Intersectoral differentiation of responsibility for the commission of acts infringing on fair competition

Danilovskaia Anna Vladimirovna PhD in Law Associate professor, Department of Civil Law and Civil Procedural Law, Pacific State University 680000, Russia, Khabarovsk Territory, Khabarovsk, 134 Pacific Street, office 417 d_a_v@list.ru Other publications by this author

One of the important modern areas of state activity is the criminal law counteraction to encroachments on fair competition. Current directions for the development of criminal law policy in this area were set by a number of official documents, including decrees of the President of the Russian Federation dated 05/13/2017 No. 208 "On the Economic Security Strategy of the Russian Federation for the period up to 2030" (hereinafter referred to as the Economic Security Strategy) and dated 2.07.2021 No. 400 "On the National Security Strategy of the Russian Federation" (hereinafter referred to as the National Security Strategy), an Interdepartmental program of Measures to identify and Suppress cartels and Other agreements restricting Competition for 2019-2023, approved by Decree of the Government of the Russian Federation dated 06/17/2019 No. 1314-R. They are based on the focus on improving the system of countering monopolistic activities in general, cartels and other agreements that restrict competition, corruption in the business environment, which pose one of the threats to the country's economy. And only the Strategy for the Development of Competition and Antimonopoly Regulation in the Russian Federation for the period up to 2030, approved by the Protocol of the Presidium of the Federal Antimonopoly Service of Russia dated 07/03/2019 No. 6, notes the need to counter unfair competition, the public danger of which is clearly underestimated in domestic legislation, despite studies at various levels confirming relatively equal risks and adverse consequences for the economy both from the activities of the cartel and from unfair competition ^{[1, pp. 97-103]}. The analysis of the criminal law also indicates this fact. So, if criminal liability for a cartel has clear grounds provided for in Article 178 of the Criminal Code of the Russian Federation, then there are no such socially dangerous forms of unfair competition in the Criminal Code of the Russian Federation, which does not allow them to be officially recorded, although signs of individual manifestations of unfair competition are seen when analyzing the objective side of crimes provided for in Articles 128 ¹, 146, 147, 180, 183, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation.

At the same time, attention is drawn to the results of the analysis of the existing situation in legislation and law enforcement regarding other articles of the Criminal Code of the Russian Federation that have the criminal legal potential to counter encroachments on fair competition. In particular, a situation similar to the above has developed with agreements restricting competition concluded by officials of state or local government bodies, as well as with individual acts of officials of these bodies restricting competition. In practice, responsibility for such acts occurs according to the universal elements of crimes provided for in Articles 169, 285 or 286 of the Criminal Code of the Russian Federation, which are often in competition with each other.

Article 2004 of the Criminal Code of the Russian Federation "Abuses in the field of procurement of goods, works, services for state or municipal needs", aimed at countering violations at auctions, including those expressed in restricting competition during their conduct, could also have ^the significance of an element of criminal law countering encroachments on fair competition in the case of official recognizing it as such and keeping records of the noted act as anticompetitive. At the same time, it should be recognized that in this area there is a high probability of concluding agreements restricting competition. In this regard, the question of the qualification of such acts may create certain difficulties not only in their investigation, but also in general in bringing to criminal responsibility the perpetrators, among whom there may be not only special subjects noted in the description of the signs of the composition of this crime, but also representatives of economic entities.

Thus, the adoption of the above-mentioned official documents of a strategic nature indicates the insufficiency of existing legal mechanisms to eliminate threats to the country's economy and, in particular, one of its fundamental elements - fair competition, ensuring public welfare and stability in society. The grounds for criminal liability provided for in the Criminal Code of the Russian Federation for various anti–competitive acts, both direct and indirect, are characterized by various imperfections, based primarily on the lack of connection with the prohibitions established by a special regulatory legal act - FZ "On Protection of Competition" dated July 26, 2006 No. 135- FZ. Accordingly, it is necessary to review the existing criminal law approach to the protection of fair competition and bring it into line with the requirements of modern state policy to ensure national (economic) security.

Meanwhile, the fight against anti-competitive acts has an intersectoral character - civil, administrative and criminal liability is provided for their commission. In the light of the adoption of the strategic documents listed above, the focus on the study of the practice of applying intersectoral rules in the fight against cartels, other agreements restricting competition, unfair competition, as well as anti-competitive behavior of public authorities and local governments, their effectiveness, is beyond doubt. However, in science, this aspect has not yet received enough attention, which would be based on a concept or research methodology covering all the branches of legislation involved. At the same time, the study of the issues of intersectoral differentiation of responsibility in this area is important for the long-term development of legislation and law enforcement, which in general can have a positive impact on the effectiveness of not only criminal law policy in the field of fair competition protection, but also on the application of administrative and legal measures of such protection, as well as competition policy as an economic direction of the state activities.

Intersectoral differentiation is understood as the differentiation of norms of various branches of law, which is the distribution of legal regulation and legal responsibility between different branches of law, taking into account the subject and method(s) of legal regulation of a particular branch of law ^{[2, p. 358]}.

The analysis shows the connection of all types of responsibility for anti-competitive acts with each other. Firstly, the violation of antimonopoly legislation, both containing signs of an administrative offense and signs of crimes, can be directly related to a civil legal relationship, "stem" from it. Secondly, the protection of civil rights of victims of anti-competitive acts can be implemented directly within the framework of administrative or criminal proceedings, in particular:

1) in case of voluntary compensation by the person who committed an administrative offense for the damage caused or voluntary elimination of the damage caused, according to clause 6 of Article 4.2 of the Administrative Code;

2) by compensating for the damage caused or otherwise making amends for the damage caused when implementing the conditions for exemption from criminal liability, according to paragraph 3 of the note to Article 178 of the Criminal Code of the Russian Federation, or by compensating for damage caused to a citizen, a legal entity or the state, in accordance with part 2 of Article ^76.1 of the Criminal Code of the Russian Federation when exempted from criminal liability for crimes, provided for in Part 1, Part 2 and paragraph "c" of Part 3 of Article 146, Part 1 of Article 147, Part 1 and paragraph "c" of Part 2 of Article 178, part 1 of Article 185 ³, Article 185 ⁶, as well as parts 1-3 of Article 180 of the Criminal Code of the Russian Federation;

3) the use of the institution of confiscation, the meaning of which may be different:

a) in relation to crimes provided for in Articles 146, 147, 183 of the Criminal Code of the Russian Federation, when property is seized, according to paragraph "a" of Part 1 of Article 104 ¹ of the Criminal Code of the Russian Federation, the property interests of the victim are taken into account and the issue of compensation for damage caused to the rightful owner is resolved, including at the expense of property subject to confiscation (paragraph 10 Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/14/2018 No. 17 "On some issues related to the use of confiscation of property in criminal proceedings");

b) in relation to the entire group of anti-competitive crimes, when, according to paragraph "d" of Part 1 of Article 104 ¹ of the Criminal Code of the Russian Federation, tools, equipment or other means of committing a crime belonging to the accused, the final suppression of illegal activities is carried out, in particular, during the production and introduction of counterfeit goods into circulation, which is also of preventive importance;

c) the use of confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used for their reproduction, and other instruments of committing an administrative offense, as well as items containing illegal reproduction of means of individualization, materials and equipment used for their production, and other instruments of committing an administrative offense as an administrative punishment for offenses, provided for in Part 1 of Articles 7.12 and 14.10 of the Administrative Code, which prevents the violation of exclusive rights to protected intellectual property objects;

4) upon seizure and destruction in accordance with paragraphs 6 and 7 of Part 2 of Article 82 of the Criminal Procedure Code of the Russian Federation of counterfeit goods that violate intellectual property rights, which are material evidence in cases of crimes provided for in Articles 146, 147, 180 of the Criminal Code of the Russian Federation, which finally resolves the issue of termination of violation of exclusive rights to these objects in accordance with with clauses 4 and 5 of Articles 1252 of the Civil Code of the Russian Federation.

The circumstances listed in the second case of the intersection of civil, administrative and criminal liability in the protection of the rights of victims of anti-competitive acts characterize the opposite phenomenon of differentiation – the unification of responsibility, which, relative to the examples given, can be called intersectoral unification of responsibility. As noted by L.L. Kruglikov, unification implies ensuring uniformity in the approach to similar situations ^{[3, pp. 11-12]}, which is also important in assessing the differentiation of responsibility, which will be discussed in more detail later.

There is also such a type of responsibility in science as antimonopoly, which is proposed to be understood as legal responsibility applied to business entities and authorities that restrict, eliminate, and prevent competition in accordance with the procedure defined by the Federal Law "On Protection of Competition". Its measures are called: 1) transfer to the federal budget of income received by an economic entity as a result of violation of antimonopoly legislation; 2) separation, separation of economic entities in accordance with Article 38 of the Federal Law "On Protection of Competition"; 3) execution of an order of the antimonopoly authority ^{[4, pp. 33-34]}. These liability measures are implemented in the activities of the antimonopoly authority within the framework of administrative proceedings in the case of violation of the prohibitions of the Federal Law "On Protection of Competition".

Meanwhile, the basis of intersectoral differentiation is the nature of the harmfulness of the corresponding type of behavior, determined by rules such as continuity, clarity ^{[5, p. 7]}. By continuity, V.F. Lapshin understands the establishment of various types of legal responsibility for the commission of homogeneous offenses that differ from each other in public danger [Lapshin V.F. Theoretical foundations for the establishment and differentiation of responsibility for financial crimes: dis. ... doct. Jurid. sciences'. Ryazan, 2016. p. 305]. Thus, civil liability for anti-competitive acts cannot always be included in the intersectoral differentiation of liability due to the lack of its continuity, when this type of liability exists simultaneously with administrative or criminal liability. This conclusion does not apply to cases in which the absence of signs of an administrative offense or crime can only entail civil liability. To some extent, this judgment is relevant to both administrative and criminal liability. In particular, the continuity of criminal liability is excluded if the subject of liability can only be a legal entity.

Defining the clarity of the implementation of intersectoral differentiation of responsibility, V.F. Lapshin notes that the relevant compositions, for example, administrative offenses and crimes, are related, and their differentiation is made only on the basis of a criminogenic feature [Lapshin V.F. Theoretical foundations for the establishment and differentiation of responsibility for financial crimes. p. 306]. Here it seems appropriate to clarify that the compositions should rather coincide in the main, be almost identical, encroaching, first of all, on the same object, differing only in criminological features. Thus, the clarity of intersectoral differentiation is the coincidence of an administrative offense and a crime according to certain characteristics of their compositions. From the analysis of intersectoral differentiation for anticompetitive acts, it follows that there are both adjacent and identical compositions. Thus, the compositions of acts may have the same object of encroachment, but differ in the main features of the objective side – the methods of its commission, the consequences. Also, illegal acts can encroach on equivalent, but different objects, for example, objects of copyright and objects of patent law, while the signs of their objective side coincide mainly.

Continuity to one degree or another can be found in most cases of responsibility for anti-competitive acts.

The main composition of the anticompetitive crime "Restriction of competition", provided for in Article 178 of the Criminal Code of the Russian Federation and containing a description of the signs of a criminally punishable cartel, corresponds to the composition of the administrative offense provided for in Part 1 of Article 14.32 of the Administrative Code "Conclusion of an agreement restricting competition, implementation of coordinated actions restricting competition, coordination of economic activity". The act is defined in Part 1 as the conclusion by an economic entity of an agreement recognized in accordance with the antimonopoly legislation of the Russian Federation as a cartel, except for the cases provided for in Part 2 of Article 14.32, or participation in it. It seems that the cartel as an administrative offense is formulated more successfully, because it lacks such signs of an objective side as "restriction of competition" and "agreement restricting competition", which cause criticism in the scientific community and problems in law enforcement, and also contains an indication of the subject of the offense, which may be officials and legal entities.

Meanwhile, differentiation should be noted within the framework of one article of the Administrative Code: Article 14.32 of the Administrative Code establishes responsibility for all types of anti-competitive agreements, coordinated actions and economic coordination, providing for signs of acts in different parts of the article (parts 1-7). At the same time, Part 2 of Article 14.32 contains a description of two types of anti-competitive agreement in: a) a cartel, the real or probable consequences of which are called an increase, decrease or maintenance of prices at auctions; b) collusion at auctions, the objective signs of which are an agreement between the organizers of the auction and (or) customers with participants in these auctions, if such The purpose of the agreement is either to lead or may lead to restriction of competition and (or) creation of preferential conditions for any participants, or participation in them. The allocation of these two types of anticompetitive agreements is explained by the correct approach to the need to differentiate these agreements and is predetermined by their different nature, in particular, collusion at auctions as an independent type of agreements, which has similarities with fraud, because such collusion is based on deception of the organizer of the auction (the customer of the auction or the owner of the property).

The Administrative Code contains an independent composition of unfair competition provided for in Article 14.33, which contains a clause on criminal liability for unfair competition: the article applies to acts of unfair competition if the actions do not contain a criminally punishable act. Administratively punishable unfair competition has no clear signs of an objective side, except for those provided for in Part 2, which deals with unfair competition with the illegal introduction of intellectual property objects into circulation. Consequently, other forms of unfair competition provided for by the Federal Law "On Protection of Competition", which are not related to the turnover of intellectual property objects, fall under Part 1 of Article 14.33 of the Administrative Code. The subjects of administrative responsibility are officials and legal entities.

The lack of clear boundaries in the definition of unfair competition, namely an exhaustive list of its forms, creates instability in law enforcement, in particular, as noted in science, such a situation leads to incorrect qualification of actions of business entities that violate the norms of antimonopoly legislation [Kinev A.Yu. Administrative and legal protection of competition: problems and ways of improvement: dis. ... doct. Jurid. M., 2014. p. 141].

The Criminal Code of the Russian Federation is not a successor act in this part, since it does not contain a special corpus delicti, the signs of which would describe unfair competition as independent of violations of intellectual property rights provided for in Articles 146, 147, 180 and 183 of the Criminal Code of the Russian Federation, the corpus delicti. In turn, individual violations of intellectual property rights are punished, according to the Administrative Code, regardless of unfair competition and are provided for in Articles 7.12 and 14.10 of the Administrative Code.

The comparison of the signs of the listed administrative offenses with the corresponding elements of crimes committed in the sphere of turnover of intellectual property objects is of interest for analyzing the current state of their signs and prospects for changes in order to criminally combat unfair competition. Equally, such an analysis is relevant to the administrative composition of defamation, market manipulation, violation of the requirements of legislation on countering the misuse of insider information and market manipulation.

Signs of violation of copyright and related rights, inventive and patent rights are placed in the Administrative Code in one article – Chapter 7.12. "Administrative offenses in the field of property protection". The Administrative Code provides for liability for plagiarism only in relation to objects of patent law and contains signs of an objective violation of copyright and related rights that are significantly different from the corpus delicti provided for in Article 146 of the Criminal Code of the Russian Federation. In particular, Part 1 of Article 7.12 provides for liability for the import, sale, rental or other illegal use of copies of works or phonograms for the purpose of generating income in cases where copies of works or phonograms are counterfeit or false information about their manufacturers, places of production, as well as about holders of copyright and related rights, as well as other violation of copyright and related rights in order to generate income.

Thus, the emphasis in differentiating responsibility in the case under consideration is placed, firstly, on the means of committing an offense, which are counterfeit copies of works or phonograms; secondly, on specially listed methods of illegal use; thirdly, on the purpose of illegal use, which is understood as the extraction of income. It is these signs, as well as the presence of a criminalizing sign of committing an act on a large scale, that differentiates the components of an administrative offense and a crime.

The composition of the violation of patent and inventive rights is completely identical to the composition of the crime provided for in Article 147 of the Criminal Code of the Russian Federation, except for the sign of major damage, which is criminally significant. Thus, in this case, the continuity of criminal responsibility is reflected.

The subjects of administrative responsibility in the listed cases of violation of copyright, related, inventive and patent rights are citizens, officials and legal entities.

Responsibility for the illegal use of another's trademark, service mark, appellation of origin or similar designations for similar goods is differentiated not only according to Part 1 of Article 180 of the Criminal Code and Article 14.10 of the Administrative Code, where the differentiation is based on criminalizing signs in the form of repeated acts and major damage, but also within the framework of one Article 14.10 according to the signs of the objective side. Thus, production for the purpose of marketing or sale of goods containing illegal reproduction of another's trademark, service mark, appellation of origin or similar designations for similar goods (Part 2) is punished more severely than other illegal use of designated means of individualization (Part 1).

Citizens, officials and legal entities are named as the subject of responsibility.

Thus, the continuity of differentiation of responsibility for the illegal use of means of individualization is preserved, however, the Administrative Code contains details of the methods of illegal use, establishing separately administrative responsibility for the production for the purpose of marketing or sale of goods containing illegal reproduction of someone else's trademark, service mark, appellation of origin or similar designations for similar goods.

There is continuity with regard to defamation. Thus, the composition of defamation in Article 5.61.1 of the Administrative Code, which is completely identical to Part ¹ of Article 128.1 of the Criminal Code of the Russian Federation, entails liability only for legal entities. The specified article of the Administrative Code is contained in Chapter 5 "Administrative offenses infringing on the rights of citizens", therefore, as in criminal liability, only an individual can be a victim of defamation. Accordingly, the distinction between administrative and criminal liability for defamation is carried out according to its subject. The dissemination of deliberately false information about a legal entity will be the basis for either civil liability or administrative liability for unfair competition, if there are appropriate signs in accordance with the Federal Law "On Protection of Competition". The basis of criminal liability in this case is not provided, which seems to be a gap in the legal protection of the rights of participants in economic activity, because it puts them in an unequal position in the possibilities of using the criminal law mechanism, since, unlike an organization, an individual entrepreneur can use Article 128 ¹ of the Criminal Code of the Russian Federation.

Both codes contain formulations called "Market Manipulation". In the Criminal Code of the Russian Federation, the corpus delicti is provided for in Article 185 ³, in the Administrative Code it is Article 15.30 of Chapter 15 "Administrative offenses in the field of finance, taxes and fees, insurance, securities market, mining, production, use and circulation of precious metals and precious stones." The article does not contain any description of the act, establishing responsibility for market manipulation, if this act does not contain a criminally punishable act. The subject of responsibility is citizens, officials, and legal entities.

The misuse of insider information also has its own grounds for liability in the Administrative Code and the Criminal Code of the Russian Federation. Each code provides for an independent composition related to different manifestations of insider information turnover. Thus, in the Administrative Code, in Article 15.35, the disposition of the legal norm contains a description of non-fulfillment or improper fulfillment of the obligation to disclose insider information (Part 1), maintaining a list of insiders and notifying persons included in the list of insiders (Part 2), the obligation to notify the Bank of Russia about certain types of transactions (Part 3), to take measures aimed at to prevent, identify or suppress abuses in financial and commodity markets (Part 4). The subject of responsibility is officials and legal entities.

However, the crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation has other signs of an objective side that characterize violations in this area differently, namely through signs of intentional use of insider information to carry out transactions with financial instruments, foreign currency and (or) goods to which such information relates, at their own expense or at the expense of a third party persons, as well as the deliberate use of insider information by giving recommendations to third parties, obliging or otherwise encouraging them to purchase or sell financial instruments, foreign currency and (or) goods. Accordingly, the compositions containing signs of an administrative offense and a crime are adjacent, containing different signs of the objective side, without direct continuity.

In research, market manipulation and the misuse of insider information are often considered as manifestations of unfair competition ^{[6, p. 144; 7, p. 23-25]}. Although there are no signs in the articles of the Criminal Code of the Russian Federation that directly indicate this, this fact cannot be denied due to its reality ^{[1, pp. 102-103]}. In turn, the placement of Articles 15.30 and 15.35 in Chapter 15 of the Administrative Code also indicates a shift in the legislator's emphasis on protection and its focus on protecting financial interests, the interests of investors.

Violations in the field of procurement of goods, works, and services for state and municipal needs, in addition to Article 2004 of the Criminal Code of the Russian Federation, entail liability in accordance with Article 7.30 of the Administrative Code of the Russian Federation. The article is very voluminous in content and provides in detail various types of violations in the designated area. Basically, the subject of administrative offenses provided for in this article are officials (part 1 of paragraphs 1.1-1.4, part 15), at the same time, the official is designated in the sanctions of the article as the subject of punishment in the form of a fine (part 1 of paragraph 1.5-1.7, part 2-9, part 11-14). Part 10 specifies another subject of the offense - the operator of the electronic platform, who violated the procedure for conducting an auction in electronic form, as well as the procedure for accreditation of a participant in such an auction, established by the legislation of the Russian Federation on the contract system in the field of procurement. The criminal law prohibition applies to persons who are not officials, thus, the differentiation of administrative and criminal liability is carried out according to the type of subject and the characteristics of the objective side.

When comparing administrative and criminal liability for violation of antimonopoly legislation by authorities or local governments, their officials, there is some overlap of signs, which is found both in the analysis of legal norms and as a result of research on the practice of application. Thus, the act "Restriction of competition by authorities and local self-government bodies" provided for in Article 14.9 of the Administrative Code corresponds to the crime provided for in Article 169 of the Criminal Code of the Russian Federation, but only in case of direct violation of antimonopoly legislation. The composition of an administrative offense includes the following signs:

· Part 1 – actions (inaction) of officials of government and local self-government bodies, state extra-budgetary funds, as well as organizations involved in the provision of state or municipal services that are unacceptable in accordance with the antimonopoly legislation of the Russian Federation and lead or may lead to the prevention, restriction or elimination of competition, as well as restriction of free movement goods (works, services), freedom of economic activity;

· Part 2 – acts provided for in Part 1, if such officials were previously subjected to administrative punishment for a similar administrative offense.

Thus, the objective side of the offense is based on the prohibition of Article 15 of the Federal Law "On Protection of Competition", that is, the essence of the offense is clearly defined as individual anti-competitive behavior of officials of government and management bodies. In comparison with these signs, the corpus delicti provided for in Article 169 of the Criminal Code of the Russian Federation looks broader, since the acts described in its objective side may not have an anti-competitive orientation. At the same time, both compositions are formal and do not provide for signs that would distinguish between an offense and a crime in the event of an official obstructing legitimate business activities in order to limit competition. As a result, violation of the prohibition of Article 15 of the Federal Law "On Protection of Competition" can be qualified both under the article of the Administrative Code and under the article of the Criminal Code of the Russian Federation, which requires the intervention of the legislator and bringing regulations into a consistent state, excluding competition of diversified legal norms.

At the same time, the collusion of an authority with economic entities is qualified under Part 7 of the already mentioned Article 14.32 of the Administrative Code, in particular, as a conclusion by a federal executive authority, an executive authority of a subject of the Russian Federation, a local government body, other bodies performing the functions of these bodies, a body or organization or a state extra-budgetary fund that is unacceptable in accordance with antimonopoly legislation Agreements of the Russian Federation or the implementation of coordinated actions by the specified bodies or organizations that are unacceptable in accordance with the antimonopoly legislation. There is no direct continuity in the Criminal Code of the Russian Federation on this basis of responsibility. Acts forming collusion between government officials and business entities are not directly criminalized. Specific illegal actions of officials, without assessing collusion as such, are qualified in practice under Articles 169, 285 or 286 of the Criminal Code of the Russian Federation. In this case, there is no reason to talk about a direct succession of responsibilities.

So, there is competition between the legal norms provided for in Part 1 of Article 14.9 of the Administrative Code and Part 1 of Article 169 of the Criminal Code of the Russian Federation, when qualifying the actions of an official who violates the prohibition of Article 15 of the Federal Law "On Protection of Competition", and Part 7 of Article 14.32 of the Administrative Code and Part 1 of Article 169, Article 285, Part 1 of Article 286 of the Criminal Code of the Russian Federation when qualifying the collusion of an official and an economic entity. It should be noted that such competition of legal norms has already been noted earlier in science [Ustinova T.D. Actual problems of criminal liability for crimes encroaching on entrepreneurial activity: abstract. dis. ... doct. Jurid. sciences. M. 2005. C. 15].

The Administrative Code contains the composition of an offense in the field of competition, which has not received continuity in the Criminal Code of the Russian Federation. We are talking about the composition provided for in Article 14.31 "Abuse of a dominant position in the commodity market." The crime of abuse of a dominant position was decriminalized in connection with amendments to the Federal Law "On Protection of Competition", which established rules for stricter control over the activities of economic entities occupying a dominant position in the commodity market, and thereby contributed to reducing the number of violations in the field of competition.

There is also the opposite situation, when the Criminal Code of the Russian Federation provides for criminal liability, for example, for illegally obtaining and disclosing information constituting commercial, tax or banking secrets, in respect of which there are no related compositions in the Administrative Code. At the same time, the listed acts, considered as forms of unfair competition, can be qualified, according to Article 14.33 of the Administrative Code, in the absence of signs of crimes provided for by the Criminal Code of the Russian Federation, since, firstly, according to the Federal Law "On Protection of Competition", the list of forms of unfair competition is not exhaustive, secondly, the subject of administrative The legal entity is responsible. In the latter case, the act may be qualified under the specified article of the Administrative Code and if there are signs of a crime. Accordingly, if the unlawful dissemination of a legally protected secret is used as a competitive advantage, the antimonopoly authority may bring the guilty person to administrative responsibility for unfair competition.

Thus, the signs of the main administrative structures of defamation, violations of inventive and patent rights, violations of rights to means of individualization, market manipulation, to a lesser extent – violations of copyright and related rights, conclusion and implementation of a cartel, violations of the requirements of legislation on countering the misuse of insider information and market manipulation, restrictions on competition by authorities, local governments correspond to the corresponding signs of the elements of crimes. Almost all compositions, except for violations of inventive and patent rights, defamation, and violations of rights to means of individualization, do not meet the rules of clarity of intersectoral differentiation of responsibility. The Administrative Code contains four articles providing for administrative liability for direct violation of the prohibitions of the Federal Law "On Protection of Competition" – Articles 14.9, 14.31, 14.32, 14.33; at the same time, Article 14.32 contains 7 independent grounds for administrative liability for violation of antitrust prohibitions; in the Criminal Code of the Russian Federation – only Article 178. Therefore, there is no direct continuity in relation to the majority of administrative offenses in the field of fair competition.

The analysis of the intersectoral differentiation of responsibility for the commission of administrative offenses and crimes with signs of anti-competitive acts indicates some continuity in sanctions (table 1).

Table 1 – The main types of punishments for individuals for committing administrative offenses and crimes with signs of anti-competitive acts

From the information given in the table, it can be concluded that administrative penalties do not seem sufficient to achieve the goals of administrative responsibility. The concurrent penalties for certain types of illegal acts are a fine and deprivation of the right to hold certain positions or engage in certain activities, which is equivalent to an administrative penalty of disqualification. The size of fines for administrative punishments and crimes have significant differences, which significantly reduces the level of administrative responsibility and its effectiveness. Certain types of administrative offenses have only the main penalty in the form of a fine. At the same time, the effectiveness of administrative punishment for restricting competition by officials of government bodies and local self-government in the absence of such punishment as disqualification of an official is questionable. Thus, administrative sanctions clearly need to be reviewed.

At the same time, some criminal penalties in their relation to administrative ones also raise questions. Thus, deprivation of the right to hold certain positions or engage in certain activities as an additional punishment for a cartel is imposed for a period less than disqualification for an administrative cartel.

The Administrative Code also contains the basis for administrative liability for failure to comply with a lawful decision within the prescribed period, the instructions of the federal antimonopoly authority, its territorial authority to stop violations of antimonopoly legislation, in particular agreements restricting competition (Part 2.1 of Article 19.5), unfair competition (Part 2.5 of Article 19.5). Administrative responsibility is also provided for such opposition to the antimonopoly authority as failure to submit petitions, notifications (statements), information (information) to the federal antimonopoly authority, its territorial bodies, which must be provided in accordance with antimonopoly legislation, submission of knowingly false information (Part 3-8 of Article 19.8). Responsibility for these violations is not consistent in the Criminal Code of the Russian Federation, despite international recommendations (the UN Model Law on Competition) to criminalize such counteractions to the antimonopoly authority and to provide for individuals guilty of such violations, sanctions in the form of imprisonment. The problem of responsibility for these types of violations has been considered in science for a long time [Denisova A.V. Criminal law aspects of the fight against monopolism in the Russian Federation: dis. ... cand. Jurid. sciences'. Vladivostok, 2006. pp. 142-147], however, the situation remains the same.

Intersectoral differentiation of responsibility is also being carried out when deciding on the application of the cartel exemption program, the conditions of which are provided for both in the Criminal Code of the Russian Federation and in the Administrative Code, forming a general program to mitigate responsibility for the cartel, designed to improve the effectiveness of cartel detection and investigation. According to the note to Article 14.32 of the Administrative Code, both an individual and a legal entity who is the first to fulfill a number of conditions, in particular, is subject to release:

· at the time of the person's application, the antimonopoly authority did not have the relevant information and documents about the committed administrative offense;

· the person has refused to participate or continue to participate in the agreement or to carry out or continue to carry out agreed actions;

· the information and documents provided are sufficient to establish the event of an administrative offense.

In addition, special rules for mitigating and toughening penalties and assigning a minimum amount of a "negotiable" fine for anti-competitive agreements apply only to legal entities. The note does not apply to a legal entity if the person who committed an administrative offense was the organizer of an agreement that is unacceptable in accordance with antimonopoly legislation, allowed other persons to commit an administrative offense or to continue participating in agreements restricting competition, used a computer program for the purpose of executing an agreement restricting competition (cartel or collusion at auction), which allows making decisions (performing actions) aimed at fulfilling such an agreement in an automatic mode (without human participation).

Note to Article 178 of the Criminal Code of the Russian Federation provides for slightly different grounds for exemption from criminal liability for a cartel, reflecting the specifics of criminal liability: 1) the person was the first among the accomplices of the crime to voluntarily report this crime; 2) actively contributed to its disclosure and (or) investigation; 3) compensated for the damage caused by this crime or otherwise made amends for the damage caused; 4) his actions do not contain any other corpus delicti.

Thus, intersectoral differentiation of exemption from liability is carried out, firstly, by the subject of responsibility, secondly, by aspects of interaction with state authorities, thirdly, by the presence of other illegal behavior in the actions of a person (in order to be exempt from administrative responsibility, it is required not to continue monopolistic activities), and fourthly, compensation for harmful consequences that are necessary only for criminal liability.

It is important that individuals can use both programs when bringing both administrative and criminal liability. In this regard, there are a number of interrelated problems in the application of the rules of exemption from liability for the cartel in administrative and criminal law. Thus, the difficulty of applying the institution of exemption from criminal liability for the cartel is caused by the lack of legal connection between administrative and criminal law institutions, as a result of which: 1) an individual (official) released from administrative responsibility under Article 14.32 of the Administrative Code may be criminally liable for the same actions; 2) evidence of an agreement obtained during administrative proceedings may not be applicable in a criminal case ^{[8, p. 32]}. At the same time, the exemption from criminal liability of an individual does not mean automatic exemption from administrative liability of legal entities participating in the cartel under Article 14.32 of the Administrative Code and vice versa, since the set of criminal and administrative legal conditions for exemption differs significantly.

As for the first two cases, it seems that this problem should be solved within the framework of a change in the state approach to the interaction of antimonopoly and law enforcement agencies. Only the legally established bases of such interaction, in particular, mutual prompt notification of authorities on the identification of a cartel, can eliminate such situations. In the third case, the responsibility of legal entities and the responsibility of individuals should be distinguished: if signs of an offense are established, then the guilty person should be held accountable even if there are grounds for exempting other subjects of the same offense from it.

In the practice of law enforcement agencies, there are no cases of applying the note to Article 178 of the Criminal Code of the Russian Federation, in contrast to the experience of the antimonopoly authority, in whose activities such a program is used. Thus, the antimonopoly authority applied the rules of exemption from administrative liability in 2015 – 46 times, in 2016 – 91, in 2017 – 118, in 2018 – 89, in 2019 – 67, in 2020 – 146 times [FAS reports on the state of competition in the Russian Federation (2007-2020) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date of access: 03/11/2024)].

The conducted research allows us to draw the following conclusions.

1. When comparing the provisions of the Administrative Code with the relevant provisions of the Criminal Code of the Russian Federation, the fact has been established that there is no direct continuity in the Criminal Code of the Russian Federation with respect to most administrative offenses against fair competition.

2. The analysis of sanctions for anti-competitive offenses leads to the conclusion that it is necessary to strengthen administrative penalties and improve criminal law penalties.

3. The existing rules for exemption from administrative liability are more flexible, which allows them to be effectively applied. At the same time, the presence of some overlapping aspects in the implementation of the rules of exemption from administrative and criminal liability raises questions about the need to change them.

4. It is necessary to bring both the Administrative Code and the Criminal Code of the Russian Federation into a consistent state, as well as in accordance with each other.

In order to achieve the goals of the National Security Strategy and the Economic Security Strategy, it is very important to eliminate the existing contradictions in the intersectoral differentiation of responsibility for violation of antimonopoly legislation. The conducted research and its conclusions can be useful in improving legislation on measures to counteract them and, in general, all areas of government activity in the field of fair competition protection.