Law/5. Criminal law and criminology

 

K.Yu.N. Zhadan V. N.
Kazan Federal University, Elabuga Institute, Russia
To the question about the criminal law definition of
"corruption crimes"

 

In the legal literature the analysis of criminological and criminal-legal characteristics of corruption crimes the subject of many publications [1], that in no way detracts from the author to continue to explore issues legal analysis of the offences. The subject of this research there are some approaches to criminal law definition of "corruption crimes".

One of the controversial issues in the legal literature that characterizes corruption is the designation of their respective term, and the definition of these crimes. In the normative legal acts, official documents and scientific literature in relation to these crimes use of the term "corruption crimes", "crimes of corruption", "offences related to corruption", "offences of corruption", "malfeasance connected with corruption", "corruption" and others.

Before we proceed to analyze the concept of corruption crimes, it is advisable to determine the value of used the term "corruption".

So, in the Russian explanatory dictionary, corruption means moral decay of officials and politicians, as expressed in the illicit enrichment, bribery, embezzlement ...[2]. In the encyclopedic dictionary corruption (from lat. corruptio – bribery) is defined as direct use by a person of his official position for personal enrichment [3]. In the legal dictionary corruption (from lat. corruptio – bribery, corruption; lat. corrumpere – to corrupt) is defined as a socially dangerous phenomenon in the sphere of politics or state governance, manifested in the deliberate use of the authorities of his official status for illegal receipt of property and non-property benefits and advantages in any form, as well as the bribery of these persons [4].

Thus, in General terms corruption is the use of their official powers and rights entrusted it for personal gain (other persons) contrary to established law and rules.

In the current legislation of the Russian Federation (the RF, Russia) uses the terms "corruption" and "corruption". So, in the Federal law dated 25.12.2008 Ή 273-FZ "On combating corruption" (hereinafter – FZ "On combating corruption") [5] defines the main concepts, legal basis, principles, and also describes the activities for countering corruption and the responsibility of individuals and legal entities for corruption offences.

According to paragraph 1 of article 1 of the Federal law "On combating corruption" corruption is defined as "the abuse of official position, bribery, receiving a bribe, abuse of authority, commercial bribery or other illegal use by a physical person of his official position contrary to legitimate interests of society and the state in order to obtain benefits in the form of money, valuables, other property or services of property character, other property rights for itself or for third parties or illegal provision of such benefits specified person other individuals; committing those acts on behalf of or in the interests of legal persons" [5].

This concept of corruption, the legislator mention specific types of crimes and thereby refers to certain offences covered by the Criminal code of the Russian Federation [6] (hereinafter – CC RF), which in turn no of offenses called corruption (corruption). Used FZ "On combating corruption" the term "corruption offences" the relevant concept is not defined and the term "corruption" is not used. At the same time, if those mentioned in this act, the offences called term "crimes of corruption", this term is also criminal-legal significance.

In the resolution of Plenum of the Supreme Court dated 09.07.2013 No. 24 "On court practice on cases of bribery and other corruption crimes" [7] (hereinafter – regulation) in the title and the content uses the terms "corruption" and "corruption crimes". Thus, the decision of the Plenum States that "for the purposes of criminal-legal support of counteraction of corruption and to fulfil international obligations, the criminal code of Russian Federation establishes responsibility for corruption crimes" [7].

In the Indication of the Prosecutor General of the Russian Federation No. 65/11, of the Ministry of internal Affairs of the Russian Federation Ή 1 from 01.02.2016 "About introduction in action of the lists of articles of the Criminal code of the Russian Federation, used when forming the statistical reporting" [8] in part of these crimes uses the term "crimes of corruption" and the attached list N 23, which are called the compositions of these crimes.

Based on the foregoing that the legislation uses the terms "corruption" and "crimes of corruption", but not defines the notion of corruption crimes, while stating it is important not only to achieve criminal law objectives, but also to the practice of law.

As is known, in accordance with article 1 of the criminal code are only those terms, concepts and regulations which are defined in the criminal law.

A natural question: whether the right to existence of the criminal right-the concept of "corruption" and how to define crimes of this category?

We agree with the scientific position that the concept of "corruption" must have criminal-legal significance [9].

As known, the basis of the criminal code of the Russian Federation Association of socially dangerous acts is carried out on the basis of the similarity of the generic, species and direct objects of a criminal assault with the release of the respective classification groups. So, based on the objects in the criminal code provides for Chapter 30 "Crimes against state power, interests of state service and local self-government bodies", 23 "Crimes against interests of service in commercial and other non-profit organizations" 31 "Crimes against justice" and some others where there are anti-corruption provisions containing the signs of corruption. The anti-corruption norms, defined corruption offences are the abuse of official powers (article 285 of the criminal code), misappropriation of budgetary funds and the state extra-budgetary funds (article 285.1-285.2 of the criminal code), illegal participation in entrepreneurial activity (article 289 of the criminal code), taking bribes (article 290 of the criminal code), bribery (article 291 of the criminal code), mediation in bribery (article 291.1 of the criminal code), petty bribery (article 291.2 of the criminal code), forgery (article 292 of the criminal code), commercial bribery (article 204 of the criminal code), small commercial bribery (article 204,1 of the criminal code), provocation of a bribe or commercial bribe (article 304 of the criminal code), etc.

There in the criminal code and crimes committed through bribery and thus not relevant for the object to the named classification groups – article 141.1 "violation of an order of financing of election campaign of the candidate ...", article 184 "the Provision of illegal influence on results of official sports competitions and entertainment commercial contest" and others, which also contain elements of corruption.

Thus, the discrepancy between doctrinal criminal law classification of crimes, defining the structure of the criminal code, allow us to speak about the need to allocate in separate group of acts of corruption and their definition of the term "corruption offences".

In the legal literature there are many scientific definitions of the term "corruption offences". For example, a crime of corruption is defined as bribery or corruption of officials, which implies a selfish use of employees, their personal interests or corporate / group, the interests of the powers entrusted to it in accordance with the position [10].

At the same time, E. V. Kolomiychenko A. A. Zelentsov corruption crime is defined as "non-violent acquisitive crime associated with the illegal use of an official (service) or special provisions of the individual's status, allowing you to influence the conduct of any public events" [11].

S. V. Maksimov said that "corruption crime can be understood under the Criminal code of Russian Federation of socially dangerous acts directly encroaching on the authority of the public service, which is expressed in illegally obtaining state or municipal employees any benefits (property, rights, services or benefits) or in rendering the last of such benefits" [12, p. 15].

I. A. Yarovaya commenting on the draft law "On combating corruption" notes that corruption crime it is defined as "guilty the perfect socially dangerous act involving illegal use of a natural person of his official position contrary to legitimate interests of society and the state in order to obtain benefits for themselves or third persons or illegal provision of such benefits specified person other individuals is prohibited by the Criminal code of the Russian Federation under threat of punishment" [13]. There are in the literature and other criminal-legal definition of "corruption crimes".

An analysis of the above definitions of corruption crimes leads to the conclusion that their authors pay special attention to the object of encroachment, and some isolated and criminal-legal characteristics (e.g., socially dangerous acts, illegal receipt of benefits, etc.). As rightly noted in the literature, each of the jurists who have studied a particular problem, offers his original concept, identifies certain signs, system, classification, etc.

With that said, the following definition of crimes in this category. Corruption offences is provided for by the criminal law socially dangerous acts containing elements of corruption and related illegal use of their official powers against the interests of the organizations concerned, in order to extract benefits for themselves or others or harming other persons, and which entailed substantial violation of rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.

The author agrees with the scientific approach that not only the term "corruption crimes", but the definition of "corruption" has the right to criminally-legal value. The definition of "corruption" can be stipulated in the Special part of the criminal code, by analogy with article 331 "Concept of crimes against military service".

In addition to the integration of the concept of the study group of crime necessarily involves the determination of a specific list of crimes that constitute corruption and highlights them in a separate Chapter of the criminal code of the Russian Federation. Criminal-legal analysis of corruption-related crimes requires a separate study.

Thus, this study may be understood as the analysis of the current legislation in the field of combating corruption, official and scientific provisions on corruption offenses, and also the author's understanding about the necessity of criminal-legal definition of "corruption crimes".

Literature:

1. See: Gusev P. Y. Constitutional basis of counteraction of corruption in Russia // the Constitutional and municipal law. – 2009. – N. 12. – P. 9-12; Yedelev A. L. Corruption as a systemic threat to the stability and economic security of the Russian Federation // Migration law. – 2009. – N. 2. – P. 29-32; Zhadan V. N. About corruption and criminological characteristics of corruption crimes // the Young scientist. – 2015. – N. 5. – P. 345-351; Zhadan V. N. Some approaches to the definition of characteristics and concepts of corruption crimes // the Young scientist. – 2015. – N. 7. – P. 556-561; Corruption: trends of resistance. The collective monograph; L. A. Andreeva (Preface, CH. 6); F. G. Alzhanova (GL. 2); E. V. Epifanova (GL. 4); V. N. Zhadan (GL. 1). [ed. by L. A. Andreeva]. – Novosibirsk: Izd. "Sibak", 2015. – 196 p.; Strelnikov K. A. implementation of the Federal law "On combating corruption" // the Legal world. – 2009. – N. 3. – P. 24-26; A. Gumerov Timur, Vladimir N. Zhadan and Iskandar G. Mukhametgaliyev. On Criminological Aspects of Corruption-Related Criminal Activity in Russia // The Social Sciences, 10 (7): 1807-1811, 2015, etc.

2. Explanatory dictionary Ozhegova. Dictionaries and encyclopedias on the Academician [Electronic resource]. – Mode of access: http://dic.academic.ru/dic.nsf/lower/15689 (date accessed: 29.09.2016).

3. Big Encyclopaedic dictionary. Dictionaries and encyclopedias on the Academician [Electronic resource]. – Mode of access: http://dic.academic.ru/dic.nsf/lower/15689 (date accessed: 29.09.2016).

4. Legal dictionary. Dictionaries and encyclopedias on the Academician [Electronic resource]. – Mode of access: http://dic.academic.ru/dic.nsf/lower/15689 (date accessed: 29.09.2016).

5. Federal law of 25.12.2008 Ή 273-FZ "On combating corruption" (ed. by 15.02.2016 No. 24-FZ) – [Electronic resource]. – Mode of access: http://www.consultant.ru/document/cons_doc_LAW_82959/ (accessed: 29.09.2016).

6. Criminal code of the Russian Federation from 13.06.1996 Ή 63-FZ (as amended on 06.07.2016 No. 375-FZ // Sz the Russian Federation. – 1996. – N. 25. – St. 2954.

7. The resolution of Plenum of the Supreme Court of the Russian Federation dated 09.07.2013 No. 24 (as amended on 03.12.2013 No. 33) "About court practice on Affairs about bribery and other corruption crimes" – [Electronic resource]. – Mode of access: http://www.consultant.ru/document/cons_doc_LAW_155458/ (accessed: 29.09.2016).

8. The instruction of the Prosecutor General of the Russian Federation No. 65/11, of the Ministry of internal Affairs of the Russian Federation Ή 1 from 01.02.2016 "About introduction in action of the lists of articles of the Criminal code of the Russian Federation, used when forming the statistical reporting". List No. 23 corruption-related crimes. – [Electronic resource]. – Mode of access: http://www.consultant.ru/document/cons_doc_LAW_194110/ (accessed: 29.09.2016).

9. Bugaevskaya N. In. Corruption: definition of the term – [fashion resource]. – Mode of access: http://pravo-znanie.ru/ugolovnoe-pravo-i-ugolovnyj-protsess/416-korruptsionnye-prestupleniya-osobennosti-opredeleniya-termina.html (date accessed: 29.09.2016).

10. Corruption crime in all spheres of activity [Electronic resource]. – Mode of access: http://advocat-piter.com/korrupcionnye-prestuplenija (date accessed: 29.09.2016).

11. Kolomiychenko E. V., Zelentsov A. A. General characteristics of corruption crimes in Russia [Electronic resource]. – Mode of access: http://www.eurasialaw.ru/index.php?option=com_content&view=article&id (date accessed: 29.09.2016).

12. Maksimov S. V. Corruption. The law. Responsibility. – M.: Educational and consulting center Yurinfor, 2000. – 143 p.

13. Yarovaya I. A. We introduce a new notion – corruption offenses and corruption crime [Electronic resource]. – Mode of access: http://www.komitet2-6.km.duma.gov.ru/site.xp/052057124049050055057.html (date accessed: 29.09.2016).