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E.Yu. Antonova*
THE THEORETICAL MODEL OF THE CORPORATE (COLLECTIVE) CRIMINAL LIABILITY
Abstract. In the article the question of theoretical model of the corporate (collective) criminal liability is considered. The author defines the factors socially causing the corporate (collective) criminal liability, demonstrates the correlation of collective civil, administrative and criminal liability, analyzes the mechanism of criminal activity of corporate (collective) formations. In the work the conclusion is made that the corporate (collective) criminal liability should be carried out only when other measures (of civil law, administrative character), applied to collective formations, are not capable to restore social justice and to prevent performing of the new deeds causing or capable to cause damage (harm) to the public relations protected by the criminal legislation. The mechanism of illegal activity of corporate (collective) formations is generated by criminal corporate culture under which it is offered to understand the policy, the way of management, the course of activity or practice of corporate (collective) formation as a whole or in its structural divisions in which process the illegal activity on behalf of and (or) in interests of corporate (collective) formation is supposed, encouraged or is the result of connivance of the persons who are carrying out the functions of its management. Besides, in the article there is the definition of the conditions of the corporate (collective) criminal liability, the circumstances excluding criminality of activity of legal entities and other collective formations, the punishments and other measures of criminal legal character which can be applied to the collective subject.
Keywords: jurisprudence, criminal liability, corporate culture, corporate formation, legal entity, collective subject, corporate fault, a subject of responsibility, social conditionally, public danger, comparative analysis.
The basis of construction of the theoretical model of the corporate (collective) criminal liability are the idea about the necessity of distribution of criminal delict capability on corporate (collective) formations and the conclusions that:
1) social conditionally of the legislative regulation of corporate (collective) the criminal liability includes the set of following factors: a) corporate (collective) formations, being the basis of political, social, economic and legal system of the state, are capable to carry out deeds possessing high degree of public danger; b) the socially dangerous deeds of corporate (collective) formations have relative prevalence; c) the adverse dynamics of socially dangerous activity of corporate (collective) formations is caused by variety of political, economic, organizational, legal, technical, social and psychological determinants; d) lack of regulation of corporate (collective) liability within the frameworks of the criminal law causes negative consequences of ecological, economic, criminal, legal character; e) the difficult structure of management
of corporate (collective) formation makes it inconvenient, and sometimes impossible, to identify natural persons involved in crime commission; f) the criminal law means of struggle against socially dangerous deeds of corporate (collective) formations are more effective in comparison with civil law and administrative methods; g) Russia is obliged to consider the international standards and the recommendations, concerning criminal law methods of struggle against socially dangerous deeds carried out by corporate (collective) formations; h) at the international level the states render legal aid to each other in prosecution of criminals often only in criminal cases, and wrongful (socially dangerous) activity of corporations has more and more transnational character;
2) establishment of criminal law sanctions concerning legal entities and other corporate (collective) formations will allow influencing more effectively already criminalized deeds, and also new kinds of socially dangerous activity; will strengthen protection of interests of the person, the society
© Antonova E.Yu., 2014
* Antonova Elena Yur'evna — Doctor of jurisprudence, head of the chair of criminal law and criminology of the
Khabarovsk State Academy of Economics and Law.
[mugiwara@rambler.ru]
45, Amursky boulevard, Khabarovsk, 680000.
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and the state against socially dangerous deeds of corporate (collective) formations; will create the official (centralized) statistics reflecting the quantity of committed socially dangerous deeds by corporate (collective) formations, and also conditions for fast and inevitable liability for encroachments on the objects protected by criminal law;
3) bringing only individual subjects of the crime operating on behalf of and (or) in interests of corporate (collective) formation to criminal liability does not influence the activity of the corporate (collective) formation itself which continues to commit socially dangerous deeds, but already with the help of other natural persons, using more perfect methods of concealment. The corporate (collective) criminal liability is capable to influence corporate culture and designing of the system of control and the programs on maintenance of observance of the legislation. Wherein corporate (collective) criminal liability should not exclude criminal liability of the natural person (persons) illegally operating on behalf of (or) in its interests;
4) the corporate (collective) criminal liability should be carried out only when other measures (of civil law, administrative character), applied to the collective formations, are not capable to restore social justice and to prevent committing of the new deeds causing or capable to cause damage (harm) to the public relations protected by the criminal legislation.
Construction of the theoretical model of the corporate (collective) criminal liability should be based on the rules of legislative technique developed in the theory of criminal law. In particular, such a criterion as the character and the degree of public danger of the deed first of all should be on the basis of interbranch differentiation of legal responsibility.
The character of public danger of the deed is understood as the qualitative characteristic of this sign which depends on the value of the object of encroachment. So revising Art. 2 of the Civil Code of the Russian Federations the objects of civil law protection are the legal status of participants of the civil turn, law of property and other real rights, the rights to results of intellectual activity and the means of individualization which are equal to them, (the intellectual rights), contractual and other obligations, and also other property and personal non-property relations. As I.A. Klepitsky fairly notices civil law mechanisms of protection of various interests are effective only in the case of conscientiousness of all participants of the arisen relation when the parties being assured of their correctness argue on the civil rights and obligations of each other. Civil law is powerless in the struggle against unfair participants of the market who plan swindles in advance including ways of avoiding liability for deeds1.
1 Klepitsky I.A. The System of Economic Crimes. М., 2005. P. 187-188.
Correspondingly the objects of civil law protection are public relations regulating the civil rights and legitimate interests of citizens and legal entities.
The person, the rights and freedoms of the person and the citizen, health of citizens, sanitary and epidemiologic well-being of the population, public morals, environment, government procedure, public order and public safety, property, lawful economic interests of natural persons and legal entities, the society and the state are objects of administrative and legal protection (Art. 1.2 of the Code of Administrative Offences of the Russian Federation).
The objects of criminal law protection are: the rights and freedoms of the person and the citizen, property, public order and public safety, environment, the constitutional system of the Russian Federation, peace and safety of mankind (Art. 2 of the Civil Code of the Russian Federation). But an exclusive prerogative of the criminal legislation is for example protection of human life, the constitutional system of the Russian Federation, maintenance of peace and safety of mankind. Thus, the system of objects is criminal legal protection is wider than those objects which are protected by other branches of law.
The degree of public danger of crime is the quantitative characteristic of deeds of the same character. Proceeding from it the criminal liability should come in case of committing of the deeds encroaching on the most valuable public relations, the good, the interests protected only within the frameworks of criminal law (for example, life), as well as in case of committing of the deed which by the character of public danger corresponds both to a crime, and an administrative offence (the Criminal Code of the Russian Federation and the Code of Administrative Offences of the Russian Federations are supposed to protect health of citizens, environment, property, etc.), but by the degree of public danger it is recognized criminal. For example, collective formations frequently: — carry out enterprise activity with infringement of the conditions provided by the license. So, the security guard of the LLC is admitted to protection of the object not having the certificate of the private security guard given out by law enforcement bodies and confirming his status, he has not been insured at the expense of the means of the LLC in the case of death, mutilation or other damage of health in connection with realization of security activity. In another case the LLC, carrying out activity in the field of passenger auto transportations, regularly violated the Regulations of 20th August, 2004 № 15 about features of working hours and the time of rest of drivers adopted by the order of the Ministry of Transport of the RF2.
2 Archive of the Arbitration Court of Karachaevo-Circassian Republic for 2010. Case № L25-305/20 10; Archive of the Arbitration Court ofthe Vladimir Area: 2010. Case № 1 I-1413/2010.
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— make or realize the goods and production, not meeting the requirements of safety of life and health of consumers. So, the LLC carries out the sale of alcoholic production with the expired term of validity or with unlimited term of validity, but mismatching the requirements of state standards and sanitary rules, namely with presence of extraneous inclusions in the form of small dark and light particles of fiber in it, and also inappropriate to hygienic requirements of safety by physical and chemical indices3;
— violate the requirements of fire safety, including at realization of the activity connected with the organization of mass events and4, etc.
As it is marked in the definition of the Constitutional Court of Germany, criminal law should not be applied everywhere where there are infringements of life of the society, but should be limited to protection of the basic values of social order5. Thus, necessity and expediency to apply criminal law sanctions to corporate (collective) formations arise in the cases listed above when similar deeds involve heavy consequences. Civil law and administrative sanctions appear not only inefficient (useless), but also in such situations because there is discrepancy in the degree of public safety (harm).
The degree of public danger can be defined as the comparative size, which develops from public danger of the deed and public danger of consequences of this deed, and also public danger of the person (including collective), who committed this deed While defining the degree of public danger of the deed it is necessary to define the fault form, motives, the way, conditions of commission of the deed, severity of the following consequences, the sizes of possible harm, etc. If we compare administrative offences and crimes the discrepancy of the listed circumstances will be found out. For example, part 2 of the Art.8.6 of the CAO of the Russian Federation provides administrative liability for damage of the earth, i.e. destruction of a fertile layer of the earth, and equally for spoiling the earth as the result of violation of rules of the management of pesticides and agrochemicals or other substances and production and consumption wastes that are dangerous to health of people and environment. In turn, part 1 of Art. 254 of the Criminal Code of the Russian Federation provides criminal liability for poisoning, pollution and other damage of the earth with harmful products of economic and other activity owing to infringement of rules of the handling of fertilizers, stimulators of growth of plants,
3 Archive of the Arbitration Court of Kostroma Area 2010. Case A31-1430/2010; Archive of the Arbitration Court of Sverdlovsk Area 2010. Case № A60-9655-2010-C-10.
4 Archive of the Dolinsky City Court of the Sakhalin Area for 2009. Case 5-23/2009; Archive Aleksandrovsk-Sakhalin of city court of the Sakhalin area: for 2010. Case № 5-3/2010.
5 Zhalinsky A.E. Modern German Criminal Law. M, 2006. P. 16.
chemical weed and pest-killers and other dangerous chemical or biological substances at their storage, use and transportation, which entailed harm to health of the person or environment. Hence, more serious consequences are necessary for the criminal liability approach, namely harm to health of the person or environment should be done. Similar consequences are not required in the case of an administrative offence, which testifies to smaller degree of public danger (harm) of the deed. Bringing legal entities to administrative liability for the deed declared as the crime by the legislator, leads to equalizing of the degree of public danger (harm) that is regarded incorrect.
L.L. Krutikov and A.V. Vasilevsky worked out the following rules of legislative technique. First, in the course of interbranch differentiation the continuity in kinds of legal liability should be provided. Secondly, in the law differentiating signs of the adjacent deeds included in various branches of legislation should be defined accurately6. The specified rules are observed by the legislator not to the full. For example, in the case of the violation of requirements of the fire safety, the fire which has entailed occurrence and destruction or damage of another's property or causing light or average weight of harm to health of the person, and also in the case of causing heavy harm to health of the person or death of the person according to part 6 and 6.1 of Art. 20.4 of the CAO of the Russian Federation (edition of 23d February, 2013 № 14-FL) an administrative penalty will be imposed on the legal entity. The natural person operating on behalf of and (or) in interests of the legal entity in the case of violation of requirements of the fire safety, which entailed causing heavy harm to health or death of the person, will answer in criminal law order (Art. 219 of the Criminal Code of the RF). It is possible to show infringement of the specified rules even more evidently on the example of Art. 178 of the Criminal Code of the Russian Federation which provides criminal liability for not admitting, restriction or elimination of competition by numerous abuses of the leading position. According to Note 4 of Art.178 of the Criminal Code of the Russian Federation abusing by the person of the leading position more than two times within three years for which the specified person has been involved in administrative responsibility is recognized as numerous abuses of the leading position. Articles 14.31 («Abusing of the leading position in the commodity market»), 14.31.1 («Abusing of the leading position by the managing subject, which share in the market of the certain goods makes less than 35 percent») CAO of the Russian Federation regulates administrative liability not only for natural persons, but also for legal entities. Specified in Art.178 of the Criminal Code of the RF administrative praejudicialis should, in our opinion,
6 Kruglikov L.L., Vasilevsky A.V. Differentiation of Responsibility in Criminal Law. SPb., 2002. P. 52-54.
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extend and to legal entities, but for this purpose the criminal law should recognize them as subjects of a crime.
It is impossible to forget about public danger of legal entities themselves and other corporate (collective) formations which are carrying out wrongful activity. That, in our opinion, is defined not only by that harm which is caused or can be caused as the result of committing socially dangerous deeds, but also by criminal corporate culture which, being defined through samples of office behavior, is based on priorities and the values dominating in the corporate (collective) formation (as a rule, this is aspiration to receive the maximum profit (super profit) in any ways at a minimum of expenses).
Foreign scientists notice that to keep profit, to remain in the unstable market, to reduce expenses of the company or to get rid of competitors of business, corporations permit environmental pollution, participate in financial frauds and manipulations, fix prices, create and support dangerous working conditions, make dangerous products deliberately, etc. Such actions are carried out by order of or with a silent consent of the management and more often are supported by operative norms and organizational subcultures7.
The given circumstance promoted the situation when in some countries (Finland, Poland, Hungary, Bosnia and Herzegovina, Lithuania, Switzerland, India8) while designing conditions of the corporate criminal liability legislators focused special attention to criminal corporate culture which actually leads to offences of criminal law character. The analysis of the criminal legislation of the specified countries allowed coming to the conclusion that the corporate fault based in criminal corporate culture, consists of either deliberate infringements by the persons who are carrying out administrative functions (including by encouragement, approval or connivance of wrongful activity on behalf of and (or) in interests of the corporation), or anonymous collective nature at decision-making, or in the omis-
7 Simpson S.S. Corporate crime, law, and social control. Cambridge University Press, 2002. P. 7.
8 The Penal Code of Finland. URI: hllp://wwvv.leg-islation-line.org/doctimenls/id/15529 (reference date: 7.01.201 1); Poland Act of 28th October 2002 on Liability of Collective Entities for Acts Prohibited under Penalty // Journal of Laws of 27th November 2002. № 197/1661; Criminal Code of Bosnia and Herzegovina // Official Gazette of Bosnia and Herzegovina. 2003. № 3; the Criminal Code of the Lithuanian Republic / transl.from Lith. by V.I. Kazanesken; scien. ed. by V.Pavilonis. SPb, 2003; the Law on Crimes on the Basis of untouchability 1955 // the Criminal Code of India / transl. from English by A.S. Mihlin; ed. by B.S. Nikiforov. M., 1958. P. 238-239; Bikiukov N.N. Criminal liability of Legal Entities for Crimes in the Economic Sphere (Experience of Foreign States). M., 2008. P. 30; Krylova N.E. Criminal Liability of Legal Entities (Corporations): Comparative Law Analysis // Interaction of the International and Comparative Criminal Law: a textbook / scien. ed. by N.F. Kuznetsova; ed. by B.S. Komissarov. M, 2009. P. 91.
sions admitted at formation of the corporate policy. Such omissions result in regular infringements of legislative instructions which become a norm in corporation activity, and, as consequence, lead to a crime. The corporate fault can unite fault of various individuals operating on behalf of and (or) in interests of the corporation. In such a situation it is not always obviously possible to establish, whose actions (inactivity) were the main immediate cause of the following consequences. In our opinion, only the independent corporate (collective) criminal liability in this case is admissible.
Sociological researches of the numerous organizations show that each member of the organization should accept those cultural samples that are characteristic for the given organization; otherwise he simply cannot work and co-operate effectively with other participants of organizational processes. From here corporate (organizational) culture is defined as the set of ideas, corporate values and the norms of behavior inherent only in this organization and formed during joint activity for achievement of general goals9.
In the collective subject or community (the enterprise, the corporation) the action of the powerful factors influencing individual will of separate members of this community is found out. There are interesting conclusions of criminological researches that with inclusion of an individual participant of this "collective" in the community with illegal activity because of the overestimated evaluation of interests of the community constrained motives which would appear sufficient to hinder illegal, but individual act weakened. Readiness of an individual member of the community to follow requirements of legal interdictions is encouraged by means of the so-called technique of collective neutralization which allows a member of community to find legitimating of the deviating behavior. Social dependence of an individual member of the community and an imaginary ethical neutrality of economic crimes against which the individual sanction of the criminal legal or administrative norm fades are frequently added to it10.
The raised public danger of corporate (collective) formations and high level of stability of their wrongful activity are caused by close interrelation between workers of the legal entity, coordination of their actions, selection of professional shots, presence of the corrupted connections in public management personnel, seeking economic gains, control of the organized crime.
Revealing the features of criminal activity of holding corporations, experts mark the latent essence of actions made by them which is difficult for
9 Frolov S.S. Sociology of the Organizations. M., 2001. P. 123-133.
10 Ivanov L. Administrative Responsibility of Legal Entities //
the Law. 1998. № 9. P. 90.
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defining without special investigation, and the latent criminal character of business chains and mechanisms of operations done, and also external legality from the point of view of criminal law of each separate action or operation. It is important that persons without the criminal past who quickly adapt to changes in legislations and new methods of struggle of law enforcement bodies on detection and disclosing of such crimes frequently participate in the given operations. Operations themselves are characterized by complexity, usage of many ways, a multi-variant approach that requires special knowledge and experience from workers which they do not have. In turn, participants of criminal operations have advisers or the security services consisting of the former workers of law-enforcement bodies11.
In 1999 the Association of the American judges carried out the research which showed that corporations use more than 3, 5 thousand criminal schemes which, first, break 10 thousand various legal norms and rules and, secondly, are constantly improved, and the legal system of the USA is so difficult and complicated in this sphere that the real situation is extremely difficult to understand, if at all possible12.
Instability of the Russian legislation practically in all branches of law also assists the collective formations which have possibility to commit wrongful (socially dangerous) deeds, avoiding fair punishment.
It is interesting for the Russian legislator that the preventive function of measures of criminal law character concerning corporate (collective) formations (for example, in the USA and Norway the question on corporate culture is raised when punishment is imposed) consists of prevention of committing crimes by them by means of changing corporate culture concerning the organization and the control of the persons operating on behalf of and (or) in interests of the corporate (collective) formation.
The comparative analysis of foreign criminal legislation allows concluding that the mechanism of illegal activity of the corporate (collective) formations, generated by criminal corporate culture, includes: a) absence on the part of the corporate (collective) formation of appropriate care concerning selection of the natural persons operating on behalf and (or) in its interests; b) absence of the appropriate control over the specified persons; c) absence of organizational measures (effective programs) on maintenance of observance of the legislation, directed to detection and prevention of crimes, and also to discipline the persons who are carrying out functions of management of the corporate (collec-
tive) formation, its representatives and employees not to allow repeated commission of socially dangerous, illegal deed on behalf and (or) in interests of the corporate (collective) formation.
In our opinion, it is necessary to understand as criminal corporate culture
a policy, a way of management, a course of activity or practice of corporate (collective) formation as a whole or in its structural divisions in which process illegal activity on behalf of and (or) in interests of the corporate (collective) formation is supposed, encouraged or results in connivance of the persons who are carrying out functions of its management.
Distinction between kinds of legal liability is defined including by its purposes. The punishment purposes as the forms of realization of the criminal liability are restoration of social justice and prevention of crimes. Social justice restoration is reached first of all by application to the person who committed a crime, the punishment corresponding to the character and degree of public danger and other circumstances of the action done, and also by compensation of the damage caused to the person, the society and the state. The main objective of criminal punishment consists of preventing the guilty person to do new harm to the person, the society and the state and also to keep others from commission of crime (the general and private prevention).
Article 3.1 of the CAO of the Russian Federation allocates only one purpose of administrative punishment that is prevention of new offences both by the offender and by other persons. Thus in the given norm nothing is said about restoration of social justice which can be reached only by imposition of the punishment which is proportional to the weight of the deed. The aim of civil law liability is reduced only to compensation of the legal relations caused to certain subjects, losses, payment of forfeit (fines, penalties). As V.I. Sergeevich wrote «the criminal offence leads to the punishment which makes up the subject of criminal law; and torts do not lead to punishment but only to the indemnification»13.
Wherein the penal sanctions as follows from the developed arbitration practice, should be proportional to the suffered losses and in any case should not exceed the sum of the basic debt. Penal sanctions are called to carry out functions of additional indemnification of the harm caused to the affected party and stimulus of the unfair party to execute taken up obligations14. Hence, civil law compensation of the caused harm reaches resto-
11 Gaponenko V.F, Melnikov A.B., Eriashvily N.D. Financial and Legal Features of Criminalization of Holding Corporations. M., 2003. P. 26.
12 The USA: Damage from Corporate Criminality - $200 Billion a Year // URL: http://www.oxpaha.ru/view.asp? 15077.
13 Sergeevich V.I. Lectures and Researches on Ancient History of Russian Law. M., 2004. P. 253.
14 Struggle against Activity of Legal Entities as Subjects of the Organized Criminal Activity (Problem Statement) // the Site of the Vladivostok centre of research of the organized crime at Law Institute DVGU // URL: www.crime.vl.ru
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ration of the broken law, i.e. civil law measures on harm compensation are referred to as promoting restoration and compensation15.
Thus, civil law liability is one of forms of the state compulsion, connected with application of sanctions of the property character directed to restoration of the violated rights and stimulation of normal relations of participants who are legally equal in rights of the civil turnover16. Wherein the basic principle of civil law liability is the principle of atonality, i.e. it is applied only in the event if the affected party shows the initiative in the question of claiming damages17.
The opponents of the application of criminal law sanctions to collective formations consider it inexpedient to claim the criminal liability against them because in case of illegal activity of the enterprise it can be liquidated in civil order. However it is necessary to agree with S.G. Kelina who considers that liquidation of the legal entity in civil law order is connected only with the application of a complex of measures of property character (for maintenance of calculations with the persons working under the labor contract, creditors and other persons)18. In case of infringement of the public relations protected by criminal law, civil law measures are inadmissible. For example, committed deed has done heavy harm to health of people or an essential damage to the environment or has caused, even on imprudence, death of a person or mass destruction of animals or water biological resources. Can we in the given cases speak about civil or administrative liability? We think we can not.
It proves to be true also by the data of the sociological interrogation. The overwhelming majority of the respondents interrogated by us consider application of administrative sanctions impossible in cases if a consequence of the deed was death of the person (536 respondents — 100 %), harm to health of the person (483 — 90,1 %), violation of constitutional rights and freedoms of the person and the citizen (472 — 88 %); considerable or large (especially large) damage (369 — 68,8 %), essential change of the radioactive background (311 — 58 %), ecological catastrophe (491 — 91,6 %). Only 53 respondents (9,9 %) think application of administrative sanctions possible in cases of harm to health of the person, 64 (12 %) — violation of constitutional rights and freedoms of the person, 167 (31,2 %) —
15 Gorbuza A.D., Suharev E.A. The Structure of Criminality// Questions of Perfection of Criminal Law Rules at the Present Stage. Sverdlovsk, 1986. P. 11.
16 Civil Law: Textbook: in 2 v. / ed. by of E.A. Sukhanov. M., 1998. V. 1. P. 172-173.
17 Struggle against Activity of Legal Entities as Subjects of the Organized Criminal Activity (Problem Statement).
18 Kelina S.G. Responsibility of Legal Entities in the Project of
the Criminal Code of the Russian Federation // Criminal Law:
New Ideas / ed. by S.G. Kelina, A.V. Naumov. M., 1994. P. 53-54.
causing of considerable or large (especially large) damage, 225 (42 %) — essential change of the radioactive background, 45 (8,4 %) — caused ecological catastrophe. There were approximately equal numbers of opinions of respondents on possibility of application of administrative sanctions in cases, if the consequences of the deed were mass death of animals (299 respondents or 55,8 % — were for; 237 or 44,2 % — against), pollution of atmospheric air (298 or 55,6 % — for; 238 or 44,4 % — against), pollution of waters (298 or 55,6 % — for; 238 or 44,4 % — against), earth damage (296 or 55,2 % — for; 240 or 44,8 % — against).
Besides, unlike torts where penalty, for example for ecological harm, is possible only in that degree in which it is possible to estimate it monetarily, in criminal law relations the done ecological harm can be estimated not only in money terms, but also from the point of view of significance of ecological consequences that took place or are possible in future19. As E.N. Zhevlakov fairly specifies , «it is impossible to impose civil liability on the legal entity in cases, when consequences of the deed cannot be estimated in money terms by existing methods (gradual drying out of woods from emissions in air of harmful substances, pollution of reservoirs, soil) when harm is done to health of people (you will not estimate it in money), when the true sizes of ecological catastrophe can be defined only at the expiration of a long period of time»20. The similar situation develops at the enterprises which are not providing safe (harmless) working conditions. The damage caused to health of persons, working in the conditions which are not meeting the requirements of safety and hygiene, is impossible to estimate at once as it has an accumulating character. In particular, the dust content (gassed condition) of a working zone or the maintenance of inadmissible level of carcinogens at the workplace affects health after a long period of time, as a rule, when the person has already left the service or has retired.
It is impossible to forget that in ecological civil law relations the causal relationship between illegal behavior and the following harm in some cases can take general forms. So, while prosecuting for the harm done to health of citizens, in case of absence of a precisely defined doer of the harm, damage indemnification under the court decision is made at the expense of ecological funds where payments of the enterprises for standard and emissions above permitted standard, dumps of harmful substances are made. In criminal law relations the causal relationship is more concrete. In the conclusion of ecological, sanitary ecological examination the con-
19 Petrov V.V. Ecological Crimes: the Concept and Corpus Delicti // the State and Law. 1993. № 8. C. 92.
20 Zhevlakov E. To the Question on Responsibility of Legal Entities for Commission of Ecological Crimes // Criminal law. 2002. № 1. P. 11.
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Table 1
The sums of the administrative penalties imposed by courts of the general jurisdiction and Justices of Peace of the Russian Federation on legal entities 2005-2011 (rubles), and also the sums of the collected penalties (according to the Judicial Department at the Supreme Court of the Russian Federation)*
The sums of penalties Years
(rubles) 2005 2006 2007 2008 2009 2010 2011
Imposed by the taken decision in the accounting period 219 million 904,2 thousand 777 million 1,4 milliard 1 milliard 633,7million 14 milliard 570 million 30 milliard 309,8 million 18 milliard 737,9 million
Collected under the taken decisions in the accounting period 28 million 997,2 thousand 88 million 172,6 million 234,3 million 274,8 million 521,7 million 1 milliard 543,2 million
Collected under decisions of last years no data no data 24,7 million 39,5 million 55,2 million 101,4 million 113,7 million
* the Report of Judicial department of the Supreme Court of the RF on consideration by federal courts of the general jurisdiction and Justices of Peace of cases of administrative offences in 2005-2011 (Form № l-AII).
crete source of the harm done is defined21. Such a source can just be any collective formation.
Attention is attracted by the size of the administrative penalty which cannot be compared with the criminal penalty. For example, according to part 2 Art. 8.6 of the CAO of the Russian Federation damage of the earth results in imposing of the administrative penalty on legal entities — from 30 000 to 40 000 rubles or administrative suspension of activity for the term up to 90 days. According to Judicial department at the Supreme Court of the Russian Federation in 2008, 2009, 2010 and 2011 courts of the general jurisdiction and justices of peace for committing an offence provided by part 2 of Art. 8.6 of the CAO of the Russian Federation, administrative punishment was imposed on 25, 38, 61 and 75 persons correspondingly (from them legal entities — 18, 20, 15 and 30). The penalty was imposed in 2008 on 24 persons, in 2009 — on 35 persons, in 2010 on 60 persons, in 2011 — on 72 persons (penalty total sum is 469 088 rubles, 612 500 rubles, 527 500 rubles, 995 000 rubles correspondingly), suspension of activity was applied in 2008 with respect to 1 person, in 2009 with respect to 3 persons, in 2010 with respect to 1 person and in 2011 with respect to 3 persons.
At the same time earth damage (part 1 of Art. 254 of the Criminal Code of the Russian Federation) in criminal law order leads to imposing penalty on the natural person at the rate to 200 thousand rubles or at the rate of wages or other income of the condemned for the period of about eighteen months. Corporations in foreign countries are ex-
posed to the penalties reaching several millions of dollars in criminal law order for similar deeds.
Softness of punishment, in our opinion, promotes the situation when legal entities either avoid negative legal consequences for themselves since payment of (insignificant) penalties is written off on business risk, or consequences are transferred to consumers by means of raising prices.
A.V. Naumov specifies that fine sanctions, for example for ecological crimes, should make involvement in the industrial and other activity, which causes damage to environment both for the enterprise as a whole, and for all its employees unprofitable whenever possible economically. And it is only possible to reach by means of criminal law sanctions22. Thus, the question of expansion of kinds of punishments of economic character deserves the most intent attention. Such punishments, in our opinion, are capable to make involvement in criminal activity unprofitable.
Opponents of the application of criminal law sanctions to legal entities suggest strengthening of material liability for illegal activity of the enterprise within the framework of civil, tax, financial, administrative law. It is necessary to say that now the size of the administrative fine can be impressive enough. In particular, the analysis of practice of the Federal Antimonopoly Service (FAS) of considering the cases about administrative offences shows that the size of the administrative penalty for the unfair competition reaches in some cases reaches several millions rubles. So, the deputy head of the FAS A.B. Kashevarov, having considered the re-
21 Petrov V. V. Ecological Crimes: the Concept and Corpus Delicti //the State and Law. 1993. № 8. C. 92.
22 Naumov A. An Enterprise on the Dock? // The Soviet jus-
tice. 1992. № 17-18. P. 3.
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port and case materials № 1 14.33/299-08 against LLC «AUTO WORLD» found it guilty of committing the administrative offence provided by part 2 of Art. 14.33 of the CAO of the Russian Federation, establishing liability for unfair competition. The actions of LLC «AUTO WORLD» consisted of introduction in the turn of the goods with illegal use of results of intellectual activity and the means of an individualization of the legal entity which are equal to them, the means of individualization of production, work, services. From the report presented by the LLC «AUTO WORLD» on profits and losses for 2007, the gain from services in realization of the goods at retail made 982 674 000 rubles. The organization was subjected the penalty at the rate of 25 528 820 rubles23. Accordingly the size of the administrative penalty was 2,6 % of the gain of the offender from the sale of goods (work, service). Impressiveness of the size of the penalty actually was insignificant for the specified organization, therefore to speak about prevention of administrative influence on the infringer and other persons in such a situation is not necessary, as benefit from wrongful activity is obvious.
Besides, the judiciary practice analysis shows that the penalty imposed in administrative law order is collected extremely seldom. In table 1 the sums of the administrative penalties imposed by courts of the general jurisdiction and justices of peace of the Russian Federation on legal entities in 2005-2011, and also the sums of the collected penalties are shown.
From the data shown in table 1 it is visible that in 2005 13,18 % of the sums from the general number of the penalties imposed by the decision, in 2006 — 11,32 %, in 2007 — 12,33 %, in 2008 — 14,34 %, in 2009 — 1,88 %, in 2010 — 1,72 %, in 2011 — 8,24 % were only collected.
At last, civil law sanctions and administrative punishments are deprived of that negative social estimation of a committed deed which is characteristic for a verdict of guilty in a criminal case. For example, administrative liability, according to I.A. Klepitsky's opinion, is preferable concerning the deeds commission of which is not perceived by national sense of justice as dangerous and roughly immoral behavior 24.
Besides «a criminal trial is much more serious than administrative or civil legal proceedings since possibilities of compensation of the caused damage at it are more real than in other forms of court procedure»25 while «almost nobody is en-
gaged in revealing of the illegal deeds which are not crimes»26. But even in case of revealing of an offence quite often there are complexities with imposing punishment. It is caused by including short periods of prescription to make answer for administrative liability.
Describing civil, administrative and criminal law methods of counteraction to manufacture and distribution of counterfeit production, M. Kulkov names as minuses of a civil-law method, first, low efficiency in case of struggle against small firms which frequently disappear by the moment of delivering a judgment and soon again arise under other names, and, secondly, difficulties of collecting of the proofs which allow to establish the volume of the turn of counterfeit production and the size of losses of the legal owner of the object of intellectual property. The civil method unlike criminal law does not have possibility of compulsory collecting of such proofs.
The Criminal law method allows to use to the offenders such proceeding acts as interrogation, search and seizure of documents in which result proofs can be collected. In spite of the fact that because of inefficient work of law enforcement bodies rather small number of criminal cases is possible to bring the verdicts of guilty, the process itself of carrying out of inquiry and investigation can have already strong influence on offenders27.
At the same time between crimes (administrative offences) and civil torts there can be relations of ideal combination which generates possibility of simultaneous bringing of guilty persons both to civil law and to criminal (administrative) liability for the same offence (when in the deed there is combination of two named delicts)28.
Similar practice was already approved on the cases of administrative offences. In particular, questions of compensation of property damage and moral harm, caused by an administrative offence are regulated by Art. 4.7 of the CAO of the RF which leads to norms of civil law at the solving of the specified disputes. Questions of compensation of property damage are regulated by Art. 12, 13, 15, 16 and Ch. 59, the second part of the Civil Code of the RF. Wherein if the question on bringing of the person to administrative liability is decided by the judge then he is given the right to solve the question on property damages consider-
23 The Decision of the Deputy Head of the CAO of 15th August, 2008. on Imposing of the Fine for the Case on Administrative Offence. Case № 1 1433/299-08 (Moscow).
24 Klepitsky I.A. The System of Economic Crimes. M., 2005. P. 87.
25 Kuznetsova N.F. Codification of Norms on Economic Crimes // the Bulletin of the Moscow University. Seria 11. Law.
1993. № 4. P. 19-20.
26 Responses to the Project Published of the Criminal Code of the Russian Federation // The State and the Law. 1992. № 6. P. 89-90.
27 Kulkov M. The methods of Counteraction to Manufacture and Distribution of Counterfeit Production // The Corporate lawyer. 2006. № 8. P. 48-50.
28 Bezverhov A.G. Crime in the Sphere of Economy and the Criminal Law // Criminality and Problems of Struggle against it / ed. by A.I. Dolgova, VI. Kanygin. M., 2007. P. 119-120.
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ing the case about an administrative offence, in the absence of dispute on compensation of property damage simultaneously with imposition of administrative punishment29.
So, the parity of various kinds of collective legal responsibility once again leads to the conclusion about necessity of expansion of the circle of subjects of a crime at the expense of inclusion of corporate (collective) formations in their number.
It is necessary to introduce a new category into the criminal law theory — the collective subject of a crime (criminal liability). As a whole persons (natural persons and legal entities) who committed a crime should be called subjects of a crime (criminal liability). In our opinion, it is necessary to understand as the subject of the crime the person who possesses criminal legal capacity and criminal capability and who is obliged to give the report for commission of socially dangerous deed forbidden by criminal law under the threat of punishment in accordance with established procedure.
At legislative designing of the corporate (collective) criminal liability it is necessary to recognize that separate crimes (for example, evasion from payment of taxes and (or) collections from the organization, illegal business, infringement of fire prevention rules, etc.) can be committed by any collective formation that has the status of the legal entity. Other crimes can be committed by only those collective formations which carry out enterprise or other activity in a certain sphere. For example, infringement of safety rules at objects of atomic engineering probably is only possible at the enterprises which are carrying out locating, designing, building and operation of objects of atomic engineering; infringement of rules of the turn of narcotics or psychotropic substances — at the enterprises having the license for manufacture, production, processing, storage, delivery, realization, sale, transportation, transfer etc. narcotics, psychotropic substances or substances, tools or the equipment, narcotics used for manufacturing or psychotropic substances, and also growing plants used for manufacture of narcotics or psychotropic substances etc. Hence, the collective subject of a crime (criminal liability) may be classified into two kinds: general one and special one. The sort of activity of the legal entity should the basis of such a classification.
To collective subjects of the crime, capable of bearing the criminal liability, it is necessary to refer collective formations that have according to the Russian civil legislation the status of legal entities, and also foreign legal entities, companies and other collective formations possessing civil capacity,
29 The Review Concerning the Judiciary Practice Connected with Imposition of Administrative Punishment to Legal Entities and Individual Businessmen // Economic Justice in the Far East. 2008. № 4.
created according to the legislation of the foreign states and carrying out the activity on the territory of the Russian Federation. Punishments can be imposed and other measures of criminal law character can be applied to the collective formations having the status of a legal entity
The collective formations which do not have the status of legal entities, in case of committing a socially dangerous deed forbidden by the criminal law under the threat of punishment, become subjects of criminal law relations, and accordingly other measures concerning them of criminal law character can be applied. The state, federal public authorities, local governments, other legal entities that are carrying out some state powers assigned to them by the federal law, and also the foreign states, public authorities of the foreign states, other foreign state bodies and the legal entities that are carrying out separate state powers are not subject to the criminal liability.
While designing the institution of corporate (collective) liability it is necessary to be guided by general provisions of the corresponding branch of law. The basic principle of the Russian criminal legislation is the fault principle. Correspondingly the psychological (subjective) approach to definition of fault of the legal entity that committed a crime seems to be most justifying, i.e. fault of the legal entity should be defined on a dominating will (depending on the fault of the natural persons that are carrying out the function of management in it).
The basis of the collective criminal liability must be committing of the deed that has all signs of corpus delicti provided by the Special part of the Criminal Code. The collective criminal liability is possible in the presence of following conditions: a) the deed was committed on behalf and in interests of the legal entity; b) the deed is authorized, executed or admitted on imprudence by the person who is carrying out functions of management by the legal entity, or by its representative operating within his competence, and equally executed or admitted on imprudence by other employee owing to the insufficient control over his wrongful behavior (or connivance to him) by the persons who are carrying out functions of management of the legal entity; c) the deed consists of not execution or inadequate execution of the direct instruction of the law establishing the duty or the interdiction for realization of certain activity by the legal entity .
It is expedient to regulate in the criminal legislation the norm providing the situation of possible transformation (by merge, joining, division, allocation, transformation) of the legal entity. Presence in the Criminal Code of the Russian Federation such a norm will allow solving the problem of avoiding of the legal entity of criminal liability by means of its reorganization. At merge of several
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legal entities or transformation of the legal entity of one kind into the legal entity of other kind criminal proceedings should be instituted against the newly appeared legal entity, in our opinion. At joining of the legal entity to another legal entity criminal proceedings should be instituted against the joined legal entity. At division of the legal entity or at allocation from the structure of the legal entity of one or several legal entities criminal proceedings should be instituted for commission of the crime against the legal entity to whom the rights and duties have passed according to dividing balance under the concluded transactions or property in connection with which the crime has been committed. In the given cases the criminal liability for crime commission should come only under the condition if the natural person obviously knew about the fact of the crime made by the legal entity-predecessor before the end of reorganization.
The collective criminal liability should be excluded in case of reasonable risk, emergency, execution of obligatory for collective formation decrees, decisions, orders or official explanations of the state and municipal authorities, the commission by the collective formation of the deeds containing signs of corpus delicti owing to the act of nature disaster or other extreme and insuperable circumstances. Besides, the collective criminal liability should be excluded, if socially dangerous consequences have come apart from the will of the collective formation (i.e. out of the sphere of its control), or socially dangerous consequences were the result of circumstances which could not be prevented by its employees, the persons who are carrying out functions of management, the bodies, or the collective formation did not have possibility for observance of the rules and the norms for which infringement the criminal liability is provided, or it has taken all measures depending on it which were necessary for observance of given rules and norms, and also for prevention of illegal deeds, or deliberate actions (inactivity) were made by the employee, the person who is carrying out the functions of management, or another representative not in interests of the collective formation, and for the purpose of causing harm to it.
In our opinion, legal entities can be subjected to following kinds of punishments: prescribing judicial control; right deprivation to be engaged in certain activity; enterprise closing (a branch, the representation) of the legal entity used for commission of an incriminated deed; property confiscation; the penalty; liquidation of the legal entity. The presented system of punishments meets all necessary requirements. First, on the basis of the
principle of legality it includes the complete list of criminal punishments which can be applicable to the collective subject of the crime. It means that in case of the legislative regulation of the collective criminal liability courts will be strictly obliged to adhere only to this list, they cannot apply the punishments which were not specified in the given system. Secondly, the given punishments are located in the certain hierarchically set sequence (from the softest punishment to the strictest). Thirdly, the given system contains the various kinds of punishments which are capable adequately to influence the collective subjects, which committed crimes. Variety of kinds of punishments will allow considering all circumstances of the deed in the course of their imposition.
The listed kinds of criminal punishments, applicable to collective subjects of a crime, can be subdivided into three groups conditionally: a) the punishments directed to restriction of financial (economic) interests of the collective subject of the crime (closing of enterprise (a branch, representatives) of the legal entity that was used for commission of the incriminated deed, the penalty, property confiscation); b) the punishments directed to restriction of the rights of the collective subject of the crime (right deprivation to be engaged in certain activity, prescribing the judicial control); c) an exclusive measure of punishment (liquidation of the legal entity). ther measures of criminal law character which can be applied to the legal entity include publications or other promulgation of the decision which are carried out at the expense of the legal entity; suspension of the activity of the legal entity; special confiscation of the property. Application of an interdiction for activity realization along with the specified measures can be used against the collective formations which do not have the status of the legal entity.
On the basis of part 1of Art. 60 of the Criminal Code of the RF fair punishment in the limits provided by the Criminal Code of the RF should be imposed on any person who was found guilty of committing of a crime. When imposing the punishment on the collective subject of a crime: a) it is necessary to be guided by the equality principle before the law on which basis legal entities are subject to the criminal liability irrespective of the location, organizational and legal forms, subordination; b) it is necessary to consider the following circumstances: the character and degree of public danger of a crime; an economic gain received from illegal activity; property and financial and economic position of the collective subject; realization by the collective subject of socially significant activity; the circumstances softening and aggravating punishment.
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Eft- ANTONOVA_LEX RUSSICA
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Перевод выполнила Н.И. Емельянова, кан. пед. наук, доцент кафедры англ. яз. № 2 Университета имени О.Е. Кутафина (МГЮА)
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