Unfair competition: problems of criminalization of acts and differentiation of responsibility for their commission

Danilovskaia Anna Vladimirovna PhD in Law Associate professor, Higher School of Private 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 urgent issues of modern criminal law policy in Russia is countering violations of antimonopoly legislation, among which the cartel, a competition-limiting agreement, is the most dangerous. Article 178 of the Criminal Code of the Russian Federation "Restriction of Competition" provides for liability for concluding this type of agreement, prohibited by Article 11 of the Federal Law "On Protection of Competition" dated July 26, 2006 No. 135-FZ (hereinafter – the Federal Law "On Protection of Competition"). However, socially dangerous forms of anti–competitive acts are not limited only to this crime, and the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) can be applied to other manifestations of them as violations of special prohibitions contained in the Federal Law "On Protection of Competition".

In particular, we are talking about unfair competition, the forms of which are described in Articles 14.1-14.8 of the said Law. Although the criminal law prohibition of unfair competition is not expressed in the Criminal Code of the Russian Federation as clearly as in relation to the cartel, the Constitution of the Russian Federation in Article 34 prohibits it on an equal basis with monopolization. The public danger of unfair competition is expressed in the fact that its consequences for the economy can be commensurate with the consequences of cartels ^{[1, pp. 101-103]}, the harm from which is estimated at 0.5–2.5% of gross domestic product annually [FAS Russia: Criminal cases and fines of cartel participants in Khakassia do not stop : interview with the head of the Anti-Corruption Department with the cartels of the FAS of Russia by A. P. Tenishev // www.fas.gov.ru (date of application: 2.04.2024)].

Thus, the study of the criminalization of acts of unfair competition, as well as the differentiation of criminal liability for their commission, and the search for ways to solve them is one of the tasks of the state policy on countering antimonopoly violations in order to reduce risks to the country's economy, as well as increase the level of legal culture in the field of entrepreneurship.

The conducted research allows us to conclude that there is a description of certain crimes in the Criminal Code of the Russian Federation, which to some extent corresponds to the prohibitions of unfair competition in the Federal Law "On Protection of Competition" - these are crimes provided for by Art. 128 ¹, 146, 147, 180, 183, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation. Thus, analysis of signs of crimes, as well as judicial practice indicates, in particular, that article 128¹ in order to protect the rights of individual entrepreneurs can be applied to forms of unfair competition provided for in article 14.1 "Prohibition of unfair competition by discrediting" and 14.3 "Prohibition of unfair competition by incorrect comparison" of the Federal law "On protection of competition", and article 146 article 147 of the criminal code to some degree reflect the prohibitions contained in article 14.5 "Prohibition of unfair competition, associated with the use of results of intellectual activity" of the Federal law "On protection of competition", of article 180 of the criminal code – article 14.6 "Prohibition of unfair competition associated with the creation of mixing" of the Federal law "On protection of competition", article 183 of the criminal code – article 14.7 "Prohibition of unfair competition related to illegal collection, use, disclosure of information constituting commercial or other secret protected by the law" 185³ of the criminal code - article 14.1 "Prohibition of unfair competition by discrediting", 14.2 "Prohibition of unfair competition by misrepresentation" and article 14.8 "the Ban on other forms of unfair competition" of the Federal law "On protection of competition" 185⁶ of the criminal code – article 14.7 "Prohibition of unfair competition related to illegal collection, use, disclosure of information constituting commercial or other secret protected by the law" and article 14.8 "the Ban on other forms of unfair competition" of the Federal law "On protection of competition" ^{[2, p. 1-23]}.

The listed elements of crimes do not contain direct references to the Federal Law "On Protection of Competition", and in practice, it is possible to detect signs of unfair competition in the acts of perpetrators brought to criminal responsibility under these articles only by analyzing the verdicts or materials of criminal cases. At the same time, the study showed that modern editions of these articles raise numerous questions of a theoretical and law enforcement nature, the state and solution of which directly affects both the effectiveness of criminal liability for the commission of crimes described in them as a whole, and for manifestations of unfair competition.

Thus, the investigation of criminal cases of crimes with signs of encroachment on intellectual property rights in relation to objects of patent rights has a certain complexity arising from the peculiarities of the institute of intellectual property law. For example, the issue of official recognition or non–recognition of authorship is the result of an examination conducted by the Federal Service for Intellectual Property (hereinafter - Rospatent) in accordance with Article 1386 of the Civil Code of the Russian Federation in order to identify criteria for patentability of inventions, utility models or industrial designs, as a result of which there may be errors of the department. In fact, attribution of authorship may be the result of an error by Rospatent, which was made when checking the object of patent rights for such a criterion of patentability as novelty, which is sometimes very problematic to establish.

Studies in the field of application of Articles 146 and 147 of the Criminal Code of the Russian Federation indicate other problems of criminalization of acts in the field of intellectual property noted in science [e.g., Skrebets D.D. Criminal legal aspects of combating crimes against inventive and patent rights: abstract. ... cand. Jurid. sciences'. Saratov, 2008. p. 11; Molchanov D.V. Criminal law protection of intellectual property: abstract. ... cand. Jurid. Sciences. M. 2009. p. 9; Kuzmina I.K. Criminal law protection of copyright, related, inventive and patent rights: abstract. dis. ... cand. Jurid. sciences'. Samara, 2010. p. 9; Kondrashina V.A. Criminal liability for the illegal use of a trademark under the legislation of Russia and foreign countries: abstract. ... cand. Jurid. sciences'. Samara, 2004. p. 7]. At the same time, it should be noted that there is no criminalization of encroachments on intellectual property objects not named in articles of the Criminal Code of the Russian Federation - objects of intellectual rights to selection achievements, the topology of an integrated circuit, a brand name, a commercial designation. Thus, not all intellectual property objects are subject to criminal law protection, as well as not every manifestation of unfair competition with encroachment on intellectual property described in the Federal Law "On Protection of Competition" may entail criminal liability, which raises questions about the validity of such, in fact, a selective approach to the establishment of criminal law prohibition.

When analyzing the practice of sentencing under Articles 146 and 147 of the Criminal Code of the Russian Federation, another question arises: is the damage from the illegal use of copyright, related and patent rights, or should a large (especially large) crime amount be associated only with the violation of the exclusive rights of a particular person, if it is unfair competition? For example, judges in sentences in cases initiated on the grounds of Article 146 of the Criminal Code of the Russian Federation note the following harmful consequences inherent in unfair competition: undermining the market; loss of consumer demand, misleading the consumer about the real quality of products, the establishment of dumping prices by the violator, entailing an out-of-control pricing policy of copyright holders and loss of funds, which the copyright holder could count on with the normal turnover of legitimate products [Verdict of the Taganrog City Court of the Rostov region No. 1-880/2015 dated 11/27/2015 URL: http://sudact.ru/regular/doc/AQnGfiOnbpdo / (date of appeal: 03/14/2024)], reduction of the market for legal products, damage to the business reputation of copyright holders [Verdict of the Pervomaisky District Court of Omsk No. 1-332/2018 dated 07/17/2018 URL: http://sudact.ru/regular/doc/Yox2fIhHsNJh / (date of access: 03/14/2024)]. There is a statement by the judicial act of the fact of harmful consequences for the commodity market and competition in it, as well as for the protected interests of copyright holders.

To establish the amount of major damage caused by a crime under Article 147 of the Criminal Code of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation in its resolution "On the practice of considering criminal cases by courts on violation of copyright, related, inventive and patent rights, as well as on the illegal use of a trademark" No. 14 dated April 26, 2007 (hereinafter – the resolution of the Plenum of the Supreme Court Court of the Russian Federation No. 14) recommended proceeding from the circumstances of each specific case (for example, from the presence and amount of real damage, the amount of lost profits, the amount of income received by a person as a result of violation of his rights to the results of intellectual activity or means of individualization). Thus, in each case, there is a subjective assessment by the law enforcement officer of the damage caused. As the analysis of the verdicts held under Article 147 of the Criminal Code of the Russian Federation shows, the courts assess the damage caused differently and it is not always possible to determine its amount at a court hearing, which is the basis for terminating the case due to the absence of corpus delicti and setting an acquittal [E.g., verdict of the Zavodsky District Court of Kemerovo No. 1-33/2018 1-6/2019 1-789/2017 from 09.04.2019 URL: http://sudact.ru/regular/doc/vteheejrSn60 (date of access: 03/18/2024)].

The same situation leads to contradictory court decisions. So, in one of the cases, the court found the defendant guilty of committing a crime under Article 147 of the Criminal Code of the Russian Federation, which means that the fact of causing major damage was established, but left the civil claims of the victims for compensation for damage caused by the crime without consideration, arguing that original documents were not presented, evidence of the damage was not fully presented, in this regard, it is necessary to make additional calculations confirming the amount of damage [E.g., the verdict of the Morozovsky district Court of the Rostov region ¹ 1-215/2012 1-222013 1-22/2013(1-215/2012;) 1-22/2013 from 18.12. 2013 URL: http://sudact.ru/regular/doc/QJHhFFk0Z1Z1 (date of access: 03/16/2024)].

The next example is the problem of determining the public danger of a crime under Article 180 of the Criminal Code of the Russian Federation, which is associated with a sign of repetition and causing major damage. Despite the fact that the sign of repetition is defined in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 14, researchers and law enforcement officers understand it in a very diverse way. Thus, it is considered to be repeated: two or more facts of illegal use of a trademark or other means of individualization of goods and services [Nikitina L.K. Criminal law protection of rights to means of individualization of legal entities, goods, works, services and enterprises: abstract. dis. ... cand. Jurid. sciences'. Rostov-on-Don, 2010. p. 18]; a set of episodes, each of which, if the act did not cause major damage, may be both a civil and an administrative offense [Lepina T.G. Criminal law protection of intellectual property: abstract. dis. ... cand. Jurid. sciences'. Kursk, 2014. pp. 24-25]; bringing a person previously to administrative responsibility for the illegal use of someone else's trademark [E.g., the verdict of the Kislovodsk City Court of the Stavropol Territory No. 1-99/2016 dated 06/01/2016 URL: http://sudact.ru/regular/doc/JkRRkW2y4nHW / (date of access: 02/24/2024].

In addition, as V.A. Sizov notes, the wording of repetition proposed by the Plenum does not allow to distinguish an administrative offense from a criminally punishable act ^{[3, p. 44]}. It follows from the above that the sign of repetition generates an unstable practice and an unfair approach to criminal liability, which is preceded, in fact, by an administrative prejudice.

The situation with the establishment of major damage to the illegal use of someone else's trademark does not look any better in practice. Law enforcement agencies also use different approaches, which can be divided into the following types, when based on: 1) the cost of the counterfeit product; 2) the cost of the original copy; 3) the cost of the exclusive right to the trademark. All three approaches produce different amounts of damage. At the same time, it is unclear how the costs of the guilty person for the production of counterfeit goods can be equated with the damage caused to the rightholder, and also take into account the cost of the exclusive right and the original copy of the goods to determine the amount of damage. An almost similar situation is characteristic of the sign of the commission of an act provided for in Article 146 of the Criminal Code of the Russian Federation, on a large (especially large) scale.

When analyzing sentences for crimes under Article 180 of the Criminal Code of the Russian Federation, it was found that in some cases the amount of damage was associated with the assessment of both real damage and lost profits, in others – only real damage, which again indicates the lack of uniformity in the assessment of the damage that occurred, as well as that situations are possible avoiding criminal liability by the perpetrators due to the fact that the amount of damage determined by the victim "did not meet" the sign of a crime due to the non-inclusion of damage to business reputation in this calculation.

The solution to the problems is seen in replacing the signs of major damage, especially large damage, especially large size, as well as the repetition in the description of crimes using intellectual property objects with another criminalizing feature that objectively reflects the public danger of these acts.

When resolving such a highly controversial and contradictory situation, it should be borne in mind that illegal trafficking of intellectual property objects can be both in the field of entrepreneurial activity and carried out by persons who do not have the status of a business entity. Both the first and the second are dangerous phenomena for the economy. Therefore, we need different criteria for criminalizing such acts. It seems that in both cases it is necessary to focus on the scale of the activity as determining the mass production, the number of counterfeit copies produced or sold, and possibly the territorial prevalence of the activity. Thus, in one of the verdicts in cases initiated under Article 180 of the Criminal Code of the Russian Federation, the judge used the term "industrial scale" when describing the illegal production of counterfeit tobacco products [Verdict of the Solnechnogorsk City Court of the Moscow Region No. 1-224/2016 dated 07/25/2016 URL: http://sudact.ru/regular/doc/p0ZwocQKZtJq / (date of access: 03/13/2024)].

We believe that this could be a similar feature noted in the 1994 Agreement on Trade–Related Aspects of Intellectual Property Rights concluded within the framework of the World Trade Organization, namely, "on a commercial scale". The rationale for this proposal is as follows.

"Commercial scale", as a term, generates interest from the point of view of the possibility of using it as a sign of the objective side of the crime, focusing on the scale of illegal behavior. That is, in order to understand what criteria should be used to describe a crime committed using intellectual property objects, it makes sense to focus solely on the nature of the activity, that is, the production and sale of counterfeit products. Firstly, it makes it possible not to determine the amount of damage caused to the copyright holder using questionable methods, each time "tying" to its size in the form of specific figures and other economic indicators subject to inflation. It should also be taken into account that not all cases of illegal use of intellectual property objects cause damage to copyright holders. Therefore, secondly, the criminal law prohibition should focus on the prohibition of trafficking in counterfeit products, regardless of the damage to the rightholder, which will give a categorical negative assessment of the illegal use of other people's intellectual property objects. Thirdly, it is necessary to differentiate responsibility for individual acts that do not have a high level of public danger on the basis of the subject of the crime and the potential harm that he can cause by committing such actions systematically, on an ongoing basis or in large numbers. Therefore, the subject's capabilities related to his activities, including professional, including entrepreneurial and other income-generating activities, are important.

"Commercial scale" implies quantitative and qualitative characteristics. Quantitative characteristics mean objective physical signs, for example, mass character, prevalence; qualitative characteristics are related to the practical properties of the phenomenon, which in this case is due to the term "commercial", that is, "aimed at making a profit" due to demand.  The commercial scale can be comparable to a large size, but unlike the latter, it more accurately characterizes the qualitative signs of the phenomenon.

With regard to the tasks of criminal law, the criteria for the commercial scale of illegal trafficking in intellectual property objects can be: a) the production of counterfeit products based on mechanization and automation of the process and focused on the mass production of counterfeit goods and the sale of such goods; b) the sale of goods manufactured in this way, aimed at systematic profit. At the same time, by mass production, mass sale, it is proposed to understand the manufacture or sale of goods for an indefinite circle of persons, that is, persons who cannot be determined in advance.

Taking into account this proposal will lead to the decriminalization of absolutely everyday cases of violation of intellectual property rights, which are prevalent in practice, and will focus the attention of law enforcement agencies on identifying truly dangerous violations.

It should be noted that attempts to interpret the term "commercial scale" take place in science ^{[4; Lepina T.G. Criminal law protection of intellectual property. p. 23]}. For example, V.L. Kudryavtseva believes that commercial scale can be talked about, starting with causing "major damage" and further – "large-scale" and "especially large-scale", an indication of which is contained in the main elements of crimes ^[4]. However, it is impossible to agree with this judgment due to the incorrectness of determining the signs of "large (especially large) damage", "large (especially large) size", which has already been noted above.

These conclusions are very indicative in the light of the analysis of law enforcement, which records the spread of situations that question V.L. Kudryavtsev's arguments. Thus, the accused in one of the episodes of the crime provided for in Part 2 of Article 146 of the Criminal Code of the Russian Federation, G. acquired for sale by copying from the Internet to his computer a counterfeit copy of the work – unlicensed software, copyrights to which belong to LLC "A-S", a software product with configurations "mechanical engineering, construction, instrumentation" – and in order to sell it, he recorded it on an optical disc in DVD+ R format, and then sold (after placing an appropriate advertisement on the Internet) a counterfeit copy of the work, selling an optical disc with the counterfeit program K. recorded on it, receiving 300 rubles from him as a reward. The cost of the licensed program is 608,300 rubles. The court indicated in the verdict that in this way G. violated the copyright of the copyright holder in the amount of 608,300 rubles, which exceeds 100,000 rubles and is a large amount [Verdict of the Sortavala City Court of the Republic of Karelia 1-108/2015 dated 12/30/2015 URL: http://sudact.ru/regular/doc/xHGWzcsrC9bG / (date of access: 04/10/2019)].

Obviously, the described situation cannot in any way indicate the commercial scale of the illegal activity of the guilty person. Meanwhile, such typical acts form the basis of static data on crimes provided for in Article 146 of the Criminal Code of the Russian Federation.

A sign of committing an act on a commercial scale would be appropriate when qualifying the illegal use of intellectual property objects by persons who are not business entities when committing crimes under Articles 146 and 180 of the Criminal Code of the Russian Federation. It is precisely such crimes that are most often detected in the practice of law enforcement agencies.

At the same time, crimes involving illegal trafficking of intellectual property objects committed in business activities almost always have an anti-competitive orientation, since in this way competitive advantages appear that make it possible to make a profit. An increase in the level of public danger of such acts can be reflected through a sign of the purpose of unfair competition, which consists in the designated obtaining advantages through the illegal use of other people's intellectual property on a commercial scale. The use of the "commercial scale" attribute in describing criminally punishable unfair competition is necessary in order to differentiate responsibility, because the Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code) establishes administrative liability for unfair competition with a caveat: if these actions do not contain a criminally punishable act (art. 14.33).

The sign "for the purpose of unfair competition" is also necessary for the criminal legal characterization of market manipulation and illegal use of insider information as acts other than those committed by persons who are not subjects of unfair competition and belong to the category of a common subject. Unfair activity of citizens also poses a danger to competition in the commodity market and, along with illegally carried out professional activities, is prohibited by the Federal Law of July 27, 2010 "On Countering the Misuse of Insider Information and Market Manipulation and on Amendments to Certain Legislative Acts of the Russian Federation" (hereinafter - the Law on Countering the Misuse of Insider Information and Market Manipulation), but it is the activities of the latter that are also prohibited by the Federal Law "On Protection of Competition". Another justification for the above argument will also be discussed further.

Thus, it is advisable to provide for a sign of a commercial scale as a sign of the main corpus delicti, and a sign "for the purpose of unfair competition" as a sign of a special composition.

As can be seen from the above, to a greater extent, the search for answers to various questions arising both in science and in law enforcement is in the field of legislative technology, compliance with the means, techniques and rules of which is designed to ensure the quality of the structure of the criminal law norm, excluding the uncertainty of its interpretation and application. The difficulties in achieving this goal of applying legislative techniques, in the context of the given topic of this article, are added by considering the designated group of crimes as criminal forms of unfair competition.

In this regard, the concept of the basics of constructing the corpus delicti, proposed by A.V. Ivanchin, is very relevant, according to which the author proposes to distinguish: 1) intersectoral system rules; 2) intra-sectoral system rules; 3) criminological and compositional rules; 4) logical rules; 5) language rules [Ivanchin A.V. Conceptual foundations of the construction of the corpus delicti: dis. ...Dr. Jurid. sciences'. Yaroslavl, 2014. pp. 149-170].

The conducted research on the correlation of the current state of legal norms containing a description of crimes of the group in question, given by A.V. Ivanchin to the categories of rules of legislative technique, showed not only the disadvantages of constructing the elements of crimes in general and criminal legal counteraction to unfair competition in particular, but also made it possible to identify ways to eliminate them. Partly, both the problems of constructing the elements of crimes of the group in question and the directions of their solution are disclosed above, at the same time there are other questions that need to find their answers.

Thus, in violation of intersectoral rules, the constitutional prohibition on unfair competition contained in Article 34 of the Constitution of the Russian Federation and detailed in the Federal Law "On Protection of Competition" does not look explicit in the Criminal Code of the Russian Federation, and therefore understandable for law enforcement due to the lack of special signs indicating the nature of such crimes.

Another intersectoral system rule is based on the fact that the designed composition must comply with the norms of other branches of law. First of all, we are talking about a combination of criminal law norms with prohibitions formulated in the source of competition law - the Federal Law "On Protection of Competition". Of course, there is no good reason for each antimonopoly ban to be reflected in the Criminal Code of the Russian Federation: the legislation provides for a wide range of diversified measures to counter encroachments on competition. However, in some cases, gaps in criminal law norms should be noted. Among others, we note the absence of criminal liability for defamation as a form of unfair competition. Article 128.1 ^of the Criminal Code of the Russian Federation allows you to protect the business reputation of an individual entrepreneur, but not a legal entity, which gives rise to a natural conclusion about a gap in the criminal law protection of the interests of all subjects of economic activity, the absence of its equal principles, and raises a legitimate question about the fairness of such a situation. This issue was disclosed in detail in an earlier study, which resulted in a proposal for an independent composition of discrediting with a description of its signs, in particular, as the fictitious dissemination of false, inaccurate or distorted information about an individual entrepreneur or organization, or about their activities, for the purpose of unfair competition, which caused damage to their business reputation ^{[2, pp. 1-23]}.

In addition, there is no clear cross-sectoral differentiation of responsibility for most of the crimes of the group in question. Thus, the Criminal Code of the Russian Federation does not contain independent grounds for criminal liability for unfair competition, despite the fact that Article 14.33 of the Administrative Code provides for administrative penalties for such with reference to the Criminal Code of the Russian Federation.

The construction of the elements of crimes provided for in Articles 146, 147, 180 and Article 183 of the Criminal Code of the Russian Federation (Article 183 of the Criminal Code of the Russian Federation - regarding the illegal receipt and use of information constituting a trade secret) encroaching on economically equivalent intellectual property objects does not comply with the rule of "isomorphism" (sameness of structures) as an intraindustrial system rule [Ivanchin A.V. Conceptual foundations of the construction of the corpus delicti. p. 202]. Thus, despite the equivalent objects of encroachment – objects of intellectual property, the description of the signs of the elements of crimes provided for in Articles 146 and 147 of the Criminal Code of the Russian Federation is more detailed than the description of the signs of the crime provided for in Article 180 of the Criminal Code of the Russian Federation; the qualifying signs of crimes provided for in Articles 146, 147 and 180 of the Criminal Code of the Russian Federation do not fully coincide; signs of the amount of damage of crimes provided for in Articles 146 and 147 of the Criminal Code of the Russian Federation are not legally defined (in Article 180 it is 400 thousand rubles, a large amount in Article 146 of the Criminal Code is set at over 100 thousand rubles). In addition, repetition is called an alternative to damage in Article 180 of the Criminal Code of the Russian Federation. Due to the economically identical value of intellectual property objects as a competitive advantage for holders of rights to them, it makes sense to reconsider the approach to describing these related compositions by combining their features in one composition. Thus, the decriminalization of those acts will be carried out, the criteria of public danger of which are questionable and not practically confirmed (for example, attribution of authorship), as well as the unification of their characteristics and differentiation of responsibility, excluding what can be translated into the legal field of administrative or civil law. We believe that the corpus delicti provided for in Article 180 of the Criminal Code of the Russian Federation, as the only one considered classified as crimes in the field of economic activity, could include signs of the corpus delicti provided for in Articles 146 and 147 of the Criminal Code of the Russian Federation.

Analyzing the correspondence of the signs of the corpus delicti to the group of criminological and compositional rules, it is necessary to highlight the rule according to which the signs introduced into the corpus delicti should reflect the social danger of the prohibited act or its significantly changed level [Ivanchin A.V. Conceptual foundations of the construction of the corpus delicti. p. 188]. Here again, the issue of the above-mentioned signs of "large (especially large) size", "large (especially large) damage", repetition, and its solution is relevant.

This issue is directly related to the discussion on the evaluation criteria of the material consequences of crimes in the field of economic activity, which has a long history in science, but every proposal for understanding large (especially large) damage, linked to specific figures, minimum wages, living wage, and inflation-affected, is doomed to continue this discussion. The lack of due attention on the part of the state to the compliance of the previously established amounts of damages and income with the inflation rate leads to their untimely change and, as a result, to the question of the objectivity of the implementation of the principle of fairness in law enforcement. Thus, in the explanatory note to the draft Federal Law "On Amendments to the Criminal Code of the Russian Federation", it is noted that the indexation of amounts under Article 180 of the Criminal Code of the Russian Federation was carried out in 2015 and amounted to 62% in 2022, according to Article 183 of the Criminal Code of the Russian Federation - in 2016, amounting to 53%, which significantly reduced the degree of the public danger of these crimes compared to earlier years [Explanatory note to the draft Law No. 327269-8 "On Amendments to the Criminal Code of the Russian Federation" // URL: https://sozd.duma.gov.ru/bill/327269-8#bh_note (date of access: 03/01/2024)].

A significantly changed level of public danger is also characteristic of crimes committed in the mass media (hereinafter referred to as the media) and on the Internet. However, not every investigated corpus delicti provides for this feature, while practice records the mass nature of such crimes in the sphere of turnover of intellectual property objects.

In this regard, the criminalizing sign of the illegal use of intellectual property objects in the media and on the Internet should be recognized, in addition to the most illegal use, the fact of their distribution in the media and on the Internet for the purpose of illegally generating income, because such distribution is predetermined by the popularity, and therefore the mass consumption of goods and services offered in the media and on the Internet, the accessibility of objects placed in the digital space, the availability of wide technical possibilities for their receipt (consumption), which is covered by the intent of the guilty person. The high level of public danger of such acts is due to the simplicity of their consumption through virtual rather than real interaction of subjects and the ability to distribute counterfeit goods quickly and in unlimited quantities. Therefore, this feature should be recognized as qualifying as increasing the level of public danger of a crime.

Considering this feature as affecting the severity of liability, it is impossible not to raise the issue of the method of market manipulation indicated in Article 185 ³ of the Criminal Code of the Russian Federation through the media, including on the Internet: is it really only with such dissemination of deliberately false information and the commission of other acts named in the disposition of the criminal law norm that the crime becomes socially dangerous if, and with other distribution, there were consequences provided for as signs of the objective side of the crime? In addition, the consequences may be different, much more extensive and affecting the interests of a wide variety of actors. Thus, in scientific studies of this problem, it is noted that the total annual actual damage from the misuse of insider information and market manipulation amounts to about 8 billion rubles, is caused to a wide range of subjects, including professional participants in the securities market, private investors, brokerage companies ^{[5, p. 352]}. It seems that it makes sense to abandon this feature of the crime as irrelevant to understanding the initial level of public danger of the act, because the prohibition on manipulation in the Law on Countering the Misuse of Insider Information and Market Manipulation (in Article 5) equally applies to any method of dissemination. The competition that has arisen with Article 15.21 of the Administrative Code should be overcome on the basis of the subject of responsibility, establishing its administrative form only for legal entities.

At the same time, as noted earlier, the dissemination of information in the media and on the Internet is in itself a more dangerous violation. Consequently, such a method of committing a crime under Article 185 ³ of the Criminal Code of the Russian Federation, according to the argument set out above, could have the value of a qualifying feature.

A very important criterion in the construction of the elements of crimes is the possibility of proving the features included in their description. As noted by A.V. Ivanchin, the problems of proving a crime can, and sometimes should serve as a basis for correcting the constructed or reconstructed corpus delicti [Ivanchin A.V. Conceptual foundations of constructing corpus delicti. p. 165]. One of such problems is the establishment of signs of the objective side of the crimes provided for in Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation. This situation is primarily due to the imperfection of special legislation. Thus, the absence of the concept of market manipulation does not allow to separate illegal behavior and legitimate behavior of market participants or the action of market forces ^{[6, pp. 208-209]}, the establishment of estimated consequences of crimes is also criticized ^{[7, pp. 523, 525]}. If the solution to the first problem depends on the improvement of special legislation, then the way out of the second situation may be related to the formalization of the composition and the inclusion of the previously proposed feature "for the purpose of unfair competition", thus "translating" the provisions of the Criminal Code of the Russian Federation on crimes provided for in Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation directly into the sphere of protection fair competition, highlighting the basis of criminal liability of persons who are not business entities.

Another rule, the importance of which in the construction of crimes is beyond doubt, and their importance for understanding the general meaning of the criminal law prohibition and law enforcement cannot be overestimated, is the rules of logic. Violation of the rules of logic in the construction of the compositions of the considered group of crimes is often found.

One example of non-compliance with the rules of logic, in particular, the requirement of consistency, is the sign "avoiding losses" existing in the dispositions of the norms of Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation. The official understanding of loss avoidance is given in a note to Article 185 ³ of the Criminal Code of the Russian Federation, according to which they recognize losses that a person has avoided as a result of the misuse of insider information and (or) market manipulation. The main contradiction is that, in general, avoiding losses is a normal aspiration of any person, especially in the field of economic activity. To bring to criminal responsibility a person only for the fact that he avoided losses by committing illegal actions, but without any harmful consequences that arose in parallel with other persons specified in the criminal law as criminalizing signs, raises doubts not only about the expediency, but also about the adequacy of such a measure. It seems that in such a situation, we can talk about actions in a state of extreme necessity, which excludes criminal liability.

Violations of language rules significantly complicate law enforcement, among which special attention is required by the rules for the use of terminology, a combination of casuistic and abstract techniques, formal and evaluative techniques, accuracy and clarity of the criminal law [Ivanchin A.V. Decree. op. pp. 331-353].

The rule of using terminology in relation to the group of crimes under consideration is primarily related to the use of special terms in criminal law norms, described in the Federal Law "On Protection of Competition", Part 4 of the Civil Code of the Russian Federation, the Law on Countering the Misuse of Insider Information and Market Manipulation, etc. Some researchers of the problems of constructing the corpus delicti provided for in Article 183 of the Criminal Code of the Russian Federation also note the shortcomings of the formulation and use of universal terms in it. Thus, V.V. Artyomov suggests replacing the term "receiving" with "collecting" in the title of Article 183 of the Criminal Code of the Russian Federation, since they have different interpretations, of which "collecting" is more accurate for the purposes of criminal law as a process of searching for, acquiring something. The author considers it rational to replace the term "disclosure" with "use", since disclosure is one of the ways of using [Artemov V.V. Illegal receipt and disclosure of information constituting commercial, tax or banking secrets in Russian criminal law: author's abstract. dis. ... cand. Jurid. M., 2011. p. 20].

Failure to comply with the rule of combining abstract and casuistic techniques leads to the fact that the rule of law sets out a complex description of the signs of the objective side, and then a reference is given to a special law to which the law enforcement officer must apply for clarification of the rest of the meaning of the criminal law prohibition. In particular, this is exactly the effect obtained when describing the crime in Article 185 ³ of the Criminal Code of the Russian Federation. As a result, the question arises whether it is advisable to list in detail a non-exhaustive list of prohibited acts in a criminal law norm if there is a reference to the law providing for them.

In this regard, the situation and its solution are similar when describing the signs of the objective side of the crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation. The Law on Countering the Misuse of Insider Information and Market Manipulation provides for the term "misuse of insider information", disclosed in the document by describing prohibited forms of use of insider information in Article 6, which is reflected in the criminal law norm in the form of their enumeration. The use of a blank method will make it possible to avoid such a transfer, and also allow the law enforcement officer to see exceptions to the ban.

Another example is the description of the signs of crimes provided for in Part 2 of Article 146 of the Criminal Code of the Russian Federation related to the illegal use of the objects of copyright and related rights named in it. In particular, the question arises about the need to clarify exactly what actions are recognized in this article as illegal use of objects of copyright or related rights, which also include the acquisition, storage, transportation of counterfeit copies of works or phonograms, the essence of which is the "participation" of these objects in circulation. The situation is identical to Part 1 of Article 147 of the Criminal Code of the Russian Federation. It seems that it is permissible to limit such a description to an indication of the main illegal act – the illegal use of relevant intellectual property objects. In this sense, a more successful description of the signs of a crime using means of individualization takes place in Article 180 of the Criminal Code of the Russian Federation, in which the legislator avoided a lengthy enumeration of the methods of illegal use of means of individualization. At the same time, it would be advisable to understand by the misuse of objects of copyright, related and patent rights not only the violation of exclusive rights, but also the rights of authorship, the appropriation of which in the field of economic activity may be important for illegal profit.

We believe that the same approach should be taken to listing the types of illegal methods of collecting information that constitute commercial, tax or banking information in Part 1 of Article 183 of the Criminal Code of the Russian Federation. The objective side of this crime would look more concise if its description consisted in collecting information constituting a commercial, tax or banking secret in any illegal way.

Another important aspect in countering criminal forms of unfair competition is the differentiation of criminal liability based on qualifying (especially qualifying) features. Their presence or absence, the shortcomings of the formulation form part of the problems of legislative technique, while affecting the effectiveness of differentiation of responsibility as a direction of criminal law policy. For example, when analyzing the signs of crimes of the group in question, there is a dissonance in the ratio of qualifying signs of crimes involving responsibility for encroachments on various objects of intellectual property. Thus, Articles 147 and 180 of the Criminal Code of the Russian Federation do not provide for such qualifying signs as the commission of a crime on an especially large scale, as well as by a person using his official position, which are listed in Part 3 of Article 146 of the Criminal Code, while the analysis of sentences indicates the existence in practice of acts with the same or similar signs [For example, the verdict of the Michurinsky City Court of the Tambov region No. 1-225/2014 dated 07/11/2014. URL: http://sudact.ru/regular/doc/APefj5rLd44 (date of application: 04/15/2019)]; forms of complicity, different in degree and nature of public danger – a group of persons by prior agreement and an organized group – are attributed to the same qualifying feature of crimes provided for in Articles 146 and 147 of the Criminal Code of the Russian Federation.

The use of official position as another feature is often mentioned in sentences when describing crimes under Articles 147 and 180 of the Criminal Code of the Russian Federation. In the first case, we are talking about most situations where the illegal use of objects of patent rights occurs in connection with the position held by the head of a business company. The same status of the perpetrators is found in the analysis of sentences under Article 180 of the Criminal Code of the Russian Federation, however, among the signs of this crime, the use of official position is not provided.

As for the crime provided for in Article 183 of the Criminal Code of the Russian Federation, a number of researchers are inclined to the need to introduce a qualifying feature of committing an act by a person using his official position in relation to one of the methods – collecting information constituting a commercial, tax or banking secret [Kryanin S.M. Criminal law protection of the secret of production (know-how): author's abstract. dis. ... cand. Jurid. sciences'. Nizhny Novgorod, 2009. p. 10; Zaitsev V.N. Criminal law protection of industrial property: abstract. dis. ... cand. Jurid. sciences'. Nizhny Novgorod, 2010. p. 10]. It should be noted the rationality of this proposal, because such actions are found in practice. However, it seems that the collection or use of information constituting a trade secret by a person performing managerial functions in an organization is more dangerous, because such a person, by virtue of his position, can influence other persons, including inciting them to collect information constituting a competitor's trade secret.

The analysis of the qualifying feature provided for in Part 2 of Article 185 ³ of the Criminal Code of the Russian Federation raises questions: the article provides for increased responsibility only for the commission of a crime by an organized group, without establishing it for preliminary collusion, although in the practice of the Central Bank of the Russian Federation, facts of market manipulation by a group of persons are very often recorded [List of identified cases of misuse of insider information and market manipulation // URL: https://www.cbr.ru/inside/inside_detect/table / (date of access: 02/15/2024)].

At the same time, attention is drawn to the absence of a sign of group commission of a crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation. In the activities of the Central Bank of the Russian Federation, the identification of cases of misuse of insider information as part of a group of persons is a rare fact, however, an analysis of law enforcement in this area confirms their presence [List of identified cases of misuse of insider information and market manipulation // URL: https://www.cbr.ru/inside/inside_detect/table / (date of access: 02/15/2024)].

It seems that in the light of the unification of group characteristics as characteristic of crimes with the manifestation of forms of unfair competition, it is necessary to establish a qualifying sign of the commission of an act by a group of persons by prior agreement for crimes provided for in Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation, in connection with the facts of group violations of legislation that take place in practice. Since the signs of an organized group can be established with varying degrees of probability during the investigation of cases of group commission of a crime, because the legislator has already included the sign of an organized group in the description of the crime provided for in Article 185 ³ of the Criminal Code of the Russian Federation, this sign should be provided for the crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation, as encroaching on the same the same protected object.

The above allows us to conclude that there is a need for a universal approach to describing the criteria for criminalization of acts considered in this article as manifestations of unfair competition, unification of their qualifying (especially qualifying) signs in order to justify the formation of general, special and qualified elements of crimes of the studied group. 

Another urgent problem is to coordinate the types and sizes of punishments, as well as other measures of a criminal nature, primarily confiscation, with the degree and nature of the public danger of the acts.

Penalties for the commission of the studied group of crimes are represented by a fine, correctional labor, compulsory labor, forced labor, imprisonment and deprivation of the right to hold certain positions or engage in certain activities. In most cases, the mandatory application of both basic and additional punishment is established.

The multiplicity of types of punishments established by the legislator for the group of crimes in question, on the one hand, allows the judge to choose measures taking into account many circumstances of both the committed crime and the identity of the perpetrator, but, on the other hand, expands the scope of judicial discretion, which is critically perceived in science ^{[8, p. 265; 9, pp. 150-152; 10, p. 402]}.

At the same time, a study of the practice of sentencing showed the use of a narrow range of punishments: their traditional types are imprisonment, a fine in hard cash and compulsory labor, even less often – correctional labor. Thus, an analysis of the penalties imposed for the most numerous crimes provided for in Parts 2 and 3 of Article 146 of the Criminal Code of the Russian Federation showed that judges in most cases (77%) opt for imprisonment (probation), of which in 5.5% of cases imprisonment was imposed together with a fine; the main punishment in the form of a fine, it amounted to 12%, compulsory work and correctional labor – 6% and 5%. In cases of committing this crime in the field of entrepreneurial activity, that is, in the presence of potential signs of unfair competition, penalties were mainly imposed in the form of imprisonment for a period of 6 months to 3 years conditionally, in some cases with a fine, or only in the form of a fine.

According to Part 1-2 of Article 183 of the Criminal Code of the Russian Federation, 46% of punishments were imposed in the form of imprisonment, of which 39% were suspended, 44% were fined, and 10% were correctional labor. According to Part 1-4 of Article 180 of the Criminal Code, imprisonment amounted to 16%, of which 13% was suspended, a fine was imposed in 57% of cases, correctional labor – in 4%, compulsory labor – in 17%, deprivation of the right to hold a certain position or engage in a certain activity – in 4% of cases.

It should be noted that the deprivation of the right to hold certain positions or engage in certain activities turned out to be unreasonably rare in the punishment system for the group of crimes under consideration. In particular, it is established as an additional punishment imposed at the discretion of the court for crimes provided for only in Articles 185 ³, 185 ⁶ of the Criminal Code of the Russian Federation, and it is mandatory as an additional punishment is imposed only in cases provided for in Parts 2 and 3 of Articles 183 of the Criminal Code of the Russian Federation. This type of punishment has not been established for the commission of a crime provided for in paragraph "d" of Part 3 of Article 146 of the Criminal Code by a person using his official position, which should be recognized as an obvious gap.

The legislator's definition of the meaning of such a punishment as imprisonment for crimes of the group in question indicates that most of them are classified as crimes of minor gravity. Thus, the term of imprisonment varies from 2 years (part 2 of Article 146, part 1 of Article 147, part 1 of Article 180, part 1 of Article 183 of the Criminal Code) to 4 years (part 1 of Article 185 ³ of the Criminal Code, part 1 of Article 185 ⁶ of the Criminal Code).

The limit of the fine for the commission of the studied group of crimes containing signs of the main composition is 500 thousand rubles. Such a maximum fine is set for different types of signs in the main elements of crimes, in particular, for defamation, illegal receipt and disclosure of information constituting commercial, tax or banking secrets, market manipulation and illegal use of insider information. At the same time, only the sanctions of crimes provided for in Articles 180, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation have the lowest limit of the fine.

Meanwhile, the problems of building sanctions noted in science [e.g., Ustinova T.D. Actual problems of criminal liability for crimes encroaching on entrepreneurial activity: abstract. dis. ... doct. Jurid. M. 2005. pp. 32-33; Gustova E.V. The construction of sanctions in the criminal law of the Russian Federation: a theoretical aspect: dis. ... cand. Jurid. sciences'. Voronezh, 2015. 204 p.; Melyukhanova E.E. The punishment system: static and dynamic characteristics: dis. ... cand. Jurid. sciences'. Yekaterinburg, 2017. p. 219], is fully characteristic of sanctions in the norms on crimes with signs of unfair competition. It is known that the construction of sanctions should be based on the requirement of consistency and commensurate severity of the penalties contained therein with the severity of the crime. Accordingly, crimes of one group should have a consistent internal punishment system. Thus, crimes whose objective side is expressed in the illegal use of economically equivalent exclusive rights to intellectual property objects should be punishable by the same types of punishment and their size. This does not exclude that the amount of punishment can and should be influenced by the signs of the corpus delicti reflected in the acts of the guilty person, in particular such as the method of committing the crime, the damage caused by the crime, the form of guilt, motive, purpose, etc. But if there is a similar nature of the public danger of these signs of crimes, the sanctions should not differ. However, the existing sanctions for crimes considered as forms of unfair competition show a different picture (table 1).

Table 1 – Signs of a crime and types of punishments in the main components of crimes that form unfair competition using intellectual property objects

It follows from the data given in the comparative table that the listed acts, despite almost identical sanctions (except for the sanction of Article 183 of the Criminal Code of the Russian Federation), cannot be called equivalent in degree and nature of public danger: the objective side of each crime is characterized by different signs, has different legal consequences with different characteristics. At the same time, if the types and amounts of sanctions for crimes provided for in Articles 146 and 147 of the Criminal Code of the Russian Federation are the same, then in comparison with them, the sanction of Article 180 is represented by some increase in the fine and imprisonment, which is applied in conjunction with the fine. The sanction of Article 183 of the Criminal Code of the Russian Federation speaks about the recognition by the legislator of a higher degree of public danger of illegally obtaining and disclosing information constituting commercial, banking and tax secrets than encroachments on intellectual property objects, although a commercial secret as a production secret is the same intellectual property object, including other intellectual property objects, and the composition itself is not provides for harmful consequences (except for the cases described in Parts 3 and 4).

Sanctions for crimes committed by a group of persons by prior agreement and an organized group raise questions: Part 3 of Article 146 of the Criminal Code of the Russian Federation provides for imprisonment for up to 6 years, part 2 of Article 147 – for up to 5 years. The absence of a qualifying sign of the commission of an act by a person using his official position in Article 147 of the Criminal Code of the Russian Federation leads to the non-punishability of such an act, while a similar act, the signs of which are described in an adjacent composition provided for in paragraph "d" of Part 3 of Article 146 of the Criminal Code, is punishable by imprisonment for up to 6 years.

Summarizing the above and taking into account the previously noted fact of the relative equivalence of the level of public danger of crimes with signs of unfair competition, it seems correct to establish for the commission of acts of the main elements of crimes punishment in the form of imprisonment for up to 4 years as the upper limit already established by the legislator for the commission of crimes provided for in Articles 185 ³, 185 ⁶ of the Criminal Code of the Russian Federation, and which seems optimal according to the analysis of the practice of sentencing.

At the same time, it is advisable to provide an exception for acts committed using intellectual property objects, as well as for acts provided for in Part 1 of Article 183 of the Criminal Code of the Russian Federation that do not have signs of unfair competition, as less dangerous crimes, leaving imprisonment at the same level – up to 2 years in prison. This period is also adequate from the point of view of law enforcement.

The size of fines is also a topic for research. Thus, the absence of a lower fine limit in most sanctions for crimes of the group in question negates the possibility of differentiation of criminal and administrative liability, because according to Article 46 of the Criminal Code of the Russian Federation, the minimum amount of a criminal fine is 5 thousand rubles and the same amount is the maximum amount of an administrative fine in accordance with Article 3.5 of the Administrative Code. This problem is especially relevant with regard to punishments for acts of qualified types.

Taking into account the above, it seems advisable to determine the minimum fine for all crimes of the group in question that have signs of unfair competition, 600 thousand rubles or in the amount of the convicted person's salary for a period of six months. A fine of less than 600 thousand rubles should be established in relation to acts committed by persons who do not have the status of a special entity, in particular for committing crimes provided for in Part 1 of updated Articles 180, 183, 185 ³, 185 ⁶ of the Criminal Code of the Russian Federation.

It makes sense to correct the existing situation with regard to such punishment as deprivation of the right to hold certain positions or engage in certain activities, expanding the possibilities of his appointment both as a primary and as an additional one, excluding his appointment by the court at its discretion.

In order to differentiate punishments in comparison with a less serious crime, it is important to determine the lowest limit of all types of punishment for crimes that have signs of a qualified (especially qualified) corpus delicti.

Other measures of a criminal law nature, the application of which also differentiates criminal liability, in relation to the group of crimes under consideration were insufficiently reflected in the Criminal Code of the Russian Federation.  Thus, the list in Part ¹ of Article 104.1 of the Criminal Code of the Russian Federation does not contain all the elements of crimes of the group in question, which raises doubts about the correctness of this approach, since these crimes are committed out of self-interest, pursue the goal of illegally obtaining income in the course of entrepreneurial activity.

If, with regard to unfair competition related to violation of copyright and related rights, patent rights, the Criminal Code of the Russian Federation established the grounds for the use of the institution of confiscation, then the crime provided for in Article 180 of the Criminal Code of the Russian Federation remained outside the scope of Article 104 ¹ of the Criminal Code, as well as market manipulation and misuse of insider information.

Meanwhile, the list of crimes for which confiscation should be introduced by the parties to the Council of Europe Convention on Laundering, Identification, Seizure and Confiscation of Proceeds from Criminal Activity and on the Financing of Terrorism (CETS N 198) (Warsaw, May 16, 2005), signed by the Russian Federation, names the production of counterfeit and pirated products, insider trading and market manipulation. Thus, the list of crimes for which the court must order the confiscation of property in accordance with paragraph "a" of Part 1 of Article 104 ¹ of the Criminal Code of the Russian Federation must include the acts provided for in Articles 180, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation.

The following conclusions can be drawn from the above. The Criminal Code of the Russian Federation does not contain a clear mechanism for protection against unfair competition, providing for crimes that have some common features with the specified violation of antimonopoly legislation in art. 128 ¹, 146, 147, 180, 183, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation. The adjustment of the provisions of the Criminal Code of the Russian Federation in the direction of establishing specific grounds for criminal liability for unfair competition should be based on their compliance with the prohibitions of a special law – the Federal Law "On Protection of Competition". Consequently, a feature of the legislative technique in the construction of the compositions of such crimes are blank norms that allow taking into account the industry specifics of regulating certain protected relations.

The problems of punishments established by the legislator for crimes that have signs of unfair competition lie in their alternativeness, the inconsistency of individual sanctions with the level of public danger of acts, including those reflected in qualifying special qualifying signs, as well as in related crimes. The institution of confiscation also needs to be improved, since it is not fully involved not so much in order to differentiate, but rather to unify criminal liability for crimes in the field of economic activity that have a selfish orientation, but are not included in Article 104 ¹ of the Criminal Code of the Russian Federation.

Taking into account the formulated proposals for improving the structural elements of the elements of crimes that can be applied in order to combat unfair competition, the new general, special and qualified compositions (as well as the current norms) could look like this:

Article 180. Illegal use of intellectual property objects

1. Illegal use of the results of intellectual activity and means of individualization equated to them, as well as illegal use of a warning label in relation to a trademark not registered in the Russian Federation or an appellation of origin of goods committed on a commercial scale, shall be punishable…

2. The acts provided for in the first part of this Article committed for the purpose of unfair competition shall be punished…

3. The acts provided for in part one or part two of this Article committed:

a) by a group of persons by prior agreement;

b) a person performing managerial functions in a commercial or other organization;

c) in the information and telecommunication network of the Internet or the mass media, - are punished…

4. The acts provided for in the first or second parts of this article committed by an organized group shall be punished…  

Note. 1. An act is considered to be committed on a commercial scale if the production of counterfeit products is based on mechanization and automation of a process aimed at the mass production of counterfeit goods and the sale of such goods, as well as the sale of goods manufactured in this way, aimed at systematic profit.

Mass production, mass realization – production, realization for an indefinite circle of persons, that is, persons who cannot be determined in advance.

2. The act provided for in Part 2 of Article 180, Part 1 of Article 180 ¹, paragraph "b" of Part 2 of Article 183, part 2 of Article 185 ³ and part 2 of Article 185 ⁶ of the Criminal Code of the Russian Federation is considered committed for the purpose of unfair competition if it is committed in order to obtain advantages in carrying out entrepreneurial activity through illegal use intellectual property objects, information constituting a commercial or other legally protected secret, dissemination of false, inaccurate or distorted information about a person or his activities or intentional actions prohibited by the legislation of the Russian Federation on countering the misuse of insider information and market manipulation, and any intentional use of insider information.

3. An act is considered to have been committed on a commercial scale on the Internet information and telecommunications network or mass media if the placement of intellectual property objects on the Internet or mass media allows their use by an indefinite circle of persons and is aimed at systematic profit, including from advertising on the person's website (page).

Article 180 ¹ Discrediting

1. Deliberate dissemination of false, inaccurate or distorted information about an individual entrepreneur or organization, or about their activities, for the purpose of unfair competition, which caused damage to their business reputation, is punishable…

2. The same act committed:

a) by a group of persons by prior agreement;

b) a person performing managerial functions in a commercial or other organization;

c) in the information and telecommunication network of the Internet or in the mass media, - is punished…

3. The acts provided for in part one or part two of this article, which have entailed grave consequences, shall be punished…

Article 183. Illegal collection and use of information constituting a commercial, tax or banking secret

1. The collection of information constituting a commercial, tax or banking secret in an illegal manner is punishable…

2. Illegal use of information constituting a commercial, tax or banking secret, committed by:

a) without the consent of their owner by the person to whom it was entrusted or became known through service or work;

b) for the purposes of unfair competition, - is punished…

3. Acts provided for in Part 1 or Part 2 committed:

a) by a group of persons by prior agreement;

b) a person performing managerial functions in a commercial or other organization;

c) in the information and telecommunication network of the Internet or the mass media – are punished…

4. The acts provided for in part two or part three of this article, committed by an organized group or entailing grave consequences, shall be punished…

Article 185 ³. Market manipulation

1. Intentional actions defined by the legislation of the Russian Federation on countering the misuse of insider information and market manipulation, as a result of which the price, demand, supply or volume of trading in a financial instrument, foreign currency and (or) goods deviated from or were maintained at a level significantly different from the level that would have been formed without such actions, – is being punished…

2. The acts provided for in the first part of this Article committed for the purpose of unfair competition shall be punished…

3. The acts provided for in part one or two of this Article committed:

a) by a group of persons by prior agreement;

b) in the information and telecommunication network of the Internet or mass media,

c) a person performing managerial functions in a commercial or other organization is punished…

4. The acts provided for in part one or two of this article committed by an organized group shall be punished…

Article 185 ⁶. Misuse of insider information

1. The use of insider information prohibited by the legislation of the Russian Federation on countering the misuse of insider information and market manipulation is punishable…

2. The act provided for in the first part of this Article, committed for the purpose of unfair competition, is punishable…

3. The acts provided for in part one or two of this Article committed:

a) by a group of persons by prior agreement,

b) by illegally transferring insider information to another person,

c) a person performing managerial functions in a commercial or other organization shall be punished…

4. The acts provided for in part one or two of this article committed by an organized group shall be punished…

In turn, the sanction for the corpus delicti committed for the purpose of unfair competition provided for in the updated part 2 of Article 180, paragraph "b" of Part 2 of Article 183, part 2 of Article 185 ³ and part 2 of Article 185 ⁶ of the Criminal Code of the Russian Federation, as well as part 1 of the newly proposed Article 180 ¹ of the Criminal Code, taking into account the conducted research, could include the following types of punishment and their amounts: a fine in the amount of six hundred thousand rubles to three million rubles or in the amount of the convicted person's salary for a period of six months to three years with deprivation of the right to hold certain positions or engage in certain activities for a period of one to three years, or imprisonment for a period of up to four years with deprivation of the right to hold certain positions or engage in certain activities for up to three years.