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13.3. PREVENTION OF ENCROACHMENTS ON MATERIAL AND OTHER BENEFITS OF CONSUMERS UNDER RUSSIAN CRIMINAL LEGISLATION
Aghayev Isfandiyar, Dr., Prof., Criminal law department Place of employment: Baku State University
i.b.agayev@gmail.com
Abstract: The article deals with penal norms regulating the responsibility for violations of the rights of consumers. It is noted that compulsion to the conclusion of an agreement isn t allowed, except for cases, whena duty to conclude is provided by law as an obligation. The transaction made under the influence of violence or threat may be recognized by a court as invalid. Further it is reasoned that a citizen and legal entity, which have an exclusive right on a result of intellectual activity or on means for ascertainment, shall be authorized to use such a result or means discretionary. The use of results of intellectual activities or means for ascertainment without the owner's consent is illegal. Later author analyzes forms of violation of the rules for the manufacture and use of State assay marks, illegal receipt and divulgation of information composing a commercial, tax or banking secret. In the conclusion, he deals with issues of criminal liability for the attraction of monetary resources of individuals in defiance of the requirements of legislation on participation in shared construction of apartment houses or other real estate properties.
Keywords: Competition, economic entities, performance of transactions, compulsion, trademark, service mark, State assay marks, commercial secret, tax secret, banking secret, sports competitions, commercial entertaining competitions.
ПРЕДОТВРАЩЕНИЕ ПОСЯГАТЕЛЬСТВ НА МАТЕРИАЛЬНЫЕ И ИНЫЕ БЛАГА ПОТРЕБИТЕЛЕЙ ПО РОССИЙСКОМУ УГОЛОВНОМУ ЗАКОНОДАТЕЛЬСТВУ
Агаев Исфандияр, Др., Проф., Кафедра уголовного права Место работы: Бакинский Государственный Университет
i.b.agayev@gmail.com
Аннотация: Статья посвящена уголовно-правовым нормам регулирующим ответственность за посягательства на права потребителей. Отмечается, что принуждение к заключению договора не допускается, за исключением случаев, когда обязанность его заключить предусмотрена законом или добровольно принятым обязательством. Сделка, совершенная под влиянием насилия или угрозы, может быть признана судом недействительной. Далее аргументируется положение о том, что гражданин или юридическое лицо, обладающие исключительным правом на результат интеллектуальной деятельности или на средство индивидуализации, вправе использовать такой результат или такое средство по своему усмотрению любым не противоречащим закону способом. Использование результата интеллектуальной деятельности или средства индивидуализации без согласия правообладателя является незаконным. Впоследствии автор анализирует формы нарушения правил изготовления и использования государственных пробирных клейм, незаконного получения и разглашения сведений, составляющих коммерческую, налоговую или банковскую тайну. В заключении он рассматривает вопросы уголовной ответственности за привлечение денежных средств граждан в нарушение требований законодательства об участии в долевом строительстве многоквартирных домов или иных объектов недвижимости.
Ключевые слова: конкуренция, хозяйствующие субъекты, совершение сделок, принуждение, товарный знак, знак обслуживания, государственные пробирные клеймы, коммерческая тайна, налоговая тайна, банковская тайна, спортивное соревнование, зрелищный коммерческий конкурс.
Restriction of competition (art. 178 of the Criminal Code). Direct object of the crime associated with the regulation of the interests of fair competition and with activities of economic entities in a market economy.
According to the Constitution of the Russian Federation in Russia guarantees shall be provided for the integrity of economic space, a free flow of goods, services and financial resources, support for competition, and the freedom of economic activity (part 1, article 8). The economic activity, aimed at monopolization and unfair competition, shall not be allowed (part 2, article 34).
For explanation of signs of the considered crime it is necessary to refer to the provisions of the Federal Law of July 26, 2006, No.135-FZ "On Protection of the Competition", which determines the legal and organizational bases for protection of the competition, including issues on the prevention and suppression of monopolistic activities and unfair competition. The competition under article 4 of this Law shall be understood as rivalry of economic entities,
wherein the independent actions of each of them exclude or limit an opportunity to influence unilaterally on general terms of the commodities circulation in an appropriate commodities market.
Objective aspect of the crime is expressed in conclusion of an agreement (cartel) restricting competition, which is prohibited by the anti-monopoly legislation of the Russian Federation. An obligatory sign of this corpus delicti is the infliction of a large-scale damage to citizens, organizations or the State or deriving revenue on a large scale (in the amount exceeding one million rubles).
Article 11 of the Federal Law "On Protection of the Competition" forbids the agreements between the competing economic entities and recognizes it to be cartel, if such agreements entail the following:
- establishment or maintenance of the prices (rates), discounts, surcharges and markups;
- increase, decrease or maintenance of the prices at biddings;
- division of the commodities market upon the territorial principle, sales amount or purchases of commodities;
Aghayev I.
PREVENTION OF ENCROACHMENTS ON MATERIAL AND OTHER BENEFITS OF CONSUMERS UNDER RUSSIAN CRIMINAL LEGISLATION
- reducing or cessation of the production of commodities;
- refusal from conclusion of contracts with certain sellers or buyers (customers).
The establishment of monopolistically high or low price of commodities and services includes maintainance of the market price, which doesn't correspond to the real expences of production, quality of products and services, their demands. Articles 10 and 11 of the above men-tionedLaw considers that unreasonable refusal, avoidance of concluding an agreement, restriction of access to the market may be resulted by the following activities:
- actions of a person holding a dominant position;
- agreements between economic entities;
- coordinated actions of economic entities.
Restriction of access to the market implies creation of any obstacles to the presence of an economic entity in the market. For example, failure to provide a place for trade, ban on sale of commodities from one region to another, forcible buying up of commodities and trade places.
Subjective aspect of the offense requires both types of intention (direct and indirect). The crime committer, alongside general characteristics, has special features referred to entrepreneurial activity — chiefs of entrepreneurial facilities.
Qualified corpus delicti requires fixing the following features:
- commitment of the crime by a person with the use of his/her official position;
- conjugacy of crime with destruction or damage of other people's property or by the threat of its destruction or damage, in the absence of any indicia of extortion;
- infliction of an especially large-scale damage or drawing of income in an especially large amount (in the amount exceeding three million rubles).
Especially qualified corpus delicti (p.3, art.178 of the Criminal Code) includes the use of violence or threat of using it. It is possible both in respect of a person, who is directly engaged in entrepreneurial activity or economic entity, and his/her family with a special purpose: establishment of monopoly or restriction of competition.
Compulsion to perform transactions or to refuse to perform it (art.179 of the Criminal Code) involves impact undertaken to carry out the transaction or failure to perform it under the threat of violence, destruction or damage of other people's property, as well as the spreading information that could cause substantial harm to the rights and law-protected interests of the victim or his/her relatives. Direct object of the crime involves the interests of conducting civil transactions. Additional objects are individual rights and legitimate interests of victims.
According to art.421 of the Civil Code of the Russian Federation, citizens and legal entities shall be free in the conclusion of an agreement. Coercion to the conclusion of an agreement isn't allowed, except for cases, whena duty to conclude is provided by the Civil Code as an obligation. The transaction made under the influence of violence or threat may be recognized by a court as invalid (art.179 of the Civil Code).
Objective aspect of the offense is conditioned by the act on compulsion to perform transactions or to refuse to perform it. Obligatory characteristics of the objective aspect involve the method of action, which is associated with the threat of:
- violence;
- destruction or damage of other people's property;
- spreading information that could cause substantial harm to the rights and law-protected interests of the victim or his/her relatives, in the absence of elements of extortion.
Compulsion means a requirement of a guilty person to conclude a transaction or to refuse to conclude it in defiance of the victim's will.
The threat of violence, likewise threat of destruction or damage of other people's property imply a mental influence on the victim consisting in intent to kill him/her or to inflict him/her bodily injury, or to bring the property belonging to the victim or his/her relatives into complete or partial unfitness.
Spreading of information that could cause substantial harm to the rights and law-protected interests of the victim or his/her relatives shall be understood as announcement by a guilty person of undesirable, false data discrediting honor and dignity of the victim or his/her relatives.
Methods for expression of threat may be various (orally, in writing, by phone, personally or through the third parties). Threat shall be real, i.e. the victim shall have bases to be afraid of it. This may be evidenced by a specific form of threat, a method for its implementation and intensity, a situation, characteristics of a perpetrator's personality, etc.
The subjective aspect includes direct intention. The crime committer is a sane individual, who has reached the age of sixteen.
The qualified corpus delicti (p.2, art.179 of the Criminal Code) requires committing the offense with the use of violence or by an organized group.
Illegal use of means of individualizing goods (works, services) (art.180 of the Criminal Code) is conditioned by the purpose of unfair competition and is expressed in setting of another marking on a producing commodity. This article provides criminal liability for commitment of two acts which differ among themselves with respect to the direct object of encroachment.
Object of the crime under p.1, art.180 of the Criminal Code is the established procedure for using a trademark, a service mark, an appellations of origin of commodities and designations for homogeneous commodities. Object of the second crime (p.2, art.180 of the Criminal Code) involves the established procedure for using precautionary marking in respect of a trademark or appellation of origin of commodities, which aren't registered in the Russian Federation.
The main normative act regulating the legal protection of results of intellectual activities and equalled to them means for ascertainment of goods, works, services is the Civil Code of the Russian Federation.
Issues of legal protection of the exclusive rights of citizens and legal entities are regulated also by the Convention on Protection of Industrial Property (Paris, March 20, 1883), which refers trademarks, service marks, trade names and appellations of origin of commodities to the objects of protection of industrial property.
According to art.1229 of the Civil Code, a citizen and legal entity, which have an exclusive right on a result of intellectual activity or on means for ascertainment (rightholder), shall be authorized to use such a result or means discretionary. The rightholder can discretionary resolve or forbid other people's use of results of the intellectual activities or means for ascertainment. The use of results of intellectual activities or means for ascertainment without the owner's consent is illegal. Article 1477 of the Civil Code regards a trademark as a designation serving for ascertainment of commodities, and a service mark as a symbol intended for individualization of the works carried out by legal entities or individual entrepreneurs or services rendered by them.
The main issues connected with interpretation of signs of the objective aspect and qualification of the act are revealed in the Decree of the Plenum of the Supreme Court of the Russian Federation of April 26, 2007, No.14 "On Judicial Practice on Criminal Cases Involving Infringement of Copyright, Allied and Patent Rights, as well as on Illegal Use of Trademark":
- a trademark (service mark) shall be deemed as others, if it is addressed to the other person and isn't yielded under the agreement concerning the whole or parts of commodities, either whose right to use it isn't granted by the owner of the trademark (subparagraph 3, paragraph 16);
- part 1, article 180 of the Criminal Code interprets illegal use of other's trademark or a service mark as the use thereof without the owner's permission (paragraph 18);
- illegal in relation to p.2, art.180 of the Criminal Code shall be the use of precautionary marking concerning a trademark or appellation of commodities, which aren't registered in the Russian Federation (subparagraph 3, paragraph 22);
- criminal liability under art.180 of the Criminal Code shall be taken place for the illegal use of other people's trademark or means for ascertainment, if the act is committed repeatedly or inflicted a large-scale damage (subparagraph 3, paragraph 22);
- according to note to art.169 of the Criminal Code the damage caused by the acts specified in art.180 of the Criminal Code is considered a large-scale, if it exceeds one million five hundred thousand rubles (subparagraph 2, paragraph 24).
Subjective aspect of the offense includes direct and indirect intention. The crime committer has special features: a person, who has engaged in individual entrepreneurial activities, or manages the organization producing commodities or providing services.
Part 2, article 180 of the Criminal Code establishes criminal liability for illegal use of special marking in respect to a trademark, which isn't registered in the Russian Federation, or appellation of origin of commodities. An obligatory feature of the considered corpus delicti is the commitment of these acts repeatedly or with infliction of a large-scale damage.
The qualified corpus delicti (p.3, art.180 of the Criminal Code) requires the commitment of the offense by a group of persons upon prior conspiracy or by an organized group.
Violation of the rules for the manufacture and use of State assay marks (art.181 of the Criminal Code). Direct objects of the crime involves the State interests related to manufacturing and marking (stamping) precious metals and productions therefrom.
Subject-matter of the crime is the State assay mark, which is intended for a marking products of precious metals by inspections of assay supervision. State assay marks are produced by the Federal State Unitary Enterprise "Goznak", the Central Volga State inspections upon orders of the Russian State Assay Chamber.
In accordance with part 3, article 10 of the Federal Law of March 26, 1998, No.41-FZ "On Precious Metals and Jewels", in the Russian Federation the State monopoly for essay and marking by the State assay marks of jewellery and other products of precious metals is established.
Gold, silver, platinum and metals of platinum group (palladium, iridium, rhodium, ruthenium and osmium) belong to precious metals.
All products of precious metals, produced in the territory of the Russian Federation, as well as those imported to its territory for sale, should correspond to assays and have to be branded by State assay mark. Essay, marking, as well as the assay supervision are performed by the Russian State Assay Chamber under the Ministry of Finance of the Russian Federation. The order of essay and marking of
products of precious metals is determined by the Government of the Russian Federation.
The objective aspect of this crime is expressed in unauthorized actions with State assay marks:
- manufacture;
- sale;
- use;
- forgery.
Manufacture is a complete creation of an assay mark, as well as recreation of a mark which became useless. Sale involves any form of alienation (paid or non-paid) of an assay mark to the third parties. Use means an application of an assay mark for marking products of precious metals. Forgery is a partial change of the elements and details of assay marks. The crime shall be considered to be completed from since committing the specified actions.
Subjective aspect of the crime involves direct intention. An obligatory feature of the subjective aspect is a mercenary or other personal interest.
Mercenary interest may be comprised in an attempt to obtain reward from any other person for unauthorized manufacture or counterfeit of assay marks, or in illegal marking of precious metals with the personal use of assay marks. Other personal interest may involve the increase of own prestige, resolution of professional problems, etc.1
The crime committer is a sane individual, who has reached the age of sixteen.
Illegal receipt and divulgation of information composing a commercial, tax or banking secret (art.183 of the Criminal Code). This article provides criminal liability for committing two acts, which differ from each other by the objective aspect and crime committer. Object of the crimes is the established procedure for the use of data containing commercial, tax or bank secrecy.
In accordance with article 3 of the Federal Law of July 29, 2004, No.98-FZ "On Commercial Secret", a commercial secret is a mode of confidentiality of an information allowing its owner to increase income, avoid unjustified expenses, hold position in commodities market, or to receive other commercial benefit under the existing or possible circumstances.
According to art. 102 of the Tax Code of the Russian Federation, a tax secret is any information on a tax-payer received by State authorities (tax, internal affairs, the State off-budget fund, customs), except for data:
- which are public, includingthose which became public with the consent of their owner: a taxpayer;
- about identification taxpayer number;
- on law violations about taxes and fees, as well as on measures of responsibility for these violations;
- which are provided according to international treaties (agreements);
- which are to electoral commissions under the legislation on elections upon results of verifications by a tax authority of information about income sources of a candidate for election and his/her spouse, as well as about the property belonging to a candidate and his/her spouse.
In accordance with article 26 of the Federal Law of December 2, 1990, No.395-1 "On Banks and Banking Activity", a bank secrecy implies an information on bank accounts and deposits, which isn't subject to disclosure.
Objective aspect of the crime under p.1, art.183 of the Criminal Code is associated with illegal gathering of information constituting a commercial, tax or banking secret by means of stealing documents, bribery and threats, as well
1 Educational and practical commentary on the Criminal Code of the Russian Federation (in Russian) // Under the editorship of professor Alfred Zhalinsky. Moscow, 2006, p.550.
Aghayev I.
PREVENTION OF ENCROACHMENTS ON MATERIAL AND OTHER BENEFITS OF CONSUMERS UNDER RUSSIAN CRIMINAL LEGISLATION
as in other illegal ways.
The crime stipulated by p.2, art.183 of the Criminal Code involves illegal divulging or use of information being a commercial, tax or banking secret, without the consent of the owner thereof by a person, to whom it is entrusted or became known for service or work.
Subjective aspect of the offenses requires direct intention. An obligatory feature of corpus delictis is a special purpose: divulgation or misuse of information composing a commercial or banking secrecy.
Committer of the crime uder p.1, art.183 of the Criminal Code is a sane individual, who has reached the age of sixteen. The crime committer of the second crime (p.2, art.183 of the Criminal Code) is a person, to whom a commercial, tax or banking secret is entrusted or became known for service or work.
The qualified corpus delicti (p.3, art.183 of the Criminal Code) requires a large-scale damage, i.e. damage exceeding one million five hundred thousand rubles, and a mercenary or other personal interest. Especially qualified corpus delicti takes place in case of causing grave consequences (p.4, art.183 of the Criminal Code).
Illegal influence on the results of official sports or commercial entertaining competitions (art. 184 of the Criminal Code). The direct object of this crime is the established procedure for carrying out official sports and commercial entertaining competitions.
Paragraph 9, article 2 of the Federal Law of December 4, 2007, No.29-FZ "On Physical Culture and Sport in the Russian Federation" determines official sports competitions as sport activities included into the Uniform Time Schedules of inter-regional, All-Russian and international sporting events, time schedules of sporting events of the constituent entities of the Russian Federation and municipalities.
Commercial entertaining competition includes any competition (except for biddings), which is carried out by a commercial organization within its business activity and represents a show for audience (a beauty contest, TV competitions, etc.).
The objective aspect of the crime provided by p.1, art. 184 of the Criminal Code consists in alternative actions: bribery of athletes, referees, coaches, team leaders, and other participants or organizers of professional sport competitions, as well as organizers or jurymen of commercial entertainment competitions.
Bribery involves the handing over personally or through an intermediary to the above mentioned persons (or to their representatives) of property or rendering property services for the purpose of influence on the results of official sports or commercial entertaining competitions. The bribery shall be deemed to be completed from the moment of receiving by addressees of property or property services.
The subjective aspect of this crime is characterized by direct intention and a special purpose. The person realizes
that performs bribery of persons specified in the disposition of p.1, art.184 of the Criminal Code, and pursuing the aim of rendering influence on results of competitions desires it. The crime committer is a sane person, who has reached the age of sixteen.
Objective aspect of the crime under p.3, art.184 of the Criminal Code is expressed in illegal receipt by athletes of money, securities or any other property transferred to them for the purpose of exerting influence on the results of sports or commercial entertaining competitions, as well as in illegal use by athletes of property-related services granted to them for the same purposes.
Illegal receipt of the specified values, services, as well as benefits of non-property nature shall be understood as their taking in defiance of the order established by regulations on competitions.
Subjective aspect of the regarded corpus delicti is characterized by direct intention. Such purpose as influence on results of competitions is an obligatory feature. The crime committer is special and includes a sportsman, who is a participant of official sports competitions, trainer, the head of a team or other participant of official sports competition, as well as participants of commercial entertaining competitions, who have reached the age of sixteen.
Objective and subjective aspects of the crime provided by p.4, art.184 of the Criminal Code, are similar to part 3 of the article in question. Differences consist in the crime committer, who is a sports judge, an organizer of professional sports competitions, an organizer or jury of commercial entertaining competitions.
According to the note to art.184 of the Criminal Code, a person, who has committed the act stipulated by parts 1 or 2 of this article, shall be exempted from criminal liability, if he/she was extortioned or voluntarily informed about the bribery the body having the right to initiate a criminal case.
By the Federal Law of May 1, 2016, No.139-FZ, article 2003, entitled "Attraction of monetary resources of individuals in defiance of the requirements of legislation of the Russian Federation on participation in shared construction of apartment houses and (or) other real estate properties", is included into the Criminal Code of the Russian Federation. An obligatory feature of this act implies its commitment on a large scale, i.e. in the amount amount exceeding three million rubles. The qualified corpus delicti (p.2, art.2003 of the Criminal Code) provides the same act committed by a group of persons upon prior conspiracy, and likewise on an especially large scale, i.e. in the amount exceeding five million rubles.
It should be noted that a person who has committed an offense under this article shall be exempted from criminal liability, if the amount of the attracted money resources (transactions with funds) were repaid in full, and (or) if the said person has taken measures, as a result of which the apartment house and (or) other real estate property were commissioned.
