents confirming the course of training. When a middle manager is a participant, there is no legal basis for commercial bribery to be prosecuted. The manager's decisions are not final, he can only "strongly recommend" the management to put the necessary resolution on the document.

To understand the difference between kickback and commercial bribery, here are two examples:

CASE STUDY: A subcontractor breached a contract. The director of the construction company found out about the violations and sent a commission to the construction site with an inspection, threatening the counterparty with termination of the contract. For the opportunity to continue working on the contract, the director began to extort money from the subcontractor. The director was arrested while receiving the bribery. He was sentenced to four years in prison and a double bribery fine - 8 million rubles.
EXAMPLE FROM THE EXPERIENCE OF SEARCHINFORM CLIENTS A bank security officer noticed that an employee opened a personal mailbox during working hours. Among the letters, the DLP system found a correspondence with the current client. His dossier was considered at the last meeting of the credit committee as the dossier of a potential borrower. The employee who came to the attention of the information security specialist, at the meeting, defended the applicant as a bona fide one who deserves individual credit conditions. The security service conducted an investigation and found out that the employee was trying to roll back the loan money. And in the end he was fired without any "gratitude".

Punishment for commercial bribery

The punishment depends on the size of the commercial bribery and the role in the process. The maximum penalty for transferring money or for mediation, provided for by the Criminal Code, is 2 years in prison plus a fine of 5 times the amount of bribery. The same actions, but on a large scale - 7 years and a fine of 30 times the amount plus a ban on holding certain positions for three years.

Receiving money under a commercial bribery scheme entails a maximum sanction of 3 years in prison with a fine of 15 times the amount of the bribery. The larger the size, the more severe the punishment. "Ceiling" - 12 years in prison plus a 50-fold fine, with the deprivation of the right to hold certain positions for six years.

Size scale - from significant to extra large. In 2016, the Criminal Code was supplemented with article 204.2 "Petty commercial bribery" - for an amount within 10 thousand rubles.

How to determine the amount of commercial bribery?

  • small
<10,000 rubles
  • significant
> 25,000 rubles
  • large
> 150,000 rubles
  • especially large
> 1,000,000 rubles

There are three legal ways to avoid punishment:

  • actively contribute to the disclosure and investigation of the crime;
  • voluntarily report a committed crime;
  • in case of extortion.

Problem: collecting evidence

In order to disclose the fact of commercial bribery, at least one of the accomplices, who is also ready to cooperate with law enforcement agencies, should be interested. In practice, representatives of the business community are not interested in "substituting" each other. This is the main reason that explains the high latency (secrecy) of commercial bribery.

The study of judicial practice under Article 204 shows that criminal cases on the facts of commercial bribery arise when extortion goes beyond reasonable - from the point of view of the "victim" - boundaries. However, a simple desire to repulse the extortionist is not enough to file a complaint with law enforcement agencies, you need proof. Best of all is an audio recording of a conversation with someone who is demanding an illegal reward. And if earlier the recording was not accepted as direct evidence, then at the end of 2016 the Supreme Court of Russia allowed the use of a hidden recording of a conversation under certain circumstances. The judicial board considered it legitimate to accept the evidence, since the conversation was recorded by a participant in the dialogue, and the conversation itself concerned the circumstances related to the contractual relationship between the parties.

The audio recording will play a key role in the evidence base if the amount required by the person involved in the commercial bribery case appears in the recorded conversation.

Methods of Countering Corporate Corruption

The foundation for the prevention of any form of corporate corruption is the Corruption Prevention and Prevention Policy. In large companies, this is a multi-page document that sets out the rules and procedures aimed at enforcing anti-corruption laws. In small firms, a manual is sufficient to remind employees of responsibility for corruption offenses.

The International Chamber of Commerce - The World Business Organization (ICC) recommends to prevent corruption:

  • Collect and analyze the facts of corruption violations;
  • Conduct anti-corruption expertise of internal regulations and draft documents that open up opportunities for corrupt practices;
  • Simulate the consequences of corruption violations;
  • Measure the effectiveness of anti-corruption measures.

The road map for anti-corruption measures to combat corruption is drawn up taking into account universal principles.

  1. Harmonization with legal and generally accepted norms: Constitution, national legislation, international treaties and legal acts that regulate the company's activities depending on the type of activity.
  2. Comparability of anti-corruption measures with the risk of corruption. If the very possibility of commercial bribery or bribery is minimal, there is no need to spend resources on audit, development and implementation of procedures "for show".
  3. Employee engagement. Innovations aimed at preventing and combating corruption will receive a lively response in the team if employees receive comprehensive information about the reasons and goals of the changes.
  4. Personal example of the top officials of the company. The attitude and behavior of the management must be consistent with the provisions of the corporate anti-corruption policy.
  5. The inevitability of punishment and an equal measure of responsibility for employees, regardless of position or length of service in the company.
  6. Business openness. Partners, customers and counterparties should be notified of the measures taken by the company to combat corporate corruption.
  7. Continuous monitoring and systematic checks. IT solutions will help to monitor how employees comply with the rules of "anti-corruption security". The choice of a solution depends primarily on the size and type of business of the company.

For a small company with a small staff and a fleet of computers, time tracking software with the ability to listen to the recording of conversations and check the contents of monitors are suitable.

Large companies with a complex organizational structure and a developed IT infrastructure make rational use of DLP solutions that will not only check the content of correspondence or negotiations, but also help collect convincing evidence of corruption, including commercial bribery.

08.12.2020