Differentiation of criminal liability 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

Differentiation of responsibility for crimes infringing on fair competition (hereinafter also referred to as anticompetitive crimes) is an important element of modern criminal law policy in the field of fair competition protection due to the importance of the latter for ensuring national, including economic security of the country. The important tasks noted in the decrees 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" and dated 2.07.2021 No. 400 "On the National Security Strategy of the Russian Federation" related to countering monopolistic activities and anti-competitive agreements require a study of the issues of differentiation of responsibility in relation to the entire group of socially responsible-dangerous acts encroaching on fair competition in order to identify gaps and contradictions in the legal protection of fair competition. This group is formed by crimes, the signs of which directly or indirectly correspond to the prohibitions of the Federal Law "On Protection of Competition" and are provided for in art. 128 ^1,146, 147, 169, 178, 180, 183, 185 ³, 185 ⁶, 200 ⁴, 285 and 286 of the Criminal Code of the Russian Federation, which is reflected in the analysis of law enforcement.

A retrospective analysis indicates that in the history of Russian criminal law, differentiation of responsibility for crimes against fair competition existed, at least since the adoption of the Criminal and Correctional Penalties Ordinance of 1845 ^[1]. Thus, strikes (Articles 913, 1180) and collusion at auctions were distinguished; collusion at auctions was divided into collusion with in order to persuade other participants to refuse to participate in the auction (Article 1181) and conspiracy with the participation of officials (Article 498); in order to distinguish a criminal act from an unapproachable one, a division was carried out according to the quantitative and qualitative composition of subjects: persons who are neither merchants nor industrialists could not be subjects of criminal liability for conspiracy or strike. More severe penalties were applied to the instigators of the conspiracy, other participants who joined the conspiracy were punished mildly. Unfair actions using other people's brands and signs (Article 1354), committed by disclosing trade secrets (Article 1355), as well as spreading deliberately false news on the stock exchange harmful to the course of commerce (Article 1277), were also differentiated.

The purpose of differentiation of criminal liability is presented in science as the presence at the stage of lawmaking of such a classification of crimes that would give practice guidelines in the application of various measures of criminal legal influence to various categories of criminals, depending on the nature of the committed act ^{[2, p. 42]}. The achievement of this goal in the criminal law policy in the field of protection of fair competition is connected, firstly, with the phenomenon itself - the existence of a classification of crimes by a group object of encroachment, the criteria of which are laid down by the Constitution of the Russian Federation in the form of a ban on monopolization and unfair competition (Article 34), and the Federal Law "On Protection of Competition", which contains prohibitions of forms of monopolistic activities (Articles 10-11.1), unfair competition (Articles 14.1-14.8), restricting competition in the activities of public authorities or local governments (Articles 15, 16), violations at auctions (Articles 17); secondly, with the main requirement for the classification of crimes - to be consistent and characterizing the acts of a community of group characteristics that would allow them to be distinguished from other crimes.

Of the listed compositions, only the crime provided for in Article 178 of the Criminal Code of the Russian Federation directly reflects the prohibition of Article 11 of the Federal Law "On Protection of Competition", as a ban on one of the most dangerous forms of monopolistic activity – a competition-limiting agreement between competing economic entities (cartel). At the same time, the ratio of the prohibitions of the Federal Law "On Protection of Competition" with the signs of other crimes makes it possible to conclude that the crimes provided for in art. 128 ¹, 146, 147, 180, 183, 185 ³, 185 ⁶ The Criminal Code of the Russian Federation, comply with forms of unfair competition (Articles 14.1-14.7 of the Federal Law "On Protection competition"), according to Articles 169, ²⁸⁵ and 286 of the Criminal Code of the Russian Federation, acts of conduct restricting competition by officials of state authorities or local self–government (Articles 15, 16 of the Federal Law "On Protection of Competition") may be qualified, according to Article 2004 of the Criminal Code of the Russian Federation - violations in procurement by encroaching on the principle of ensuring competition in determining supplier (as a violation of Article 17 of the Federal Law "On Protection of Competition").

In this regard, it should be noted that the problems of classification of crimes unambiguously reveal the problems of differentiation of criminal liability for their commission, and therefore the entire criminal law policy: the lack of clear guidelines on the nature and degree of public danger of a group of acts having one object of encroachment, negates all attempts by the state to successfully counteract encroachments on a protected object, not allowing you to place accents according to the security requirements of society and the state. The above is directly related to the problem of classification of anti-competitive crimes, which in modern criminal law is represented by a mismatched set of such acts located in different chapters of the Criminal Code of the Russian Federation, characterized by contradictory or controversial signs and missing elements.

Thus, anti-competitive collusion is a whole system of various agreements with different participants, but the Criminal Code of the Russian Federation does not contain a differentiated approach to the criminal legal assessment of types of agreements, providing for criminal liability only for a cartel, that is, an anti-competitive agreement between business entities (Article 178 of the Criminal Code of the Russian Federation). At the same time, a cartel is understood, in essence, any agreement limiting competition between competing economic entities, while collusion at auctions fundamentally differs in its characteristics from a classical cartel, existing, for example, by virtue of a joint activity agreement, being in fact a type of fraud ^{[3, p.122-124]}.

Anticompetitive activity of officials of government and local self-government, implemented through collusion with business entities, is an independent type of corrupt activity committed in the field of economic activity and aimed at restricting competition, and therefore should be distinguished by a separate set of crimes included in one group of anticompetitive acts. Meanwhile, the current state of the Criminal Code of the Russian Federation leads to the qualification of such agreements under Articles 169, 285 or 286 of the Criminal Code of the Russian Federation, which are in competition with each other.

At the same time, it is necessary to eliminate gaps in the criminal law protection of individual goods, encroachments on which, although they form illegal behavior according to the antimonopoly law, but for unknown reasons have not been embodied in a criminal law prohibition with the same degree of value as homogeneous objects placed under such protection. In particular, we are talking about the protection of the business reputation of a legal entity, the rights to a brand name, a commercial designation, the topology of integrated circuits, a selection achievement, the possession of rights to which may also constitute a competitive advantage of business entities along with rights to other intellectual property objects named in the Criminal Code of the Russian Federation.

The presence of these gaps in the criminal law is a clear consequence not only of an incorrect assessment of the noted encroachments on fair competition, but also violates the principles of justice and equality of all before the law (in combination with other principles of criminal law), as well as the corresponding principle of optimality, proposed in science as the principle of differentiation of responsibility [Rogova E.V. The doctrine of differentiation criminal liability : dis. ...Dr. Jurid. M., 2014. p. 164]. Thus, an individual entrepreneur has the possibility of criminal legal protection under Article 128.1 ^of the Criminal Code of the Russian Federation in case of encroachments on his business reputation through the dissemination of deliberately false information. A legal entity does not have this opportunity, although it can be recognized as a victim, according to Article 42 of the Criminal Procedure Code of the Russian Federation, precisely in the case of damage to its property and business reputation by a crime. Such a situation, firstly, puts persons who have suffered from the dissemination of untrue information in an unequal position, and this inequality is predetermined by their status. Secondly, it contradicts the principle of equality of citizens before the law and the principle of guilt: a person who disseminated false information about the activities of a legal entity is not subject to criminal liability, while similar actions against an individual entail it. Thirdly, it seems inexplicable to attach varying degrees of public danger to acts directed against business reputation, which has the same value for all business entities as one of the elements of their competitive advantage and the success of economic activity ^{[4, p. 550]}, when criminal penalties are imposed for one of them, and not for the other. In this regard, the establishment of criminal liability for defamation does not mean so much the expansion and deepening of the scope of criminal liability in accordance with the principles of criminal law (the principle of optimality), as its fair establishment in the interests of each victim. In the light of the above, it seems advisable to include in the Criminal Code of the Russian Federation an independent corpus delicti "Discrediting", establishing in it responsibility for the dissemination of deliberately false, inaccurate or distorted information about an individual entrepreneur or organization, or about their activities.

A contradiction to these principles is also seen in the absence of criminal liability for collusion between an official and representatives of business entities. By criminalizing the cartel as an anticompetitive conspiracy between representatives of business entities, the legislator ignores the anticompetitive conspiracy with an official. Even if we base on the principle of saving criminal repression and qualify such actions of an official under Articles 169, 285, 286 of the Criminal Code of the Russian Federation, the question arises whether there are grounds to believe that it is possible not to attach criminal legal significance to the fact of an agreement on the elimination of competition reached by an official with one or a number of economic entities, if any without the participation of an official (responsibility for which is provided for in Article 178 of the Criminal Code of the Russian Federation)? After all, in this way, representatives of business entities also avoid responsibility.

In the context of highlighting the types of anticompetitive crimes, it should also be noted the principle of universality in the differentiation of responsibility, according to which it is impossible not to take into account the versatility and diversity of relations regulated by law [Rogova E.V. The doctrine of differentiation of criminal responsibility. C. 165]. Thus, illegal trafficking of intellectual property objects can be both in the field of legitimate entrepreneurial activity and carried out by persons who do not have the status of a business entity. Both the first and the second are dangerous phenomena for the economy that require a state response. Therefore, different approaches are needed both with regard to the criminalization of such acts and to the differentiation of responsibility for their commission. Crimes, the objective side of which is related to the illegal trafficking of intellectual property objects committed in business activities, always have an anti-competitive orientation, since in this way the perpetrators gain competitive advantages that allow them to make a profit. The reflection of an increase in the level of public danger in such illegal acts can be through a sign of the purpose of unfair competition, which consists in obtaining advantages in carrying out entrepreneurial activities through the illegal use of other people's intellectual property objects. The inclusion of this feature in the composition of crimes provided for in Articles 146, 147, 180, 183 of the Criminal Code of the Russian Federation would make it possible to distinguish the responsibility of those responsible for their commission, which are exclusively subjects of economic activity, from the responsibility of persons who are not.

In the doctrine of the differentiation of criminal responsibility, the grounds are distinguished [Lesnievsky-Kostareva T.A. Differentiation of criminal responsibility : dis. ...Dr. Jurid. Sciences. M., 1999. p. 69] or criteria [Rogova E.V. The doctrine of differentiation of criminal liability. pp. 168-176], according to which there is a separation of measures of a criminal legal nature. Based on the position according to which the nature and degree of public danger of a crime, the identity of the perpetrator and the form of guilt are determined as such, we note that their analysis in anti-competitive crimes very definitely indicates the need to differentiate criminal liability for their commission and assess its existing state.

Thus, one of the controversial issues is the qualification of a cartel in the presence of signs of an organized group, which as a qualifying feature is not provided for by the current version of Article 178 of the Criminal Code of the Russian Federation, while the identification in practice of cartels with signs of an organized group is not uncommon. The answer to the question of the possibility of qualifying an act committed by an organized group arising from the activities of an organization, in particular, in the form of an association coordinating economic activities within the framework of a cartel, which is prohibited by paragraph 5 of Article 11 of the Federal Law "On Protection of Competition", is particularly relevant. The analysis of antimonopoly practice shows the diverse role of associations and models of their anticompetitive behavior, which have different degrees and nature of public danger ^{[5, pp. 33-37]}.

The actions of the coordinator, of course, give stability to the cartel, since they control all processes related to the implementation of the terms of the agreement. From the point of view of criminal law, the status of a person coordinating the economic activities of economic entities falls under the signs of the organizer of the crime.

Such a position may cause a skeptical reaction to the assessment of the activities of the association's participants as members of an organized group, because here there is a non-profit organization (association, union), which, in accordance with Article 123.8 of the Civil Code of the Russian Federation, is created in order to coordinate the entrepreneurial activities of the persons united in it. However, civil law is initially aimed at regulating conscientious behavior. Otherwise, the norms of the Civil Code of the Russian Federation cease to apply and the question arises how to qualify the behavior of individuals who have violated the law, in particular, who have agreed to limit competition in the commodity market in an organized manner contrary to the prohibition of the Federal Law "On Protection of Competition", using a lawfully created association for this purpose, even if a significant part of the activities of both the association itself and its members are within the legal framework. It seems quite logical to use in such situations those legal mechanisms that will allow a full legal assessment of all actions committed in violation of the prohibition established by law and having signs of a crime, including qualifying ones, under which the relevant acts of behavior fall. That is, in such situations, it is necessary to understand the limits of the regulatory law, which end when an act of behavior cannot be "laid down" in its legal norm and it is "transferred" to the sphere of influence of another law.

Membership in a commercial or non-profit organization, which served as the basis for the conclusion of a cartel, the management of such an organization and the coordination of its activities, including in connection with the conclusion of a cartel, are the factors that determine in this case the stability and unity of its members as participants in an organized group that arose from membership in such an organization.

This situation very significantly demonstrates the fact that the cartel may be characterized by manifestations of an organized group. Therefore, such a qualifying feature is necessary in order to differentiate criminal liability for it as increasing the public danger of the act.

Considering the criteria for differentiating criminal liability for a cartel, the following aspects are also noted.

Such a qualifying feature of the cartel as the commission of a crime by a person using his official position has long been deservedly criticized. In particular, T.D. Ustinova ^{[6, p. 115]}, P.S. Yani ^{[7, p. 26]}, O.E. Derevyagina [Derevyagina O.E. Criminal restriction of competition : theoretical and applied aspects : dis. ... cand. Jurid. sciences'. Krasnoyarsk, 2021. pp. 172-173] note the competition of Part 1 and paragraph "a" of Part 2 of Article 178 of the Criminal Code of the Russian Federation due to the fact that the subject of the cartel is often an official of the organization, in connection with which the qualification of his actions should be carried out according to part 2 of Article 178 of the Criminal Code of the Russian Federation, which increases responsibility in the presence of such a sign while the actions of an individual entrepreneur – a cartel participant – will be qualified under part 1 of the same article.

At the same time, in practice, difficulties arise in qualifying the actions of employees of organizations who do not hold positions related to the performance of managerial functions. In this case, the sign "using one's official position" unfairly equalizes the responsibility of both managers, on whom the decision to conclude an anti-competitive agreement depends, and ordinary employees who execute orders.

The draft law "On Amendments to Article 178 of the Criminal Code of the Russian Federation and Article 151 of the Code of Criminal Procedure of the Russian Federation", submitted to the State Duma of the Russian Federation on 11/29/2019, does not provide for this feature, but contains a similar sign of a crime committed by a person performing the functions of a sole executive body, a member of the board of directors or another a collegial executive body in a commercial or other organization (hereinafter referred to as the highest official of the organization), as well as a person who manages more than 50% of the total number of votes attributable to voting shares in the authorized (pooled) capital of a business company (partnership, business partnership) [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 access: 05.01.2024)].

The inclusion of this feature in Part 2 of Article 178 of the Criminal Code of the Russian Federation can be explained as follows: firstly, the special role in the organization of the highest official of the organization who makes legally significant decisions or has the opportunity to have a decisive influence on the adoption of such; secondly, the more significant role of commercial organizations in the commodity market than individual entrepreneurs who They are often subjects of small and medium-sized businesses, which means that such organizations are capable of causing more serious negative market changes in the event of limited competition. Thus, despite the remark of the Supreme Court of the Russian Federation [Official review of the draft Federal Law "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation" // URL: https://sozd.duma.gov.ru/bill/848246-7 (date of application: 05.01.2024)] regarding the introduction of the feature in question, it should be recognized that it really delimits the responsibility of an individual an entrepreneur and a top official of an organization as persons who make potentially different contributions to the economy, therefore, capable of causing consequences on an incomparable scale by their illegal actions.

It seems that in addition to the above arguments, this new qualifying feature contains a warning to these persons about the special attention of the state in the form of increased criminal liability precisely for their actions in concluding and implementing the cartel: this feature translates the crime into the category of serious, which is justified by the official recognition of cartels as a threat to economic and national security.

In connection with the above, as well as taking into account the tradition established in criminal law to differentiate the criminal liability of persons performing managerial functions in an organization and other employees of the organization, and the existing problem in practice related to the qualification of the acts of the latter, it seems advisable to specify in Part 2 of Article 178 of the Criminal Code of the Russian Federation as a special subject of this crime a person who performing managerial functions in a commercial or other organization. It should be noted that a person who manages more than 50% of the total number of votes attributable to voting shares (shares) in the authorized (pooled) capital of a business company (partnership, business partnership) is not included in the list of persons who, according to the note to Article 201 of the Criminal Code of the Russian Federation, can be recognized as persons performing managerial functions in a commercial or other organization, unless they are acting under special authority. However, the specified person can have a key influence on the decision-making by the management body of the organization. Therefore, in the description of the qualifying attribute of the crime provided for in Article 178 of the Criminal Code of the Russian Federation, both the person performing managerial functions in the organization and the person disposing of more than 50% of the total number of votes attributable to voting shares in the authorized (pooled) capital of a business company (partnership, business partnership) should be indicated.

The conducted research also showed the need to improve such a feature of the crime provided for in paragraph "b" of Part 2 of Article 178 of the Criminal Code of the Russian Federation as the destruction or damage to someone else's property or the threat of its destruction or damage, in the absence of signs of extortion. Thus, M.H. Khakulov believes that the effectiveness of using Article 178 of the Criminal Code could have been significantly higher if the legislator had not limited the list of threats only to violence and destruction or damage to property. During the survey of entrepreneurs conducted by the author, it was found that respondents received threats of a different kind – the threat of spreading defamatory information, the threat of discrediting products through the sale of its substandard fakes, the threat of economic blockade, the threat of unspecified troubles [Khakulov M.H. Crimes encroaching on freedom and integrity of competition in the field of entrepreneurial activity : dis. ... doct. Jurid. Sciences. M. 2009. pp. 112-113]. When studying the sentences held under Article 178 of the Criminal Code of the Russian Federation, this fact was confirmed. Thus, V., being the deputy head of a state institution – a state customer, proposed to several heads of commercial organizations to conclude a competition-limiting agreement (cartel), expressing a demand to them to refuse to participate in the auction, supported by threats that if his proposal was ignored and his requirements were not fulfilled, obstacles would be implemented in the acceptance of their work [Verdict of the Novgorod District Court of the Novgorod region No. 1-347/2014 dated 04/22/2014 // Archive of the Federal Antimonopoly Service of the Russian Federation].

Thus, the inclusion in the list of qualifying signs of the threat of obstruction in the implementation of economic activity of a person seems to be a rational proposal, since in reality threats to persons who refused to join the cartel can be different and often related specifically to the implementation of entrepreneurial activities.

When analyzing the main and qualifying signs, there is a dissonance in the ratio of qualifying signs of crimes involving liability for encroachments on various intellectual property objects, the rights to which are of equal importance as a competitive advantage. For example, Article 147 of the Criminal Code of the Russian Federation does not provide for such qualifying features as the commission of a crime by a person using his official position, which is named in Part 3 of Article 146 of the Criminal Code of the Russian Federation. At the same time, during the study of sentences held in cases of a crime under Article 147 of the Criminal Code of the Russian Federation, it was found that all crimes (the number of such crimes is small – 5 sentences under Article 147 of the Criminal Code of the Russian Federation were discovered and studied) were committed by persons using official position, namely persons holding senior management positions positions in the organization.

As the study showed, the crimes provided for in Articles 146, 147 of the Criminal Code of the Russian Federation have a pronounced economic orientation, which is a recognized fact reflected in the statistical reporting of the state of crime according to the Instructions of the Prosecutor General's Office of Russia No. 401/11, the Ministry of Internal Affairs of Russia No. 2 dated 06/19/2023 "On the introduction of lists of articles of the Criminal Code of the Russian Federation used in the formation of statistical reporting". Based on this conclusion, there are grounds to recognize it necessary to provide for the sign of committing a crime by a person performing managerial functions in a commercial or other organization as qualifying in Article 147 of the Criminal Code of the Russian Federation, and replace it in Article 146 of the Criminal Code of the Russian Federation with the sign of committing an act by a person using his official position. The rationale for this proposal lies in the fact that the head of the organization is obliged to provide all its structural units with everything necessary to carry out legitimate economic activities. This equally applies to the control of the head of the organization over the timely conclusion or extension of licensing and other agreements for the use of other people's exclusive rights to any intellectual property objects. Due to the specificity of intellectual property law as a sub-branch of civil law, not every employee of an organization has knowledge about it. Accordingly, an elementary low legal culture in this area can cause a crime to be committed. And it is the head, as the person who manages all processes, primarily in internal official relations, who is functionally authorized to prevent such a situation.

The stated approach to the considered feature should be fully extended to crimes provided for in Articles 180 and 183 of the Criminal Code of the Russian Federation, whose compositions have signs of unfair competition.

As another disadvantage of differentiating responsibility for the illegal use of intellectual property objects, it should be mentioned that the forms of complicity, different in degree and nature of public danger – a group of persons by prior agreement and an organized group – are attributed to the same qualifying feature of crimes provided for in Articles 146 and 147 of the Criminal Code of the Russian Federation. Thus, despite their obvious difference, criminal liability for these forms of complicity is not differentiated.

As unnamed qualifying signs reflecting new trends in the commission of crimes against fair competition, which increase the public danger of acts, it should be noted the commission of a crime on the Internet and in the media. Acts committed on the Internet are recognized as particularly dangerous in some foreign countries, which have established increased responsibility in this regard ^{[8, p. 30]}.

Thus, in violation of the rights of copyright holders, without concluding appropriate contracts, objects of copyright and related rights are distributed on the Internet – computer programs, audiovisual works and their performances, etc.; illegal use of someone else's trademark, service mark or similar designations for homogeneous goods can be committed in the form of the use of these means of individualization without permissions of the copyright holder on goods, labels, packages of these goods that are offered for sale on the Internet, when providing services on the Internet, as well as in a domain name and other addressing methods.

In business, due to the rapid development of online commerce, such acts can lead to the undermining of business reputation, actual damage to economic entities-right holders, other serious adverse consequences and not only for these persons. The public danger of illegal use of other people's intellectual property objects on the Internet is predetermined by the popularity and mass consumption of goods and services offered on the network, the availability of objects placed in the digital space, the availability of wide technical possibilities for their receipt (consumption), which is covered by the intent of the guilty person.

A similar situation arises when any significant information is disseminated on the Internet or in the mass media. Whether it is defamation, other deliberately false information or information protected by a special legal regime (commercial, tax, banking secrecy, insider information) – dissemination on the Internet or mass media is characterized by the inability to fully control this process, which means that a wide range of unidentified persons, including competitors of business entities, can become consumers of such information – copyright holders, consumers of goods (works, services) who will use such information in different ways to their advantage, which also leads or may lead to instability of the market situation. Thus, the sign of illegal use of intellectual property objects, the dissemination of information on the Internet or in the media affects the degree of public danger of the act, and therefore may have the value of a criterion that strengthens the criminal liability of the guilty person. It seems advisable to include an appropriate qualifying (especially qualifying) feature in the description of crimes provided for in Articles 146, 147, 180, 183 of the Criminal Code of the Russian Federation.

One of the tasks of differentiating criminal liability is to build a system of criminal law measures, taking into account the severity of the impact of each individual measure and specifying the grounds for its application. In this regard, the issues of categorization of crimes are relevant. Called the basis of differentiation in science [Lesnievsky-Kostareva T.A. Differentiation of criminal responsibility. p. 60; Rogova E. V. The doctrine of differentiation of criminal responsibility. P. 197], categorization should be internally consistent: the nature and degree of public danger of the act should correspond to the measure of punishment. The discrepancy between the description of the signs of a crime and the measure of punishment, therefore, and the category of crime, as well as the measure of punishment – the public danger of the act – undermine the very foundations of criminal law policy in the field of protection of relevant relations. This thesis is fully inherent in individual crimes from the study group. In particular, the conclusion of a cartel recognized as a threat to the economic security of the country, which is a group crime, belongs to the category of crimes of minor gravity.

In the course of this study, in order to study the opinion of experts on the effectiveness of punishments for anti-competitive crimes, a survey was conducted of 144 employees of the antimonopoly authority and 310 law enforcement officers of a number of subjects of the Russian Federation, who were asked what punishment should be provided as the main one for cartel and unfair competition (table 1).

Table 1 - The main punishment for cartel and unfair competition

The results of this survey, as well as the conducted research of domestic and foreign experience, international recommendations, allow us to conclude that the main types of punishment for crimes of the group in question are imprisonment, deprivation of the right to hold certain positions or engage in certain activities and a fine. 

At the same time, the current state of the listed types of punishments is as follows. Deprivation of liberty as the most severe type of punishment is not established for each of the main crimes of the group under consideration. Thus, this type of punishment is not provided for in relation to the main elements of crimes enshrined in Part 1 of Article 128.1, part ¹ of Article 146, part 1 of Article 169 of the Criminal Code of the Russian Federation. For other crimes, the term of imprisonment varies from 2 years (part 2 of Article 146, part 1 of Article 147, part 1 of Article 180, part 1 of Article 183 of the Criminal Code) to 4 years (part 1 of Article 185 ³ of the Criminal Code, part 1 of Article 185 ⁶, part 1 of Article 285, Part 1 Article 286 of the Criminal Code of the Russian Federation). It follows from this that either the acts do not have a really significant level of public danger, or the legislator clearly underestimated the level of public danger of many acts and, in particular, the cartel, for which imprisonment is set for up to 3 years.

When establishing a punishment in the form of imprisonment, the legislator often allows "stepping over" the category of crime when setting the terms of imprisonment. Thus, the crime provided for in Part 1 of Article 178 of the Criminal Code of the Russian Federation belongs to the category of crimes of minor gravity, while the act recorded in part 2 of the same article belongs to the category of grave; according to part 1 and part 2 of Article 146 of the Criminal Code, the category of crimes is defined as small, part 3 - grave; in Part 1 of Article 2004 of the Criminal Code of the Russian Federation describes a minor crime, Part 2 describes a serious one.

The limit of the fine for committing anti-competitive crimes containing signs of the main composition is 500 thousand rubles. Such a maximum fine is set for different types of signs in the main elements of the crime, in particular, for defamation, obstruction of legitimate business and other activities, cartel, illegal receipt and disclosure of information constituting commercial, tax or banking secrets, market manipulation and illegal use of insider information. The minimum fine is set at 80 thousand rubles and is provided for official offenses (Part 1 of Article 285 and part 1 of Article 286 of the Criminal Code of the Russian Federation). At the same time, in most articles, sanctions do not provide for a lower limit of the fine, for example, in part 1 of art. 128 ¹, 146, 147, 183, 200 ⁴, 285, 286 The Criminal Code of the Russian Federation, which means that the court, according to Article 46 of the Criminal Code of the Russian Federation, can impose a fine at its discretion, which increases the risk of imposing an excessively lenient punishment. The lowest limit of the fine is the sanctions of crimes provided for in Part 1 of Articles 169, 178, 180, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation. 

Deprivation of the right to hold certain positions or engage in certain activities is established as an additional punishment, imposed at the discretion of the court for crimes provided for in Parts 1 and 2 of art. 178, 185 ³, 185 ⁶, 200 ⁴, Part 2 of Article 285, part 2 of Article 285 of the Criminal Code of the Russian Federation. Moreover, for the conclusion of a cartel qualified under Part 1 of Article 178 of the Criminal Code of the Russian Federation, the maximum term of this punishment is only 1 year. Mandatory deprivation of the right to hold certain positions or engage in certain activities as an additional punishment is imposed only in cases provided for in Part 1 of Article 169, Part 3 of Article 178, part 2 and 3 of Article 183, Part 3 of Article 285 of the Criminal Code of the Russian Federation. And only if there are signs of the elements of crimes provided for in Part 2 of Article 169, part 1 of Article 285, part 1 of Article 286 of the Criminal Code of the Russian Federation, deprivation of the right to hold certain positions or engage in certain activities is indicated as the main punishment (alternative). This type of punishment has not been established for the commission of a crime provided for in paragraph "d" of Part 3 of Article 146 of the Criminal Code by a person using his official position, which should be recognized as an obvious gap.

Meanwhile, the construction of sanctions should be based on the requirement of consistency and commensurate severity of the penalties contained therein with the severity of the crime. At the same time, a system of sanctions is being built taking into account the hierarchical importance of public relations – objects of encroachment [Gustova E.V. Building sanctions in the criminal law of the Russian Federation : theoretical aspect : dis. ... cand. Jurid. sciences'. Voronezh, 2015. p. 143]. Accordingly, crimes of one group should have a consistent internal punishment system. Thus, crimes whose objective side is expressed in the illegal use of economically equivalent exclusive rights to intellectual property objects should be punishable by the same types of punishment and their size. However, the existing sanctions for crimes considered as forms of unfair competition show a different picture. For example, sanctions for crimes committed by a group of persons by prior agreement and an organized group raise questions: Part 3 of Article 146 of the Criminal Code of the Russian Federation provides for imprisonment for up to 6 years, part 2 of Article 147 – for up to 5 years. The absence of a qualifying sign of the commission of an act by a person using his official position in Article 147 of the Criminal Code of the Russian Federation leads to the non-punishability of such an act, while a similar act, the signs of which are described in an adjacent composition provided for in paragraph "d" of Part 3 of Article 146 of the Criminal Code, is punishable by imprisonment for up to 6 years, but at the same time This article does not provide for punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, which would be logical.

Another example of the disparity of individual punishments is the sanctions of official crimes provided for in Articles 169, 285 and 286 of the Criminal Code of the Russian Federation. The sanctions contained in Part 1 of Articles 285 and 286 of the Criminal Code of the Russian Federation are identical in each type and amount of punishment with comparable signs of both types of crimes. At the same time, if we consider the crimes provided for in Articles 169, 285 and 286 of the Criminal Code of the Russian Federation as related acts, the subjects of which are officials of government bodies or local self-government encroaching on equivalent protected objects, then their sanctions cannot be called similar in any way. Thus, the sanction of Part 1 of Article 169 of the Criminal Code of the Russian Federation, unlike the sanctions of part 1 of Article 285 and part 1 of Article 286 of the Criminal Code of the Russian Federation, does not provide for punishment in the form of imprisonment, and according to part 2, imprisonment is one year less than the sanction under part 1 of Article 285 and part 1 of Article 286 of the Criminal Code of the Russian Federation. The fines are also incomparable: the amount of the fine provided for by the sanction of Part 1 of Article 169 of the Criminal Code of the Russian Federation significantly exceeds the fines contained in the sanctions of Part 1 of Article 285 and Part 1 of Article 286 of the Criminal Code of the Russian Federation.

Thus, the analysis of the state of sanctions for anti-competitive crimes demonstrates a set of different possibilities for differentiating criminal liability for these crimes, which are not without certain disadvantages. The main one among them should be recognized as the discrepancy between the sanctions and the level of public danger of crimes - the established maximum limits of imprisonment indicate that the crimes of the group in question are classified mainly as crimes of minor gravity, which cannot be considered justified. The amount of fines also does not correspond to the level of danger of anti-competitive crimes. It seems that for the commission of a crime under Article 178 of the Criminal Code of the Russian Federation, as the most dangerous anti-competitive act for the economy, the amount of the fine should be significantly increased.  In order to ensure the fairness of punishment, its type may also have a different meaning, such as the deprivation of the right to hold certain positions or engage in certain activities, which must be established as the main (alternative) punishment for a number of anti-competitive crimes, in particular, in the form of unfair competition and anti-competitive activities of officials of state authorities or local self-government. In order to differentiate punishments in comparison with a less serious crime, it is important to determine the lowest limit of all types of punishment for crimes that have signs of a qualified (especially qualified) corpus delicti.

Another urgent problem of differentiation of responsibility is the coordination of other criminal law measures, primarily confiscation, with the degree and nature of the public danger of acts. Thus, the lack of this crime in the list of acts covered by the provisions of paragraph "a" of Part 1 of Article 104 ¹ of the Criminal Code of the Russian Federation on confiscation raises doubts about the objectivity of the criminal legal reaction to the cartel (Article 178 of the Criminal Code of the Russian Federation), while the economic essence of the cartel consists in obtaining excess profits. It seems advisable to include in the specified list of Articles 104 ¹ of the Criminal Code of the Russian Federation also crimes provided for in Articles 180, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation as crimes of the same group, the purpose of which is also to make a profit.

Very important for the purposes of differentiating criminal liability, in particular for the cartel, is the possibility of translating the principle of saving criminal repression into improving the program of exemption from criminal liability provided for in the note to Article 178 of the Criminal Code of the Russian Federation to the level of its optimal application. This issue is not simple, and it is not even a matter of legislative technique, the construction of legal norms in such a way that, first of all, the possibility of exemption from criminal liability is not a fiction, which it is currently due to the obvious imperfection of the mechanism, but the need to establish the maximum balance of public and private interests.

In this regard, it is important to note the following. The conditions for the release from liability of the guilty individual are a number of actions that he is obliged to perform, namely: the person must be the first among the accomplices of the crime to voluntarily report the crime, actively contribute to its disclosure and (or) investigation, compensate for the damage caused by this crime or otherwise make amends for the damage caused and if his actions do not contain otherwise the corpus delicti. Given the extent of the damage revealed during the implementation of cartel agreements in practice, it is most likely not necessary to talk about the chances of an individual being released from criminal liability on this basis. In any case, practice does not know such examples.

In the context of this problem, it seems advisable to pay attention to such a general aspect of responsibility for violation of antimonopoly legislation as its commission by a group of persons within the meaning of Article 9 of the Federal Law "On Protection of Competition". In judicial practice, there is an idea of such a group as a single entity, in connection with which law enforcement and the scientific community raise the question of the legal grounds for bringing group members to individual responsibility ^{[9; 10, p. 18-23]} and the procedure for collecting income received in connection with a collective violation of antimonopoly legislation to the federal budget, which The Federal Law "On Protection of Competition" is provided for as a measure of antimonopoly liability.

As indicated in its ruling by the Constitutional Court of the Russian Federation [Resolution of the Constitutional Court of the Russian Federation dated 06/24/2009 No. 11-P "On Checking the Constitutionality of the Provisions of Paragraphs 2 and 4 of Articles 12, Articles 22.1 and 23.1 of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets" and Articles 23, 37 and 51 of the Federal Law "On Protection competition" in connection with the complaints of OAO Gazenergoset and OAO Nizhnekamskneftekhim" // SPS ConsultantPlus], the individual responsibility of each member of the group is not excluded, and the specified encumbrance in the form of collection to the federal budget of income received in connection with violation of antimonopoly legislation by a group of economic entities, imposed on each of them, it should be proportional in nature. However, this explanation raises the following problem: what are the fair criteria for such proportionality?

These issues echo the problem of criminal liability for cartels. Here it becomes necessary to determine all aspects of the participation of each individual – a representative of an economic entity, a cartel participant – in a crime under Article 178 of the Criminal Code of the Russian Federation, in particular, to apply the rule of exemption from liability provided for in the note to the article, or according to the general basis under Article 76 ¹ of the Criminal Code of the Russian Federation. These rules, as one of the mandatory actions, contain a requirement for compensation for damage or other compensation for damage caused by a crime, and this means all damage or harm caused by all members of the cartels. Such a requirement seems unfair and does not correspond to the goals of individualizing criminal responsibility for a crime, including when it comes to exemption from it.

It seems that the constitutional principles of justice, legal equality, proportionality and proportionality of the established responsibility listed in the above-mentioned decision of the Constitutional Court of the Russian Federation should equally apply to all its manifestations. In order to apply the cartel liability mitigation program, it is necessary to determine the share of participation in the cartel of each business entity and, depending on this, determine the part of the damage or other harm caused that corresponds to his personal participation as a subject of crime, which should be compensated.

However, if the damage as such arises as a result of the activities of a legal entity, albeit on the basis of decisions taken by specific individuals – their representatives, then the possibility of exemption from liability of the latter cannot be related only to compensation for the damage caused in this way. The reverse situation contradicts not only the above-mentioned constitutional principles, but also the sectoral principle of justice enshrined in the Criminal Code of the Russian Federation. In this regard, it seems necessary to provide for the possibility of compensation for damage caused in this way by the legal entity itself - an economic entity participating in the cartel, similar to how damage caused by crimes under Articles 199 and 199 ¹ of the Criminal Code of the Russian Federation can be compensated, according to the explanations of the Supreme Court of the Russian Federation on the application of the note to Article 199 [Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11/15/2016, No. 48 (as amended. dated 06/11/2020) "On the practice of applying legislation by courts regulating the specifics of criminal liability for crimes in the field of entrepreneurial and other economic activities";  Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/27/2013 No. 19 "On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability" // Rossiyskaya Gazeta. 2013, № 145 (6121)].

As for the problem of criminal liability of the second, third person, in whose actions signs of the conclusion and execution of the cartel were established, its solution is seen in further improvement of this institution, in particular, by the possibility of mitigating punishment sequentially, depending on the order of treatment to law enforcement agencies, according to Article 64 of the Criminal Code of the Russian Federation.

Another drawback is seen from the comparison of the institutions of exemption from criminal liability under Articles 75-76 ² of the Criminal Code of the Russian Federation and the note to Article 178 of the Criminal Code, supported by the practice of applying a similar institution of "mitigation of responsibility" in administrative law, and consists in the assumption of the possibility of exemption from criminal liability for the cartel repeatedly. By analogy with other institutions, the condition for exemption from criminal liability for a cartel must be the commission of an act for the first time, otherwise a situation of repeated cartel incarceration may arise, as is the case in administrative proceedings ^{[11, p. 32]}. A person who has repeatedly committed a crime should not be able to be released from criminal liability.

Following the traditions of criminal and administrative legislation, it is necessary to provide for the impossibility of applying the rules on the release of responsibility and mitigation of punishment against a person who organized a crime under Article 178 of the Criminal Code of the Russian Federation. In addition, by analogy with the note to Article 14.32 of the Administrative Code, an individual guilty of committing a crime under Article 178 of the Criminal Code of the Russian Federation and who allowed other persons to commit this crime or to continue participating in a competition-limiting agreement should be deprived of such an opportunity.

It should be noted that in the practice of the antimonopoly authority, the "mitigation of liability" program is actively used. Thus, the antimonopoly authority applied the rules of exemption from administrative liability in 2015 – 46 times, in 2016 – 91, in 2017 – 118, in 2018 – 89, in 2019 – 67, in 2020 – 146 times [FAS reports on the state of competition in the Russian Federation (2007-2020) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date of access: 11.01.2024)]. It seems that the intersectoral differentiation of responsibility in deciding on the application of the cartel exemption program, the conditions of which are provided for both in the Criminal Code of the Russian Federation and in the Administrative Code, provided that the criminal law mechanism is improved, could contribute to improving the effectiveness of cartel detection and investigation.

The above leads to the conclusion that the differentiation of criminal liability for anti-competitive crimes, based on the principles of criminal law and the principles of differentiation itself proposed in science, and, as a result, a clear and understandable system of such crimes, built taking into account the prohibitions of industry, antimonopoly legislation, which does not allow gaps in the protection of all related interests of fair competition and providing for a system of penalties and other measures of a criminal legal nature appropriate to the degree and nature of the danger of these acts, including taking into account qualifying and especially qualifying signs, is the key to the effectiveness of the entire criminal law policy in the field of fair competition protection.

Achieving the goals of differentiating responsibility for anticompetitive crimes may be important for the development of criminal law policy in the field of fair competition protection, because the allocation of anticompetitive crimes due to the presence of common group characteristics would allow them to be distinguished from other crimes and keep official records of anticompetitive crimes when forming static reporting on crimes committed in the structure of economic and corruption crimes orientation. Such accounting will allow for a timely assessment of changes in the state, structure and dynamics of crime in the field of fair competition and adjust the directions of not only criminal law policy in the field of fair competition protection, but also competition policy. In this regard, it is advisable to make appropriate changes to the Order of the Prosecutor General's Office of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Ministry of Justice of the Russian Federation, the FSB of the Russian Federation, the Ministry of Economic Development of the Russian Federation and the Federal Drug Control Service of the Russian Federation dated December 29, 2005 No. 39/1070/1021/253/780/353/399 "On unified accounting of crimes", as well as to the Instruction of the Prosecutor General's Office of Russia No. 401/11, the Ministry of Internal Affairs Russian Federation No. 2 dated 06/19/2023 "On the introduction of lists of articles of the Criminal Code of the Russian Federation used in the formation of statistical reporting".