A comprehensive study of the main theoretical and practical aspects of the qualification of crimes in the field of economic activity by evaluation criteria

Bikkulov Artem Eduardovich Postgraduate Student, Department of Criminal Law and Procedure, Surgut State University 628400, Russia, Khanty-Mansi Autonomous Okrug Autonomous Okrug, Surgut, Lenin Ave., 1 bikkulovartyom@gmail.com

Today, economic crime has a pronounced growth trend, which can be observed based on the reports of the Ministry of Internal Affairs in recent years both for Russia as a whole and for its individual regions. Thus, in 2020, the increase amounted to 0.5% (105.5 thousand crimes of this category), in 2021 - 11.6% (117.7 thousand), in 2022 – a slight decrease of 0.7% (87.7 thousand). In January-April 2023, 45,829 economic crimes were detected ^{[12, pp. 47-49]}. These figures, striking in their scale, indicate the unconditional relevance of the issues of countering socio–economic crime, including by criminal legal means.

At the same time, an analysis of modern legislative and law enforcement practice indicates that this area of criminal law response is "full of" a whole range of legal gaps, creating widespread difficulties and uncertainty of qualifications.

In addition, the phenomenon of qualifying crimes as a "capacious" legal category, which allows to characterize an act as criminal, subject to the legislative provisions of the Criminal Code of the Russian Federation ^[2], is interpreted by the modern scientific community and law enforcement in many ways ^{[14, pp. 212-217]}:

– firstly, as an establishment of some kind of identity between a specific act - an act of human behavior – and the legislative construction of the corpus delicti in such an act;

– secondly, as a legal assessment of what has been done in terms of the totality of signs of public danger, illegality, guilt and punishability.

Thus, the qualification of crimes is a law enforcement activity, which is the process of establishing identity between a specific act and the legislative construction of the elements of a crime, using a variety of logical techniques; the result of this activity is expressed by official consolidation in a legal act (procedural document) and recognition of the act as a crime of a certain type with reference to the relevant norm of the Criminal Code of the Russian Federation.

The very composition of the crime combines a whole group of distinctive features, the most problematic of which are evaluative, characteristic of a number of crimes, including economic ones. The establishment of the essential aspects of which is a separate problem in the legal dimension due to the lack of uniform legislative representations on their evaluative features – the concept and legal nature.

For example, N. V. Shchetinina interprets the term "evaluative signs" as factual data that do not have legislative specifics, determined by the legal consciousness of a person – a lawyer – following the circumstances of the case and the norms of the Criminal Code of the Russian Federation ^{[16, pp. 160-163]}.

A. D. Lisitskaya says that "evaluative signs", without having an exact scope of legislative explanation, are established by experts in the field of criminal law ^{[8, pp. 213-216]}.

I. V. Osipov, examining this legal category, is convinced that evaluative signs within the framework of a particular corpus delicti, there is a free assessment of the actual circumstances of the case, taking into account the peculiarities of an individual character ^{[10, pp. 78-84]}.

Each of these definitions has the right to exist, having both advantages and disadvantages. In general, the authors' judgments are correct and unified regarding the legal nature of evaluative features, expressed by an assessment of the actual circumstances of the case, free from legislative provisions, in the process of qualifying various types of crimes, determined by the legal awareness and will of a particular law enforcement officer.

The position formulated by Y. V. Truntsevsky seems to us to be the most correct in this context. The author believes that the legislator delegates part of the evaluation functions within the framework of certain types of crimes based on the circumstances of the case, in case it is not possible to establish a unified assessment of the subject, phenomenon or process due to various reasons in order to most correctly determine the content of a specific feature within the framework of the relevant criminal law norm ^{[11, p. 123]}.

At the same time, let us disagree with the respected author in that part of such a definition as "delegation of legislative powers", here we should most likely talk about providing a law enforcement entity with a "clarifying" character in the process of qualifying a particular criminal act provided for by the Criminal Code of the Russian Federation through the use of formal logic laws, as well as regulatory knowledge branches of law, namely: banking, tax, currency, etc. ^{[15, pp. 20-26]}.

The correlation of the above judgments makes it possible to determine the evaluative feature of the corpus delicti as an assessment of the actual circumstances of the case, free from legislative provisions and formulated provisions of judicial practice, in the process of qualifying various types of crimes, determined by the legal consciousness of a person, based on the specific circumstances of the case.

The very existence of "evaluation categories" within the framework of crimes creates a lot of difficulties in qualification due to the lack of their official interpretation.

In this connection, the following ways of clarifying them have been formulated in practice:

– direct reflection in the resolutions of the Plenum of the Supreme Court of the Russian Federation and materials summarizing judicial practice;

 – by specifying them in the Criminal Code of the Russian Federation itself;

– clarification of the signs of their essential content by the doctrine of law. The works of E. D. Turik, R.G. Khairullina ^{[12, pp. 47-49]}, H.A. Harutyunyan ^{[5, pp. 65-70]} and others are known in this field.

Analyzing the content of Chapter 22 of the Criminal Code of the Russian Federation – crimes in the field of economic activity – it is possible to establish the presence of the following evaluative signs – types:

1) quantitative. These are the scale of the act, the size, the consequences, the "avoidance of losses";

The legislator, within the framework of Chapter 22 of the Criminal Code of the Russian Federation, describes the parameters of such signs of criminal activity as size, income, damage abstractly, defining the lowest limit of the amount of material damage caused by the commission of a crime, legalized by appropriate notes to the articles.

At the same time, the formally defined size itself, in turn, requires additional assessment in the process of qualifying such crimes.

For example, when determining the amount of damage caused to the copyright holder of a trademark – Article 180 of the Criminal Code of the Russian Federation – there are various methods that affect the amount of damage caused by a crime, which may be different. However, the amount of damage itself should in no way depend on the chosen method of its assessment ^{[13, pp. 159-161]}.

Turning to the analysis of judicial practice ^[3], it can be concluded that the size of criminal activity itself, as an evaluative sign of economic crimes, is a material criterion characterized by the scale of its spread.

Expressed by: the valuation of the subject of the crime – Articles 171 ¹, 171 ³, 175, 186, etc. The Criminal Code of the Russian Federation; the "sum" in the scope of the scale of the criminal act (art. 172 ², 174, 174 ¹, 177, 191 and others . THE Criminal Code OF the Russian Federation).

The category of "avoiding losses" in crimes – for example, Articles 185 ³, 185 ⁶ of the Criminal Code of the Russian Federation, should be defined as non–occurring consequences, namely: material losses - failure to receive proper income, excessive payments, reduction in the value of financial instruments, goods or foreign currency ^{[9, pp. 347-352]}.

2) high-quality, not measurable. Within the framework of Chapter 22 of the Criminal Code of the Russian Federation, they are expressed as "unreliability" or "malice".

Here, as a practical example, we can cite the verdict of the Anapa City Court of the Krasnodar Territory dated May 21, 2020 in case No. 1-182/2020, according to which M. was found guilty of malicious evasion from repayment of accounts payable on a large scale. In this case, the court recognized M.'s criminal actions to intentionally conceal his income by providing the bailiff with a certificate from the place of work on the removal of restrictions from the salary account opened in the name of the debtor in Sberbank PJSC, as well as information, according to the account statement, about a significant excess the funds received into his account correspond to the amount of the established salary, namely 6,691,195.94 rubles. ^[4].

3) cumulative, characterized by serious harm and consequences.

As an example of the first "evaluative feature", we give Article 179 of the Criminal Code of the Russian Federation, where substantial harm is caused to the rights and legitimate interests of the victim or his relatives ^{[7, pp. 151-152]}.

Grave consequences as an evaluative sign are subject to determination based on the specific circumstances of the case.  For example, Part 4 of Article 183 of the Criminal Code of the Russian Federation is classified as such by the legislator ^{[6, pp. 3-7]}:

– transfer of confidential information to foreign services;

– causing significant economic damage by the act of the Russian Federation;  

– disruption of the implementation and implementation of promising research.

In any case, the severity of the commission of such a criminal offense will be determined by the court by determining the following set of circumstances:

– the immediate importance and significance of information information;

– the volume of their transmission;

– the subject of the transfer and receipt of such confidential information;

– the nature of the use of the transmitted information;

– damage caused , etc .

Individual experts in the field of criminal law – E.A. Cheretaeva, L.O. Yastrebova ^{[14, pp. 212-217]} – have repeatedly pointed out the objective need for a complete rejection of evaluative categories in the composition of crimes in the field of economic activity. In substantiation of their judgments, the authors point to evaluative signs as a vestige of the criminal law, legalized back in 1996 and already lost its original meaning and relevance in its modern interpretation.

Let us disagree with these judgments, because such legal constructions as "significant damage" caused by a crime, "unreliability", "malice" and others are interpreted by a modern law enforcement officer taking into account the latest changes (updating) of the criminal legislation of the Russian Federation and the peculiarities of modern criminal policy. In our deep conviction, it is impossible to deny the inevitability of the existence of evaluation categories, at the same time, the very existence of such categories in the law can be justified only in cases where they are correctly and uniformly applied in practice.

Summarizing all of the above, it seems to us advisable to adopt a hotel type of the Plenum of the Supreme Court of the Russian Federation, explaining the basic provisions (basics) of such categories – their concept, general methods of clarification, types, taking into account the economic sphere of management and legalized criminal law prohibition.

Thus, we come to the conclusion that "evaluative signs", being an integral part of the criminal law norms of Chapter 22 of the Criminal Code of the Russian Federation, namely the categories of value, quantitative indicators for determining the size, income, damage, etc. By their legal essence, they are a kind of "critical threshold", taken into account by the law enforcement officer in the process of qualifying crimes, allowing to distinguish a criminal act from a non–criminal one, characterizing the quality of antisociality in an illegal act - a public danger.

The author proposes to interpret the evaluative feature of the corpus delicti as an assessment of the actual circumstances of the case, free from legislative provisions and formulated provisions of judicial practice, in the process of qualifying various types of crimes, determined by the legal consciousness of a person, based on the specific circumstances of the case.

The variety of evaluative features reflected in the blank dispositions of economic crimes in practice entails a lot of difficulties in qualification. In this regard, it seems to us advisable to adopt a hotel type of the Plenum of the Armed Forces of the Russian Federation, explaining the basic provisions (basics) of such categories:

 – their concept,

– general methods of understanding,

– types, taking into account the economic sphere of management and the legalized criminal law prohibition.