The main criteria for distinguishing Article 180 of the Criminal Code of the Russian Federation and Article 14.10 of the Administrative Code of the Russian Federation

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

One of the problems of modern law enforcement practice is the delineation of the crime provided for in Article 180 of the Criminal Code of the Russian Federation from an administrative offense, responsibility for which is provided for in Article 14.10 of the Administrative Code of the Russian Federation.

The legislation on administrative offences, represented primarily by the Code of Administrative Offences of the Russian Federation, contains many components of illegal acts, which are substantially similar to the components of criminally punishable acts. In this regard, in law enforcement practice, certain difficulties often arise in distinguishing such acts from each other. It is customary to talk about the problem at the general and special levels.

At the general level, the problem is related to the difficulty of distinguishing crimes and administrative offenses in general, regardless of the type of specific illegal acts. Many authors come to the same conclusions based on the results of their research, namely, they recognize the existing difficulties in distinguishing crimes and administrative offenses ^{[1, p. 59; 2, p. 126; 3, p. 256]}. The general problem of distinguishing the acts under consideration is described quite succinctly in a scientific article by I.N. Ivanenko and A.S. Penkova. The authors, based on a comparative comparison of a number of illegal acts, indicated that the line between them is "very thin, and in certain cases practically conditional" ^{[4, p. 6]}.

To date, it is customary to identify several basic approaches to solving the problem of distinguishing crimes and administrative offenses. Special attention should be paid to the ratio of public danger and harmfulness of these acts.

Thus, some authors suggest that administrative offenses can be characterized both from the point of view of public danger and in the context of harmfulness (Makuyev, R.H. Offenses and legal liability: Textbook / Makuyev R. H.; Orlov. Jurid. in-T. - Orel : OrYU, 1998. p. 29). Other authors, on the contrary, do not consider it possible to recognize a sign of public danger as characteristic of administrative offenses ^{[5, p. 160]}.

Considering the current discussion, the following should be noted.

Firstly, the concepts of social danger and social harmfulness are not mutually exclusive. Obviously, the act can be both dangerous and harmful. In any case, such an act is undesirable for society, and therefore prohibited by the state. And this prohibition is fixed at the legislative level.

Secondly, the difference between the concepts of "danger" and "harm" significant. So, considering danger as "an opportunity, a threat of something very bad, some kind of misfortune" (Ozhegov, S.I. Explanatory Dictionary of the Russian language: 80,000 words and phraseological expressions / S. I. Ozhegov and N. Y. Shvedova; Russian Academy of Sciences, Institute of Russian Language named after V. V. Vinogradova. - 4th ed., add. - Moscow: A TEMP, 2006. – 938. p.), and harm – as "damage, spoilage, loss of material or moral good, violation of personal rights, legal or illegal" (Dahl, V.I. Explanatory Dictionary of the living Great Russian language. Vol. 3. M., 1998. P. 243), you can to come to the conclusion that these terms are of different order. The interpretation of these concepts allows us to identify a significant semantic difference between them – the presence of actual damage to public relations. In this regard, we consider it possible to agree with E.G. Usov's assessment that "public danger indicates the potential ability of a phenomenon to disrupt established public order, disrupt its mechanisms, while harm indicates real damage (a real change that has occurred or is likely to occur in the material world)" (Usov, E.G. Criminal liability for illegal trafficking of special technical means intended for the secret receipt of information: abstract. dis. ... cand. Jurid. sciences'. 12.00.08. Omsk: 2019. 23 c).

Thirdly, it is impossible not to take into account the provisions of the main normative legal acts regulating responsibility for the acts in question. Both the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation contain provisions on exemption from liability in connection with the insignificance of the committed act. Specialists as a criminal (Criminal law of the Russian Federation. General part: textbook / edited by prof. L.V. Inogamova-Hegai. — 3rd ed., reprint. and add. — Moscow: INFRA-M, 2023. — 354 p.), and administrative (Popova, N.F. Administrative law: textbook and workshop for universities / N. F. Popova. — 6th ed., reprint. and add. — Moscow: Yurait Publishing House, 2023. — 343 p.) the rights rightly point out that insignificance characterizes precisely the degree of public danger of the committed act.

Nevertheless, we adhere to the classical theory that only crimes are socially dangerous. Even if the position is adopted that administrative offenses have a public danger, it is necessary to make a reservation, according to which this concept is special, has no signs of a criminal nature. Thus, we believe it is possible to take the second of the previously announced positions.

At a special level, the problem is manifested by the example of specific types of illegal acts, including those considered within the framework of this article.

Thus, Article 14.10 of the Administrative Code of the Russian Federation provides for administrative liability for the illegal use of means of individualization of goods (works, services). As you can see, at the naming level, the illegal acts in question are completely similar to each other. The issue of their differentiation has been repeatedly raised in the scientific literature. Many authors devoted their works to this issue (M.Y. Bondarev (Bondarev, M.Y. Criminal law protection of intellectual rights: abstract. dis. ... cand. Jurid. sciences'. 12.00.08. Moscow: 2008. 28 p.), N.E. Permyakova (Permyakova, N.A. Administrative responsibility for the illegal use of trademarks: abstract. ... cand. Jurid. M., 2011. 233 p.), D. E. Salnova (Salnova, D.E. Administrative responsibility for the illegal use of a trademark: abstract of the Candidate of Legal Sciences. 12.00.14. M., 2008. 28 p.), S. M. Treiger (Treiger, S.M. Criminal liability for the illegal use of a trademark: abstract. ... cand. Jurid. sciences'. 12.00.08. M., 2011. 27 p.) and others).

The differentiation of the norms under consideration is possible according to several basic criteria. Based on the provisions of the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation, we can note that the crime in this case encroaches on public relations in the field of economic activity, whereas administrative offenses are in the field of entrepreneurial activity. In our opinion, it is extremely difficult to distinguish between these objects of encroachment. Entrepreneurial activity is economic – in many ways, these types of activities are similar, one follows from the other. In this regard, choosing exactly such a criterion does not seem to us to be the correct and effective solution to the current problematic situation.

In the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/26/2007 No. 14 "On the practice of consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as on the illegal use of a Trademark" (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/26/2007 No. 14 "On the practice of consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as on the illegal use of a trademark" [Electronic resource]: Access from the help.-legal system "Consultant plus"URL:https://www.consultant.ru/document/cons_doc_LAW_68054/#dst100052 (date of application: 06/20/2023) the amount of damage caused is indicated as the main such criterion. Thus, in accordance with paragraph 5 of paragraph 25 of the PPVS No. 14, "if the acts of the perpetrator, formally falling under the scope of part 1 of Article 146, Articles 147 and 180 of the Criminal Code of the Russian Federation, caused damage not exceeding the limits of a large size, or if they were committed in an amount not exceeding the limits of a large one (parts 2 and 3 of the Article 146 of the Criminal Code of the Russian Federation), the deed may entail civil or administrative liability under part 1 or 2 of Article 7.12 or under Article 14.10 of the Code of Administrative Offences of the Russian Federation."

On the one hand, it is difficult not to support the position of the Plenum of the Supreme Court of the Russian Federation. Indeed, it is obvious that it is the establishment of the amount of damage caused that is the most universal way to determine exactly what kind of illegal act was committed. On the other hand, it is also obvious that under certain circumstances this criterion will not work, since the disposition of Part 1 of Article 180 of the Criminal Code of the Russian Federation includes another alternative feature in which criminal law qualification of illegal use of means of individualization of goods (works, services) is possible, we are talking about the repeated commission of this illegal act.

In the considered composition of the crime, repetition involves the commission of two or more acts consisting in the illegal use of a trademark, service mark, appellation of origin or similar designations for homogeneous goods (in this case, there may be both repeated use of the same means of individualization of goods (services), and simultaneous use of two or more more than other people's trademarks or other means of individualization on one unit of goods). This position is set out in Resolution No. 14 of the Plenum of the Supreme Court of the Russian Federation dated April 26, 2007 "On the practice of consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as on the illegal use of a Trademark" (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/26/2007 No. 14 "On the practice of consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as the illegal use of a trademark" [Electronic resource]: Access from the help.-legal system "Consultant plus"URL:https://www.consultant.ru/document/cons_doc_LAW_68054/#dst100052 (accessed 06/20/2023). If the specified act is committed once, the person will be subject to administrative liability provided for in Article 14.10 of the Administrative Code of the Russian Federation.

For example, N.A. Lopashenko, characterizing the repetition under Part 1 of Article 180 of the Criminal Code of the Russian Federation, suggests that "the second criminal fact is the commission of illegal use of a trademark, which did not entail major damage" (Lopashenko, N.A. Crimes in the field of economics: Author's commentary on the criminal law (Section VIII of the Criminal Code of the Russian Federation). - Moscow: Walters Kluwer, 2006. - p. 442.).

According to T.V. Pinkevich, repetition occurs in cases "when a person repeats the fact of illegal use of a trademark after the entry into force of a court decision in a civil case obliging to stop such an act, or after bringing a person to administrative responsibility for illegal use of a trademark" ^{[6, p. 104]}.

The position of V.I. Tyunin, A.G. Antonov, L.V. Gotchina deserves attention. According to the authors, "a palliative solution would be an explanation by the Supreme Court of the Russian Federation on the possibility of applying administrative prejudice and its conditions in cases of crimes provided for in Article 180 of the Criminal Code of the Russian Federation. Scientists believe that the norm of Article 180 of the Criminal Code of the Russian Federation requires transformation, at least for the simple reason that the criminalization of a criminal offense was carried out during a period of negative attitude of the developers of the criminal law to the use of the mechanism of administrative prejudice, which appeared for the first time in 2011. As for the legal and technical possibility of using administrative prejudice, it is quite logical and consistent" ^{[7, p. 156]}.

To confirm the position of the authors, we give an example of the decision of the justice of the peace of the judicial district No. 170 of St. Petersburg dated 02/04/2022 (Resolution of the justice of the peace of the judicial district No. 170 of St. Petersburg dated February 4, 2022 in case No. 1-3/2022-170 URL: https://www.mirsud.spb.ru/cases/detail/170/?id=1-3%2F2022-170 (date of appeal: 07/09/2024)), where the judge, confirming the intent the repeated illegal use of someone else's trademark is based on the fact that an individual entrepreneur, being brought to administrative responsibility under Part 2 of Article 14.10 of the Administrative Code of the Russian Federation by the decision of the Arbitration Court of the city of St. Petersburg dated 07/21/2021, which entered into force with the imposition of administrative punishment in the form of a warning, acquired smartphone cases without registration of relevant documents on 08/29/2021 with trademarks applied to them, presented them for retail sale, thereby taking measures to sell products. By his actions, D. repeatedly carried out the illegal use of trademarks.

On the other hand, according to S.A. Timko, "such a technique of legal technique will not be an administrative prejudice due to the fact that Article 180 of the Criminal Code of the Russian Federation does not mention administrative punishment and the limitation period for bringing to administrative responsibility. In addition, in order to bring a person to criminal responsibility for committing a crime related to the misuse of registered trademarks, there is no provision for a decree on an administrative offense provided for in Article 14.10 of the Administrative Code of the Russian Federation. In this case, the illegal use of someone else's trademark is considered not as an offense, but as part of an ongoing single crime consisting of several acts of illegal use of a trademark" ^{[8, p. 42]}.

S.V. Avetisyan noted that "in his address to the Federal Assembly on December 3, 2015 The President of the Russian Federation, Vladimir Putin, expressed his approval of the administrative prejudice. He stressed that its use is justified both in the case of criminalization and in the case of decriminalization of acts. The President noted the need for severe punishment for those who knowingly violate the law, and humane treatment of those who make mistakes" ^{[9, p. 70]}.

According to A.V. Ivanchin ^{[10, p. 99]} and E.L. Sidorenko ^{[11, p. 61]}, criminal legislation, in particular Article 180 of the Criminal Code of the Russian Federation, contains a crime with the so-called hidden administrative prejudice, where "repetition" acts as a constructive sign.

S.V. Avetisyan adheres to a different position ^{[9, p. 69]}, he considers the authors' opinion controversial due to the fact that the construction of Article 180 of the Criminal Code of the Russian Federation from the point of view of legal construction technique seems to him "defective" and proposes to exclude from part 1 of Article 180 of the Criminal Code of the Russian Federation the sign of "repetition". The fact is that in order to identify the fact of illegal use of a trademark, law enforcement agencies carry out operational investigative measures, including verification purchases. It follows that the phat of illegal use should be identified during the first operational search event. The fact of a single and illegal use of someone else's trademark is not a crime under Article 180 of the Criminal Code of the Russian Federation, unless major damage has been caused to the trademark owner. Thus, in order to suppress an administrative offense, a systematic violation of the law is required in order to meet the goals of operational investigative activities. The practice of applying the law is questionable due to the sign of "repetition", which creates confusion. In light of this, the question arises as to whether such an act can be considered over. Law enforcement officers are forced to actually provoke the offender in order to prevent this crime.

Some legal scholars, such as A.V. Galakhova, P. S. Yani, A. E. Zhalinsky, emphasize the difference between the concepts of "repetition" and "repetition of crimes", while arguing that these terms are not synonymous in the context of the multiplicity of illegal acts. In their opinion, "in Article 16 of the Criminal Code of the Russian Federation it was not just about the repetition, but about the repetition of crimes, whereas in Article 180 of the Criminal Code of the Russian Federation it is said about the repetition of acts" ^{[12, p. 143]}. Arguing their point of view, scientists point to the construction of the disposition of Article 180 of the Criminal Code of the Russian Federation, which uses the principle that in the case of two or more acts, each of which in itself can be considered an administrative violation, together they can form a crime.

The current situation is largely determined by the gap allowed by the legislator. The point is that for offenses for which responsibility comes under Article 14.10 of the Administrative Code of the Russian Federation, there is no sign of repetition. The absence of this feature leads to very great difficulties in determining the moment of calculating the period of bringing a person to responsibility.

In order to overcome the identified problem, we believe it is possible to amend the Administrative Code of the Russian Federation in terms of settling liability for repeated commission of an administrative offense provided for in Article 14.10 of the Administrative Code of the Russian Federation. In addition, we believe that the possible normative consolidation of the criteria for the repetition of an illegal act and the duration of its validity within the framework of an administrative prejudice will help to offset the difficulties encountered by a law enforcement officer in differentiating the composition of offenses and their correct qualification.