The social danger of cartels and the purpose of their criminalization

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

Introduction

In accordance with the generally accepted approach, the Criminal Code of the Russian Federation includes offenses that pose a risk of causing or causing the greatest harm to public relations (socially dangerous acts). Such crimes include restriction of competition, prohibited by Article 178 of the Criminal Code of the Russian Federation.

At the same time, there are periodic proposals for decriminalization. In general, representatives of the business community are among those advocating the decriminalization of cartels. So, at the beginning of 2023, decriminalization was supported by: the Presidential Commissioner for the Protection of Entrepreneurs' Rights^[1], representatives of the Delovaya Rossiya Expert Center on Antimonopoly regulation^[2], the Opora Rossii public association, the Russian Union of Industrialists and Entrepreneurs^[3] and other representatives of the business community.

Proponents of decriminalization believe that criminal punishment is excessive, and the cartels themselves should be suppressed solely by economic sanctions, since prices on commodity markets, with the exception of socially significant goods, are effectively regulated by the market itself. An additional argument is considered to be the ineffectiveness of the article (taking into account the number of sentences) and the low legal technique in describing the corpus delicti.

On the other hand, there are proposals to increase liability (including criminal liability) for the commission of the actions in question^[4]. The majority of antimonopoly law experts adhere to this position: A. P. Tenishev, A. V. Smirnova, A. Y. Tsarikovsky and many others.

Experts believe that only tougher penalties can really contribute to changing the situation, the fear of real imprisonment of cartel members. And the impunity of the perpetrators can become a factor that will lead to social instability, which is why the investigation of cartel conspiracies has become a priority for government agencies. In their opinion, the consequences of cartel collusion are obvious, including in terms of social damage in the form of a reduction in the number of jobs and changes in the terms of employment. And the lack of motivation for manufacturers to develop, significant barriers to entry of new firms into the industry and the undermining of public confidence in the fundamentals of a market economy always provoke market stagnation.

The need to combat cartels (and therefore their high public danger) is evidenced by the position of the President of the Russian Federation, on whose initiative the National Competition Development Plan was approved in 2021, in which work to intensify and improve the effectiveness of the fight against cartels was highlighted as one of the main directions.

At the moment, the State Duma of the Russian Federation is considering draft law No. 848246-7 on amendments to Article 178 of the Criminal Code of the Russian Federation, providing for tougher sanctions for entering into a cartel, the allocation of a separate composition for entering into a cartel at auction, and the inclusion of a new qualifying feature – the commission of an act by an organized group.

Thus, in the explanatory note to the draft federal law "On Amendments to Article 178 of the Criminal Code of the Russian Federation and Article 151 of the Code of Criminal Procedure of the Russian Federation" No. 848246-7, which provides for tougher penalties for cartels, the following arguments are given for tougher liability: an increase in the number of cartels and their penetration into vital areas. According to the authors of the draft law, "these circumstances require an appropriate response, in particular, amendments to the legislation of the Russian Federation that will reflect the significantly increased public danger of cartels, as well as contribute to the development of practices to counter them."

Separately, I would like to note that the author does not consider these arguments to be a qualitative justification for tightening existing liability for participation in cartels.

It follows from the theory of law that the basic basis for increasing liability for intentional acts is the inconsistency of punishment with the consequences (caused, desired or possible) of the act itself, i.e. cases when the person committing the act agrees and considers the sanctions provided for his actions permissible. Another circumstance is the change in society and its attitude towards the act being committed.

Returning to the arguments mentioned in the explanatory note to Draft Law No. 848246-7, it should be noted, firstly, that the increase in the number of crimes (cartels) It is not an indicator of an increase in the level of public danger of the offense itself, since it does not substantially increase the danger of the act itself, since the indicator is a purely quantitative factor (statistical) that does not reflect the public danger of the crime.

Secondly, the penetration of cartels into vital areas may indicate the need to tighten responsibility only for cartels in such areas, but not for any other cartels.

Thus, we see completely different approaches to the perception of the public danger of cartels, which in turn arouses scientific interest in this issue.

At the same time, the range of socially dangerous acts is constantly changing due to changes in society, the economy and other spheres of life. This circumstance leads to the fact that some socially dangerous acts are criminalized (crimes in the field of computer information), while others are decriminalized.

Next, the author will consider the most popular approaches to understanding and the nature of public danger, its presence in economic crimes (in particular, in the crime provided for in Article 178 of the Criminal Code of the Russian Federation), analyze them (using methods of deduction, induction, comparison and classification), give them his assessment and make his assumptions on the issues considered in the work. questions.

Public danger as a legal category

Public danger, as a category in legal science, is one of the most discussed categories. Some support the existence of this criterion in the definition of a crime, while others consider it necessary to move away from this category.

The foreign doctrine does not deny the criterion in question, however, it does not attach serious importance to it. Thus, a large number of theorists believe that in defining the concept of crime there is no need to reflect public danger as a material feature. Such persons include: S. Shapiro, M. Inners, K. Hamdorf ^[30].

The current legislation of the Russian Federation does not contain provisions deciphering the concept of "public danger". Judicial practice also does not delve deeply into this issue.

Public danger is an important category of criminal (and not only) law, which determines the recognition or non-recognition of an act as criminal, as well as the category that determines the responsibility of the person who committed the crime. The Russian doctrine of criminal law in the Russian Federation stands for the mandatory inclusion of criteria of public danger in the understanding of crime.

At the same time, there is no unified approach in theory to understanding public danger as a criterion, which does not allow us to establish any framework for this concept. This circumstance, in turn, leads to difficulties both in practice (for example, when distinguishing offenses from crimes, and when assessing the insignificance of a crime), and in theory (and therefore in the process of training persons who continue to work in the field of criminal law sciences).

What is the reason for this problem?

The concept of public danger includes two words "public" and "danger". Thus, the word "public" restricts the scope of the concept, defining its boundaries. At the same time, there are no serious disagreements in theory about what is meant by society. In the conventional sense, this is a group of people who are directly or indirectly related to each other and who live their lives within the framework of the same social institutions and spheres of life.

When interpreting the concept of "socially dangerous", according to the author, it is necessary not to correlate the concept of society and the state (as a legal "association" of people), because in this case, a number of actions will not be (perceived) socially dangerous.

Also, a socially dangerous act should be recognized not only as an act that poses a danger to society (as a group of persons), but also for a specific (one) participant in society. Otherwise, we can talk about the absence of public danger, for example, in the case of physical harm to a particular person (literally, we can say that harm is caused to an individual, not to society). That is, it is social because it is recognized by such a society, and not because harm is caused to society. This position is supported by N. F. Kuznetsova ^[7], who points out that socially dangerous acts shake the foundations of society and the conditions of its existence as generally accepted norms and rules (including in interpersonal relationships).

In turn, the word "danger" is a purely subjective concept. This position is also supported by S. A. Bochkarev, who points out that "danger refers to human existence, since it has its roots in the ontology of human existence, since it has a kinship with the instinct of self–preservation: danger is an intellectual, and instinct is a volitional moment in human activity" ^{[8, pp. 93-102]}.

According to Ozhegov's explanatory dictionary, danger is understood as "an opportunity, a threat of something," according to Ushakov's explanatory dictionary – "An opportunity, a threat of disaster, disaster, something. undesirable." Thus, danger is always a person's perception of some negative event (the possibility of its occurrence).

For example, one person considers it dangerous to drive a vehicle under the influence of alcohol, while another person considers it normal (at least not dangerous). At the same time, the majority (society, in some sense) adhere to the first view, and therefore in society this act is considered ("presumed") dangerous.

Thus, a socially dangerous act should be understood as an act that is considered (perceived) dangerous in a certain group of people (society) beyond any doubt by the majority of this society.

The author considers the qualitative and most complete understanding of the term under consideration, outlined by N. A. Lopashenko, A.V. Golikova and others ^[10] in the work "Public danger of crime: the concept and criteria of verification", in which public danger is understood as "the possibility of negative changes in society or society, the possibility of negative consequences, harm caused to society or, conversely, as a possibility of negative consequences produced by society in the same society or the possibility of negative consequences for members and non-members of society, for the state, for natural objects, for human peace and security." Despite the rather long wording, it should be considered the most fully encompassing the essence that theory and law enforcement practice put into the criterion under consideration.

At the same time, according to the author, public danger is not only a criterion of criminal law, but also a criterion for any act, including an act that is not an offense (i.e., it is not considered such in accordance with the will of the legislator). The specificity of the criminal-legal public danger is that it is the highest (i.e., more significant harm is caused) compared to other acts. In addition, a public danger can be contained in a socially positive act, for example, in necessary defense.

Public danger within the framework of the current legislation of the Russian Federation

The position of the current legislation regarding the understanding of public danger is well reflected in the position of Yu. I. Lyapunov ^{[9, p. 119]}, who points out that any violations of the norms of the legislation of the Russian Federation contain signs of social harmfulness, since they harm the interests of society, while in cases where harmfulness reaches the level of danger (critical threshold), it It is transformed into a public danger, a characteristic peculiar only to a crime and a criminal offense.

A similar position is held by N. A. Lopashenko, A.V. Golikova and others ^[10], defining the criterion under consideration in other (non-criminal) offenses as "social harmfulness". As mandatory signs of public danger, the authors identify: 1) affecting significant relationships 2) harmful potential, fraught with significant harm 3) the presence of consequences 4) the culpable attitude of the subject.

We believe that criterion number 3 cannot be considered a correct sign of public danger. Thus, not every act (including those recognized as a crime) carries a consequence (in the material sense), while the act itself does not cease to be socially dangerous (planning a crime, preparing for it, formal elements of the crime).

A similar position was stated by Judge K. V. Aranovsky of the Constitutional Court of the Russian Federation in a dissenting opinion to the Resolution of the Constitutional Court of the Russian Federation dated 11.12.2014 No. 32-P, who understands public danger as "not only an objective risk ... that cannot be measured, but also a subjective state, and in this sense it depends on how it is felt, represented and they express it, in particular, by a legislative decision on the right of constitutional democracy and by virtue of legislative powers. The criminal law expresses the measure of danger based on the results of the legislative procedure in a generalized conditional assessment that the act receives in the representations and decisions of the subjects of legislative activity when they normatively qualify it and thereby name the boundaries so that the court, for its part, can classify the danger of individual crimes in individual criminal cases within these limits."

Thus, we can say that in accordance with the current doctrine, the legislator considers the criterion of public danger to be characteristic only of criminal law legislation, thereby highlighting this branch of law.

Public danger of anticompetitive agreements (cartels)

Turning to the public danger of the crime provided for in Article 178 of the Criminal Code of the Russian Federation, it is necessary to begin with the fact that the crime is "economic". Economic crimes are understood as socially dangerous acts committed by business entities in the business and other economic spheres. Most of these acts are at the junction of civil and criminal legal relations.

By itself, the validity of the criminal law impact on economic relations, the rationality and legitimacy of such an impact, is one of the most discussed issues, including those arising in connection with the assessment of the public danger of such acts.

According to the author, a large number of scientists (N. F. Kuznetsova, A. E. Teslenko) correctly note that criminalization of acts in this area should be subject to a detailed and in-depth analysis of the danger of such acts and their consequences. The negative consequences of stricter legislation in the field of economics (in terms of criminal law qualifications), the lack of a unified approach to the interpretation of the provisions leads to the suppression of the initiative of individuals in the economic sector, one of the basic sectors that ensure the functioning of the state.

A. E. Teslenko declares an important idea: "The instability and lack of formation of economic legal relations directly forms the inadequate recognition of a particular tort as socially dangerous. As a result, criminal law-making is going the wrong way, ..., a heterogeneous public legal consciousness is being formed" ^[11]. The latter can lead to problems in distinguishing between criminal law and civil law torts (this is confirmed by numerous practices), which is obviously not a positive aspect in law enforcement practice.

Thus, taking into account the criminalization of this type of act, it can be assumed that the legislator sees a serious public danger in cartel agreements.

According to the explanatory note to Draft Law No. 848246-7, a high public danger is associated with price gouging (18% on commodity markets and 30% at auctions), which leads to damage in the amount of 1.5-2% of GDP annually (while the procedure for calculating damage is not publicly available). This argument is indicated in the overwhelming number of scientific papers on this topic.

Others, such as A. A. Bulayeva and E. O. Kobrusev ^[12], see the danger in artificially rising prices, reducing the product range and stagnating commodity markets.

A.V. Danilovskaya and A. P. Tenishev note that cartels "discredit the legal foundations of economic relations, state policy to support and protect competition, and trust in state institutions involved in these processes" ^[3].

Are these arguments justified and sufficient to qualify the act as criminally punishable? Additional relevance to this issue is given by the fact that in most countries cartels, although they are recognized as a socially dangerous act, are not a crime. Does this mean that the harm from danger cartels is higher in the Russian Federation than in most countries?

According to the author, the reason for making the act in question criminally punishable is the peculiarities of our country's economy, namely, the large share of public funds (both directly and through legal entities) in the economy.

This conclusion can be confirmed by the fact that the vast majority of cartels (both criminally punishable and not), according to the information of the Federal Antimonopoly Service of Russia, are concluded at auctions (i.e., when spending budget funds and funds from state and municipal companies). This is evidenced by the fact that in the vast majority of works (including positions of government agencies), damage to the economy in the amount of GDP is highlighted as the main negative factor (this indicator is usually used to assess the effectiveness of the state (country) at the international level, rather than when assessing the impact on business within the country).

At the same time, cartels at auctions, which, as previously indicated, are predominant cartels (sentences for other types of cartels have not been found), in fact, do not have a negative impact on other market participants. This is confirmed by the fact that the cartel itself, when participating in the bidding, cannot influence the bid by other participants, because during the bidding they themselves determine the maximum allowable level of their price (non-price) offer, which the cartel participants cannot influence. If there is such influence (both from the cartel participants and from third parties), we can talk about the presence of other elements of the offense, but they will not be covered by the act prohibited by art. 178 of the Criminal Code of the Russian Federation.

At the same time, according to the author, the harm to economic entities (market participants) from cartels in commodity markets (not auctions) is obvious. It is the relevant cartels that should be criminalized, as they cause real harm to society and its economic development. For example, an agreement to waive contracts with certain sellers or buyers allows cartel participants to eliminate market participants they dislike or dictate terms that are beneficial to the parties to the agreement, most often not beneficial to others.

The situation is similar with cartels aimed at reducing or stopping the production of goods. The actions under consideration lead to a "controlled" and unjustified shortage of goods in order to extract unjustified excess profits from ordinary consumers.

Conclusions

Thus, we can talk about the possibility of distinguishing cartels that cause (possible to cause) harm to the state, and cartels that harm (possible to cause) business entities and ordinary citizens. At the same time, in fact, the second cartels are not detected in our country (since 2015, Article 178 of the Criminal Code of the Russian Federation has not been applied to classical cartels in commodity markets ^{[14, p. 52]}), and the perpetrators are not prosecuted. Does this mean that there are no cartels in the commodity markets? Obviously not. However, we see that the fight against such cartels is not actually being carried out. It follows from this that the legislator, while tightening criminal liability for cartels, taking into account the practice of identifying anticompetitive agreements, sees the danger of cartels for the state and its resources, and not for business entities and ordinary citizens individually.

Based on the results of the study, the author comes to the conclusion that the issue of tightening criminal liability for cartels is quite controversial and ambiguous, not to mention the very need for such responsibility for the act in question. At the same time, the relevant issues are relevant at the international level, taking into account the ambiguous world practice on this issue. These circumstances create the conditions for extensive scientific research on this issue, which, in turn, can assist government agencies in forming a more rational and socially necessary decision on the issue of criminalization/decriminalization of cartels.

^[1] https://www.rbc.ru/economics/10/03/2023/640a02c59a794738626a7e49

^[2] https://deloros.ru/press-centr/novosti/novosti-ekspertnoy-palaty/delorossy-poprosili-sovet-federatsii-podderzhat-dekriminalizatsiyu-karteley-na-tovarnykh-rynkakh

^[3] https://tass.ru/ekonomika/5416985

^[4] https://www.kommersant.ru/doc/6148865