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Law and Politics

Reference:

Troyanov Y.O. Problems of determining income as a qualifying attribute of a crime under Article 178 of the Criminal Code of the Russian Federation // Law and Politics. 2023. № 6. P. 79-90. DOI: 10.7256/2454-0706.2023.6.40721 EDN: AJQPWB URL: https://en.nbpublish.com/library_read_article.php?id=40721

Problems of determining income as a qualifying attribute of a crime under Article 178 of the Criminal Code of the Russian Federation

Troyanov Yaroslav Olegovich

Postgraduate Student, Department of Law Enforcement, Criminal Law and Process, Pskov State University

196128, Russia, Saint Petersburg, Varshavskaya str., 23k1, sq. 52

jaroslawt96@mail.ru

Other publications by this author

DOI:

10.7256/2454-0706.2023.6.40721

EDN:

AJQPWB

Received:

11-05-2023

Published:

09-06-2023

Abstract: Competition is an important factor stimulating economic growth and development, as well as improving the quality of goods and services. Protection of competition is one of the basic principles of modern states. The legislation of the Russian Federation provides not only administrative, but also criminal liability (with an increased preventive role) for restricting competition (Article 178 of the Criminal Code of the Russian Federation). At the same time, there are serious problems associated with bringing the perpetrators to justice. Among such problems is the lack of a unified approach to determining income from the conclusion of such agreements. In this paper, existing approaches to determining the income extracted by participants in anti-competitive agreements will be considered, and the approach outlined by the Constitutional Court of the Russian Federation in its Resolution №19-P of 19.04.2023 will also be analyzed.

Keywords:

anticompetitive agreement, collusion, cartel, competition, income, qualifying attribute, profit, damage, constitutionality, fairness
This article is automatically translated. You can find original text of the article here.

^[5] Review of judicial practice issues arising in the consideration of cases on protection of competition and cases of administrative offenses in this area (approved by the Presidium of the Supreme Court of the Russian Federation on 16.03.2016)

References

1. Burlakov V.N. (2014). Criminal Law of Russia. Special Part: Tutorial. Ed. Burlakova V.N.,-2nd ed.-St. Petersburg:St. Petersburg State University.
2. Gavrilov D.A. (2016). Anticompetitive agreements and unfair competition: A textbook. Gavrilov D.A., Kinev A.Yu., Puzyrevsky S.A., Seregin D.I., Khokhlov E.S./ In Puzyrevskogo S.A. (Ed.)-M.: Prospect.
3. Egorova M.A. (2015). Coordination of economic activity in the Russian legal space: Monograph / K.M. Belikova, A.V. Gabov, D.A. Gavrilov, etc.; In M.A. Egorova (Ed.). M.: Justicinform.
4. Kinev, A.Y. (2011). Cartels and other anticompetitive agreements. Moscow: Infotropik.
5. Maximov S.V. (2018). Criminal policy in the field of competition protection: goals and opportunities. Maximov S.V., Utarov K.A./In V. P. Zavarukhin (Ed.). – M.: IPRAN RAS.
6. Naumov A.V. (2004). Russian criminal law. The general part. Course of lectures. M.: Legal literature.
7. Tsarikovsky A.Y. (2019). Restriction of competition: theoretical and practical aspects of criminal liability: a scientific and practical manual. In A.P. Tenishev, S.A. Bochkarev, A.V. Teslenko (Eds.); M. Publishing House "Delo" RANEPA.
8. Astanin A.V. Proving cartels. Actual practice of antimonopoly authorities // Lawyer of the company. 2017. №14, 46-51. Retrieved from http://yust.ru/upload/iblock/819/819ad7c1fa95c73a68b5914e308213d5.pdf
9. Egorova M. A. Legal criteria of the cartel / Egorova M. A., Kinev A. Yu. // Law and Economics. 2016. №4., 4-11. Retrieved from https://base.garant.ru/57286793
10. Smirnov R.Y. Restriction of competition (Article 178 of the Criminal Code of the Russian Federation): technical and legal aspects of the construction and application of the norm / Smirnov R.Y., Lopatkin P.E. // Actual problems of criminal law at the present stage (questions of differentiation of responsibility and legislative technique). 2021. №10. 28-37.Retrieved from https://www.elibrary.ru/download/elibrary_46348765_44408852.pdf
11. Zhabaginov R.A. Criminal Liability for Restriction of Competition // Law and Law. 2020. №7. 109-113. Retrieved from https://cyberleninka.ru/article/n/ugolovnaya-otvetstvennost-za-ogranichenie-konkurentsii-problemy-i-perspektivy-razvitiya/viewer/
12. Kinev A.Y. Cartels. Evidence system and judicial practice / Kinev A.Yu., Egorychev N.N., Samolysov P.V., Tenishev A.P. // Law. 2013. №4, 131-138. Retrieved from https://base.garant.ru/57596078
13. Kinev A.Yu. On criminal liability for cartels / Kinev A.Yu., Tenishev A.P. // Jurist. 2017. №1, 7-13. Retrieved from https://fas.gov.ru/documents/56188

First Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

The subject of the research in the article submitted for review is, as follows from its name, the problems of determining income as a qualifying sign of a crime under Article 178 of the Criminal Code of the Russian Federation. In the title of the work, for the convenience of the readership, it is necessary to indicate in parentheses the name of the specified article of the Criminal Code of the Russian Federation ("Restriction of competition"). The methodology of the research is not disclosed in the text of the article, but it is obvious that the author used universal dialectical, logical, formal-legal, hermeneutic research methods. The relevance of the research topic chosen by the author is not actually justified. The scientist also needs to list the names of the leading experts involved in the study of the problems raised in the article and reveal the degree of their study. It is not explicitly stated what the scientific novelty of the study is. In fact, it manifests itself in the author's proposal to improve Article 178 of the Criminal Code of the Russian Federation, related to a change in the interpretation of the concept of "income", which acts as a qualifying feature of the relevant crime. The scientific style of the research is fully sustained by the author. The structure of the work is not entirely logical. In fact, there is no introductory part of the study - the work immediately begins with the main part. The main part of the article is divided into several sections: "Criminal liability for restricting competition"; "Qualifying signs of a crime under Article 178 of the Criminal Code of the Russian Federation", "The position of the Constitutional Court of the Russian Federation regarding the definition of income". The final part of the work contains conclusions based on the results of the study. The content of the work fully corresponds to its title, but is not without some drawbacks. So, the author addresses potential readers of the work in the first person singular (it is necessary from the plural: "We believe", "We believe", etc.). The scientist writes: "The court indicates that the legislator has the right to approach the definition of the concept of "income" in different ways, based on a specific sphere of legal relations. I think this approach is not entirely correct and creates legal uncertainty both for persons engaged in activities that bring the same income, and for those who control their activities, allowing the interpretation of this concept in their favor (in the absence of the practice of the Constitutional Court of the Russian Federation or the position of the Supreme Court of the Russian Federation, fixed by the Resolution of the Plenum)." What benefit can a particular controlling person receive when interpreting the concept of "income" not in favor of the person being held accountable? The author writes: "As confirmation of its position, the Constitutional Court of the Russian Federation refers to the interpretation of the concept of "income" established in the Law of the RSFSR of March 22, 1991 No. 948-I "On Competition and restriction of monopolistic activity in commodity markets", indicating the rejection of a specific interpretation of this concept. I believe that this argument cannot and should form the basis of the reasoning of the conclusions of the Constitutional Court of the Russian Federation, since the court is not a legislative body and cannot speak about its will or purpose, in the absence of a direct indication of such a body anywhere." The scientist needs to justify his position in more detail and convincingly show, with reference to relevant sources, that in this case the Constitutional Court of the Russian Federation went beyond its powers. All abbreviations must be deciphered when they are first used. The author mentions Articles 171 and 185.3 of the Criminal Code of the Russian Federation, but does not specify their names, which creates inconvenience for the readership. The bibliography of the study is presented by 11 sources (monographs, scientific articles, textbooks, textbook). From a formal and factual point of view, this is quite enough. The number and nature of the sources used by the author allowed him to reveal the problems raised in the article with the necessary depth and completeness. There is an appeal to the opponents, but it is of a general nature. The scientific discussion is conducted by the author not quite correctly (as noted above). The provisions of the work are not always justified to the necessary extent. There are conclusions based on the results of the study ("Thus, the Constitutional Court of the Russian Federation concluded that currently income in accordance with Article 178 of the Criminal Code of the Russian Federation means income (for example, the price of a concluded contract) without reducing it by the amount of any expenses. The Constitutional Court of the Russian Federation pointed out that the concept of income is defined and constitutional. At the same time, as discussed above, the Constitutional Court of the Russian Federation provides not so serious arguments as arguments that clearly indicate the validity of the interpretation of income indicated in the Resolution. The relevant interpretation, as mentioned earlier, may conflict with the principles of justice and equality established by the Criminal Code of the Russian Federation. Taking into account the specifics of the act, its consequences on the economy and the market, I consider it possible to consider as a qualifying feature not the consequence in the form of income, but the consequence in the form of extracting excess income (the difference between the real price of a good or service and the price established in connection with actions under an anti-competitive agreement). This approach was quite successfully used by the legislator in the formulation of another norm of the Criminal Code of the Russian Federation — Article 185.3 of the Criminal Code of the Russian Federation") and deserve the attention of the readership, but should be clarified in terms of substantiating the inaccuracy of the position of the Constitutional Court of the Russian Federation on the issue under study. The article has not been proofread by the author. It contains typos, omissions of words, spelling, punctuation, and syntactic errors. The interest of the readership in the article submitted for review can be shown primarily by specialists in the field of criminal law and criminal procedure, provided that it is finalized: disclosure of the research methodology, substantiation of the relevance of the topic of the article, clarification of some provisions of the work and the author's argumentation, elimination of violations in the design of the article.

Second Peer Review

A REVIEW of an article on the topic "Problems of determining income as a qualifying sign of a crime under Article 178 of the Criminal Code of the Russian Federation". The subject of the study. The article proposed for review is devoted to topical issues of the qualification of an act as a crime under Article 178 of the Criminal Code of the Russian Federation. The author considers this problem both from a theoretical standpoint and taking into account the opinion of the Constitutional Court of the Russian Federation. The subject of the study was the provisions of current legislation, the opinions of scientists, and judicial practice. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of determining income as a qualifying sign of a crime under Article 178 of the Criminal Code of the Russian Federation. Based on the set goals and objectives, the author has chosen a methodological basis for the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of judicial practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of the Criminal Code of the Russian Federation). For example, the following conclusion of the author: "The corpus delicti provided for in Article 178 of the Criminal Code of the Russian Federation is formulated as material. Criminally punishable, in accordance with Part 1, is the conclusion of only such agreements, the result of which was the infliction of major damage to citizens, organizations or the state or entailed the extraction of income in a large amount (10 million rubles), or entailed the extraction of income in a large amount (50 million rubles). The amount of particularly large damage (paragraph "c" of Part 2) should exceed 50 million rubles, and by income on a particularly large scale it is necessary to understand income exceeding 250 million rubles." The possibilities of an empirical research method related to the study of judicial practice materials should be positively assessed. In particular, the author critically analyzes the approaches of the Constitutional Court of the Russian Federation. So, the following is indicated: "The court points out that the legislator has the right to approach the definition of income in different ways, based on a specific area of legal relations. We consider this approach to be not entirely correct and creates legal uncertainty both for persons engaged in activities that bring the same income, and for those who control their activities, allowing the interpretation of this concept in their favor (in the absence of the practice of the Constitutional Court of the Russian Federation or the position of the Supreme Court of the Russian Federation, fixed by the Resolution of the Plenum)." Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic stated by the author is complex and relevant. The ambiguity of approaches in practice, including the controversial nature of a number of judgments of the Constitutional Court of the Russian Federation, causes discussions. The author is right that "The increased attention to this form of anti-competitive agreement is due to the fact that this act is committed intentionally and is committed by several business entities at once. At the same time, such persons, in fact, dictate their terms to third parties, influencing pricing, supply and demand." Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "At the same time, as discussed above, the Constitutional Court of the Russian Federation presents not so serious arguments as arguments that clearly indicate the validity of the interpretation of income indicated in the Resolution. The relevant interpretation, as mentioned earlier, may conflict with the principles of justice and equality established by the Criminal Code of the Russian Federation. Taking into account the specifics of the act, its consequences on the economy and the market, we consider it possible to consider as a qualifying feature not the consequence in the form of income, but the consequence in the form of extracting excess income (the difference between the real price of a good or service and the price established in connection with actions under an anti-competitive agreement). This approach was quite successfully used by the legislator in the formulation of another norm of the Criminal Code of the Russian Federation — Article 185.3 of the Criminal Code of the Russian Federation." These and other theoretical conclusions can be used in further scientific research. Secondly, the author offers original generalizations of practice on the stated research topic. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, and content. The subject of the article corresponds to the specialization of the journal "Law and Politics", as it is devoted to legal problems related to the qualification of crimes under Article 178 of the Criminal Code of the Russian Federation. The content of the article fully corresponds to the title, since the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia and abroad (Burlakov V.N., Gavrilov D.A., Egorova M.A., Maksimov S.V., Tsarikovsky A.Yu. and others). Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the presence in it of the author's systematized positions in relation to the problems of determining income as a qualifying sign of a crime provided for in Article 178 of the Criminal Code of the Russian Federation. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"

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