Investigation Methodology Art. 2018 (Abuse of Authority)

[Частный детектив ОДБ. Новосибирск.]

Methodological recommendations for the organization of the investigation of criminal cases of crimes under Article 201 of the Criminal Code of the Russian Federation (Abuse of authority).

Crimes against the interests of the service in commercial and other organizations (Articles 201-204 of the Criminal Code of the Russian Federation), as well as “official” crimes (Articles 285-293 of the Criminal Code of the Russian Federation) in the statistical records of law enforcement agencies (operational and investigative units of the Ministry of Internal Affairs, the FSB, the FCS and the Prosecutor's Office) are classified as “corrupt” and their identification and disclosure at this stage of the development of the state criminal law policy is given priority.
The significance of “official crimes” is also evidenced by the specifics of the economic development of our country, in terms of the social role that the so-called natural monopolies and giant companies currently play in the life of our society and the state.
These organizations, although formally and legally not “state", but actually play an equally important role in the life of society and the state, and the corruption of persons performing managerial functions in these organizations, law enforcement agencies attach importance and pay attention to no less than the corruption of officials in state structures and organizations.
According to the data of the GIAC of the Ministry of Internal Affairs of Russia for the period from January to December 2004, 5,227 crimes against the interests of the service in commercial and other organizations were committed in the Russian Federation (which is 13.3% less than in 2003), of which 3,145 crimes account for abuse of authority (- 8.8% compared to 2003), for which 1,640 criminal cases were sent to court (which is 32.6% more than in 2003). These figures speak volumes, especially if we take into account that the crimes provided for in Chapter 23 of the Criminal Code of the Russian Federation against the interests of service in commercial and other non-governmental organizations are a novelty of the Criminal Code of the Russian Federation, which entered into force on January 1, 1997, in connection with which in practice there are natural difficulties in the interpretation of these legal norms, as well as in the disclosure and investigation of crimes of this category.
During the investigation of criminal cases of crimes related to abuse of power in commercial organizations, a number of difficulties arise due to objective reasons:
- in accordance with paragraph 2 of the note to Article 201 of the Criminal Code of the Russian Federation, to initiate a criminal case, it is necessary to have a statement from a commercial organization, or its consent to initiate a criminal case. As a rule, the heads of commercial enterprises and organizations and other employees of the senior level are brought to criminal responsibility under this article, in connection with which it is sometimes very difficult to obtain the consent of the organization represented by these persons. In addition, the subordinates who are in official and material dependence on them, as a rule, do not want to enter into conflict with the management, lose their jobs, wages, etc. In this connection, the facts of refusal of employees of commercial enterprises from giving evidence, or changes in previously given testimony and other forms of hindering the implementation of the preliminary investigation are quite common;
- the disposition of this article provides for the mandatory occurrence of consequences in the form of" significant harm " caused by the illegal actions of an employee of a commercial organization who abuses his powers. The concept of "significant harm" belongs to the assessment category, it is not clearly specified, which makes it possible to interpret it broadly;
- the preliminary investigation of criminal cases of crimes under Article 201 of the Criminal Code of the Russian Federation is also complicated by improper accounting in the vast majority of commercial organizations, and in some cases by its complete absence, which is due to low financial discipline and, in turn, leads to the lack of a real opportunity for the investigation to withdraw the necessary documents. The heads of commercial and other non-governmental organizations, against which criminal cases have been initiated, are not interested in restoring accounting records and issuing the necessary documents. At the time of initiation of a criminal case, many documents are lost, hidden or falsified, which prevents an objective determination of the economic efficiency of the transactions made by the heads of enterprises, the feasibility of concluding contracts, etc. These circumstances make it difficult to conduct documentary audits and financial and economic forensic examinations, without which the preliminary investigation is deprived of the evidence base;
- the lack of clearly developed functional responsibilities and job descriptions in commercial and other organizations does not always allow to correctly determine the status of the guilty person, to establish the scope of his official powers and the managerial functions performed by him;
- the process of proving the subjective side of the crime, namely the intent of the accused to extract benefits and advantages for himself and others, is particularly difficult. In most cases, the perpetrators try to give the illegal actions a legitimate appearance, motivating their actions with production necessity and financial or economic expediency, while attaching documents and calculations confirming their conclusions, attracting various specialists, whose services they pay for themselves and, accordingly, have a significant impact on both the formation and volume of the initial research objects and the research process itself, and on the final conclusions of the specialists involved.
In addition, harm, the purpose of harm and the legitimate interests of citizens are also abstract concepts. The law does not have a specific interpretation of them, which also introduces ambiguity in the understanding of these norms and, ultimately, leads to problems in the investigation and proof of crimes of this category.
The concept of a person performing managerial functions in a commercial or other organization (hereinafter referred to as an employee) is disclosed in the note to Article 201 of the Criminal Code of the Russian Federation.
Thus, an employee is a person who permanently, temporarily, or by special authority performs organizational and administrative or economic duties in a commercial organization, regardless of the form of ownership, as well as in a non-profit organization that is not a state body, local self-government body, state or municipal institution.
These duties may be assigned not only to the heads of organizations, but also to their deputies, as well as heads of departments and other employees, as well as representatives by proxy.
These duties, as indicated in the note to Article 201 of the Criminal Code of the Russian Federation, must be performed permanently, temporarily or by special authority. Taking into account the latter, as well as the fact that non-governmental organizations sometimes do not comply with the rules of office management (orders for appointment to a position, temporary performance of duties, job descriptions, labor contracts, etc.are not issued or stored), the investigator needs to find out what was the actual procedure for carrying out activities in this firm, public or other non-profit organization, what exactly was the scope of duties of the person who committed the offense, authorized to carry them out by oral order of the head of the organization.
The absence of a written document: an order, an order, a duty instruction or a contract (in particular, an employment contract), according to which a person is assigned special powers in an organization related to organizational, administrative and economic functions, cannot be considered as a basis for not recognizing him as a subject of an official crime in commercial and other organizations, if in fact, as a result of the will of the authorized representative of the organization, the relevant functions were actually performed by the person.
In a general sense, a commercial organization in accordance with Article 50 of the Civil Code of the Russian Federation should be understood as an organization (legal entity) that pursues profit as the main purpose of its activities (for example, a business partnership and a company, a production cooperative, a state and municipal unitary enterprise).
According to parts 2 and 3 of the note to Article 201 of the Criminal Code of the Russian Federation, the grounds for criminal prosecution for crimes provided for in Article 201 or other articles of Chapter 23 of the Criminal Code of the Russian Federation are divided into two categories:
1) on general grounds, criminal prosecution is carried out if the act provided for in the articles of this chapter has caused harm to the interests of a state or municipal enterprise, a non-profit organization (including an association or unions formed on the basis of an association with non-profit organizations), as well as to the interests of citizens (including employees or shareholders of a commercial organization), society or the state. In this case, no statement or consent of the organization (including commercial) to carry out criminal prosecution is required.
2) if the act provided for in the articles of this chapter has caused harm exclusively to the interests of a commercial organization, criminal prosecution may be carried out only at the request of this organization or with its consent.

The initial data for the initial planning stage are the materials on the basis of which a criminal case was initiated. As a rule, these materials contain data that allow us to make a number of assumptions about the circumstances of the event under investigation.
In some cases, in order to verify the put forward versions and successfully investigate the case, it is necessary to provide in the plan some preparatory and organizational measures, the implementation of which is advisable before the start of investigative actions. These include familiarization with the regulatory, constituent and internal documents regulating the activities of a commercial organization and the management functions performed by its employees, as well as familiarization with accounting, document management, features of established business practices, working hours, etc. In carrying out preparatory measures, employees of the bodies of inquiry can be of great help, using secret methods.
Organizational arrangements should also be made during the entire investigation process. For example, an investigator must properly organize an audit or financial and economic forensic examination, find qualified specialists who have the necessary knowledge in the area of interest to the investigation, provide all the materials required to perform the tasks assigned to them, and provide them with the necessary working conditions.
At the initial stage of the investigation, in order to prevent the possible concealment of traces of a crime, it is advisable to immediately inspect and seize documents related to the activities of the suspect, and, if necessary, search the place of his residence and work.
Among the initial investigative actions, an interrogation of a person in respect of whom a statement was received about the commission of a crime under Article 201 of the Criminal Code of the Russian Federation may also be provided for. No matter how much the suspect tries to hide the reasons and circumstances that led to the harm caused by a commercial or other organization, usually he is forced to justify himself by giving some testimony that may contain information of interest to the case. This will allow them to assess, identify ways to verify such statements and, subsequently, obtain new evidence that refutes the version put forward by the suspect and confirms the version of the investigation.
In cases of this category, it is important to seize and examine draft records, as well as information contained on hard drives of personal computers and other information carriers belonging to suspects and related persons, which they conduct for themselves for the purposes of personal control and where they reflect transactions with property, money. In them, you can find discrepancies with the data of official accounting statements, or find questionable business or financial transactions that caused harm.
The analysis of criminal cases of this category revealed a number of problems related to the initiation of criminal proceedings, investigation and further qualification of the actions of the perpetrators. In this regard, at the initial stage of the investigation, it is necessary to draw up a detailed plan for the investigation of a criminal case, including the entire complex of necessary investigative, procedural and organizational actions, as well as operational and investigative measures.
Initiation of a criminal case and the initial stage of the investigation.
As practice shows, certain difficulties are caused by the initiation of criminal cases on crimes under Article 201 of the Criminal Code of the Russian Federation, due to the fact that in some cases this requires a statement or consent of the head of a commercial organization.
In accordance with Article 53 of the Civil Code of the Russian Federation, an individual acts on behalf of a legal entity by virtue of a law or constituent documents, which, as a rule, is the head. It should be noted that in each case it is necessary to set the range of people - managers, employees and representatives of the organization concerned, which are entitled to act on its behalf, on the basis of constituent documents of the organization, or by virtue of a power of attorney issued to them in accordance with the law, and covering a circle of given powers of the considered actions (in particular, the representation of the interests of the organization in the public or law enforcement, etc.).
However, in this regard, the practice also raises many problems.
First, in order to establish the facts of obtaining benefits for themselves or other persons, or harming the interests of other organizations, citizens, society and the state, in some cases, documents are required, the seizure of which is possible only during the preliminary investigation of a criminal case, and even then with the consent of the prosecutor, or by a court decision. At the same time, the lack of sufficient data in the verification material indicating the above-mentioned signs of a crime under Article 201 of the Criminal Code of the Russian Federation may subsequently lead to the recognition of the criminal case as unreasonably initiated and the cancellation of the decision to initiate it or the termination of the criminal case. Therefore, at the stage of initiating a criminal case, a preliminary check must be carried out in order to establish the fact of causing harm. To do this, you can conduct a set of covert operational search measures aimed at obtaining the necessary information contained in these documents, which must be declassified and made available to the investigation in a legalized form (reports, certified and properly executed photocopies of documents, printouts from various media, video and audio recordings with transcripts of their contents, etc.), you can also interview persons who, by virtue of their official powers, have access to the information and documents necessary for the investigation.
Secondly, it is the head (or other person authorized to act on behalf of this organization), from whom it is necessary to obtain an application or consent to initiate a criminal case, who most often abuses his official powers.
At the same time, it should be noted that abuse of authority often causes harm not only to a commercial organization, but also can be associated with other crimes, such as theft. In this case, the application or consent of the organization to initiate criminal proceedings is not required.
Features of the production of investigative actions.
To form the evidence base in the investigation of this type of crime, it is necessary to conduct the following set of investigative actions.
The interrogation
As practice shows, the interrogation, especially the initial one, is conducted unqualifiedly, many points remain unclear, which in many ways complicates the investigation and leads to the unjustified termination of criminal cases.
In order to prevent the loss of evidence of criminal activity during the interrogation of a suspect (accused) of committing abuse of authority, it is necessary to clarify the following general circumstances:

- the legal status and organizational and legal form of the organization in which he works. The nature of the relationship with the parent organization, if any. Regulatory, departmental, corporate, constituent, internal and administrative documents regulating the activities of the specified organization;
- the activity actually performed by the organization and its compliance (or non-compliance and its reasons) with the requirements of the law, by-laws and the charter. The financial condition of the company, the size of its assets, their liquidity, as well as the market and book value. Sources of financing, due to which this organization exists, its profitability;
- how long does he work in this organization, what position does he occupy, the manager of interest;
- does it actually perform management functions, what are they?;
- what determines his official duties, how it is documented, whether he is familiar with these documents;
- whether he performed managerial functions (what exactly) on the oral order of the head of the organization (who exactly);
- how this activity should be carried out and how it was actually carried out, what violations were committed, what caused them, what consequences they entailed;
- whether there was any coercion against him, in what it was expressed;
- whether the financial situation of the organization as a whole and in the area of work entrusted to it has changed during the period under investigation, in particular, how (in the direction of deterioration or improvement), what was expressed and what caused these changes.
In the course of studying documents and (or) acts of audit (reports of appraisers, audits, expert opinions, etc.), if possible, with the participation of relevant specialists, conditionally identify transactions, decisions, actions or omissions of the interrogated person that objectively caused harm and contain signs of certain violations, or the initial expediency, validity and profitability of which are questionable for the organization. After that, interrogate the suspect (accused) separately for each of these acts, if possible, with the presentation of relevant documents and audit reports, expert opinions, etc., establishing the following during his interrogation:
- all circumstances related to the specified transactions, decisions, actions or omissions. Who and under what circumstances came up with the initiative, supported it, was directly involved in the implementation, controlled the execution and was responsible for the result, what was it expressed in, how was it documented, what consequences did it entail, etc.?
- what was the reason for the need to conclude a transaction (decision-making, action or inaction)? Their expediency, that is, validity from the point of view of the interests of the organization in which the interrogated person performs managerial functions?
- was the transaction, decision, action or omission beneficial to the organization in which the interrogated person performed managerial functions, or were they beneficial to third parties? If so, in whose interests did the interrogated person act, whose interests were infringed, in what way was this expressed, what consequences did it entail and what was the reason for it?
- have there been any violations of the regulatory, governmental, corporate, constituent, internal and administrative documents regulating the activities of the specified organization, as well as the established business practices in it? If so, in what way was it expressed and under what circumstances did it occur, in what documents was it reflected, what consequences did it entail and what was the reason for it?
You also need to find out:
- the circumstances of the suspect (accused) obtaining benefits for himself or other persons, or causing harm, in their relationship with each specific fact of abuse;
- the actual amount of benefits derived by the accomplices as a result of the abuse committed, as well as the harm caused, if possible in its monetary terms;
- the circumstances of the relationship of the suspect (accused) with potential accomplices from among his colleagues, as well as with third parties in whose interests the abuse was committed or who benefit from harming this organization (competitors, detractors, etc.).
When interrogating victims and witnesses, it is necessary, if possible, to establish the same circumstances as during the interrogation of the suspect (accused), as well as the data characterizing the identity of the suspect (accused). At the same time, it should be assumed that on the one hand, these participants in the process should be more frank and, accordingly, can give more detailed and detailed testimony (with the exception of accomplices and persons dependent on them). And on the other hand, they are usually not direct participants in the events, perceiving the information of interest to the investigation indirectly (from conversations with other persons, from documents, etc.), in connection with which the investigator must necessarily find out from them during the interrogation the source and circumstances of their knowledge.
It is also necessary to take into account that those witnesses and victims who are in official, material or other dependence on the suspects (accused) and their accomplices, even initially giving incriminating testimony, can later change them or refuse (evade) from giving evidence in court, which may lead to the loss of this evidence.
In this case, in order to consolidate this evidence, it is necessary to carry out audio and(or) video recording of it during the interrogation, and immediately after the interrogation of the specified witness or victim, to conduct all possible confrontations with him, which are an independent type of evidence.
Recess.
If necessary, the seizure of documents should be carried out not only in the organization where the suspect (accused) works, but also in the registration authority, tax inspection, banking institutions, other places and organizations where documents that may be relevant to the case are located.
Such documents are:
- constituent and registration documents of the organization (charter, foundation agreement, certificate of registration, etc.);
- job descriptions, labor contracts and other documents defining the powers of the person and the range of managerial functions performed by him;
- legal, banking and other documents reflecting the financial and economic activities of the organization;
- primary accounting documentation and reporting of the organization for a certain reporting period;
- draft notes, diaries, notebooks, which may contain information that is relevant to the case;
- documents reflecting the financial and economic activities of the counterparties of the specified organization, necessary for conducting counter-checks, etc.
A search.
Investigative practice shows that in cases of abuse of power, such an investigative action as a search is very rarely carried out. However, it can be used to detect important physical evidence. The search may be carried out in the premises of the organization or in the home of the person who committed the crime. Its purpose is to search for and seize items, documents, various media and other evidence that reflects or confirms:
- the terms of reference and management functions actually performed by the suspect (accused);
- the actual facts of abuse and various violations, as well as the facts of the use of official powers and managerial functions contrary to the legitimate interests of the organization;
- the facts of obtaining benefits by the suspect (accused) for himself or other persons, or intentionally causing harm in their relationship with the facts of abuse;
- the actual amount of benefits derived by the accomplices as a result of the abuse committed, as well as the harm caused;
- the circumstances of the relationship of the suspect (accused) with accomplices from among his colleagues, as well as with third parties in whose interests the abuse was committed or who benefit from causing harm to this organization.
Of fundamental importance in the investigation of criminal cases of abuse of authority are audits and economic expertise of the financial and economic activities of commercial and other organizations, in the course of which it is necessary to:
- to check the reliability and validity of the conclusions made by various experts in the course of audits, inventions, assessments, etc. studies that are the basis for initiating a criminal case;
- make an assessment of the actual (market) value of the items of the audited transactions, at the time of their conclusion or alienation;
- analyze actions (inaction), decisions and transactions made by persons performing managerial functions in these organizations for their economic feasibility from the point of view of the interests of this organization, and in some cases, the interests of the state, society, and citizens, identifying those that led to a deterioration in the financial condition, a decrease in the solvency of the organization and other negative economic or social consequences;
- to determine whether the terms of the transactions under review were fully and properly fulfilled by the parties, and to analyze the reasons for their non-performance or improper performance, if this occurred;
- analyze these actions( inaction), decisions and transactions for their economic validity and profitability for these organizations. To establish whether the studied transactions were mutually beneficial or they were unilaterally beneficial only to one of the parties, which one. Whose interests were infringed as a result of the transactions under consideration, decisions and actions (inaction) of the suspects (accused), and who exactly acquired an unjustified benefit as a result of them, what exactly was it expressed and what is its real size (if possible in monetary terms);
- to establish whether the actions (omissions), decisions and transactions in question caused any harm (damage) to this or any other organization, citizens, society and the state, what exactly it was expressed in and what is its real size (if possible in monetary terms), by whose actions and decisions it was caused.
If the employees of the expert institutions of the Ministry of Internal Affairs of the Russian Federation, who are entrusted with the production of this expertise, do not have the necessary special knowledge in the field of financial and economic analysis to answer the questions raised, it seems appropriate to involve experts of the Ministry of Justice of the Russian Federation or competent specialists from relevant specialized state or research institutions, for example, the Russian Academy of Sciences.
In addition, these actions( omissions), decisions and transactions made by persons performing managerial functions in these organizations must be checked for compliance with the requirements of the legislation of the Russian Federation with the involvement of specialists from the relevant regulatory state bodies such as: the Ministry of Taxes and Duties of the Russian Federation, the Accounting Board of the Russian Federation, the Federal Financial Markets Service of the Russian Federation (formerly the Federal Securities Commission of Russia), the Central Bank of Russia, the Ministry of Finance of the Russian Federation, Rospatent, and others).
Also important for the investigation and proof of criminal cases of this category can be such an investigative action as monitoring and recording of negotiations. However, it should be remembered that in accordance with the requirements of Article 186 of the Criminal Procedure Code of the Russian Federation, the production of this investigative action is allowed only in cases of serious and especially serious crimes. Therefore, in the case under consideration, monitoring and recording of negotiations on criminal cases on crimes under Article 201 of the Criminal Code of the Russian Federation belonging to the category of crimes of small and medium gravity is allowed only in cases where they are associated with serious or particularly serious crimes.



Department for Cases of Particularly Dangerous Crimes in the field of Economic Activity of the Department for Control and Methodological Support of the Investigation of Particularly Dangerous Crimes of the IC under the Ministry of Internal Affairs of Russia


It seems that criminal prosecution includes not only the initiation of a criminal case, but also the presentation of charges and bringing to criminal responsibility, that is, conviction, etc. Therefore, in the event that a commercial organization, which is the only victim in the case of a crime of this category, will insist on the initiation of a criminal case and its investigation, and then, after sending the criminal case to the court, will oppose the conviction of the person who caused it harm, the court will have to terminate this criminal case.

 

[Детективное агентство. Москва. Арбат.]

¡Gracias!

 

[Матушкин Андрей Николаевич]

Gracias por trabajar en el foro.

 

[Частный детектив. Тайный советник. Омск.]

Gracias. Leí con interés cómo volví al Departamento de Procedimiento Penal de OVSHM

 

[Lary]

Material muy interesante, pero me gustaría que algunos de los participantes en el foro ruso publicaran el texto de los artículos del Código Penal de la Federación de Rusia que figuran en este material con un comentario (subiek, objeto, lado objetivo, lado subjetivo, conexión causal - para estos dos artículos). También vale la pena considerarlo en Ucrania en relación con la lucha contra la corrupción, los servicios operativos provocan a las personas que no desean cometer este tipo de delito, aunque Belkin también describió el lado moral de la provocación: Un funcionario siempre debe elegir si comete o no un delito, si sus acciones no ocultan otro delito cometido contra él o los miembros de su familia.
Muchas gracias por el material que apreciará una persona inteligente. Si los investigadores actuales de las agencias policiales visitan nuestro sitio, esto será de gran ayuda para ellos.

 

[Частный детектив ОДБ. Новосибирск.]

Investigation methodology Article 201 (Abuse of authority) (49098)
Original message
Article 201-Abuse of authority

1. The object of this crime is the social relations that develop in the sphere of service by persons who perform managerial functions in a commercial or other organization. This is one of the differences between abuse of authority and a similar crime under Article 285 of the Criminal Code of the Russian Federation. An additional object, depending on the circumstances, may be the interests of citizens, organizations, society or the state.

2. The objective side of the crime includes the following features:: 1) the use of powers by a person contrary to the legitimate interests of a commercial or other organization; 2) causing significant harm to the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law; 3) a causal relationship between the use of powers and the consequences that have occurred.

3. The use of a person's powers against the legitimate interests of a commercial or other organization is an act that can be committed either in the form of an action or inaction. From the name of the crime and the description of the signs of the act, it follows that criminal liability can only occur for the use of specific powers conferred on a person performing managerial functions in a commercial or other organization. Therefore, in each case of criminal prosecution, it must be established what powers were given to the person and which of these powers were used by him. Therefore, the use of opportunities caused, for example, by the significance of the position held, the friendly relations that have developed between the managers of organizations, does not form the composition of this crime. Thus, the disposition of the criminal law norm under consideration is blank.

Any person who performs managerial functions in a commercial or other organization is given the appropriate authority to perform the functions assigned to him. However, in this case, the powers granted must be used against the legitimate interests of the organization. Along with other signs of composition, such use of authority is evidence of the criminality of the committed act. This sign means that the use of authority does not meet the requirements of the legal norms on the basis of which the organization's activities should be carried out. For example, one of the types of non-profit organizations is a foundation that is established by citizens and (or) legal entities on the basis of voluntary property contributions and pursues social, charitable, cultural, educational or other socially useful purposes. The property transferred to the foundation by its founders must be used for the purposes defined by the foundation's charter *(1). Thus, the abuse of authority by the head of the fund can be expressed, for example, in the illegal provision of premises belonging to the fund to relatives for business activities, in the use of the fund's funds for purposes not provided for by the charter, etc. Other types of abuse of authority that occur in practice include, in particular, the use of vehicles and employees of the organization for personal purposes (for example, in the construction and repair of residential buildings); conclusion of a contract for the repair of office premises with organizations headed by relatives or acquaintances, at inflated prices for the work performed; allocation of a room in a hostel of a commercial organization to persons who do not have the right to do so; violation of tax discipline; conclusion of purchase and sale agreements that are unprofitable for the organization, etc.

In Chapter 30 of the Criminal Code of the Russian Federation, along with abuse of official powers (Article 285 of the Criminal Code), the legislator provided for the composition of abuse of official powers (Article 286 of the Criminal Code). It follows that when abusing official powers, a person acts within the limits of his rights, and when exceeding them, he clearly goes beyond them. Taking into account this provision, it can be argued that abuse of authority (Article 201 of the Criminal Code) can only be expressed in the use of those powers that are vested in a person performing managerial functions in a commercial or other organization. Consequently, the commission by such a person of actions that go beyond the limits of the powers granted to him (for example, the sale of the property of an organization without the consent of the management board in cases where such consent is a necessary condition for concluding a transaction) is not covered by the signs of the considered corpus delicti *(2). However, in Chapter 23 of the Criminal Code of the Russian Federation, there is no norm establishing the criminality of abuse of authority, which is a gap in the current law. This gap cannot be eliminated by analogy, since part 2 of art. 3 The Criminal Code of the Russian Federation prohibits the application of this principle (bringing to criminal responsibility for an act whose criminality is not provided for in the Criminal Code of the Russian Federation is not allowed).

4. Causing significant harm to the rights and legitimate interests of citizens or organizations or to the legally protected interests of society or the state characterizes the consequences and is a mandatory sign of the objective side of the abuse of power.

This is an evaluative concept that has no legal interpretation. The materiality of the damage must be established by the law enforcement officer in each specific case and confirmed by evidence. When bringing to criminal responsibility, it is unacceptable to limit oneself to the general formulation that the use of powers by a person performing managerial functions in a commercial or other organization has caused significant harm to the interests of citizens, organizations, society or the state. This consequence should be specified, i.e. it is specified in what it was manifested.

Significant damage can be both material and non-material. Part 1 of Article 42 of the Criminal Procedure Code of the Russian Federation states that the victim may be a legal entity "... in the event of damage to its property and business reputation caused by a crime".

It seems that in assessing the materiality of the harm, one can be guided, in particular, by the explanation of similar harm contained in paragraph 9 of the resolution of the Plenum of the Supreme Court of the USSR of March 30, 1990 "On judicial practice in cases of abuse of power or Official position, abuse of power or official authority, negligence and official forgery" *(3), however, taking into account the specifics of abuse of power. Based on this, significant harm can be expressed in violation of the constitutional rights and freedoms of citizens (including employees of the organization); undermining the business reputation of the organization; creating serious obstacles and disruptions in their work (for example, expressed in the need to reduce production); concealment by the head of the organization of the theft committed in the organization; causing significant property damage, etc.

Such harm may be caused to the interests of citizens (including employees of the organization), organizations (including the one in which the person works), society or the state. When bringing to criminal responsibility in the procedural documents, it is necessary to indicate the specific addressee who was harmed (a citizen or an organization, etc.).

A causal relationship must be established between the use of authority by a person and the socially dangerous consequences that have occurred.

5. The subject of this crime is special, it can only be a person who performs managerial functions in a commercial or other organization. The definition of the named entity is contained in the note. 1 to Article 201 of the Criminal Code.

From the literal interpretation of the note. 1 to Article 201 of the Criminal Code, it follows that the scope of the definition enshrined in it applies only to articles of Chapter 23 of the Criminal Code of the Russian Federation, which explicitly specify a person performing managerial functions in a commercial or other organization, as well as to Article 196 of the Criminal Code of the Russian Federation. This conclusion requires explanation. First, in Chapter 23 of the Criminal Code of the Russian Federation, such a person is named only in Article 201, parts 3 and 4 of Article 204. Secondly, the named subject is also specified in articles of other chapters of the Criminal Code of the Russian Federation, for example, in Article 215.1 "Termination or restriction of the supply of electric energy or disconnection from other sources of life support". In this case, when understanding its signs, it is also necessary to follow the note. 1 to Article 201 of the Criminal Code of the Russian Federation. It seems that no other interpretation is possible. The legislator made an inaccuracy by limiting the scope of the definition provided for in the note. 1 to Article 201 of the Criminal Code, only by articles of Chapter 23 of the Criminal Code of the Russian Federation. Third, in Article 196 of the Criminal Code of the Russian Federation, to which the note in question refers, several other entities are named - the head or founder (participant) of a legal entity or an individual entrepreneur. Persons who perform managerial functions in a commercial or other organization, among other employees, primarily distinguish the nature of their duties. Such persons should be assigned organizational and administrative or administrative duties.

To clarify the specifics of these duties, you can refer to paragraph 3 of the resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 "On judicial practice in cases of bribery and commercial bribery" *(4). Although it contains an explanation of the organizational and administrative and economic functions of the official, nevertheless, it seems that the content of the functions of the official and the duties of the person performing managerial functions of the same name are similar.

So, organizational and administrative duties " ... include, for example, the management of the team, the placement and selection of personnel, the organization of work or the service of subordinates, the maintenance of discipline, the application of incentive measures and the imposition of disciplinary penalties." These duties are assigned to persons who have employees in their subordination. They are, in particular, the head of the organization (manager, director, president, general director, etc.), his deputies, heads of departments (for example, legal, human resources, etc.) and other heads of structural divisions of the organization.

Administrative and economic responsibilities " ... may include, in particular, the authority to manage and dispose of property and funds held on the balance sheet and bank accounts of organizations... as well as performing other actions: making decisions on the calculation of wages, bonuses, monitoring the movement of material assets, determining the order of their storage, etc. " These powers may be held by the head of the organization, his deputies, the chief accountant, etc.

When bringing to criminal responsibility, the scope of the person's powers, their relevance to organizational and administrative and economic duties, and which of them he has abused in the course of his activities should be established. To do this, it is necessary to refer to the provisions of those normative acts, according to which a person is given the competence to perform managerial functions.

These duties may be performed permanently, temporarily, or under special authority. Temporary performance of duties means that their implementation is limited to a short period, for example, the period of illness, business trip, vacation of the head of the organization. Based on the interpretation by the Plenum of the Supreme Court of the Russian Federation of the performance of the functions of an official under a special authority *(5), it can be concluded that organizational and administrative or administrative-economic duties can be performed under the same authority on the basis of a law, a regulatory act, a court decision (for example, an arbitration manager approved by the arbitration court for conducting bankruptcy procedures and other N 127-FZ " On insolvency (bankruptcy)" *(6) powers and is a member of one of the self-regulating organizations).

When explaining the specifics of the nature of the duties performed by the subject of abuse of power, it should be borne in mind that the legislator limits their list only to organizational and administrative and economic duties, and this list is not subject to an extended interpretation. At the same time, it is important to correctly distinguish these duties from the professional functions of the employee. Thus, the subject of this crime cannot be recognized as persons who perform professional or technical duties in organizations that do not relate to organizational and administrative or administrative-economic duties. The right to perform legally significant actions in the service, that is, capable of generating, changing or terminating legal relations, is not in itself evidence of the fulfillment of these duties. The commission of legally significant actions is a sign that characterizes the activity of any employee of the organization. Therefore, they are not the subjects of crimes against the interests of service in commercial and other organizations, for example, medical workers (a doctor when diagnosing a disease, performing an operation), teachers of educational institutions (when conducting classes with trainees) who perform their professional duties. Only if they are assigned organizational and administrative or economic duties, they can be the subjects of crimes against the interests of the service (for example, the chief doctor, his deputies, the director of a non-state and non-municipal educational institution, etc.).

6. The third component of the criminal-legal status of the subject of abuse of authority is the place of performance of organizational-administrative or administrative-economic duties. Note 1 to Article 201 of the Criminal Code exhaustively states that these duties can be performed in a commercial organization, regardless of the form of ownership, as well as in a non-profit organization that is not a state body, local government body, state or municipal institution.

In accordance with Part 1 of Article 50 of the Civil Code of the Russian Federation, commercial organizations are those organizations that pursue profit as the main goal of their activities. They can be created in the following organizational and legal forms: business partnerships (full partnership, partnership on faith), business companies (open and closed joint-stock companies, limited or additional liability companies), production cooperatives (artels), state and municipal unitary enterprises. Special attention should be paid to the latter type of commercial organizations. Despite the fact that the property of a state or municipal unitary enterprise belongs to the property right of the Russian Federation, a subject of the Russian Federation or a municipal entity, such enterprises are commercial organizations (Part 2 of Article 113 of the Civil Code of the Russian Federation, Article 2 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal unitary Enterprises" *(7)).

Non-profit organizations do not have profit-making as their main goal and do not distribute the resulting profit among the participants (Part 1 of Article 50 of the Civil Code of the Russian Federation). Part 3 of Article 50 of the Civil Code of the Russian Federation states that such organizations can be created in the form of consumer cooperatives, public or religious organizations (associations), financed by the owner of institutions, charitable and other funds, as well as in other forms provided for by law. It is also noted here that non-profit organizations can carry out entrepreneurial activities only insofar as it serves to achieve the goals for which they were created, and corresponds to these goals.

"A consumer cooperative is a voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of participants, carried out by combining its members 'property share contributions" (Part 1 of Article 116 of the Civil Code of the Russian Federation). For example, in paragraph 2 of Article 2 of the Federal Law of December 30, 2004. No. 215-FZ" On Housing Savings Cooperatives " states that a housing savings cooperative is a consumer cooperative established as a voluntary association of citizens on the basis of membership in order to meet the needs of cooperative members in residential premises by combining share contributions by cooperative members *(8).

"Public and religious organizations (associations) are voluntary associations of citizens who, in accordance with the procedure established by law, have united on the basis of their common interests to meet spiritual or other non-material needs" (Part 1 of Article 117 of the Civil Code of the Russian Federation, Article 6 of the Federal Law "On Non-Profit Organizations").

In accordance with Article 7 of the Federal Law of May 19, 1995 N 82-FZ "On Public Associations" *(9) such associations may be established in the forms of a public organization (Article 8), a public movement (Article 9), a public foundation (Article 10), a public institution (Article 11), a body of public amateur activity (Article 12) and a political party (Article 12.2). An example of a public organization is national-cultural autonomy - a form of national-cultural self-determination, which is an association of citizens of the Russian Federation who consider themselves to be a certain ethnic community in the situation of a national minority in the relevant territory, on the basis of their voluntary self-organization in order to independently resolve issues of preserving identity, developing language, education, and national culture *(10). A religious association is a voluntary association of citizens of the Russian Federation, other persons permanently and legally residing in the territory of the Russian Federation, formed for the purpose of joint confession and dissemination of faith and having the following characteristics corresponding to this purpose: religion; performing divine services, other religious rites and ceremonies; teaching religion and religious education of its followers. Religious associations may be established in the form of religious groups and religious organizations (Part 1, 2 of Article 6 of the Federal Law of September 26, 1997 N 125-FZ "On Freedom of conscience and on religious associations" *(11)). Religious groups carry out their activities without state registration and acquisition of legal capacity of a legal entity. Premises and property necessary for the activities of a religious group are provided for the use of the group by its members (Article 7). A religious organization must be registered as a legal entity in accordance with the established procedure. Such organizations are divided into local and centralized (Article 8). A religious organization acts on the basis of a charter, which, in particular, must contain information about the organization's structure, its governing bodies, the procedure for their formation and competence (Article 10).

An institution is an organization created by the owner to perform managerial, socio-cultural or other functions of a non-commercial nature and financed by him in full or in part (Part 1 of Article 120 of the Civil Code of the Russian Federation, Part 1 of Article 9 of the Federal Law "On Non-Commercial Organizations"). It is important to emphasize that the owner of an institution may be the state (for example, the Russian State Library *(12)), a municipal entity (for example, schools, health care institutions, etc.), joint-stock companies, etc. At the same time, persons who perform managerial functions in state or municipal institutions are recognized as officials and are subjects of crimes provided for in Chapter 30 of the Criminal Code of the Russian Federation (note. 1 to Article 285 of the Criminal Code of the Russian Federation). This conclusion follows from the note. 1 to Article 201 of the Criminal Code, in which the legislator specifies that the place of performance of administrative functions cannot be a state body, a local government body, a state or municipal institution.

The Foundation is another type of non-profit organization. The foundation, as noted above, can be charitable or otherwise. However, the reference to the foundation, which is present in the name of the organization, does not always clearly indicate that it is a non-profit organization. Thus, Article 5 of Federal Law No. 167-FZ of December 15, 2001" On Compulsory Pension Insurance in the Russian Federation " defines that the Pension Fund of Russia is a state institution *(13). In accordance with art. 2 sec. I Regulations "On the Social Insurance Fund of the Russian Federation" it is a specialized financial and credit institution under the Government of the Russian Federation. The funds and other property under the operational management of the Foundation, as well as the property assigned to the sanatorium-resort institutions subordinate to the Foundation, are federal property *(14). The Federal Compulsory Health Insurance Fund (FMS) is an independent state non-profit financial and credit institution (Article 3 of the section. I of the charter of the Federal Compulsory Health Insurance Fund) *(15). It follows that persons who perform managerial functions in such funds cannot be subjects of crimes provided for in Chapter 23 of the Criminal Code of the Russian Federation.

Part 3 of Article 2 of Federal Law No. 7-FZ of January 12, 1996 "On Non-Profit Organizations" additionally stipulates that non-profit organizations may be established in the form of non-profit partnerships, autonomous non-profit organizations, social foundations, associations and unions, as well as in other forms provided for by federal laws *(16). Thus, this Law does not specify an exhaustive list of organizational and legal forms of non-profit organizations. For example, in accordance with part 2 of Article 22 of the Federal Law of May 31, 2002. N 63-FZ "On Advocacy and the Bar in the Russian Federation" the bar Association is also a non-profit organization *(17).

On the basis of Part 4 of Article 50, Part 1 and 2 of Article 121 of the Civil Code of the Russian Federation, it is allowed to create associations of commercial and (or) non-profit organizations in the form of associations and unions.

Thus, Article 1 of the Charter of the Chamber of Commerce and Industry of the Russian Federation stipulates that it is a non-governmental non-profit organization based on membership, created at the initiative of chambers of Commerce and industry, Russian commercial and non-profit organizations and individual entrepreneurs, uniting its members to implement the goals and objectives defined by the Law of the Russian Federation "On Chambers of Commerce and Industry in the Russian Federation" and the Charter. The Charter specifies the management bodies of the Chamber of Commerce and Industry. For example, the President of the Chamber of Commerce and Industry is its sole executive management body that exercises operational management (Article 47 of the Charter) *(18).

Article 52 of the Civil Code of the Russian Federation provides that commercial and non-profit organizations that are legal entities act on the basis of the charter, or the constituent agreement and the charter, or only the constituent agreement. At the same time, such constituent documents should define, in particular, the procedure for managing the activities of a legal entity.

7. From the explanation contained in paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of bribery and commercial bribery", it follows that attorneys representing, in accordance with the contract, the interests of the state in the management bodies of joint-stock companies (business partnerships), part of the shares (shares, deposits) of which are fixed (located) in federal ownership, belong to persons performing managerial functions in a commercial organization. Their activities are regulated by various regulations.

In this case, it is necessary to pay attention to a number of points.

In accordance with Article 38 of the Federal Law of December 21, 2001. N 178-FZ "On the Privatization of State and Municipal Property" *(19) the representative of the Russian Federation or a subject of the Russian Federation in the management bodies of open joint stock companies (hereinafter referred to as "OJSC"), in respect of which a decision has been made to use the special right of "Golden Share" (when 75% of the shares of the corresponding OJSC have been alienated from state ownership), may be appointed only by a civil servant who performs his activities on the basis of the regulations approved by the Government of the Russian Federation or the state authorities of the subjects of the Russian Federation.

Article 39 of the same Law provides for the specifics of the legal status of joint-stock companies whose shares are owned by the Russian Federation, the subjects of the Russian Federation or municipalities. Representatives of the interests of the Russian Federation, the subjects of the Russian Federation, and municipalities in the management bodies and audit commissions of these joint-stock companies may be persons holding state and municipal positions, respectively, as well as other persons.

It follows from the content of the above-mentioned norms of the said Law that representatives of the interests of the Russian Federation, subjects of the Russian Federation, and municipalities may be civil servants, persons holding state or municipal positions, as well as other persons. This right is granted to state and municipal employees, respectively, by clause 1, Part 1, Article 17 of the Federal Law of July 27, 2004, No. 79-FZ "On State Civil Service in the Russian Federation" *(20) and clause 4, Article 11 of the Federal Law of January 8, 1998, No. 8-FZ "On the Basics of Municipal Service in the Russian Federation" *(21). These representatives have different reasons for performing their functions. Thus, if state and municipal employees are granted representative powers in the order of appointment, then other persons - under an agreement concluded with them in accordance with civil law *(22). Guided by the Decree of the President of the Russian Federation of June 10, 1994 N 1200, the Government of the Russian Federation on May 21, 1996. adopted Resolution No. 625 "On ensuring the representation of the interests of the state in the management bodies of joint-stock companies( business partnerships), part of the shares (shares, deposits) of which are fixed in federal ownership" and approved an approximate agreement under which the attorney assumes obligations on behalf of the principal to represent the interests of the state in the management body of a joint-stock company (business partnership) *(23).

Thus, paragraph 6 of the resolution of the Plenum "On judicial practice in cases of bribery and commercial bribery" stipulates only the criminal legal status of other citizens (attorneys acting on the basis of a contract), it is proposed to consider them as persons performing managerial functions in a commercial organization.

Regarding another type of representatives-state and municipal employees, the legal literature suggests that they should be recognized as officials on the basis of the performance of organizational and administrative functions *(24). It is argued that the status of state and municipal employees in this case does not change, they are only assigned additional duties, but they do not become employees of commercial organizations *(25). This opinion should be accepted. 8. The subjective side of this crime is characterized by intent (direct or indirect) and a special purpose. Thus, the person is aware that the use of his powers is contrary to the interests of the organization, anticipates the occurrence of consequences in the form of significant harm to the rights and legitimate interests of citizens or organizations, or the interests of society or the state protected by law, and wants them to occur, or consciously allows them, or treats them indifferently. Indirect intent in the abuse of power is possible, despite the mandatory presence in this crime of the purpose of extracting benefits and advantages for oneself or other persons or causing harm to other persons. This is due to the design features of the corpus delicti. A person may pursue the goal of obtaining benefits for himself, while not wanting the consequences to occur or deliberately allowing them. Moreover, the consequences of this crime are estimated in nature.

The benefits and advantages can be both property and non-property. At the same time, the receipt of property benefits must be distinguished from the theft of other people's property. In this case, by analogy with the distinction between abuse of official powers committed with a selfish interest and embezzlement, it should be borne in mind that property benefits should be obtained as a result of abuse by a person performing managerial functions in a commercial or other organization, but without illegal gratuitous seizure and (or) circulation of other people's property in favor of the guilty person or other persons (for example, leasing premises belonging to the organization and using the received unencumbered funds for personal purposes). If the abuse of power was expressed in the illegal gratuitous seizure and (or) circulation of property in favor of the guilty person or other persons, i.e. it was a method of theft, then the act is subject to qualification under the articles of the Criminal Code of the Russian Federation providing for liability for theft of other people's property.

Among the benefits and advantages of a non-property nature are, in particular, those that are caused by the desire to advance on the career ladder, not to fulfill the assigned duties, to provide illegal assistance to familiar persons, etc. An alternative goal is to harm other persons. Part 1 of Article 10 of the Civil Code of the Russian Federation states that actions of citizens and legal entities carried out solely with the intent to harm another person are not allowed.

Benefits and advantages can be obtained for yourself or other persons (relatives, acquaintances, etc.).

9. Part 2 of Article 201 of the Criminal Code of the Russian Federation specifies the qualifying feature of this crime - grave consequences. This is an evaluative concept, as well as the concept of substantial harm, with which the legislator describes the consequences in the main part of the crime. The question of the possibility of recognizing a particular consequence as serious should be decided on a case-by-case basis. In this case, it is necessary to take into account, in particular, the number of affected citizens or organizations, the significance of the property damage caused, etc.

10. Notes 2 and 3 to Article 201 of the Criminal Code of the Russian Federation contain an indication of the need to comply with a special procedure for criminal prosecution.

Depending on who was harmed by the commission of the crime, the procedure for bringing to criminal responsibility differs. Thus, if the act harms the interests of an exclusively commercial organization that is not a state or municipal enterprise, criminal prosecution is carried out at the request of this organization or with its consent. When harm is caused to the interests of other organizations, as well as to the interests of citizens, society or the state, criminal prosecution is carried out on a general basis.

These notes apply only to the crimes provided for in Chapter 23 of the Criminal Code of the Russian Federation. Therefore, criminal cases on crimes of persons performing managerial functions in commercial and other organizations provided for in other chapters of the Criminal Code of the Russian Federation are initiated on general grounds.

Criminal prosecution is defined in the Code of Criminal Procedure as a procedural activity carried out by the prosecution in order to expose a suspect accused of committing a crime (paragraph 55 of Article 5). It is important to note that Article 23 of the Code of Criminal Procedure, which establishes the procedure for criminal prosecution for crimes provided for in Chapter 23 of the Criminal Code, differs significantly from 2 and 3 to Article 201 of the Criminal Code. Article 23 of the Code of Criminal Procedure states: "If the act provided for in chap. 23 of the Criminal Code of the Russian Federation, caused harm to the interests of an exclusively commercial or other organization that is not a state or municipal enterprise, and did not cause harm to the interests of other organizations, as well as to the interests of citizens, society or the state, then a criminal case is initiated at the request of the head of this organization or with his consent."

Thus, first, if in approx. 2 to Article 201 of the Criminal Code refers to the procedure for prosecution in cases where harm is caused only to a commercial organization, then Article 23 of the Criminal Code extends it to situations of harm to other (non-profit) organizations. Secondly, under the Criminal Code, an application or consent of the organization is required, and under the Criminal Procedure Code - the head of the organization.

The Criminal Procedure Code of the Russian Federation classifies cases of crimes provided for in Chapter 23 of the Criminal Code as cases of public prosecution (Part 4 of Article 20), therefore, if the consent to initiate criminal proceedings in due course was obtained, and then the affected organization changes its position, then criminal prosecution is carried out on general grounds *(26). However, the provisions of the Criminal Code and the Criminal Procedure Code in this sense cannot be considered indisputable. Installed in approx. 2 to Article 201 of the Criminal Code and Article 23 of the Code of Criminal Procedure, the procedure for bringing the subject of a crime to criminal prosecution clearly requires the presence of a statement of the organization or its consent. It follows that such cases are characterized by elements of private prosecution and only in cases provided for by the note. 3 to Article 201 of the Criminal Code, the accusation becomes public. In addition, in accordance with Article 76 of the Criminal Code and Article 25 of the Code of Criminal Procedure, in the cases provided for by them, a criminal case may be terminated in connection with the reconciliation of the parties.

A statement about a crime is one of the reasons for initiating a criminal case (paragraph 1, part 1, Article 140 of the Code of Criminal Procedure). At the same time, information about an official crime may also become known from a report about an upcoming or committed crime received from other sources (paragraph 3, part 1, Article 140 of the Code of Criminal Procedure). In the latter case, it is necessary to obtain the consent of the head of the criminal prosecution of a person who performs managerial functions in a commercial or other organization.

The question of who should make a statement or give consent to criminal prosecution in the case when the head himself committed a crime under Chapter 23 of the Criminal Code of the Russian Federation is relevant. Experts ' opinions on this issue are divided. Some believe that in such a situation, the participants or shareholders of the organization should appoint a new person who will represent their interests, including making a statement on behalf of the legal entity. The statement of a part of the shareholders or participants of a legal entity about the need for criminal prosecution of the head cannot have legal significance *(27). Other authors believe that the statement of even one founder (participant) of the organization should be recognized as a reason for initiating a criminal case *(28).

If we proceed from the content of the note. 2 to Article 201 of the Criminal Code, the criminal prosecution must begin if there is an application from even one of the founders.

In paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of bribery and commercial bribery", it is emphasized that the rule set out in the note. 2 to Article 201 of the Criminal Code, applies only when the harm is caused exclusively to the interests of the organization in which the subject who committed the crime works. If the interests of other organizations, society or the State have suffered as a result of the crime, the criminal prosecution is carried out on a general basis. It seems that the latter case should also include the interests of the employees of the organization in which the perpetrator worked.

example.

V. was convicted by the city court under part 1 of Article 201 of the Criminal Code of the Russian Federation. She was found guilty of abusing her powers for selfish purposes while working as an acting director and then as a director of a commercial commercial enterprise and being a person performing organizational, administrative and economic functions at this enterprise. In order to obtain illegal benefits for herself, she rented out the premises of the store, which is part of the enterprise she heads, and the adjacent land, which is part of the city lands, but allocated to the enterprise for indefinite use, without proper registration of these contracts. V. did not hand over the money received from the tenants to the cash desk of the enterprise, but appropriated it (for 11 months, she appropriated 9.8 thousand rubles, denominated), thereby causing significant harm to the interests of the enterprise and the city.
The Presidium of the regional court overturned the verdict and sent the case for a new trial, referring to the fact that the conclusion of the court of first instance about the presence in the actions of V. the elements of a crime under Part 1 of Article 201 of the Criminal Code of the Russian Federation is not justified and is not motivated and that the court should find out whether the act of V. the appropriation of other people's property, qualified under Article 159 of the Criminal Code of the Russian Federation.
The Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation overturned the decision of the presidium of the regional Court and recognized the correct qualification of V.'s actions as abuse of authority under Part 1 of Article 201 of the Criminal Code of the Russian Federation, stating the following. As can be seen from the verdict, the court, after examining and evaluating the evidence, recognized the erroneous qualification by the investigating authorities of the actions of the convicted person as misappropriation of someone else's property. Thus, the court pointed out that, although one of the sources of the formation of the property of a commercial enterprise was the lease of fixed assets, and the profit received by the enterprise was spent on paying taxes, other mandatory payments and on creating the funds of the enterprise, V., who was entitled to conclude lease agreements, did not officially register them and did not pay the rent money to the cash register of the enterprise, but received it personally. Taking into account that, within the meaning of the law, embezzlement as a form of embezzlement is the actions of the guilty person to seize the goods and material values entrusted to him and turn them in his favor, the court came to the correct conclusion about the absence of the elements of this crime in the act of V., since she did not appropriate the money entrusted to her by the founders of the commercial enterprise headed by her, but the sums of money received from the tenants (who are not employees of this enterprise) and did not go to the cash register of the enterprise, i.e. not owned by him. Hence, the actions in. are covered by the composition of the crime provided for in part 1 of Article 201 of the Criminal Code of the Russian Federation (BVS RF. 2000. N 2. P. 12-13).
5. In accordance with Note 2 to Article 201 of the Criminal Code, if the abuse of authority or other acts provided for in other articles of Chapter 23 of the Criminal Code caused harm to the interests of an exclusively commercial organization that is not a state or municipal enterprise, criminal prosecution is carried out at the request of this organization or with its consent. According to note 3 to this article of the Criminal Code, if the act provided for in Article 201 or other articles of chap. 23 of the Criminal Code, caused harm to the interests of other organizations, as well as to the interests of citizens, society or the state, criminal prosecution is carried out on a general basis.
6. As already noted, for the recognition of the composition of this crime, it is required that a causal relationship be established between the specified actions (inaction) and the consequences.
7. The subject of the crime is a person who has the characteristics specified in note 1 to the article under consideration. It is a person who performs managerial functions in a commercial or other organization, i.e. permanently, temporarily or by special authority performs organizational and administrative or economic duties in a commercial organization, regardless of the form of ownership, as well as in a non-profit organization that is not a state body, local government body, state or municipal institution.
8. Organizational and administrative duties are understood as duties related to the management of the labor collective and the organization of the work of subordinates. Administrative and economic responsibilities are expressed in the management of the organization's property (these functions will be considered in detail when describing the subject of crimes against state power, the interests of public service and service in local self-government bodies in accordance with the notes to Article 285 of the Criminal Code of the Russian Federation).
When it comes to persons performing managerial functions in commercial organizations, the law (note 1 to Article 201) specifically emphasizes that organizations are meant regardless of the form of ownership, i.e. this element of the crime can also be performed by a person performing managerial functions, for example, in a state or municipal organization (enterprise, institution) that is a commercial organization. Judicial practice also follows this path.
Thus, the Supreme Court of the Russian Federation recognized the correct conviction of the director of a municipal commercial enterprise, who used unspent funds received for leasing shops and land, under Article 201 of the Criminal Code of the Russian Federation (BVS RF. 2000. N 2. P. 12-13).
9. The subjective side is characterized by direct intent and a special purpose. The person is aware that in order to obtain benefits and advantages for himself or other persons or to harm other persons, he uses his powers contrary to the legitimate interests of the organization, foresees that by doing so he causes significant harm to the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, and wishes to do so.
10. Part 2 of the article under comment provides for increased liability for abuse of authority that has entailed serious consequences. Like the concept of substantial harm, it is an evaluative concept that is specified taking into account the circumstances of the case. These include, for example, consequences that have led to the economic ruin of the victims or to such obstruction of the implementation by State bodies and public organizations of significant social, economic or other functions that have created a threat to financial stability, public or State security.


Lary said(a):
Very interesting material, but I would like to have someone from the Russian participants of the forum posted the text of the articles of the Criminal Code of the Russian Federation given in this material with comments (subject, object,objective side, subjective side, causal relationship-for these two articles). It should also be taken into account in Ukraine in connection with the fight against corruption, operational officials provate persons objectionable to commit this type of crime, although Belkin also described the moral side of provocation - An official always has a choice to commit or not a crime, if his actions do not hide another crime committed against him or his family members.
Thank you so much for the material a smart person will appreciate. If our site is visited by active law enforcement investigators, it will be a great help for them.

 

[Матушкин Андрей Николаевич]

Por diseño, esta norma de derecho penal es de naturaleza material, es decir, el delito se completa desde el momento en que se producen las consecuencias socialmente peligrosas.
"En un círculo de personas" Art. 201 se aplica solo a organizaciones no gubernamentales, es decir, delitos contra los intereses del servicio en organizaciones comerciales y de otro tipo, y regula la relación legal entre las organizaciones no gubernamentales y sus empleados. El alcance de este artículo cubre las relaciones gerenciales gerenciales internas y externas en organizaciones comerciales y de otro tipo que no son objeto de derecho público.
El concepto de organización comercial se da en el art. 50 Código Civil de la Federación Rusa.
Bajo otras organizaciones, el legislador definió organizaciones públicas, caritativas y otras fundaciones.
El lado objetivo de este delito es un acto en forma de uso por parte de una persona (dotada de la carta orgánica de la organización con funciones organizativas y administrativas y / o administrativas) de sus poderes que no corresponden a los intereses legítimos de la organización, que han causado consecuencias criminales en forma de daño sustancial a los derechos e intereses legítimos de los ciudadanos o la organización, o los intereses de la sociedad o el estado protegidos por la ley, la existencia de una relación causal entre el acto y las consecuencias, es decir, que fue a partir de estos actos de la persona que ocurrieron las consecuencias criminales.
El uso de la autoridad consiste en tomar decisiones y tomar medidas sobre la base de las capacidades legales o fácticas de una persona que se le proporcionan en relación con el desempeño de las funciones de gestión.
El lado subjetivo es siempre una intención criminal, ya sea directa o indirecta, para obtener beneficios y / o ventajas para uno mismo o para otros o dañar a otros.
Es posible dar un ejemplo, el gerente de arbitraje, después de haber entrado en una conspiración criminal con "N", al vender propiedades en una subasta, llevó a cabo acciones destinadas a reconocer la subasta como fallida y el objeto vendido bajo un contrato de venta simple a un precio mucho más bajo que el que se determinó por una estimación de mercado.
Un daño significativo debe entenderse como pérdidas que tienen un gran tamaño.
El sujeto de un delito es una persona que realiza funciones de gestión y no es un funcionario. Es decir, esta persona no debe tener el estado, los derechos adecuados y no ejerce la administración pública, no está llamada a garantizar los intereses públicos, sino solo a cumplirlos dentro de los límites establecidos por la ley.

 

[Бедеров Игорь Сергеевич]

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