Unfair competition: the current state of criminalization

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

Unfair competition is one of the types of violations of antimonopoly legislation, an absolute ban on which is established not only by the Federal Law "On Protection of Competition" (hereinafter - the Federal Law "On Protection of Competition"), but also by the Constitution of the Russian Federation (Article 34). As established in the course of the study, unfair competition can be no less dangerous in its consequences than a cartel ^{[1, pp. 101-103]} - another type of violation declared by Decree of the President of the Russian Federation "On the Strategy of Economic Security of the Russian Federation for the period up to 2030" dated 05/13/2017 No. 208 as one of the threats to the economic security of the Russian Federation.

This characteristic of unfair competition is known in the world, which predetermined protection against it within the framework of the World Trade Organization on the basis, in particular, of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994. The document contains clearly defined criminal law mechanisms for the protection of intellectual property rights in international trade. For example, Article 61 establishes that in the countries participating in the Convention, criminal law measures should be applied in cases of intentional forgery of trademarks, piracy in the field of copyright on a commercial scale, as well as in other cases if the act was committed intentionally and on a commercial scale. At the same time, as remedies, the parties to the Convention should provide for imprisonment and/or monetary fines sufficient to ensure deterrence in accordance with the level of penalties applied for crimes of appropriate gravity, as well as the arrest, confiscation and destruction of counterfeit goods and any materials [Agreement on Trade-Related aspects of intellectual property rights (as amended on 23 January 2017) : the TRIPS Agreement is annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakech, Morocco on 15 April 1994. URL: https://www.wto.org/english/docs_e/legal_e/31bis_trips_01_e.htm (date of access: 02.02.2024)].

Meanwhile, the detection of unfair competition in Russia is in the field of attention of the antimonopoly authority – the Federal Antimonopoly Service (hereinafter - FAS) and its territorial authorities. The following number of violations of Articles 14.1–14.8 of the Federal Law "On Protection of Competition" involving administrative response measures is recorded annually [FAS reports on the state of competition in the Russian Federation for 2018-2022 // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (date of application:  19.07.2023). Until 2018, the FAS reports on the state of competition did not reflect forms of unfair competition] (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

At the same time, the criminalization of forms of unfair competition is an open question, the current domestic criminal law does not contain specific elements of a crime providing for a description of its prohibited forms. Nevertheless, an analysis of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation) and law enforcement makes it possible to identify a group of crimes that may be related to manifestations of unfair competition. These include, in particular, the crimes provided for in art. 128 ¹, 146, 147, 180, 183, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation, the signs of the compositions of which to a certain extent correspond to the criteria of the main forms of unfair competition, named in Articles 14.1–14.8 of the Federal Law "On Protection of Competition".

Thus, a characteristic feature of the direct objects of the listed crimes, considered as forms (manifestations) of unfair competition, is their subject matter, which exists in various types and forms and represents a competitive advantage of an economic entity, the loss of which is the essence of damage from crimes. The direct object of such crimes can be defined as bona fide competitive relations mediated by the legitimate use by an economic entity of its competitive advantage in the form of business reputation, copyright, related and patent rights, rights to a means of individualization, legally protected secrets (commercial, banking, tax and other protected information).

Although modern editions of art . 128 ¹, 146, 147, 180, 183, 185 ³, 185 ⁶ The Criminal Code of the Russian Federation, without having a direct "link" to illegal anti-competitive activities, does not make it possible to talk about such a formulation of their direct object, in science it is not uncommon to recognize its competitive nature, which is noted in in particular, in the works of V.T. Kornienko [Kornienko V.T. Criminal law protection of fair competition in the consumer market: dis. ... cand. Jurid. sciences'. Rostov n/A, 2004. P. 53], Yu.G. Sled [Sled Yu.G. Criminal law protection from unfair competition: dis. ... cand. Jurid. sciences'. Izhevsk, 2007. p. 140] (Articles 146 and 147 of the Criminal Code of the Russian Federation), S.V. Ustinova [Ustinova S.V. Crimes encroaching on freedom of economic activity (criminal law and criminological aspects): dis. ...cand. Jurid. N. Novgorod, 2002. p. 118], I.A. Golovizina [Golovizina I.A. Illegal use of a trademark: problems of qualification and law enforcement: abstract. ... cand. Jurid. sciences. p. 16], M.S. Lastochkina [Lastochkina M.S. Criminal law protection of means of individualization of participants in civil turnover and products produced by them: abstract. dis. ... cand. Jurid. M., 2010. p. 18] (Article 180 of the Criminal Code of the Russian Federation), A.F. Zhigalova [Zhigalov A.F. Commercial and banking secrecy in Russian criminal legislation: abstract. ... cand. Jurid. sciences'. Nizhny Novgorod, 2000. p. 15], V.V. Artemova [Artyomov V.V. Illegal receipt and disclosure of information constituting a commercial, tax or banking secret in the criminal law of Russia: author's abstract. dis. ... cand. Jurid. M., 2011. p. 9], I.V. Serebrueva [Serebruev I.V. Crimes encroaching on the integrity of competitive relations: genesis, system, criminal law characteristics: dis. ... cand. Jurid. sciences'. Yekaterinburg. 2016. p. 183] (Article 183 of the Criminal Code of the Russian Federation).

The direct object of crimes under Articles 185 ³ of the Criminal Code of the Russian Federation and Article 185 ⁶ of the Criminal Code of the Russian Federation is often understood in science as a general one, since encroachments occur on the same protected relations regulated by legislation on the turnover of insider information, in particular, the Federal Law of July 27, 2010 "On countering the misuse of Insider information and Market Manipulation and on Amendments to Certain Legislative Acts of the Russian Federation" (hereinafter – the Law on Countering the Misuse of Insider Information and Market Manipulation). The mentioned law creates a certain legal regime that ensures the information security of activities in commodity markets, which is the key to their stability and transparency, thus supports the integrity of competition, protecting against various information stuffing. The above justifies the recognition of fair competition as the main element of the direct object of these crimes and the presence of relevant judgments in the literature on this [Criminal Law. The special part. Crimes in the field of economics : textbook for universities / V.M. Aliyev, D.I. Aminov, A.A. Bakradze [et al.]; under the general editorship of V.I. Gladkikh, A.K. Yesayan.– Moscow : Yurait, 2022. pp. 232, 239; 2, pp. 23-25]. Thus, the direct object of crimes under Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation should be understood as bona fide competitive relations that have developed as a result of the legal regime of information security in the commodity market, designed to ensure its stability and transparency ^{[3, pp. 51-53]}.

The direct object of the crime provided for in Article 128.1 ^of the Criminal Code of the Russian Federation is not considered in science as related to economic competition. However, the purposeful dissemination of false, inaccurate or distorted information that can damage the business reputation of an individual entrepreneur acts as an independent type of violation, as evidenced by arbitration practice. 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 entrepreneurial and other economic activities, 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 consideration by courts 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"). Article 128.1 ^of the Criminal Code of the Russian Federation is the main article that an individual entrepreneur can use in case of defamation to protect his right to business reputation. In the practice of courts, there are examples of attempts to apply this article in order to criminally protect the business reputation of individual entrepreneurs and even legal entities from discrediting by competitors [Verdict of the justice of the peace of the judicial district No. 62 of the Sunny District of the Khabarovsk Territory No. 1-44/2016N dated 09/14/2016 URL : https://sudact.ru/magistrate/doc/RQbFu1eVaMV9 / (date of appeal: 02/28/2024); verdict of the world judges of the judicial precinct No. 25 of the Central district of Khabarovsk No. 1-10/2016 dated 04/08/2016 URL : https://sudact.ru/magistrate/doc/f6YKMCaFbGY7 / (date of appeal: 02/28/2024); verdict of the Justice of the Peace of the Left Bank judicial district of the Birobidzhan judicial district of the EAO No.1-4/2015 dated 01/20/2015 URL : https://sudact.ru/magistrate/doc/LpknqzDe3BoO / (date of request: 1.02.2024); the verdict of the justice of the peace of the judicial district No. 29 in the Ministry of Defense "Velizhsky district" (Smolensk region) dated 06/01/2016 in case No. 1-23/2016-29. URL: https://sudact.ru/magistrate/doc/Rg1goYJsHQVa / (date of access: 02/28/2024). All verdicts are acquittal].

The objective side of the crimes provided for in art. 128 ¹, 146, 147, 180, 183, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation, is the element by which their direct or indirect connection with the Federal Law "On Protection of Competition" is revealed. Among the mentioned crimes, a group of acts stands out, the objective side of which is exclusively related to the illegal use of intellectual property objects. These are the most common forms of unfair competition. These include the elements of crimes provided for in Articles 146, 147 and 180 of the Criminal Code of the Russian Federation. To a certain extent, this judgment also applies to the composition of the crime provided for in Article 183 of the Criminal Code of the Russian Federation, in particular, in connection with encroachment on a trade secret, which is a legal regime for the protection of a production secret.

According to Article 14.5 of the Federal Law "On Protection of Competition", objective signs of unfair competition using objects of copyright, related and patent rights consist in the sale, exchange or other introduction into circulation of goods if the results of intellectual activity were illegally used. Thus, Articles 146 and 147 of the Criminal Code of the Russian Federation are applicable to acts of unfair competition carried out with the illegal use of objects of copyright, related and patent rights by introducing them into civil circulation without the permission of the rightholder, that is, without the legal grounds provided for by civil law.

An analysis of the verdicts in criminal cases initiated on the grounds of a crime under Article 146 of the Criminal Code of the Russian Federation showed that in practice, three types of crimes violating copyright and (or) related rights are conditionally distinguished: 1) copying counterfeit computer programs on the Internet and installing them to other persons for remuneration outside the sphere of entrepreneurial activity; 2) selling DVDs and CDs with counterfeit audio and video recordings of works through retail outlets; 3) using counterfeit computer programs in the economic (entrepreneurial) activities of business entities.

The second and third categories of cases, among which there are forms of unfair competition [see, for example, the verdict of the Shpakovsky District Court of the Stavropol Territory No. 1-315/2015 dated 12/9/2015 URL: https://sudact.ru/regular/doc/m9CUvmJh9fYR / (date of appeal: 02/01/2024); verdict of the Boksitogorsky City Court of the Leningrad region No. 1-179/2019 dated 09/27/2019 URL: https://sudact.ru/regular/doc/FHaJqIK52q15 / (date of access: 02/01/2024)], are not as numerous as the first one. When studying 350 sentences, an approximately equal number of them was found: 22 sentences were handed down in connection with the illegal trafficking of audiovisual works on DVDs, and 25 sentences regarding the use of counterfeit computer professional programs in the field of entrepreneurial activity.

The analysis of sentences in criminal cases initiated on the grounds of Article 147 of the Criminal Code of the Russian Federation (a total of 5 sentences were discovered and investigated) indicates that this crime is committed exclusively in the field of economic activity – encroaching on other people's intellectual property rights, the guilty person thus realizes his competitive advantage, using it in business activities for the purpose of making a profit, competing with the copyright holder and other competing economic entities in the same commodity market.

In accordance with Article 14.4 of the Federal Law "On Protection of Competition", unfair competition using means of individualization can be expressed in the acquisition and use of the exclusive right to means of individualization of a legal entity, goods, works or services. In this case, we are talking about the own actions of the copyright holder of exclusive rights, for example, to a trademark, while the same designation is used by its competitor as another means of individualization, in particular, a brand name, a commercial designation, or as an unregistered trademark, the application for registration of which has an earlier priority. The subject of protection here is a person interested in invalidating the granting of legal protection to a trademark, who already uses the designation as an independent means of individualization, its element, or who submitted an application for registration earlier. Other violations may also occur.

These situations occur in arbitration law enforcement practice, and in the practice of law enforcement agencies, the illegal use of someone else's registered trademark is recorded. It is this act that constitutes the objective side of the crime provided for in Part 1 of Article 180 of the Criminal Code of the Russian Federation, which has signs of another form of unfair competition provided for in Article 14.6 of the Federal Law "On Protection of Competition", namely, related to the creation of confusion, that is, by committing actions (inaction) by the subject that can cause confusion with the activities of a competitor business entity or with goods or services introduced by a competitor business entity into civil circulation on the territory of the Russian Federation.

Among the elements of the crimes under consideration are both formal and material. The crime provided for in Part 1 of Article 180 of the Criminal Code of the Russian Federation should be attributed to formal and material compositions due to the sign of repetition, the alternative to which is the sign of causing major damage.

The criteria for large and especially large sizes under Article 146 of the Criminal Code of the Russian Federation are defined in a note to this article (large size – the cost of copies of works or phonograms or the cost of rights to use objects of copyright and related rights exceed 100 thousand rubles, especially large size – 1 million rubles); the amount of major damage under Article 180 of the Criminal Code of the Russian Federation is determined in the note to the article and amounts to over 400 thousand rubles. [Federal Law No. 79-FZ dated 04/06/2024 "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation" // URL: http://publication.pravo.gov.ru/Document/View/0001202404060014 ?index=6 (accessed 08.04.2024)].

The amount of damage caused by crimes provided for in Part 1 of Articles 146 and 147 of the Criminal Code of the Russian Federation is not disclosed in the law. Its establishment in practice is carried out in accordance with the recommendations of the Supreme Court of the Russian Federation contained in paragraph 24 of the resolution of the Plenum of the Supreme Court of the Russian Federation "On the practice of consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as on the illegal use of a trademark" No. 14 dated April 26, 2007, which recommends proceeding from from the circumstances of each specific case, taking into account Article 15 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation). In paragraph 25 of the resolution, it is noted that the large amount of damage for Article 147 of the Criminal Code of the Russian Federation should be determined based on the limits of the large size established in Article 146 of the Criminal Code of the Russian Federation.

The objective side of the crime under Article 183 of the Criminal Code of the Russian Federation is expressed in a number of actions: 1) in collecting information constituting a commercial, tax or banking secret by stealing documents, deception, blackmail, coercion, bribery or threats, as well as in any other illegal way; 2) in illegally disclosing or using information constituting a commercial, tax or banking secret, without the consent of their owner by the person to whom it was trusted or became known through service or work. It is the second group of signs that has the features of unfair competition with the use of an intellectual property object in accordance with Article 14.7 of the Federal Law "On Protection of Competition".

Thus, the main actions in the violation in question are the use or disclosure of information. Collecting information that constitutes a commercial, tax or banking secret does not in itself constitute unfair competition, being only a preparatory act. In order to recognize an act of unfair competition, it is necessary to use information by a competitor.

Of the 360 sentences studied, 32 were imposed on the collection or disclosure of information constituting a trade secret. Thus, criminalization of the collection and disclosure or other use of information constituting a trade secret is relevant as an act of unfair competition. In the first case, the information loses its confidentiality, which means that the value that was preserved due to the unknown to third parties, as a result, the rightholder is harmed in the form of direct damage (for example, in the form of a decrease in the value or depreciation of the exclusive rights to the secret of production, which was part of the property of a legal entity) and lost profits. In the second case, the direct use of other people's trade secrets in the economic activities of competitors entails both direct damage to copyright holders and lost profits.

The composition of the crime, regardless of the specifics of the actions that make up the objective side of the acts, is formal. This crime is traditionally recognized as having a high level of public danger and entails criminal liability regardless of harmful consequences.

The objective side of the crime under Article 185 ³ of the Criminal Code of the Russian Federation is related to the influence of pricing processes on commodity markets and is represented by alternative actions of market manipulation, namely: 1) dissemination of deliberately false information through the mass media or 2) making transactions with financial instruments, foreign currency and (or) goods or 3) other intentional actions prohibited by the legislation of the Russian Federation on countering the misuse of insider information and market manipulation. The norm is a blank one, referring to the Law on Countering the Misuse of Insider Information and Market Manipulation, which in Article 5 contains an exhaustive list of prohibited actions related to market manipulation.

I.A. Klepitsky quite rightly calls the dissemination of deliberately false information through the media a narrowly understood deception that led to market dysfunction, which is expressed in an active form, unlike fraud ^{[4, p. 527]}.

To some extent, the dissemination of deliberately false information corresponds to such a form of unfair competition as discrediting provided for in Article 14.1 of the Federal Law "On Protection of Competition". Discrediting is understood as the dissemination of false, inaccurate or distorted information that can cause losses to an economic entity and (or) damage its business reputation, including in relation to: 1) the quality and consumer properties of the goods offered for sale by another economic entity-competitor, the purpose of such goods, the methods and conditions of its manufacture or application, the results expected from the use of such goods, its suitability for certain purposes; 2) the quantity of goods offered for sale by another economic entity-competitor, the availability of such goods on the market, the possibility of purchasing it on certain conditions, the actual size of demand for such a product; 3) the conditions under which the product is offered for sale by another competing business entity, in particular the price of the product.

The peculiarities of this type of unfair competition are that deliberately false information is distributed only by persons who are in competition with other participants in the commodity market, for whom the reliability or unreliability of information is economically important.

Transactions with financial instruments, foreign currency and (or) goods, in accordance with Article 5 of the Law on Countering the Misuse of Insider Information and Market Manipulation, occur by prior agreement between bidders and (or) their employees and (or) persons at whose expense or in whose interests these transactions are carried out, as a result of which The price, demand, supply, or trading volume of a financial instrument, foreign currency, and/or commodity deviated from or was maintained at a level significantly different from the level that would have been formed without such operations. Consequently, in Part 1 of Article 185 ³ of the Criminal Code of the Russian Federation, criminal liability is established for both individual and collective violation of this law, since in the second case there is collusion between these persons in order to influence the conditions and results of organized bidding.

In this situation, there are some common signs with anticompetitive collusion at auctions, prohibited by Article 11 of the Federal Law "On Protection of Competition". In fact, such an agreement can lead to the same consequences as a cartel, namely, to increase, decrease or maintain prices at auction. Thus, collusion in transactions with financial instruments, foreign currency and (or) goods concluded at organized auctions may have signs of an anticompetitive cartel agreement.

Other intentional actions prohibited by the Law on Countering the Misuse of Insider Information and Market Manipulation, forming the objective side of this crime and committed individually, are subject to a ban on other, unnamed forms of unfair competition provided for in Article 14.8 of the Federal Law "On Protection of Competition".

The objective side of the crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation, in the form of misuse of insider information, is also expressed in alternative acts: 1) the use of insider information to carry out transactions with financial instruments, foreign currency and (or) goods to which such information relates, at their own expense or at the expense of a third party; 2) the use of insider information by giving recommendations to third parties, obliging or otherwise encouraging them to purchase or sell financial instruments, foreign currency currencies and (or) goods.

This description of the objective side is not directly covered by Articles 14.1–14.7 of the Federal Law "On Protection of Competition", but may fall under the general prohibition of other forms of unfair competition provided for in Article 14.8 of the said Law.

Insider information may have a trade secret regime or a regime of other legally protected information that ensures its confidentiality, and therefore a competitive advantage in relations with counterparties in the commodity market. Therefore, the deliberate use of information not known to third parties that can influence the general conditions of a particular commodity market, if such use is knowingly capable of causing damage to citizens, organizations or the state or involves extracting income or avoiding losses, is unfair behavior aimed at making profit or avoiding losses to the detriment of others to individuals by undermining the established market relationships of economic entities among themselves.

There may be another situation related to the use of trade secrets or other legally protected information by a person who did not have access to it and, for one reason or another, received it. The illegal use of such information in carrying out actions that constitute the objective side of the crime in question falls under the signs of a form of unfair competition provided for in Article 14.7 of the Federal Law "On Protection of Competition". According to this article, unfair competition related to the illegal receipt, use or disclosure of information constituting a commercial or other legally protected secret, including the receipt, use or disclosure of said information, the owner of which is another business entity-competitor, without the consent of the person entitled to dispose of it, is not allowed. The key in the context of Article 185 ⁶ of the Criminal Code of the Russian Federation is the sign of the use of trade secrets or other legally protected information in the implementation of the actions specified in it.

The nature of these actions, which constitute the objective side of the crimes provided for in Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation, has something in common: they have the essence of manipulating the market situation. In this regard, it is necessary to support the conclusions of E.A. Yemelyanova that market manipulation and the misuse of insider information are components of a single concept of information manipulation in the markets, based on the general purpose of committing these offenses, as well as the method of their commission – through the use of information in the interests of the offender [Yemelyanova E.A. Legal consequences of information manipulation in the markets: author's abstract. dis. ... cand. Jurid. Sciences. St. Petersburg, 2013. p. 7].

The objective side of the considered crimes contains a sign of causing major damage to citizens, organizations or the state, or extracting income, or avoiding large–scale losses, according to the note to Article 185 ³ of the Criminal Code of the Russian Federation, amounting to 3 million 750 thousand rubles, according to the note to Article 185 ⁶ of the Criminal Code of the Russian Federation - 5 million 500 thousand rubles [Federal Law from 04/06/2024 No. 79-FZ "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation" // URL : http://publication.pravo.gov.ru/Document/View/0001202404060014 ?index=7 (date of issue: 04/08/2024)].

Part 2 of Article ^185.6 of the Criminal Code of the Russian Federation contains a composition similar to the composition of the crime provided for in Part 2 of Article 183 of the Criminal Code of the Russian Federation, but which is formal. In both the first and second cases, we are talking about the use and disclosure of protected information by transferring it to another person, which may also be information in the commercial secret mode. The distinction should be made according to criteria such as the subject of the crime and the direction of the subject's intent in the crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation to change the price situation in the market, while the intent to use and distribute someone else's trade secret is associated with profiting from the use of a competitor's trade secret and (or) causing damage to it.

The objective side of the crime under Article 128.1 ^of the Criminal Code of the Russian Federation is connected with the dissemination of deliberately false information discrediting the honor and dignity of another person or undermining his reputation, including an individual entrepreneur. The analysis of the correlation of the signs of the objective side of this crime with the form of unfair competition in the form of discredit provided for in Article 14.1 of the Federal Law "On Protection of Competition" indicates their common features: 1) the nature of the information disseminated; 2) the occurrence of adverse consequences for persons against whose interests such information is disseminated.

Dissemination as an action can be expressed in bringing false, inaccurate or distorted information to third parties, which are customers, buyers, other business entities, including competitors and other persons whose behavior may directly affect the economic well-being of an economic entity. According to paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" dated February 24, 2005 No. 3 (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 3), the forms of distribution are different, among them may be business correspondence, advertising, any publications in the media, including on the Internet, including social networks. Such actions can be carried out both in relation to an individual entrepreneur and a legal entity.

The nature of the information is of a discreditable nature, i.e. the information does not correspond to reality, as well as discredit the honor and dignity of another person or undermine his business reputation. In paragraph 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 3, attention is drawn to what should be understood by such information.

At the same time, the nature of the consequences of slander and discredit can be different: in the first case, the personal non–property rights (intangible benefits) of an individual suffer mainly, in the second - the property interests of an economic entity as a result of losses characterized, according to Article 15 of the Civil Code of the Russian Federation, as expenses that the person whose right is violated has made or will have to to restore the violated right, the loss or damage to his property (real damage), as well as the lost income that this person would have received under normal conditions of civil turnover if his right had not been violated (lost profit), and the non-property rights of an economic entity in the event of damage to his business reputation. In some cases, the dissemination of information that constitutes the subject of discrediting can lead to other harmful consequences, for example, panic in society [Sled S.G. Criminal law protection from unfair competition. p. 75], that is, it can also cause destabilization of public welfare.

Among the various consequences that both defamation and discredit can cause, damage to business reputation is a common feature of them. Meanwhile, it should be borne in mind that discrediting as a form of unfair competition, firstly, involves harming competition, and secondly, is directly related to the appearance of a competitive advantage for the guilty person in the same commodity market in which the affected business entity operates.

Given the absence of criminal prosecution for encroachment on the business reputation of a legal entity, as well as the fundamental differences between defamation as the basis of criminal liability and discrediting as a form of unfair competition, it seems advisable to support the proposals available in science on criminalizing discrediting [Klepitsky I.A. The system of norms on economic crimes: main development trends: dis. ... doct. Jurid. M., 2006. pp. 273-274]. In solving this problem, it seems correct to focus on the prohibition of Article 14.1 of the Federal Law "On Protection of Competition". The main feature of discrediting is that it can harm the business reputation of a legal entity. In the practice of arbitration courts, it is noted that the business reputation of an organization includes the professional reputation of both the organization itself and its leaders [Ruling of the Supreme Court of the Russian Federation dated 10/26/2015 in case No. A56-17708/2014 // SPS "Garant"]. Therefore, defamatory information can be very different, but directly related to the business entity against whose interests information is disseminated that can cause losses and (or) damage its business reputation.

Thus, the crime of "Discrediting" may be as follows: "The deliberate dissemination of false, inaccurate or distorted information about an individual entrepreneur or organization, or about their activities, for the purpose of unfair competition, which caused damage to their business reputation, is punishable ...".

Indications of the form of guilt and the purpose of dissemination seem to be very important signs of the subjective side of this crime, the need for which is due to the variety of situations in which a person's business reputation may be harmed. For example, in connection with the activities of regulatory authorities, through negligence, without intent to harm business reputation, as well as in cases where neither the guilty nor the injured person are business entities according to the Federal Law "On Protection of Competition".

The subject of the crimes provided for in art. 128 ¹, 146, 147, 180, 183 The Criminal Code of the Russian Federation, is a sane individual who has reached the age of 16 years. At the same time, the analysis of the listed formulations, the results of which must be correlated with the official concept of unfair competition according to the Federal Law on "Protection of Competition", indicates the presence of special signs of their subject. Accordingly, as a subject of the listed offences, as manifestations of unfair competition, may be: 1) an individual entrepreneur; 2) a direct supervisor (sole executive body), another representative of a legal entity (for example, a member of a collegial management body, a manager, a participant in a legal entity) who has legal grounds (by virtue of a contract, law, power of attorney, other legal act) to carry out legally significant actions on his behalf (or on behalf of in his name) and in his interests; 3) an individual who is not registered as an individual entrepreneur, but carries out professional income-generating activities in accordance with federal laws on the basis of state registration and (or) license, as well as by virtue of membership in a self-regulatory organization (for example, an auditor, an arbitration manager).

The persons listed above are the subject of crimes in the form of unfair competition, if the person injured by their actions is a competitor of the perpetrator. This conclusion is based on Article 4 of the Federal Law "On Protection of Competition", which provides the concept of not only an economic entity, but also unfair competition, in its connection with Articles 14.1-14.8. At the same time, the subject of crimes provided for in Articles 146, 147, 180, 183 is common, except in cases provided for in paragraphs "d" of Part 3 of Article 146, part 2 of Article 183 of the Criminal Code of the Russian Federation.

The subject of the crime under Article 185 ³ of the Criminal Code of the Russian Federation is characterized by both general and special signs. So, in case of dissemination of deliberately false information, the subject is a common one, but to carry out transactions with financial instruments, foreign currency and (or) goods or other intentional actions prohibited by the legislation of the Russian Federation on countering the misuse of insider information and market manipulation, by virtue of Article 5 of the Law on Countering the Misuse of Insider Information and Market Manipulation, only participants in organized auctions can participate, which, according to Article 16 of Federal Law No. 325-FZ dated November 21, 2011 "On Organized Auctions", can be individual entrepreneurs and legal entities, including those with the status of a dealer, broker, manager and other status specified in this article.

When determining the subject of the crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation, it must be borne in mind that any person who is the rightful owner (insider) by virtue of Article 4 of the Law on Countering the Misuse of Insider Information and Market Manipulation, as well as a person who is not, but who has received the information that constitutes insider information is illegal. That is, the subject of this crime has the characteristics of both a general subject and a special one (insiders, which, according to Article 4 of the said law, include various categories of persons with access to insider information). In any case, the subject of this crime is a person who is interested in the consequences of committing prohibited actions in order to extract any advantages for himself.

In this regard, it is necessary to distinguish the criminal liability of representatives of business entities and persons not belonging to this category, who, although they influence competition in a particular commodity market, are not participants in unfair competition in the sense of the Federal Law "On Protection of Competition".

The subjective side of the crimes provided for in art. 128 ¹, 146, 147, 180, 183, 185 ³, 185 ⁶ The Criminal Code of the Russian Federation is characterized by direct and indirect intent. The direct intent of these crimes presupposes not only awareness of the public danger of the act, but also, in the case of its commission by an individual entrepreneur, an individual acting in the interests of an economic entity-organization, aiming at limiting competition on the part of an economic entity-competitor by "appropriating" its competitive advantages to itself or, in a situation with a business reputation, their destruction, deterioration or other harm. The indirect intent inherent in the material compositions implies an indifferent attitude to the damage caused to the protected legal relations.

The nature of violations of copyright, related and patent rights, despite the fact that the elements of crimes are not included in Chapter 22 of the Criminal Code of the Russian Federation, is determined by the economic orientation, which is characterized by a selfish motive, profit-making. This economic nature is also confirmed by analytical materials of law enforcement agencies, according to which violation of copyright, related and patent rights is attributed to economic crimes [e.g., A brief description of the state of crime in Russia in January–December 2020 [Electronic resource]. URL: https://xn--b1aew.xn--p1ai/reports/item/22678184 / (date of access: 03/25/2024)].

Self-interest as another mandatory feature included in the description of the crime provided for in Part 3 of Article 183 of the Criminal Code of the Russian Federation is revealed in law enforcement in almost all components of this crime. The collection of information constituting a trade secret may have a selfish motivation, justified by the desire to please the boss, the future employer, as well as the intention to use it for personal purposes [e.g., verdict of the Kanavinsky District Court of Nizhny Novgorod No. 1-283/2018 dated 06/6/2018 URL: http://sudact.ru/regular/doc/Htrf4cQSSQdE / (date of request: 03/15/2024)]. In entrepreneurial activity, when collecting and using information constituting a trade secret, self-interest is due to the desire to make a profit by using confidential information of the copyright holder as their own competitive advantage [e.g., verdict of Ordzhonikidze District Court of Yekaterinburg, Sverdlovsk region No. 1-683/2015 dated 10/22/2015 URL: http://sudact.ru/regular/doc/ecHQWnVB1LUX / (date of access: 03/15/2024)]. When disclosing a trade secret, a selfish interest is assumed in the form of harm to the copyright holder as a result of undermining the value of its competitive advantage.

The subjective side of slander, at first glance, does not imply the economic nature of the act due to the nature of this crime. But when slandering an individual entrepreneur, the orientation of the intent is predetermined by the intention of the perpetrator to damage the business reputation of the individual entrepreneur, prevent him from entering the commodity market or eliminate him from the commodity market in order to prevent, eliminate or restrict competition in order to obtain his own higher profit, the essence of which is the lost benefit of the victim (competitor).

The subjective side of the crimes provided for in Articles 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation is characterized by an intentional form of guilt through its direct mention in the description of crimes. The orientation of intent in both crimes is the same – it undermines fair pricing of financial instruments, foreign currency and (or) goods by influencing competitive conditions in the commodity market. The nature of illegal actions, as well as the indication of citizens, organizations, and the State as victims of these crimes, indicate that intent can be both direct and indirect. It is indirect intent that is not characterized by the purposefulness of the person's will to cause damage – the attitude to this fact is rather indifferent.

Direct intent will take place if there is a goal of extracting excess income or avoiding losses. It is also necessary to take into account the intellectual moment of direct intent associated with awareness of the information being disseminated or used. The Law on Countering the Misuse of Insider Information and Market Manipulation provides for special provisions excluding the liability of any person who disseminated false information or used insider information if he did not know and should not have known that the disseminated information is false or such information is insider (paragraphs 2 and 2.1 of Article 7).

There is an opinion in the literature that the subjective side of the crime provided for in Article 185 ⁶ of the Criminal Code of the Russian Federation, in addition to direct intent, is also characterized by a purpose, which is called carrying out transactions with financial instruments, foreign currency and (or) goods when using insider information at one's own expense or at the expense of a third person [Criminal Law. Special part: textbook for universities : in 2 vols. – 5th ed., reprint. and add. / comp. I. A. Podroikin [et al.]; ed. by I. A. Podroikin, E. V. Seregin, S. I. Ulezko. M. : Yurait, 2023. Vol. 1. p. 389]. It seems that it is more appropriate here to talk about the direction of intent to commit certain actions, while the goal is also present, but it consists in changing pricing in the commodity market.

Thus, the above analysis of the signs of the elements of crimes provided for by art. 128 ¹, 146, 147, 180, 183, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation, indicates a certain degree of their compatibility with the prohibitions of forms of unfair competition contained in Articles 14.1-14.8 of the Federal Law "On Protection of Competition". However, judicial statistics, in the absence of official accounting of such crimes as manifestations of unfair competition, cannot objectively reflect this fact (Table 2) [Judicial statistics data // URL: http://www.cdep.ru/index.php?id=79 (date of access: 02/15/2024)]. It is possible to establish such a correspondence only by studying individual sentences.

Table 2 – The number of people convicted of crimes under art. 128 ¹, 146, 147, 180, 183, 185 ³ and 185 ⁶ of the Criminal Code of the Russian Federation, and sentences in relation to crimes in which signs of unfair competition were established

This situation is due to the organizational and procedural features of the fight against violations of antimonopoly legislation in general and the lack of interaction between antimonopoly and law enforcement agencies in this area in particular ^{[5, pp. 42-48]}.

In turn, the analysis of the prevalence of violations manifested in market manipulation and the misuse of insider information should be based on statistical data from the Central Bank of the Russian Federation, which monitors unfair practices during organized trading. Statistics show a generally small number of violations in respect of which the Central Bank of the Russian Federation applied administrative measures and only in isolated cases, with the exception of 2011, materials were transferred to law enforcement agencies (Table 3) [Identified cases of misuse of insider information and market manipulation // URL: https://www.cbr.ru/inside/inside_detect / (date of request: 12/15/2023)].

Table 3 – Number of violations in the form of market manipulation and illegal use of insider information

At the same time, it is necessary to pay attention to the fact that there is no information about the registration by the antimonopoly authority of the facts of encroachments on fair competition in the category of these violations - liability measures are taken exclusively by the Central Bank of the Russian Federation. But its capabilities, as noted in science, are not enough to achieve the goals of control activities, including to identify offenses. Thus, among the main problems are: the lack of powers of the Central Bank of the Russian Federation to carry out operational investigative activities (a similar problem is noted in the interaction of the Central Bank of the Russian Federation and the Investigative Committee of the Russian Federation ^{[6, p. 389]}), the limitation of the arsenal of verification actions ^{[7, p. 381]}, the duration of the internal investigation by the Central Bank of the Russian Federation, the absence of special knowledge of law enforcement officers and the impossibility of obtaining them on a systematic basis ^{[7, pp. 353-354]}, etc.

In this context, it should also be noted the aspect of interaction between the Central Bank of the Russian Federation and the Federal Antimonopoly Service on issues of compliance with antimonopoly legislation in general and when the Central Bank of the Russian Federation identifies signs of violations in the sphere of activity under its control. Legislatively, only the authority of the antimonopoly authority to send to the Central Bank of the Russian Federation a proposal to bring into line with the antimonopoly legislation the acts adopted by it and (or) terminate actions if such acts and (or) actions violate the antimonopoly legislation (paragraph 4, paragraph 1, Article 23 of the Federal Law "On Protection of Competition"). If the Central Bank of the Russian Federation identifies signs of unfair competition in the course of its control activities, in particular, when establishing cases of market manipulation or misuse of insider information, only the Agreement on Interaction between the Central Bank of the Russian Federation and the Federal Antimonopoly Service dated 06/8/2017 will act as the legal basis for interaction. According to clause 2.5 of this document, the parties conduct mutual consultations, including on cases of violation of antimonopoly legislation related to exchange (organized) trading. The absence of a legislative framework for interaction in this area may contribute to unstable practices due to the non-normative nature of this document, in particular, the fact that the facts of unfair competition in market manipulation or the misuse of insider information will remain without the attention of the antimonopoly authority.

In this regard, it seems advisable to formalize the basics of interaction between the antimonopoly authority and the Central Bank of the Russian Federation by including the relevant provisions in Article 21 of Chapter IV "Relations of the Bank of Russia with state authorities and local Self-government bodies" of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" dated 06/27/2002. In particular, the law should provide for the forms of interaction between the Central Bank of the Russian Federation and the Federal Antimonopoly Service listed in the Agreement dated 06/8/2017 in the form of information exchange, including in this concept of exchange immediate information on the identification of signs of violation of the Federal Law "On Protection of Competition", as well as in the forms of mutual consultations, working meetings on cases of violations of antimonopoly legislation, creation of joint expert bodies and participation in their activities.

The above allows us to conclude that the above articles of the Criminal Code of the Russian Federation may form part of the criminal law mechanism for countering unfair competition, although they need some unification with the special prohibitions contained in the Federal Law "On Protection of Competition". In addition, it should be noted that there is a need to change the approach to the interaction of state authorities authorized to identify violations of antimonopoly legislation. The implementation of such proposals seems necessary in the light of the adoption of an Economic Security Strategy, because the public danger of unfair competition can have adverse consequences and increase risks to the country's economy no less than cartels officially declared a threat to economic security.