PARADOXES IN CRIMINAL LIABILITY FOR MEDIATION IN COMMERCIAL BRIBERY

Введение: в статье представлены результаты анализа проблем привлечения к уголовной ответственности за посредничество в коммерческом подкупе. Материалы и методы: нормативную основу исследования составил Уголовный кодекс Российской Федерации (далее - УК РФ). Методологической основой послужили диалектико-материалистический метод познания и основанные на нем общенаучные и частные методы исследования (анализ, синтез, логико-юридический, сравнительно-правовой методы). Результаты исследования: на основе анализа уголовного законодательства и научной литературы сделан вывод о законотворческих ошибках конструирования уголовно-правовой нормы об ответственности за посредничество в коммерческом подкупе. Обсуждение и заключения: в статье приведен комплексный анализ квалификации посредничества в коммерческом подкупе.

CRIMINAL LEGAL PROBLEMS OF BRINGING TO RESPONSIBILITY FOR CORRUPTION-RELATED CRIMES ON THE EXAMPLE OF COMMERCIAL BRIBERY

The article provides a complete and comprehensive analysis of the norms of legislation regulating the issues of combating corruption crimes on the example of commercial bribery. Using the comparative legal method of scientific knowledge, the main national normative legal acts regulating the fight against corruption are analyzed. The provisions of federal laws and by-laws of state authorities regulating the issues raised are also analyzed. In addition, the analysis of the law enforcement practice of law enforcement agencies and courts responsible for the organization of work on the identification, prevention and suppression of corruption crimes, as well as carrying out criminal prosecution for their commission, is carried out. The article also reveals law enforcement and other problems of bringing to criminal responsibility for commercial bribery, mediation in commercial bribery and small-scale commercial bribery, a criminal-legal analysis of these types of crimes by their elements is carried out. Based on the results of the analysis, proposals are formulated aimed at further improving the regulatory framework concerning the issues of countering corruption crimes.

Subject of confiscation in little commercial bribery and little bribery

The analysis of the grounds for the confiscation of property allowed the author to identify a set of problems that have arisen as a result of the legislative separation of petty commercial bribery and petty bribery. Article 1041 of the Criminal Code of the Russian Federation gives no legal basis for seizure of property obtained as a result of petty commercial bribery or petty bribery. It leads to the deficiency of the means of criminal law enforcement and requires the use of other means, not restricted to only penal tools. For the confiscation of property, courts resort to the application of civil law norms regulating the invalidity of civil transactions. The author notes that as a result of this approach to the legal regulation of the confiscation of property and decisions taken by the courts, there is a confusion and substitution of the legal nature of the fact of a crime and the fact of a civil tort. In order to eliminate the revealed contradictions, the author proposes to amend the normative regulation of the grounds for the confiscation of property and to consider property received as a result of petty commercial bribery or petty bribery as obtained illegally and, accordingly, subject to seizure as state revenue.

About corruption in the private sector

The article considers the problem of corruption in the private sector of Ukraine’s economy. According to the World Research ofEconomic Crimes and Fraud 2020, 47 % of Ukrainian companies have suffered from illegal misappropriation, bribery and corruptionin the last 24 months. Despite the serious damage from corruption to business and the national economy, this problem remains poorlyunderstood in Ukraine.Corruption in the private sector exists in two forms: 1) bribery in the commercial interests of officials and employees of privatesector entities, as well as civil servants or persons providing public services; 2) abuse of power by officials of a legal entity of privatelaw and persons who provide public services in order to obtain illicit benefit for themselves or third parties.For commercial bribery (bribery in commercial intersets) are characterized by the following features: a) commercial interest andeconomic purpose; b) various subjects of “active” and “passive” actions related to bribery; c) illicit benefit as a means to an end; d) thepurpose of bribery to incline a person to certain actions or omissions related to the use of the powers granted in the interests of others;e) intentional criminal acts in the form of providing / receiving illicit benefits in exchange for pre-determined actions or omissions;f) various ways of committing bribery for commercial purposes.Commercial bribery takes the form of an informal business agreement, the content of which is the mutual obligations of the parties,determining the type, amount of illicit gain and the specific conditions of its provision / receipt. The subject of bribery is an illicitbenefit. Subjects of commercial bribery are divided into two types: active (providers of illicit benefits) and passive (recipients of illicitbenefits). The appointment of commercial bribery is the legal or illegal promotion of entrepreneurial activity, or the creation of conditionsor concealment of criminal activity of businessmen. The purposes of commercial bribery are commercial or banking secrecy,insider information, documents, decisions, services, power influence. Commercial bribery is committed within two types ofrelationships: business-business and business-power.Abuse of power by leaders and managers of private firms is carried out for the purpose of theft or misappropriation of companyproperty, or seizure of assets.Corruption in business is used as a tool to gain access to material resources, increase business profitability and gain illegal economicbenefits. Through organized corruption, the control of the market of goods and services, management of shadow financial flows,redistribution of assets and revenues of large, small and medium-sized businesses, the impact on economic policy of state. Corruptionin the private sector is one of the main obstacles to sustainable development and economic growth and poses a threat to Ukraine’snational security.

Can a Lecturer of a Cooperative Higher Educational Institution Be a Subject of Commercial Bribery?

The article, with theoretical and practical positions, deals with the problem questions of application of item 204 of the Criminal Code of the RF concerning teachers of the co-operative higher educational institutions.