Criminalization as an element of criminal law policy in the field of fair competition protection

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

One of the important modern directions of the state policy of the state is the criminal law counteraction to violations of antimonopoly legislation. Recently adopted a number of documents defining priority areas of criminal law policy in the field of fair competition protection [Decree of the President of the Russian Federation dated 05/13/2017 No. 208 "On the Strategy of Economic Security of the Russian Federation for the period up to 2030" // URL: http://www.kremlin.ru/acts/bank/41921 (date of application: 09/15/2023); Decree of the President of the Russian Federation dated 2.07.2021 no. 400 "On the National Security Strategy of the Russian Federation" // URL: http://publication.pravo.gov.ru/Document/View/0001202107030001 (date of address: 09/15/2023); List of instructions from the President of the Russian Federation: approved By the President of the Russian Federation No. PR-1525 dated 08/05/2017 // URL: http://kremlin.ru/acts/assignments/orders/55315 (date of application: 09/15/2023); Decree of the President of the Russian Federation dated 12/21/2017 No. 618 "On the main directions of state policy on the development of competition" // URL: http://kremlin.ru/events/president/news/56460 (date of application: 09/15/2023); Decree of the Government of the Russian Federation dated 09/22/2021 No. 2424-r "On approval of the National Plan ("roadmap") for the development of competition in the Russian Federation for 2021-2025" // URL: http://static.government.ru/media/acts/files/1202109080001.pdf (date of application: 09/15/2023); Decree of the Government of the Russian Federation dated 06/17/2019 No. 1314-r "Interdepartmental program of measures to identify and suppress cartels and other agreements restricting competition for 2019-2023" // URL:  http://static.government.ru/media/files/hZAOhv5nyENRglMoTLAc8UoK1k52MzZq.pdf (date of application: 09/15/2023); Strategy for the development of Competition and Antimonopoly Regulation in the Russian Federation for the period up to 2030: approved by the Protocol of the Presidium of the Federal Antimonopoly Service of Russia dated 07/03/2019 No. 6 // URL: https://fas.gov.ru/documents/685792 (date of application: 09/15/2023); Draft Law No. 848392-7 "On Amendments to the Federal Law "On Protection of Competition"and certain legislative acts of the Russian Federation in terms of improving the effectiveness of identifying and suppressing agreements and coordinated actions restricting competition" // URL: https://sozd.duma.gov.ru/bill/848392-7 (date of appeal: 09/15/2023); draft law No. 848246-7 "On Amendments to Article 178 of the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation" // URL: https://sozd.duma.gov.ru/bill/848246-7 (date of appeal: 09/15/2023).], indicates the official recognition in the country of the high public danger of violations of antimonopoly legislation encroaching on one of the main elements of the market economy – competition, which pose a threat to national, including economic security of the country.

The analysis of the listed documents allows us to conclude that there are several key indicators in the designated activities of the state, among which it is necessary to highlight, firstly, the possible criminalization of anti-competitive agreements other than the cartel, in particular, with the participation of government officials, secondly, the question of the expediency of criminalizing other anti-competitive acts, thirdly, on the criminalization of anti–competitive acts in accordance with the prohibitions of the special law - FZ dated 07/26/2006 "On Protection of Competition".

It should be noted that criminal liability for criminal encroachments on competition may occur not only under Articles 178 of the Criminal Code of the Russian Federation "Restriction of competition", but also under Articles 169, 285, 286 of the Criminal Code of the Russian Federation, as anticompetitive acts of officials of state authorities and local self-government, as well as under Articles 128 ¹, 146, 147, 180 of the Criminal Code of the Russian Federation and recently included in the Criminal Code of the Russian Federation Articles 185 ³, 185 ⁶, whose signs have a potential relation to unfair competition, as well as under Article 200 ⁴ of the Criminal Code for restricting competition in procurement. This conclusion is based on the analysis of law enforcement conducted by the author of the study for the period 2009-2022 (except for new articles, the practice of which has still been formed) ^{[1, pp. 44-83]}. The listed articles of the Criminal Code of the Russian Federation, except 178, contain a description of the signs of a common act, without mentioning the criteria of an anticompetitive orientation, there is no official accounting of such crimes as directed against fair competition. Therefore, it is very problematic to assess their effectiveness in protecting competition against the background of a fairly significant number of various violations of antimonopoly legislation detected by the antimonopoly authority, as will be discussed later.

The Federal Law "On Protection of Competition" contains prohibitions on a number of acts, which, in particular, include: 1) monopolistic activity in the form of abuse of a dominant position, limiting the competition of agreements and coordinated actions (Chapter 2); 2) unfair competition in several forms, the list of which is not limited by law (Chapter 2.1); 3) restricting competition activities of public authorities and local government in the form of independent actions and in the form of agreements (Chapter 2.1). 3), including violations in the provision of state or municipal preferences (Chapter 5); 4) violations at auction (Chapter 4).

Thus, the existing criminal law prohibitions indicate the criminalization of certain types of anticompetitive acts prohibited by a special law, which partially corresponds to the principle of communication highlighted by L.N. Krivochenko, according to which the classification should follow not only from the internal connections of the signs of crimes, giving them a certain integrity, forming a particular type of crime, as well as the external relations of certain types of crimes among themselves, but also the relations between crimes and other offenses [In op. Kadnikova N. G. Classification of crimes under the criminal law of Russia: dis. ... doct. Jurid. M., 2000. pp. 33-34]. It is the latter criterion of the principle of communication that is of great importance for justifying the identification of a group and subgroups of anti-competitive crimes predetermined by the prohibitions of the Federal Law "On Protection of Competition".

Meanwhile, the rationale for criminalizing anti-competitive acts in general and cartels in particular is a matter of debate. The answers to the questions raised can be found by analyzing the principles that underlie the criminalization of any other act. It should be noted that criminalization as the first stage in the complex process of implementing criminal law policy justifies the root cause of the criminal law ban, which means, first of all, the public danger of the act. According to A.I. Korobeev, criminalization is the process of identifying socially dangerous forms of individual behavior, recognizing the permissibility, possibility and expediency of criminal legal struggle against them and fixing them in the law as criminal and criminally punishable ^{[2, p. 49]}. Thus, criminalization of acts means a positive answer to the question of the necessity and expediency of criminal liability for their commission, which is not the only and not the main type of liability that occurs for violation of antimonopoly legislation.

The principles of criminalization proposed in science ^{[2, pp. 66-89; 3, pp. 210-242; Nechaev A.D. Conceptual foundations and theoretical modeling of criminalization and decriminalization: dis. ... cand. Jurid. sciences'. Saratov, 2017. pp. 101-107]}, which are also reflected in the Concept of modernization of criminal legislation in the economic sphere, are [The concept of modernization of criminal legislation in the economic sphere. M.: Liberal Mission, 2010. p. 46]:

- the principle of sufficient public danger of criminalized acts for the introduction of a criminal prohibition;

- the principle of the relative prevalence of the act;

- the principle of the possibility of a positive impact by criminal legal means on socially dangerous behavior;

- the principle of the predominance of the positive consequences of criminalization;

- the principle of saving criminal repression;

- the principle of non-redundancy of the criminal law prohibition;

- the principle of timely criminalization.

As noted above, criminalization is based on the public danger of an act, the degree and nature of which determines the direction of the criminal legal impact on it. In science, public danger is given different meanings, which indicates its paramount importance for separating a criminal act from an unapproachable one and deciding on the need to counteract it by criminal legal means ^{[2, p. 65; Osokin R. B. Theoretical and legal foundations of criminal liability for crimes against public morality: dis. ...Dr. Jurid. M., 2014. p. 368; 4, p. 90]}.

N.A. Lopashenko sees the essence of the principle of sufficient public danger for the introduction of a criminal prohibition of criminalized acts in the ability to cause significant damage to law enforcement interests, to be harmful to society so much that it requires the use of the strictest measures of state coercion ^{[5, p. 253]}.

It seems that the criminalization of anticompetitive acts is based on their public danger, the quantitative and qualitative characteristics of which should be determined by economic and social factors of their impact on public welfare, and the assessment of harm caused by anticompetitive behavior as one of the criteria of public danger should be established primarily on the basis of an economic approach. An earlier study of the public danger of anti-competitive acts leads to the following conclusions justifying the level of their public danger:

- monopolies, the forms of which economists recognize both cartels and entities occupying a dominant position in the market, can cause damage in the amount of 3-4% of the domestic national product of the respective state, 5-6% of the gross domestic product and above;

- the forms of harm from the cartel are very diverse and can be expressed in the form of a decline in production, a shortage of goods, a decrease in purchasing power, liquidation of legal entities, including as a result of bankruptcy, increased budget expenditures, etc., including in strategically important areas for the country;

- the activities of state bodies bring even greater harm to society and the state, as a result of which barriers to market entry are established both within the framework of current legislation and in the form of illegal actions that impede the development of competition;

- the economic analysis of corruption leads to the conclusion that even poor pricing, which is seen as the main negative effect of monopolies, is more preferable than a corrupt administrative mechanism;

- support and protection of economic competition is one of the elements of the anti-corruption policy of the state, because the more business entities in the market and the higher the level of competition between them, the weaker the consequences of corruption;

- unfair competition can cause harm no less than monopolistic activity, for example, information asymmetry can lead to the emergence of a monopoly, withdrawal of business entities from the market, disappearance of high-quality goods on the market, decrease in the investment attractiveness of Russian markets, damage to an unlimited number of business entities, decrease in market share;

- the relevance of protection against unfair competition and protection of intellectual property rights in Russia is increasing due to the innovative activity of business entities;

- the harmfulness of monopolistic activities that limit competition between the activities of authorities and management, and unfair competition is a determining factor in recognizing them as market failures along with such phenomena dangerous to the life and activities of society and the state as environmental shocks, socio-political conflicts, including wars, revolutions and terrorism, that is, situations in which free action market mechanisms are unable to ensure the rational allocation and use of resources ^{[6, pp. 93-107]}.

Thus, the high risks of anti-competitive crimes that they create for the economic security of the country indicate the reflection of the principle of sufficient public danger for the introduction of a criminal ban by criminalizing the acts that were the subject of this study.

The principle of the relative prevalence of an act, according to R.B. Osokin, consists in the fact that criminal law regulates the form of reaction of society and the state, not non-isolated (accidental), but repeated acts [Osokin R. B. Decree. soc. p. 385]. The attitude to the prevalence of an act as an unconditional basis for establishing its criminal law prohibition causes justified criticism in science. The correct approach to understanding this principle is laid down in the decision of the Constitutional Court of the Russian Federation dated April 25, 2001 No. 6 "In the case of checking the constitutionality of Article 265 of the Criminal Code of the Russian Federation in connection with the complaint of citizen A. A. Shevyakov", in which the court recognized the right of the state to establish criminal liability for socially dangerous acts that, due to their prevalence they cause significant harm and cannot be prevented by other legal means [Resolution of the Constitutional Court of the Russian Federation dated 04/25/2001 No. 6 "In the case of checking the constitutionality of Article 265 of the Criminal Code of the Russian Federation in connection with the complaint of citizen A. A. Shevyakov" // Collection of Legislation of the Russian Federation. 2001. No. 23. St. 2408]. That is, the sheer number of deviant behavior is not yet a reason to criminalize it – they must be harmed in a way that cannot be avoided, despite existing other legal mechanisms unrelated to criminal prosecution.

It is advisable to assess the prevalence of anti-competitive acts taking into account the statistics of the antimonopoly authority. First of all, it is necessary to note the situation with the prevalence of cartels. As noted earlier, the cartel is a latent offense, business entities will always hide the existence of an anti–competitive agreement between them. With the improvement of antimonopoly policy measures, business entities – members of cartels – are seeking new means of conspiracy to conceal their activities from regulatory authorities. According to some foreign estimates, the effectiveness of cartel detection may be only 13-17% ^{[7, pp. 531-536]}.

But even in this situation, the antimonopoly authority annually identifies a large number of cartels. Thus, in 2022, the antimonopoly authority initiated 301 cases of agreements restricting competition, of which 109 cases of collusion at auction; in 2021 – 420 cases of agreements restricting competition, of which 187 cases of collusion at auction; in 2020 – 625 cases, of which 247 cases of collusion at auction in 2019 – 424 cases of cartels, of which 320 cases of collusion at auction; in 2018 – 384 cases of cartels, of which 332 cases of collusion at auction; in 2017 – 423 cases of cartels, of which 310 cases of collusion at auction; in 2016 – 300 cases, of which 298 cases of collusion at auctions [FAS reports on the state of competition in the Russian Federation (2016-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date of access: 07/19/2023)].

Countering unfair competition is also carried out primarily by the Antimonopoly body, which is revealed in 2006, 399, 2007 – 423, 2008 – 395, 2009 – 687, 2010 – 927, 2011 – 1 065, 2012 – 1 132, 2013 – 175 1, 2014 – 136 1, 2015, 1 113, 2016 – 453, 2017 – 409, 2018 – 517, 2019 – 427, 2020 – 320, 2021 – 271, 2022 - 253 facts of unfair competition [Reports of the FAS on the state of competition in the Russian Federation (2007-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date accessed: 19.07.2023)].

Among the acts that constitute unfair competition, the following distribution of its forms is recorded [FAS reports on the state of competition in the Russian Federation (2018-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date of access: 07/19/2023)] (table 1).

Table 1 – The number of cases of unfair competition identified by the antimonopoly authority, for which decisions on recognition of violations or warnings were issued

Administrative control over compliance with legislation on the use of insider information in commodity markets, violation of which leads to asymmetry of information in the markets, is in the field of attention of the Central Bank of the Russian Federation. His practice records a relatively small number of violations related to market manipulation and illegal dissemination of insider information. So, in 2017, 10 facts of manipulation and 2 facts of illegal dissemination of insider information were revealed, in 2018 – 14 and 2, in 2019 – 16 and 1, respectively; the number of cases of transfer of materials to law enforcement agencies was 6 in 2017, 2 in 2018, 7 in 2019 ^{[8, p. 352]}.

For many years, the anticompetitive activities of the authorities have been characterized by a large number of detected violations. So, the facts of publication of acts and actions, including agreements and concerted actions by the Federal Executive authorities, Executive authorities of constituent entities of the Russian Federation, bodies of local self-government aimed at the prevention, limitation, elimination of competition (articles 15 to 21 of the Federal law "On protection of competition"), it was revealed in 2006, 460 2, 2007 – 2 970, 2008 – 304 4, 2009 – 5 820; 2010 – 982 6, 2011 – 6 384, 2012 – 5 386, 2013 – 364 5, 2014 – 4 515 2015 – 005 4, 2016 – 340 1, 2017 – 1 260, 2018 – 1 092, 2019 – 1 017 2020 725; 2021 – 611; 2022 – 584 [Reports of the FAS on the state of competition in the Russian Federation (2007-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date accessed: 19.07.2023)]. Of these, 130 cases were initiated in 2022 on the conclusion of anti–competitive agreements with authorities; in 2021 – 146, in 2020 – 197; in 2019 – 320, in 2018 – 300, in 2017 – 204, in 2016 - 262 [FAS reports on the state of competition in the Russian Federation Federation (2016-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date of access: 07/19/2023)].

The decline in the number of violations under consideration is due to changes in the Federal Law "On Protection of Competition", which have shown their effectiveness here.

Among the violations in the procurement identified by the antimonopoly authority, the most common are the acts provided for in Part 2 of Article 7.30 of the Administrative Code related to the submission of applications for participation in an auction or tender and their consideration, as well as Part 4.2 of the same article, which provides for responsibility for approving documentation on participation in tenders in violation of legislative requirements. Thus, 5,439 cases were initiated in 2021 for violations under Part 2 of Article 7.30 of the Administrative Code of the FAS, in 2020 – 6,695, in 2019 – 6,588, in 2018 – 7,057; according to Part 4.2, 9,015 cases were initiated in 2021, in 2020 – 9 419, 2019 – 9,602, in 2018 - 10,457 [FAS reports on the state of competition in the Russian Federation (2018-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date of access: 07/19/2023)].

The official statistics of the Supreme Court of the Russian Federation cannot fully reflect the number of convicts in cases initiated on the grounds of acts directed against fair competition, since, firstly, not every fact of violation of antimonopoly legislation has signs of a crime, secondly, most of the criminal law norms according to which anti-competitive acts are qualified, contains general signs of a crime, which means that a variety of types of illegal behavior can be qualified, the signs of which coincide with the signs of the compositions contained in the articles of the Criminal Code of the Russian Federation. It is possible to identify cases of qualification of anti-competitive violations according to them among the entire mass of recorded crimes only by studying the content of sentences held under such articles of the Criminal Code of the Russian Federation.

Thus, according to the results of the consideration of facts about cartels by law enforcement agencies in 2022, 12 criminal cases were initiated under Article 178 of the Criminal Code of the Russian Federation, in 2021 – 17, in 2020 – 21, in 2019 – 22, in 2018 – 15, in 2016 – 3 [FAS reports on the state of competition in the Russian Federation Of the Russian Federation (2016-2022)], but only a few were sent to court, which was reflected in the judicial statistics of the Supreme Court of the Russian Federation on conviction for acts provided for in Article 178 of the Criminal Code of the Russian Federation [Judicial statistics data (2010-2023) // URL: http://www.cdep.ru/index.php?id=79 (date of access: 8.12.2023)] (Table 2).

Table 2 – The number of convicts under Article 178 of the Criminal Code of the Russian Federation

Statistics on the number of convicts under articles of the Criminal Code of the Russian Federation containing signs of unfair competition cannot confirm the data of the antimonopoly authority [Judicial statistics data (2009-2023) // URL: http://www.cdep.ru/index.php?id=79 (date of application: 12/15/2023)] due primarily to the lack of interaction between the antimonopoly and law enforcement agencies in this area (Table 3).

Table 3 – The number of people convicted of crimes containing signs of unfair competition of the Criminal Code of the Russian Federation, and sentences in which such signs were established

A large number of convicts under Article 128 ¹ of the Criminal Code of the Russian Federation is explained by researchers of the Criminal Law Institute of slander by social, cultural, domestic and legal problems of citizens' lives [Shakhmanaev K. A. Criminal law protection of honor and dignity of the individual: abstract. ... cand. Jurid. M., 2009. p. 6.]. Of course, to a greater extent these reasons are not related to unfair competition in the form of discrediting an economic entity – an individual entrepreneur. In their research, the authors of this problem refer to the domestic practice of civil protection of business reputation as the main mechanism of its protection for business entities [Vlasov A. A. Problems of judicial protection of honor, dignity and business reputation: dis. ...Dr. Jurid. M., 2000. p. 127; Serebruev I. V. Crimes encroaching on the integrity of competitive relations: genesis, system, criminal law characteristics: dis. ... cand. Jurid. sciences'. Yekaterinburg. 2016. p. 127]. According to judicial statistics, the number of cases on claims for the protection of honor, dignity and reputation, considered annually both in courts of general jurisdiction and in arbitration courts resolving disputes on the protection of business reputation in the field of economic activity, is stable and averages 5,000 cases in courts of general jurisdiction and 800 cases in arbitration courts per year [Review of the practice of court consideration of cases on disputes on the protection of honor, dignity and business reputation : approved By the Presidium of the Supreme Court of the Russian Federation on 03/16/2016 // SPS "Garant"]. A comparison of statistical data indicates that the civil law mechanism for the protection of violated rights in defamation and discredit is more in demand than the criminal law, which can be applied to the protection of the rights of individual entrepreneurs.

As a result of studying the content of sentences in cases initiated under Article 146 of the Criminal Code of the Russian Federation, it was found that the prevalence of crimes provided for by it is mainly associated with copying counterfeit computer programs from the Internet, which are popular in the ordinary life of citizens and in the professional sphere. The reason for their commission lies in the availability for copying of these counterfeit intellectual property objects and their demand due to the low price, and the sale of counterfeit computer software is a source of income for both working and non-working citizens. Unfair competition among the acts providing for the signs of Article 146 of the Criminal Code of the Russian Federation is a small percentage – 6% of the total number of sentences studied.

It is necessary to pay attention to the prevalence of acts qualified in parts of the article under consideration: in the course of our study, crimes provided for only in parts 2 and 3 of Article 146 of the Criminal Code of the Russian Federation were identified, and only one verdict, which took place in 2016, judicial statistics recorded on the grounds of part 1 of Article 146 of the Criminal Code of the Russian Federation.

The analysis of the application of Article 146 of the Criminal Code of the Russian Federation raises doubts about the need to criminalize this type of deviant behavior, which is the essence of modern crimes in the form of copyright and related rights violations, since the overwhelming number of them is the use of counterfeit copies of works, computer programs for selfish purposes in the form of isolated crimes and out of connection with entrepreneurial activity. Large or especially large damage in violation of exclusive intellectual property rights will often occur even when selling one unlicensed copy, since its size is determined by the cost of the licensed product or exclusive intellectual property rights, which can be quite high.

It is another matter when the violation of someone else's exclusive rights is carried out in business activities in order to increase profits. Article 61 Sec. 5 "Criminal procedures" of the TRIPS Agreement concluded within the framework of the WTO, which defined the directions of the domestic policy of countering such violations in the field of entrepreneurship, giving freedom in determining the grounds for criminal liability, at the same time focuses the attention of legislators of WTO member countries on the need to counteract the trafficking of counterfeit intellectual property objects by criminal legal means in cases of their intentional use and on a commercial scale [Agreement on Trade-Related Aspects of Intellectual Property Rights // URL: htt://www.wto.ru (accessed 06.07.2023)].

The latter thesis is also relevant to the prevalence of the crime provided for in Article 180 of the Criminal Code of the Russian Federation, and it can be said that it is reflected here. The type of act in question is characterized by mass character, the territory of sale of products in violation of trademark rights often covers the territory of several subjects of the Russian Federation, as shown by the analysis of law enforcement practice.

At the same time, it should be noted that not every detected trademark violation is recognized as unfair competition in accordance with Russian law: in practice, the status of the subjects of the crime is different – there are both persons who do not have the status of an individual entrepreneur, and who are individual entrepreneurs or heads of an organization.

A relatively small number of those convicted of official crimes containing signs of anti-competitive acts is also recorded in the analysis of statistics of the Supreme Court of the Russian Federation [Judicial statistics data (2015-2023) // URL: http://www.cdep.ru/index.php?id = (date of access: 08.12.2023).] in conjunction with the sentences passed (table 4).

Table 4 – The number of persons convicted of official anti-competitive crimes and sentences containing signs of violation of antimonopoly legislation

The figures in the statistics of official crimes traditionally indicate a high level of corruption in government and local government. In the absence of a special corpus delicti that would contain a description of a criminally punishable conspiracy of an official with an economic entity, criminal liability occurs under Articles 285 and 286 of the Criminal Code of the Russian Federation for specific individual actions of an official prohibited by the Federal Law "On Protection of Competition" and carried out by him in pursuance of an agreement reached with an economic entity, while the fact of such The agreement remains without a criminal legal assessment.

The prevalence of violations at auctions in the form of various abuses in the field of procurement of goods, works, services for state and municipal needs, committed by an employee of the contract service, a contract manager, a member of the procurement commission, a person who accepts delivered goods, completed works or services rendered, or another authorized person representing the interests of the customer in the field purchases of goods, works, and services for state or municipal needs that are not officials or persons performing managerial functions in a commercial or other organization (Article 2004 of the Criminal Code of the Russian Federation) cannot yet be tracked due to the lack of statistics on such crimes, the effect of applying Article 2004 of the Criminal Code of the Russian Federation takes time.

A similar conclusion can be drawn with regard to the prevalence of crimes provided for in Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation.

The principle of the possibility of a positive impact by criminal legal means on socially dangerous behavior lies in relation to anticompetitive crimes in such a potentially preventive and suppressive effect on the behavior of representatives of business entities when it can no longer be adjusted by the norms of antimonopoly and administrative legislation. In some cases, in particular when identifying the same persons involved in cartels, the use of criminal legal means may be the only means of suppressing criminal activity.

The corruption component of competitive relations, in particular at auctions during procurement, is a big and serious problem, since purchases are often associated with meeting government needs for strategically important goods or works. Of course, the existing criminal legal arsenal of countering such acts, primarily in the form of Articles 285 and 286 of the Criminal Code of the Russian Federation, is applicable to anti-competitive acts of officials. However, the large number of anticompetitive agreements between officials and business entities recorded annually by the FAS leads to the assumption of both the possibility and the need to expand the list of criminal legal means by introducing a special basis for criminal liability of an official for participation in such a conspiracy. The need is due to the lack of effect from the application of these articles of the Criminal Code of the Russian Federation to cases of anticompetitive illegal behavior of officials, while the possibility of exposure by narrowly targeted criminal legal means implies the expectation of positive consequences in the form of a decrease in the number of such collusion at auctions.

Regarding unfair competition, the positive impact of criminal law has yet to be assessed, because its social danger has not yet been properly assessed in science, and strategic acts only contain provisions on the need to counter unfair competition along with cartels. The absence of special formulations, the imperfection of existing formulations that can be applicable to forms of unfair competition, the Criminal Code of the Russian Federation also confirms the underestimation of the danger of unfair competition.

The principle of the predominance of the positive consequences of criminalization is related to the previous principle and reflects the validity and effectiveness of the criminal law prohibition of the act. This principle is very important in criminalizing anti-competitive acts. In essence, both cartels and unfair competition are ineradicable violations of economic law and order, since competition, accompanied by violation of the rights of other business entities, as well as exclusively fair competition, are integral attributes of economic activity that can mutually cause adverse consequences for competitors. According to statistics, during the economic crisis, the number of cartels increases, as business entities unite and agree on joint activities in order to minimize their losses in unusual economic conditions, which is also explained by psychological factors ^{[9, pp. 32-33]}. Such behavior is assessed by the subjects of economic activity as rational and necessary. However, at the same time, the cartel poses a threat to the economic security of the country. There is a conflict of private and public interests.

The task of the state is to formulate such rules for the protection of economic law and order that would be perceived by business entities as necessary. Therefore, criminal legal means to combat their violations should have clearly defined grounds and limits, and the legislator, when establishing them, should take into account all the consequences of severe sanctions for the economy. For example, paying an administrative "negotiable" fine imposed on an economic entity for participating in a cartel can lead to bankruptcy, which means the loss of jobs and other adverse consequences of both an economic and social nature. Therefore, the legislation provides for the possibility of reducing such a fine. Prolonged imprisonment of the CEO of a commercial organization convicted of entering into a cartel can lead to problems in the activities of such an organization, stop or slow down the implementation of investment projects and other participation of an economic entity in public life.

On the other hand, such sanctions against individuals, according to separate estimates [Global Forum on Competition "Sanctions in antitrust cases". (2016). Background Paper by the Secretariat. Session IV // URL: https://one.oecd.org/document/DAF/COMP/GF (2016)14/en/pdf (accessed 07.08.2019)], may be more effective than fines against organizations, since they deter the illegal behavior of the individual managing the organization itself, whose actions or inaction directly determine whether a cartel will appear, that is, whether a crime will be committed. Media coverage of the facts of criminal prosecution for violation of antimonopoly legislation, the verdicts in such cases, firstly, carries a negative public assessment of the anti-competitive acts committed, and secondly, informs society, including entrepreneurship, about the operation of antimonopoly and criminal legislation, therefore, has a preventive value.

Thus, the principle of criminalization under consideration in relation to anti-competitive crimes reflects the balance of interests of the state and private interests of business entities, which is the cornerstone of criminal law policy in general and in the field of competition protection in particular.

The principle of economy of repression in most of the author's positions studied is not considered as a principle of criminalization. Thus, according to V.M. Stepashin, to consider the economy of repression as a principle of criminalization, notes that the erroneous attribution of an act to the number of criminal acts indicates a violation, first of all, of the principle of social, scientific (criminological) validity of normative prescriptions and the principle of legality: an act that objectively does not have a public danger is recognized as criminal ^{[10, p. 28]}.

In the context of the system of criminalization principles under consideration, the content of the principle of economy of repression, which should be considered rather as a principle of criminal law policy, corresponds to the factors of the principle of non-excess of the criminal law prohibition, expressed in accordance with the scope of the criminal law prohibition, first of all, the limits of punishment that can be imposed for a criminal act, the nature and degree of socially dangerous manifestations, and the exclusion of possible duplication of criminal law norms providing for responsibility for specific socially dangerous behavior ^{[9, p. 261]}.

It is necessary to agree with N.A. Lopashenko that only the accumulated experience of applying the criminal law norm can help establish the optimal content of the criminal law prohibition, at the beginning of which errors are inevitable, manifested in its redundancy ^{[5, p. 261]}. Thus, in the history of criminalization of anti-competitive behavior, there was a period when the criminal law norm provided for in Article 178 of the Criminal Code of the Russian Federation contained signs of all possible monopolistic actions and other actions related to restricting competition. Criminal liability for these acts was provided for by the criminal law in the period 1993-2015, during which, however, no criminal proceedings were initiated for actual monopolistic activity, as it is understood in literal accordance with the current and current antimonopoly legislation. Practice has shown the ineffectiveness of a complete criminal law ban on monopolistic activities, and subsequent measures, including clarifying regulatory definitions, and their law enforcement effect have demonstrated the possibility of limiting the abuse of a dominant position and coordinated actions to administrative and legal methods of influencing the behavior of business entities.

At the same time, the criminalization of acts of unfair competition has the following situation. Only some forms of unfair competition as such are defined in the Federal Law "On Protection of Competition", but administrative responsibility comes for any manifestations of unfair competition. Criminally punishable manifestations of unfair competition as such do not form a special composition, but, based on practice, they can be manifested in signs of some common crimes. Such a situation unreasonably equalizes the nature and degree of public danger of various acts classified under one article, which generally negates the criminal legal effect of their criminalization.

At the same time, it should be noted that an increase in the list of prohibitions of acts related to unfair competition is not supported by economists as a restrictive tool leading to weak competition and a strict focus of the regulatory system on forceful methods and restrictions [Simanchenko M. G. Institutional mechanism for localization of weak competition in the industrial markets of Russia: diss. ... candidate of Economics. sciences'. Rostov-on-Don, 2015. p. 166].

The question of the sufficiency of the criminal law prohibition has also been raised regarding the anti-competitive activities of officials of state authorities and local self-government. If there is collusion with an economic entity, then usually an official commits actions in his interests that qualify as abuse of official powers or their excess (for example, leasing state property without bidding, creating conditions for winning the auction of a certain economic entity by misleading its competitor, entering untrue information into the tender documentation in order to ensure the victory of a certain business entity). Being illegal, by virtue of paragraphs 2, 3, paragraph 1, as well as paragraphs 2 and 3 of Article 17 of the Federal Law "On Protection of Competition", which is reflected in the criminal law qualification of acts under Articles 285, 286 of the Criminal Code of the Russian Federation, these actions may be markers of an anti-competitive agreement, including a cartel. However, the very fact of collusion remains without a criminal legal assessment, while the antimonopoly law prohibits agreements between officials and business entities (by virtue of Articles 16 and 1 of paragraph 1 of Article 17 of the Law).

In addition, it should be noted that the elements of crimes provided for in Articles 169, 285 and 286 of the Criminal Code of the Russian Federation are in competition with each other. It is expressed in two forms: 1) competition of Article 169 of the Criminal Code and Article 285 of the Criminal Code, 2) Article 169 of the Criminal Code and Article 286 of the Criminal Code. In law enforcement, there are situations of reclassification from one article to another, in particular, from Part 1 of Article 285 of the Criminal Code of the Russian Federation to part 1 of Article 169 of the Criminal Code of the Russian Federation [for example, the verdict of the Spassky District Court of the Penza Region No. 1-23/2017 dated 08.08.2017 URL: http://sudact.ru/regular/doc/jT90ET6UAGJX (date of access: 05/20/2020)].  Such situations lead to unstable judicial practice, give grounds for abuse when deciding on the imposition of punishment for the commission of these acts: after all, the sanction of Article 169 of the Criminal Code of the Russian Federation provides for a much milder punishment than the sanctions of Articles 285 and 286 of the Criminal Code of the Russian Federation. In the context of the considered principle of non-excess of the criminal law prohibition, as well as the fact of competition of Part 1 of Article 169 of the Criminal Code of the Russian Federation and Part 1 of Article 14.9 of the Administrative Code, there are grounds for concluding that it is advisable to exclude Article 169 from the Criminal Code of the Russian Federation.

Thus, the principle of non-redundancy of the criminal law prohibition, characterized by optimal content and sufficiency, has different embodiments in the criminalization of anti-competitive acts.

The principle of timeliness of criminalization means the need for criminalization when its foundation appeared – a public danger ^{[4, p. 262]}, and it manifested itself regarding anticompetitive acts during the initial criminalization with the transition of the country to a market economy and the establishment of the institution of competition in order to protect the foundations of a new economic structure. In general, we can state the fact of the relative timeliness of the state's response to the need to criminalize new acts against competition, including criminalization of forms of unfair competition related to market manipulation and illegal use of insider information (Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation), and amendments to the Federal Law "On Protection of Competition", on the effectiveness of which the issue directly depends on criminalization of new or decriminalization of acts already existing in the Criminal Code of the Russian Federation.

At the same time, it should be noted that the composition of crimes containing indirect signs of unfair competition related to the misuse of intellectual property objects has not changed since the adoption of the Criminal Code of the Russian Federation. Article 147 of the Criminal Code of the Russian Federation does not contain the amount of damage caused, being an unspecified criminalizing feature, Articles 146 and 147 of the Criminal Code of the Russian Federation violate the rules of differentiation of responsibility – the different degree of public danger of qualifying signs in the form of commission of a crime by a group of persons by prior agreement or an organized group, which are given the same assessment (both signs are contained in Part 2 of Article 146 and 147 of the Criminal Code of the Russian Federation). Although these shortcomings are more likely to be related to legal technique, in this case, there is a delay in the state's assessment of the public danger of such acts, which can also be traced to acts of a political and strategic nature.

Given the increasing role of innovation in the Russian economy, the lack of full-fledged protection of the rights of business entities to intellectual property objects belonging to them indicates an underestimation of both the public danger of unfair competition with the misuse of such objects and the possibilities of criminal remedies against it.

Of particular note is the obvious delay in criminalizing the act, the signs of which are provided for in Article 2004 of the Criminal Code of the Russian Federation. As a result of the study, it was found that over a long period of time, violations of a number of principles, in particular, openness and transparency of information about auctions, were also established when collusion was detected at auctions. These violations are most directly related to the anti-competitive bidding agreement, they are its marker, since, for example, deliberate violation of the timing of information placement, insufficiency of such information, access to confidential information of an economic entity interested in winning indicate the actions of an authorized person in the interests of a particular bidder. Criminalizing these violations will be another way to combat dangerous anti-competitive agreements.

Thus, an analysis of the principles of criminalization regarding anti-competitive acts may indicate the validity of criminalization not only of cartels, but also of forms of unfair competition, anti-competitive activities of officials of public authorities and local governments, as well as violations at auctions. The principle of sufficient public danger of an act should be recognized as the most important among all the principles of criminalization. The use of an economic approach to assessing the public danger of all types of anti-competitive crimes, including types of anti-competitive agreements concluded at auctions, allows us to confidently declare the relatively identical nature of the risks they pose to the economic security of the country. Consequently, in the considered part of the Criminal Code of the Russian Federation, it is subject to a significant reassessment in order to improve the legal means provided for in it to counter encroachments on fair competition in order to increase their effectiveness and objectively reflect the prohibitions of the Federal Law "On Protection of Competition" of those acts whose public danger is confirmed by economic analysis.