One of the most dangerous acts in the economic sphere is bribery. Article 204 of the Criminal Code of the Russian Federation establishes penalties for this unlawful act. The severity of the sanctions depends on the presence of aggravating circumstances and the extent of the damage caused.
Article 204 of the Criminal Code: corpus delicti
The essence of the act is the unlawful transfer of funds, property, securities, including for the inaction / action in the interests of the giver or other persons, to the entity performing functions related to management in a non-state company, if they are included in the official authority of the receiver or because of his status, he can contribute to them. Article 204 of the Criminal Code of the Russian Federation “Commercial bribery” establishes the penalty for the unlawful granting of rights or the provision of services for the same purpose. For these acts, the perpetrators are appointed:
- Fine. Its value can reach 400 thousand rubles. or make up the income of the convicted person for half a year or exceed the amount received by 5-20 times.
- Correctional labor, imprisonment / restriction of liberty for a period of up to two years. In the latter case, a fine may be additionally imposed in an amount exceeding that received 5 times.
Significant size
It recognizes the amount of money, the value of securities, other property, property rights, and services in excess of 25 thousand rubles. For the above acts committed in such a significant amount, article 204 part 2 of the Criminal Code of the Russian Federation establishes the following penalties:
- Fine. Its size is up to 80 thousand rubles. or the amount of the guilty income for 9 months. or exceeding the received 10-30 times.
- 1-2 years of corrective labor or restriction of freedom.
- Up to three years in prison.
In addition, the prohibition of conducting activities or the appointment to positions determined by a judge is allowed. In case of imposition of a fine, it is valid for 2 years, and in case of restriction or imprisonment, as well as corrective labor - for 3 years.
Aggravating circumstances
The above acts may be committed:
- Group (organized) or persons previously conspired.
- For knowingly illegal inaction / action.
- In large size.
Article 204 part 3 of the Criminal Code of the Russian Federation establishes for this:
- Fine up to 1.5 million rubles. or in the amount of income (income, salary) for 1 year or exceeding the received 20-50 times.
- 3-7 years in prison.
Additional sanctions are:
- Prohibition of activities, appointment to posts established by a judge for a period of up to three years. This punishment may be fined and imprisoned.
- Cash recovery in an amount exceeding received 30 times. This penalty can only be imposed in addition to imprisonment.
Additionally
Article 204 part 4 of the Criminal Code of the Russian Federation establishes sanctions for acts committed in an amount recognized as especially large. It is considered the amount of cash, the value of securities, other things, property rights, services in excess of 1 million rubles. Responsibility comes for the acts specified in part 3, paragraph "a" and "b", and is established in the form:
- Fine. Its size is 1-2 million rubles. or the amount of income received by the guilty for 2-6 months, or equal to 40-70 times the amount received. Additionally, a ban on staying on posts or conducting activities established by a judge for 5 years may be imputed.
- 4-8 years in prison. In addition, a monetary penalty is assigned in an amount exceeding the received 40 times, as well as the ban indicated above.
Receiver Responsibility
Article 204 of the Criminal Code (as amended) provides for punishment not only for entities illegally transferring money, securities, other property, property rights, as well as providing services. Consider some sanctions. Part 5 establishes liability for citizens taking this, in the form of:
- Fine up to 700 thousand rubles. or in the amount of income for 9 months. or exceeding the value obtained by 10-30 times.
- Up to 3 years in prison. In addition, a fine exceeding that received by 15 times may be imputed.
Article 204 part 7 of the Criminal Code of the Russian Federation establishes a punishment for the same acts, but committed:
- Pre-conspired persons or an organized group.
- With extortion.
- For unlawful omissions / actions.
- In large size.
Guilty threatens:
- Cash recovery of 1-3 million rubles. or equal to income for 1-3 years or amounting to an amount exceeding the amount received by 30-60 times. In addition, the court may impose a ban on certain activities, appointment to a number of posts for 5 years.
- Imprisonment for 5-9 years. Additionally, a fine may be imposed, amounting to an amount exceeding the amount received by 40 times, or the prohibition specified above.
Note
Article 204 of the Criminal Code (as amended) allows for the release of a citizen from liability. It applies to entities that committed acts enshrined in Part 1-4. Article 204 of the Criminal Code of the Russian Federation (“Commercial bribery”) allows for exemption from liability subject to a number of conditions. First of all, a citizen should actively assist in the investigation / disclosure of the committed act. Exemption from liability is also possible if the subject voluntarily reported the act to the authorities authorized to institute criminal proceedings, or was extorted in relation to him.
Commercial bribery (article 204 of the Criminal Code): comment
The provisions of the rule in question provide for sanctions for two different acts. First of all, article 204 of the Criminal Code of the Russian Federation establishes a punishment for unlawful transfer to an entity that exercises managerial functions in a non-governmental (non-budget) or other organization. The second act is the illegal acquisition of values. In both cases, it acts as securities, money, other property, property rights and services. They are granted / accepted for carrying out certain actions or committing inaction in the interests of the giver / receiver in connection with the official position held by the citizen.
Subject of action
What is meant by services that are considered as commercial bribery (article 204 of the Criminal Code of the Russian Federation)? The BC commentary indicates the following. Services within the framework of this norm should be considered actions that are aimed at eliminating costs. In particular, these may be events (work) that must be paid for, but are provided free of charge. For example, the repair of premises, the construction of a cottage, etc. Property rights, for the illegal transfer of which is established by Article 204 of the Criminal Code of the Russian Federation, court practice considers:
- Possibility of making a claim by the debtor to a third party who has not fulfilled an obligation to him as to a creditor.
- The right to rent real estate for a long period.
- The ability to make a claim under agreements on the alienation and use of exclusive rights to the product of intellectual labor and means of individualization.
Nuance
As an act, the responsibility for which Article 204 of the Criminal Code of the Russian Federation (“Commercial bribery”) establishes, the actions of the subject to transfer values not only directly to the person whose action / inaction will be committed in the interests of the giver will be recognized. It would be unlawful to grant property or rights to his relatives if he did not object to this or even agreed to it and subsequently used his powers in favor of the giver.
The specifics of the assault
The corpus delicti is considered formal. The act is considered completed at the time of receipt / transfer of at least some part of the values. If a person performing functions related to managerial activity at an enterprise refuses to accept property or rights, then the entity transferring them is held liable for attempted crime. In some cases, the provision / receipt of values is impeded by circumstances beyond the control of the participants. In this case, their actions are regarded as an attempt to transfer / accept illegal compensation in bribery.
Qualification Features
It is not considered as an act for which Article 204 of the Criminal Code of the Russian Federation (“Commercial bribery”) provides for the stated intention to receive / transfer securities, money, other property, services, property rights, if the entity has not taken appropriate actions to implement it. Acceptance by a citizen who performs the managerial functions of these values allegedly for behavioral acts that he cannot exercise due to the lack of necessary powers or the inability to use them, qualifies as fraud if there is intent to acquire them. In such situations, the owner of the property is responsible for attempted bribery, if there are appropriate conditions. In particular, it should be established that the transfer of values was carried out by a person with the aim of the host entity performing actions / omissions in his favor.
Subjective part
It is characterized by wine in the form of direct intent. Any sane 16-year-old citizen can act as a person transmitting value. The recipient can only be a special subject. It is a person who performs management functions.
Qualifying signs
Consider the aggravating circumstances that Article 204 of the Criminal Code of the Russian Federation provides, with the comments of lawyers. The first qualifying sign is the commission of an act by previously conspiring persons. As experts point out, during its consideration it is necessary to pay attention to the fact that among these entities there may be citizens who do not perform managerial functions. An organized group may have a similar composition. As indicated in the plenary Decree of the Armed Forces of 2000, if there are grounds for such persons may be held accountable as accomplices, instigators and organizers. In such situations, the act will be considered completed at the time of acceptance of the remuneration by at least one citizen who exercises managerial functions.
Bribe Affinity
A citizen who exercises managerial functions, who offers a subordinate in the service to commit an unlawful remuneration to the official for the desired inaction / action in the interests of the company, will be responsible as the perpetrator of the crime under article 291. In this case, the employee who completed the relevant order will be punished as an accomplice. In relation to a citizen who exercises managerial functions in the organization, who offers a subordinate in the service to commit the desired inaction / action in the interests of the enterprise to transfer to an entity performing similar tasks in another company, securities, money, other property, article 204 of the Criminal Code of the Russian Federation will apply. The practice of applying the norm indicates that the employee who completed the assignment will be responsible as an accomplice. The person who offered the bribe, respectively, is the performer. The norm under review mentions deliberately unlawful acts. They are behavioral acts that violate norms or are expressly prohibited by law. An indication of deliberate means the knowledge of the subject of the inadmissibility of behavior.
Investigation Assistance
In the footnote to the norm under consideration, it is possible to withdraw the charge of crime from the subject. It is implemented if a citizen provides active assistance in the investigation or disclosure of an act. In particular, it is assumed that such actions by which a person helps to establish all citizens involved in the crime, objectively and fully identify the circumstances of the event. For example, this may be an indication of the participants in the assault, truthful testimony, and so on.
Extortion
Withdrawal of responsibility from a person is allowed if a citizen who exercises managerial functions in a non-governmental or other organization has requested that he be given an illegal remuneration (securities, money, other property) upon bribery. Extortion, as a rule, is accompanied by threats to commit actions that could harm the interests of the person or create conditions under which he will be forced to take an illegal act to prevent probable consequences.
Voluntary reporting of an act
Exemption from liability under the considered norm is allowed if the entity voluntarily notifies the body authorized to initiate criminal proceedings of the crime. This feature is implemented under certain conditions. First of all, the message must be voluntary. This means that the person must independently decide on the need to notify the authorized body. Secondly, the message must be received by law enforcement agencies before they become aware of the crime from other sources. The reasons for which the citizen notifies the authorized bodies do not matter. It should be especially noted that exemption from liability is allowed if the message is transmitted specifically to a specific body vested with the right to initiate criminal proceedings, and not to any government agency. Of course, in the actions of the subject reporting the act, there should not be signs of other crimes.
Important points
Exemption from liability, according to the note to the commented norm, is mandatory. At the same time, withdrawal from the subject of the charge does not mean the absence of signs of an unlawful act in his actions. Accordingly, he cannot be granted victim status and cannot claim to return to him material assets transferred as commercial bribery. The exception is cases where there was extortion. Monetary funds and other valuables cannot be transferred to state revenue if claims regarding their unlawful transfer have been declared with respect to their owner. This rule is valid in cases where a citizen whose person performing managerial functions extorts property informed the authorities authorized to institute criminal proceedings before they were submitted, and the process itself was supervised by these structures in order to catch the offender red-handed . In such situations, tangible assets must be returned to their rightful owner. When deciding on the issue of returning money and other property to a citizen in respect of whom extortion has been committed, it must be taken into account that if, in order to prevent negative consequences for his interests, he had to give them back, then they should be returned to him. In the case of a voluntary report of bribery, it will not matter if a specific entity was called to perform managerial functions in a commercial or other enterprise to which the transfer of illegal remuneration was supposed. Upon receipt of values, the commission of the desired (required) inaction / actions themselves in the interests of the giver is not covered by the considered norm. In this regard, if there is an independent composition in such behavior, its additional qualification is necessary.
Conclusion
Despite the work of law enforcement, corruption is quite widespread. The public danger of bribery consists mainly in the fact that the act violates the normal functioning of commercial and other enterprises, discredits employees endowed with managerial functions. Motives of action can be different. Often, citizens go to bribery in order to solve any issue relevant to them as quickly as possible. In any case, neither the motives nor the purpose of the culprit matter in qualifying an act. The difficulty in practice in some cases is the distinction between bribery and bribery. The main difference between the acts is the subjective composition. In the crime provided for in Article 204 of the Code, one of the participants is always a person who exercises functions related to managerial activity. Lawyers pay special attention to the grounds for exemption from liability. In order to avoid problems with criminal law, experts recommend immediately contacting law enforcement agencies if there are suspicions of bribery.