Problematic aspects of subjective signs of illegal use of means of individualization of goods (works, services)

Levchenkova Tat'yana YUr'evna Associate Professor; Department of Criminal Law; St. Petersburg University of the Ministry of Internal Affairs of Russia 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1 levchenkovata@mail.ru Other publications by this author

One of the most pressing problems of the Russian market of goods and services remains a significant volume of counterfeit goods. The low income level of a significant number of citizens determines the stable demand for counterfeit goods. An increase in counterfeit volumes leads to a decrease in motivation for creating intellectual property, and the loss of royalties by copyright holders. All of this has an extremely negative impact on the Russian economy as a whole.

The subjective side and the subject of the crime provided for in Article 180 of the Criminal Code of the Russian Federation characterize the signs that determine the inner side of the commission of this illegal, criminally punishable act. They establish the characteristics of the person who committed the crime, as well as the specifics of his internal attitude to the fact of such a commission.

The importance of the subject and the subjective side of the crime has been repeatedly confirmed, both in the scientific literature and in law enforcement practice.

E.A. Shevchenko, defining the essence and meaning of the subject and the subjective side, points out that they play a significant role in the qualification process and make it possible to resolve the issue of the fair imposition of criminal punishment ^{[1, p. 263]}.

V.G. Pavlov and I.I. Likhanova rightly noted that "the subject of a crime in criminal law has always attracted the attention of legal scholars as a complex and ambiguous concept. This is due to the fact that both in theory and in judicial and investigative practice there are controversial issues related to the very understanding of the subject of the crime. Therefore, a comprehensive study of the subject of a crime in criminal law makes it possible to better understand the content of all the elements (signs) of the holistic doctrine of the composition of a crime" (Pavlov, V.G. Theory of the composition of a crime in Russian criminal law: textbook / V.G. Pavlov, I.I. Likhanova. – St. Petersburg: ANO VO "SUA", 2019. – P. 31).

In the theory of criminal law, many authors, such as S.A. Sklyaruk, E.V. Demyanenko, A.F. Bykodorova, M.S. Lastochkina, V.A. Kondrashina, I.A. Goloviznina, S.M. Treiger, and others, have studied the subjective signs of the illegal use of means of individualization of goods (works, services).

However, against the background of the development of the intellectual property market in recent years, insufficient attention has been paid by specialists to problematic aspects of the subjective elements of the crime provided for in Article 180 of the Criminal Code of the Russian Federation.

In most theoretical sources, the subjective side of this crime is defined as direct intent. This opinion is expressed, in particular, by V.I. Tyunin, P.S. Yani (Criminal Law. The special part: textbook / under the general editorship of Dr. Yurid. S. A. Denisova, Doctor of Law. L. V. Gotchina, Doctor of Law. Sciences, assoc. A. G. Khlebushkina. — 2nd ed., revised and add. Saint Petersburg: Saint Petersburg University of the Ministry of Internal Affairs of Russia, 2023. p. 230). However, there is also a position according to which the subjective side of the crime in question can be expressed in indirect intent. This opinion, in particular, is expressed by S.M. Treiger (Treiger, S. M. Criminal liability for the illegal use of a trademark: dissertation for the degree of Candidate of Law / Traiger Semyon Mikhailovich. Moscow, 2011. p. 64.).

Before expressing our own opinion on the type of guilt, we consider it necessary to somewhat theorize the issue, namely, to make a clear distinction between direct and indirect intent.

The relevance of this issue is related to several phenomena.

First, there is the fact that there is a significant similarity between direct and indirect intent. The reasons for this similarity were correctly identified by A.I. Rarog, who pointed out that both direct and indirect intent are varieties of a single concept, namely, an intentional form of guilt ^{[2, p. 28]}. Obviously, in such a configuration, not only the intersection, but also the almost complete duplication of certain features and components of direct and indirect intent is inevitable.

Secondly, there are many difficulties in the law enforcement practice of distinguishing between two types of intentional forms of guilt. Often, having incorrectly determined the type of intent, the court makes the wrong final decision.

Our analysis of judicial practice has allowed us to formulate specific rules for distinguishing between two types of intentional guilt in the commission of a crime.

First of all, the distinction should not be based solely on one attribute. The solution of this problem is possible only if an integrated approach is taken into account, taking into account the entire set of criteria for differentiation.

The first such criterion is the unequal nature of the volitional component implemented in relation to the consequences of the committed criminal act. With both direct and indirect intent, a strong-willed attitude towards socially dangerous consequences is positive. However, with direct intent, such an attitude takes the form of desire, whereas with indirect intent, it takes the form of an indifferent attitude or a conscious assumption of socially dangerous consequences.

The second criterion is the intellectual component. It finds its expression in the unequal nature of anticipating the consequences of the crime being committed.

At the same time, there are a number of additional criteria that make it possible to distinguish between the types of intentional forms of guilt under consideration. The first such criterion was formulated by Professor A.I. Rarog. In particular, based on his research, the scientist proved the thesis that crimes with a formal structure of their composition can only be committed with direct intent ^{[3, p. 56]}. We believe that the scientist's opinion is completely fair for the following main reasons. First of all, it must be remembered that acts with a formal composition are not characterized by such a mandatory feature as socially dangerous consequences. Obviously, in the absence of consequences, it is impossible to talk about the coverage of their intent. In such cases, the will of the person committing the crime extends only to the socially dangerous act itself. The consequences in this case remain "outside the brackets" of the volitional attitude of the person who is the subject of the criminal act. That is, it can be argued that in the case of crimes that are defined by the legislator as a group of formal acts, in fact, we can only talk about direct intent.

The second criterion concerns situations of commission of related crimes and is related to the commission of the main crime and the crime associated with it.

In our opinion, it is impractical to limit the type of intent in these crimes. It seems that the illegal use of means of individualization of goods (works, services) can be committed with both direct and indirect intent.

However, the main attention should be paid to the subjective attitude of the perpetrator to the damage caused by his actions. In the event that the perpetrator, when committing his criminal act, wishes to cause appropriate economic damage to the owner of the relevant product (service, work), then we must talk about direct intent. In such cases, there are both intellectual and volitional elements of the direct intent of the crime.

Thus, the intellectual element of direct intent when committing a crime under Article 180 of the Criminal Code of the Russian Federation will be characterized through two components.

First of all, it is a person's awareness of the public danger of the illegal use of means of individualization of goods (works, services). A related formulation is also used in the scientific literature: awareness of the socially dangerous nature of the act being committed ^{[3, pp. 39-60]}. We believe that in this case, we can talk about the synonymy of the positions of the legislator and scientists, since for the most part they characterize a single area. A.I. Rarog proposed a more detailed concept for determining awareness of the public danger of an act as a sign of an intellectual element of direct intent. In particular, the scientist pointed out that face awareness covers:

1. Understanding the nature of the crime object;

2. Understanding the existence of the subject of the crime (if any) and the impact on it;

3. Understanding the existence of a victim (if any), causing harm to his interests;

4. The person's understanding of the nature and content of the actions performed, as well as inaction. Understanding that outside of these actions (inaction), a criminal act will be impossible;

5. Representation and full understanding of all the specific features of the committed crime. In particular, we are talking about optional features of the objective side of a criminal act (for example, the time of the crime, the current situation, the implemented method, etc.).

As a result, A.I. Rarog, having cited all the criteria presented above, reasonably believes that only if there is a complete list of them, unambiguous "operation", it is possible to talk about the fact of awareness of the public danger of the committed criminal act ^{[2, p. 18]}.

We believe that both positions presented as a whole correctly define the intellectual moment of direct intent and can be applied to cases of qualification of illegal use of means of individualization of goods (works, services), which is observed in judicial practice (Appellate Ruling of the Supreme Court of the Russian Federation dated 13.10.2021 № APL21-381 // SPS Consultant Plus access). At the same time, it should be noted separately that the legislator did not indicate that the person understood the illegality of the act being committed. In this regard, one cannot agree with the opinion of the authors, who believe that a sign of "equality" can be placed between awareness of the public danger of an act and its illegality ^{[4, pp. 830-833]}. In this case, it is necessary to proceed from the position of the legislator.

Secondly, it is the anticipation of the possibility or inevitability of socially dangerous consequences as a result of the illegal use of means of individualization of goods (works, services). From a theoretical point of view, foresight consists in a mental representation of what should happen or is bound to happen (A large dictionary of official legal terms / [Comp. Fedinsky Yu. I.]. Moscow: Ekonomika Publ., 2001, p. 87).

It is important to indicate the specifics of the criminal law understanding of the aspect of foresight as a component of intent in the crimes under consideration. In this case, the key importance should be given to the fact that a mental image has been formed and, accordingly, a person's idea of the harm that will be caused as a result of committing a criminal act ^{[5, p. 185]}.

Next, we note the signs that characterize foresight, which acts as a sign of the intellectual criterion of direct intent. In this case, we need to talk about two main criteria. The first criterion is characterized by the understanding that as a result of the committed act, certain changes will occur in the object to which the criminal encroachment is directed. At the same time, such changes should be inevitable. Next, we should talk about the social significance of the committed act, namely the fact that there is a certain degree of harmfulness of the crime. Finally, it is necessary to establish an awareness of the causal relationship between the committed act and the consequences that resulted from its commission ^{[6, p. 283]}.

As for the volitional element of direct intent, in this case, the fact of a person's desire for socially dangerous consequences and his desire for their occurrence must be established.

In the scientific literature, when considering this component of the volitional element of direct intent, they rightly refer to the etymology of the concept of "desire" ^{[7, pp. 216-217]}. Thus, desire is understood as a person's desire for something, to achieve a certain result (A large dictionary of official legal terms / [Comp. Fedinsky Yu. I.]. Moscow: Ekonomika Publ., 2001, p. 95). As you can see, the etymological essence of the concept of "desire" does not concern the emotional attitude of a person to the result. G.A. Yesakov is absolutely right in this case, noting that a person who commits a crime may experience various emotions in relation to the result obtained from a socially dangerous act of which he has become the subject; such an attitude may be negative, among other things (Commentary to the Criminal Code of the Russian Federation (article-by-article) / K.A. Barysheva, Yu.V. Gracheva, R.O. Dolotov, and others; edited by G.A. Yesakov. 9th ed., revised and add. Moscow: Prospekt, 2021. p. 24). The determining factor in this case is the very fact of striving to obtain a certain result of the committed criminal act.

In this case, it is necessary to talk about the multitude of possible results that can occur as a result of committing a criminal act. The final result often depends on the type of criminal act, as well as the stage of the crime. For example, we can talk about such a result as achieving the ultimate goal of committing a crime, achieving some intermediate stage in the commission of a crime (for example, finding accomplices).

At the same time, if the perpetrator, while committing a crime under Article 180 of the Criminal Code of the Russian Federation, deliberately allows or treats it indifferently, then we must talk about indirect intent.

Regarding the volitional element, it is necessary to talk about such an aspect as the conscious assumption of socially dangerous consequences, or an indifferent attitude towards them.

In other words, it is impossible to talk about the unwillingness of socially dangerous consequences, both passive and active (the desire to avoid them through certain actions). The guilty person, with indirect intent, acts meaningfully, and not only admits, but also fully understands the cause-and-effect relationship between his actions and the upcoming socially dangerous consequences. In the scientific literature, such signs of the volitional element of indirect intent as conscious assumption and indifference are described quite accurately.:

First of all, it is necessary to talk about such a feature as a conscious assumption. This sign means that the person does not directly want any negative consequences to occur. At the same time, in this case, there is an assumption of the possibility of their offensive, the absence of an explicit opposition of the will to their offensive. In general, in such cases, the attitude towards negative consequences is positive. We can talk about a passive desire for their offensive. In this regard, conscious assumption is quite close in its criminal-legal essence to desire.

Next, it is necessary to talk about the indifferent attitude. In this case, there are no visible signs of desire. A person admits the possibility of socially dangerous consequences, however, this fact does not cause him any significant emotions of one spectrum or another ^{[2, p. 28]}.

We cannot disagree with the opinion that there is only direct intent in qualifying a crime on the basis of repetition. ^{[8, p. 83]}. If both direct and indirect intent is possible in the first case of commission, then when it is repeated (the sign is repeated), it is obvious that the intent will already be direct.

The goals and motives of committing a crime under Article 180 of the Criminal Code of the Russian Federation do not affect the qualification of the illegal act in question ^{[9, p. 157]}. Nevertheless, they are taken into account by the court when imposing punishment, they serve to individualize the mechanism of committing a crime. In the scientific literature, considerable attention is paid to the issue of determining the goals and motives for the illegal use of means of individualization of goods (works, services) ^[10], which, in our opinion, is completely deserved and understandable.

The importance of correctly identifying the subjective side of the crime provided for in Article 180 of the Criminal Code of the Russian Federation has been repeatedly confirmed in judicial practice. Her analysis showed that in a significant number of cases it is extremely difficult to prove intent to commit such crimes. The main difficulty is related to the fact that persons who formally fall under the criteria of the subject of a crime under Article 180 of the Criminal Code of the Russian Federation, in reality, had no intention of committing it. In particular, we are talking about situations where the subject in reality had no idea that he was selling counterfeit goods. The reality is that today there are a large number of so-called "free agents" operating in the market of goods and services. They don't produce any products. Their profile is exclusively in the purchase and subsequent resale of goods. An analysis of the materials of criminal cases shows that the formal "subjects" of the crime indicate in their testimony that they purchased the goods in accordance with all established legal standards, provide the relevant documents (invoices, contracts, contracts), and their duties do not include establishing the authenticity of the goods. In such situations, there are two possible options – either objective attribution of guilt, or termination of criminal cases. In both cases, a violation of the basic principles of criminal law and criminal liability should be recognized. On the one hand, this is a violation of the principle of justice, on the other – a violation of the principle of the inevitability of criminal liability. The following example of judicial practice can serve as a confirmation of the latter. "According to Part 1 of Article 180 of the Criminal Code of the Russian Federation in relation to IP Huseynova A.G., who sold clothes and shoes with the illegal use of the Adidas trademark, which caused major damage to the copyright holder in the amount of 258,597 rubles. The criminal prosecution against Huseynova A.G. was terminated on the basis of paragraph 2 4.1 of Article 24 of the Code of Criminal Procedure of the Russian Federation due to the latter's ignorance of the counterfeit products she sells, and the criminal case was suspended on the basis of paragraph 1 4.1 of Article 208 of the Code of Criminal Procedure of the Russian Federation. A similar situation exists in criminal case No. 123936, suspended by the Domodedovo Department of Internal Affairs on the basis of paragraph 1 of Part 1 of Article 208 of the Code of Criminal Procedure of the Russian Federation" (Treiger, S. M. Criminal liability for the illegal use of a trademark: dissertation for the degree of Candidate of Law / Treiger Semyon Mikhailovich. Moscow, 2011. p. 122).

Obviously, the current situation needs to be addressed, and in a drastic way. 180 of the Criminal Code of the Russian Federation; consideration of the issue exclusively in an administrative and legal manner; introduction of new types of crimes, for example, an act that would be similar to negligence, however, not for officials.

It is important to understand that the signs of the subjective side of the crime cannot exist by themselves. They are always applicable to a specific individual who is referred to in criminal law as the subject of a crime. In this regard, it is necessary to recognize that the subject of the crime is an equally significant element of the illegal use of means of individualization of goods (works) and services.

The doctrine of criminal law has developed a generally accepted concept of understanding the subject of a crime. This is a sane individual who has reached the age of criminal responsibility (Commentary to the Criminal Code of the Russian Federation (article-by-article) / K.A. Barysheva, Yu.V. Gracheva, R.O. Dolotov, etc.; edited by G.A. Yesakov. 9th ed., revised and add. Moscow: Prospekt, 2021. p. 25). Thus, the subject of a crime at the general level is characterized by three signs.

The first sign is an individual. Under the criminal legislation of the Russian Federation, legal entities cannot be criminally liable. We agree with the opinion of the authors, who note that in the case of the illegal use of means of individualization of goods (works, services), legal entities are often involved in illegal activities ^{[11, pp. 41-49]}. Moreover, a number of authors, conducting comparative legal research, come to the conclusion that it is necessary to implement foreign experience in Russian criminal law practice, namely, the development of mechanisms for bringing legal entities to criminal responsibility for the commission of the criminal acts in question ^{[12, p. 176]}.

On the one hand, it is indeed difficult to deny the collective nature of the crimes provided for in Article 180 of the Criminal Code of the Russian Federation. Often, several persons who act on behalf of a particular legal entity participate in the implementation of a criminal chain.

On the other hand, in modern conditions of liberalization of criminal legislation in the economic sphere, the issue of bringing legal entities to criminal responsibility is becoming difficult. Moreover, Article 180 of the Criminal Code of the Russian Federation allows for qualification based on the commission of an act by a group of persons by prior agreement, as well as by an organized group.

The second sign of the subject of the crime is the sanity of the person at the time of the crime. This suggests that a person's mental state should not prevent him from realizing the nature and degree of public danger of the act he is committing, as well as the danger of the consequences that result from its commission ^{[13, p. 19]}. As a rule, there is no reason to talk about the insanity of persons who commit crimes under Article 180 of the Criminal Code of the Russian Federation. According to the results of the analyzed court materials, we have not found any such cases.

The third sign is the age of the person committing the crime. In accordance with the provisions of Article 20 of the Criminal Code of the Russian Federation, a person who has reached the age of sixteen at the time of his commission may be held criminally liable for crimes under Article 180 of the Criminal Code of the Russian Federation. We believe that the age limit generally corresponds to the subject's mental perception of the illegality of his actions. There is no need to lower the age threshold to fourteen, because at this age there is hardly a clear understanding of the importance of the legal regime of intellectual property, the special specifics of the norms of the 4th part of the Civil Code of the Russian Federation. 180 of the Criminal Code of the Russian Federation, conducted by the dissertator and other authors, contain no mention of the participation of persons under the age of sixteen.

The listed signs of the subject of the crime in question characterize it from a general point of view. At the same time, there is an acute discussion in the scientific literature regarding the possibility of recognizing the subject of illegal use of means of individualization of goods (works, services) as a special one.

S.M. Treiger writes that in the case of qualifying a crime under Article 180 of the Criminal Code of the Russian Federation, it should be about a person with special skills, knowledge and abilities that allow him to realize his criminal intent.: "In our case, we are talking more about a special entity, namely a person who uses someone else's trademark to carry out economic actions" (Treiger, S. M. Criminal liability for the illegal use of a trademark: Dis. ... cand. jurid. sciences': 12.00.08 / Trager Semyon Mikhailovich. Moscow, 2011. p. 117).

Along with this, A.I. Rarog criticizes this approach, pointing out that "the subject of the crime in question may be a sane individual who has reached the age of sixteen and is not the actual or alleged legitimate copyright holder (licensee, certificate holder) of the corresponding trademark or other designation of goods or services" (Criminal Law of the Russian Federation. The special part. Edited by Prof. Raroga A.I. M., Jurist, 2001. P. 248). In addition, according to A.F. Bykodorova, "in the text of Article 180 of the Criminal Code of the Russian Federation there is no indication of the special features of the subject of the crime in question, which leads to the conclusion that the subject of the illegal use of a trademark is common" (Bykodorova, A.F. The criminal legal meaning of the illegal use of a trademark: Dis. ... cand. jurid. sciences': 12.00.08 / Bykodorova Angela Fedorovna. Stavropol, 2000. p. 65).

Considering the current discussion, we consider it possible to note the following.

First of all, we fully agree with the thesis that when determining any element of a crime, first of all, it is necessary to proceed precisely from the position of the legislator. If the disposition of the criminal law norm does not say anything about the special subject of the crime, then it is possible to draw an unambiguous conclusion that the criminal act requires unambiguous qualification based on the general subject of the crime. In this regard, we cannot agree with the opinion that the crimes provided for in Article 180 of the Criminal Code of the Russian Federation are committed by special subjects a priori ^{[14, p. 5]}.

Secondly, it is difficult to deny that in a significant number of cases, persons who formally and actually fall under the definition of a special subject of crime actually participate in the commission of such crimes.

It is important to point out the results of the study of criminal cases in the category under study. In most of the cases studied, individual entrepreneurs were involved in the crime (for example, "S., being an individual entrepreneur, and operating a clothing and accessories business" (Resolution on termination of the criminal case of the Magistrate Court District No. 201 of St. Petersburg dated 09/01/2021, Case No. 1-7/2021-201, // URL: https://mirsud.spb.ru/court-sites/201/ (date of application 02/01/2024)), as well as persons who held senior positions in various enterprises and organizations. In this case, it is possible to agree with the assessment of the authors, who note the main features of a special crime subject – the presence of certain characteristics by which these subjects differ from all others. It is thanks to these characteristics that, firstly, it becomes possible to commit a crime, and secondly, the degree of its public danger increases.

In the case of crimes of the investigated category, it is possible to talk about a special subject. In particular, this is a person who has committed a crime using his official position ^{[15, p. 43]}. These are exactly the heads of enterprises and organizations that were discussed earlier. We believe that the consolidation of this feature in Part 2 of Article 180 of the Criminal Code of the Russian Federation will be a fair and adequate reaction of the legislator.

Thus, within the framework of the study, we analyzed the subjective side and the subject of the illegal use of means of individualization of goods (services, works). As a result, the following author's suggestions were made:

1. To recognize the existence of a complex and differentiated system for determining the subjective side of the illegal use of means of individualization of goods (works, services). As a general rule, these crimes can only be committed with an intentional form of guilt. However, the type of intent is determined on an alternative basis. The key in this case is the subject's attitude to the damage caused by his crime. If the subject desired the occurrence of this consequence, then the intent can only be direct, but if he consciously allowed it or treated it indifferently, then we must talk about indirect intent. At the same time, in the case of repeated crimes, it is necessary to talk only about the direct intent of committing a crime.

2. To recognize the existence of the problem of establishing and proving intent to commit a crime under Article 180 of the Criminal Code of the Russian Federation. 180 of the Criminal Code of the Russian Federation; consideration of the issue exclusively in an administrative and legal manner; introduction of new types of crimes, for example, an act that would be similar to negligence, however, not for officials.

3. To invalidate the proposals on the introduction of criminal liability for the crimes under consideration for legal entities. We believe that the available criminal legal means are sufficient to fully implement responsibility for cases of collective participation in the illegal use of means of individualization of goods (works, services).

4. To recognize the need to include in the qualified corpus delicti provided for in Article 180 of the Criminal Code of the Russian Federation such a feature as the commission of an act by a person using his official position.

We believe that the areas of improvement of criminal legislation proposed in the framework of the study are promising. Their adoption and consistent implementation will lead to an improvement in the practice of legal regulation and the implementation of criminal liability for crimes provided for in Article 180 of the Criminal Code of the Russian Federation.