Article 204 of the Criminal Code. Commercial bribery in court practice

One of the most dangerous acts in the economic sphere is bribery. Article 204 of the Criminal Code establishes penalties for this unlawful act. The severity of sanctions depends on the presence of aggravating circumstances and the amount of damage caused.

Article 204 of the Criminal Code:

The essence of the act is the illegal transfer of funds, property, securities including for inaction / action in the interests of the giver or other persons, if they are included in the official powers of the receiving or He can contribute to their status in view of his status. Article 204 of the Criminal Code of the Russian Federation "Commercial bribery" fixes the penalty for unlawful granting of rights or provision of services for the same purpose. For the specified actions guilty appoint:

1. Fine. Its value can reach 400 thousand rubles. Or make up the convicted person's income for six months or exceed the amount received 5-20 times.
2. Corrective labor, deprivation / restriction of liberty for a period of up to two years. In the latter case, an additional fine may be imposed in an amount exceeding the amount received 5 times.

Significant size

They recognize the amount of money, the value of securities, other property, real rights, services, exceeding 25 thousand rubles. For the above acts committed in such a significant amount, Article 204 part 2 of the Criminal Code establishes the following penalties:

1. Fine. Its size is up to 80 thousand rubles. Or the amount of income of the perpetrator for 9 months. Or exceeding the received 10-30 times.
2. 1-2 years of correctional labor or restriction of freedom.
3. Up to three years in prison.

In addition, it is possible to impose a ban on conducting activities or appointing to positions determined by the judge. When imposing a fine, he acts 2, and in case of restriction or deprivation of liberty, as well as correctional labor - 3 years.

Aggravating circumstances

The above acts can be committed:

1. Group (organized) or by persons who have previously conspired.
2. For deliberately unlawful inaction / action.
3. In a large amount.

Article 204 part 3 of the Criminal Code establishes for this:

1. Penalty up to 1.5 million rubles. Or in the amount of income (income, wage) for 1 year or more than the received 20-50 times.
2. 3-7 years of imprisonment.

Additional sanctions are:

1. Prohibition on the performance of activities, appointment to posts established by a judge, for a period of up to three years. This punishment can be imputed to a fine and imprisonment.
2. Monetary penalty in the amount exceeding the received 30 times. This fine can only be imputed in addition to imprisonment.

Additionally

Article 204 part 4 of the Criminal Code establishes sanctions for acts committed in the amount recognized as particularly large. They are the amount of money, the value of securities, other things, property rights, services, exceeding 1 million rubles. Responsibility comes for the acts specified in subsection 3 (a) and (b) and is established as:

1. 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-fold the amount received. In addition, a ban on staying on the posts or conducting activities established by the judge may be imposed for 5 years.
2. 4-8 years in prison. In addition, a pecuniary penalty is imposed in the amount exceeding the amount received 40 times, as well as the prohibition mentioned above.

Responsibility of the recipient

Article 204 of the Criminal Code (in a new wording) provides for punishment not only for entities that illegally transfer money, securities, other property, property rights, as well as providing services. Let's consider some sanctions. Part 5 establishes responsibility for citizens accepting this in the form of:

1. The fine is up to 700 thousand rubles. Or in the amount of income for 9 months. Or exceeding the value obtained 10-30 times.
2. Up to 3 years in prison. In addition, a penalty may be imposed exceeding the amount received 15 times.

Article 204 part 7 of the Criminal Code fixes punishment for these same acts, but committed:

1. Pre-agreed persons or an organized group.
2. With extortion.
3. For wrongful omissions / actions.
4. In a large amount.

Guilty faces:

1. Cash collection of 1-3 million rubles. Or equal to incomes for 1-3 years or making the sum exceeding the size received in 30-60 times. In addition, the court can impose a ban on the implementation of certain activities, appointment to a number of posts for 5 years.
2. Imprisonment for 5-9 years. In addition, a fine may be imposed that is an amount exceeding the amount received 40 times, or the prohibition mentioned above.

Note

Article 204 of the Criminal Code (in a new wording) allows for the release of a citizen from liability. It extends to the subjects who committed the acts set out in Parts 1-4. Article 204 of the Criminal Code ("Commercial bribery") allows for exemption from liability under certain conditions. The citizen must first of all actively help 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 initiate criminal proceedings, or was extorted against him.

Commercial bribery (Article 204 of the Criminal Code of the Russian Federation): commentary

The provisions of the rule in question actually provide for sanctions for two different acts. First and foremost, Article 204 of the Criminal Code of the Russian Federation establishes a penalty for unlawful transfer to a subject exercising managerial functions in a non-state (non-budgetary) or other organization. The second act is the illegal receipt of values. In both cases, securities, money, other property, proprietary rights and services act as securities. They are granted / taken for the implementation of certain actions or the commission of inaction in the interests of the giver / receiver in connection with the citizen's employment position.

Subject of the act

What is meant by services that are regarded as commercial bribery (Article 204 of the Criminal Code of the Russian Federation)? The BC's comment indicates the following. Services within the framework of the rule in question should be considered actions that are aimed at getting rid of expenses. In particular, it can be activities (work) that must be paid for, but are provided free of charge. For example, repairing a building, erecting a cottage, etc. Property rights, for the illegal transfer of which establishes liability Article 204 of the Criminal Code of the Russian Federation, the judicial practice considers:

1. Possibility of claim by the debtor to a third party that failed to fulfill the obligation towards him as to the creditor.
2. The right to rent a property for a long time.
3. Opportunity to present a claim under agreements on alienation and use of exclusive rights to the product of intellectual labor and a means of individualization.

Nuance

As an act for which article 204 of the Criminal Code of the Russian Federation ("Commercial bribery") is responsible, the actions of the entity for the transfer of values will be recognized not only directly to the person whose action / inaction will be performed in the interests of the giver. It would be illegal to provide property or rights and to his relatives if he did not object to this objection or even agreed to this and subsequently used his powers in favor of the giver.

Specificity of encroachment

The offense is considered to be formal. The action is recognized completed when you receive / transfer at least some part of the values. If the person performing the functions related to the management activities at the enterprise refuses to accept property or rights, then the entity transferring them shall be held liable for the attempted crime. In some cases, the provision / receipt of values is hindered by circumstances that do not depend on the will of the participants. In this case, their actions are regarded as an attempt to transfer / accept illegal remuneration for bribery.

Qualification features

It is not considered as an act for which article 204 of the Criminal Code of the Russian Federation ("Commercial bribery"), the stated intention to receive / transfer securities, money, other property, services, real rights, provided for the implementation of the subject did not take appropriate actions. Acceptance by a citizen executing managerial functions of the said values allegedly for behavioral acts, which he can not carry out due to the lack of necessary powers or the inability to use them, qualifies as fraud, if there is a intent to acquire them. The owner of the property in such situations is responsible for attempting to bribe, if there are appropriate conditions. In particular, it should be established that the transfer of values was carried out by a person with the purpose of committing actions / omissions to the receiving entity in his favor.

The subjective part

It is characterized by fault in the form of direct intent. Any sane 16-year-old citizen can act as the transmitting value of a person. The recipient can only be a special subject. He is a person who realizes the functions related to management.

Qualifying signs

Consider the aggravating circumstances, which provides for article 204 of the Criminal Code, with comments of lawyers. The first qualifying sign is the commission of an act by previously conspired persons. As experts point out, when considering it, it is necessary to pay attention to the fact that among these subjects there may be citizens who do not perform administrative functions. An analogous composition can also be found in an organized group. As indicated in the plenary Decree BC 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 when the remuneration is accepted by at least one citizen exercising managerial functions.

Conjugation with a bribe

A citizen exercising managerial functions who offered a subordinate in the service to perform the desired inaction / action in the interests of the company to hand over an unlawful remuneration to the official will answer as the perpetrator of the crime provided for in article 291. At the same time, an employee who has carried out the corresponding assignment will be punished as an accomplice. In relation to a citizen exercising managerial functions in an organization who offered a subordinate for the service to perform the desired omission / action in the interests of the enterprise, article 204 of the Criminal Code of the Russian Federation will apply to the subject performing similar tasks in another firm, securities, money, other property. The practice of applying the norm indicates that the employee who completed the assignment will answer as an accomplice. The person who offered the bribery, respectively, is the executor. The norm in question refers to deliberately illegal actions. In their quality, such behavioral acts act that violate norms or are expressly prohibited by law. Indication of knowl- edge means knowledge of the inadmissibility of behavior by the subject.

Assistance in investigation

A note to the rule in question provides for the possibility of removing the charge of a crime from the subject. It is realized if a citizen actively helps 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 a crime, objectively and fully reveal the circumstances of an event. For example, this may be an indication of the participants in the assault, truthful testimony and so on.

Extortion

Removal of responsibility from a person is allowed if a citizen exercising managerial functions in a non-governmental or other organization required him to provide him with an illegal remuneration (securities, money, other property) for bribery. Extortion, as a rule, is accompanied by threats of committing actions that are capable of damaging the interests of the person or creating such conditions under which he will have to commit an unlawful act to prevent possible consequences.

Voluntary report on the act

Exemption from liability under the rule in question is allowed in the event that the subject voluntarily notifies the body authorized to initiate criminal proceedings of the crime. This possibility is realized under certain conditions. First of all, the message must be voluntary. This means that the person should 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. One should pay special attention to the fact that exemption from liability is allowed if the message was transmitted to a specific body authorized to initiate criminal proceedings, and not to any state agency. Of course, in the actions of the subject reporting the deed, there should be no signs of other crimes.

Important points

Exemption from liability, according to a note to the commented rate, is mandatory. At the same time, the removal from the subject of the accusation does not mean the absence of signs of a wrongful act in his actions. Accordingly, he can not be recognized as a victim and can not claim to return him material values transferred as commercial bribery. The exception is when there was extortion. In the income of the state, monetary funds and other valuables can not be used if claims of improper transfer were claimed against their owner. This rule applies in cases when a citizen from whom a person exercising managerial functions extorts property, reported this to the authorities authorized to initiate a criminal proceeding, prior to their submission, and the process was controlled by these structures in order to catch the guilty person in red-handed . In such situations, tangible assets are returned to the rightful owner without fail. When deciding on the return of money and other property to a citizen who has been extorted, it must be taken into account that if he had to give them back to prevent negative consequences for his interests, then they should be returned to him. In the case of a voluntary report on bribery, it does not matter whether a particular entity was known to exercise managerial functions in a commercial or other enterprise that was supposed to transfer illegal remuneration. In the acquisition of values, the fulfillment of the desired (required) omissions / actions in the interests of the provider of the rule in question is not covered. In this regard, in the presence of an independent composition in such behavior, its additional qualification is necessary.

Conclusion

Despite the work of law enforcement agencies, corruption is quite large. The public danger of bribery consists mainly in the fact that the act violates the normal functioning of commercial and other enterprises, discredits employees who are endowed with managerial functions. The motives of the act may be different. Often, citizens are bribing in order to resolve any relevant issue for them as quickly as possible. In any case, in the qualification of the act, neither the motive nor the aim of the offender is relevant. The difficulty in practice in a number of cases is the delineation of bribery and giving bribes. The main difference between the acts is the subject composition. In the crime envisaged in Article 204 of the Code, one of the participants is always a person who realizes functions related to management activities. Lawyers pay special attention to the grounds for exemption from liability. In order to avoid problems with criminal law, experts recommend that if there are suspicions of bribery, they should immediately contact law enforcement authorities.