Evolution of Russian legislation in the field of countering crimes committed by managers against the interests of corporations

Udintsev Gleb Vladimirovich Postgraduate student; Institute of International Law and Justice; Moscow State Linguistic University 109472, Russia, Moscow, Tashkent str., 22 glebunior@gmail.com

A well-known specialist in the field of criminological science, B. V. Volzhenkin, in his writings, repeatedly emphasized the importance of understanding the basic principles and patterns of the development of legal science. In his opinion, this understanding allows us to use concepts that have been improved for centuries, which can be very effective in the context of modern realities ^[1].

Based on the above, in this article we propose to analyze the process of evolution of domestic criminal legislation in terms of criminalization of acts committed by employees of corporations using their official position, paying special attention to the heads of these organizations.

Abuse of office has been a constant companion of power throughout the entire process of development of society. It is noteworthy that this phenomenon arose simultaneously with the formation of the first state institutions in almost all countries of the world ^[2]. Despite the recognition of the use of official position for personal gain as an act dangerous to society and the state, such abuses have been punishable exclusively by public officials for a fairly long period of time ^[3].

The first beginnings of corporate structures on the territory of present-day Russia arose in the XIV century. Around the same time, the concept of "insolvency" (bankruptcy) was born.

But the need for criminal law to counter the abuse of power in the field of corporate activity was not realized until the XVIII century. This can be explained by the fact that Russian entrepreneurship has been developing for a long time in relatively simple forms based on family ties that do not require any legal regulation.

Thus, the traditional feature of the Court Cases of 1497 and 1550 was personal responsibility for bankruptcy, and insolvency relations were considered only in connection with the activities of merchants, therefore, legal assessment was applied only to commercial insolvency — "artless" or "accidental" ^[4]. These types of insolvency were first mentioned in Russian Pravda and the Council Code of 1649, which fixed liability for non-payment of debt due to temporary financial difficulties of the debtor, as well as for the deliberate evasion of the latter from fulfilling its obligations ^[5].

Only in the period from the XVIII to the XIX century, during the formation of bourgeois relations under the influence of continental law, the foundations of domestic entrepreneurship were laid, and relations in this area received criminal legal regulation. This period is characterized by the intensive development of the economy and the natural process of complicating the forms of its implementation: commercial corporations appear in various sectors of the economy, in parallel, non-profit corporations arise in the form of various societies and unions, created for the purpose of social protection of the population, the development of science, culture, and the provision of medical services, the system of notary bodies is being formed and improved ^[6].

At the same time, bankruptcy proceedings developed: the "Bankruptcy Charter" of December 15, 1740, the "Bankruptcy Charter" of December 19, 1800 and the "Commercial Insolvency Charter" of June 23, 1832 were adopted, an understanding of the criteria of insolvency was gradually formed and attempts were made to distinguish between forms of legal and illegal insolvency. All these laws fixed two types of insolvency: "unhappy" and "malicious" ^[7]. The final decision on what type of insolvency belongs to was made by the court. Insolvency was considered unfortunate when the debtor turns out to be insolvent not because of his fault, but because of external factors, that is, by accident. Malicious insolvency was associated with the unreliability of a person in his professional activity ^[8].

Regardless of the type of insolvency, the main criterion for declaring a person insolvent was considered to be his "non-payment", that is, the insufficiency of his property to repay all debts. In order to declare a person bankrupt, in turn, it was required that there was a fact of insolvency, confirmed in court, and that he committed illegal actions defined by law.

Thus, depending on the actions that led to the inability to pay debts, insolvency was distinguished as a civil consequence caused by the rash actions of the debtor in economic activity, and bankruptcy as intentional actions aimed at deliberately failing to fulfill obligations to creditors. Based on this, bankruptcy can be recognized as the criminal side of that civil legal relationship, which is called insolvency. The "personal" and material legal consequences for the debtor were determined depending on the type of insolvency - "innocent" indigent debtors were spared punishment, while "malicious" bankrupts faced the death penalty.

With the growth of personal capital and the formation of the stock market, there was an expansion of the circle of investors who, owning a share of the corporation, nevertheless could not directly interfere in its management. In this regard, there was a need to involve professional managers and the legal regulation of their powers.

The "Regulation on Companies on Shares" of 1836 regulated the activities of joint-stock companies, providing basic protection for shareholders, but, alas, did not contain provisions aimed at protecting them from illegal actions by professional managers to whom they entrusted their company. And therefore, due to the lack of effective legal mechanisms, various kinds of abuses in the field of corporate activities remained practically uncontrollable.

It would be incorrect to assert that the criminal legislation of the Russian Empire of the second half of the XIX – early XX centuries completely lacked norms concerning liability for encroachments on the interests of the service. Thus, the Code of Criminal and Correctional Punishments of 1845 provided for the prosecution of corporate officials for committing common crimes.

However, the absence of the definition of an official in the criminal domestic law of that time made it problematic to qualify their actions and distinguish them from similar criminal acts committed by government officials. In this regard, a number of changes were made to the Code of Conduct, establishing liability for abuse by corporate personnel.

In accordance with the new version of the Code (1885), "A merchant's clerk or a sideman" could be criminally punished if he: "will not execute the orders and instructions of his master" (Article 1185); "take over the management of other people's business, or take other people's goods for sale, without written consent with the permission of his master" (Article 1186); "without a written order from the master, he will sell the goods at a loss" (Article 1188); "through negligence or with evil intent, he will damage the goods or other property given to him (Article 1189); he will provide "false to his master, upon sending the goods to him for presentation and accounts" (Article 1190); "squanders the goods or other property of his master entrusted to him, or gives up or allows any expenses unauthorized by the owner" (Article 1191).

It should be noted that the code provided for criminal punishment for the participants of corporations themselves, so according to Article 1199 of the Code, "members of companies, partnerships, or companies founded with the permission of the government were liable for the deliberate destruction, damage or concealment of the company, partnership or company's acts, or property, as well as for appropriation or unauthorized the embezzlement of such property."

Stockbrokers who lost "money and promissory notes stolen from traders and did not satisfy their client" (Article 1319), stockbrokers "for omissions and abuse of their position" (Article 1324) and bank employees who committed illegal actions against the property stolen by them, accepted illegal remuneration or extorted His.

It is important to note that in the context of criminal prosecution, all the above-mentioned persons were equated with officials and officials of state institutions (art. 1154).

Noting the very casuistic nature of the regulatory regulation of the criminal liability of corporate executives in the Code of 1845, it should also be noted that it was this document that marked the beginning of the separation of a group of crimes related to the violation of the interests of service in corporations, and also contributed to the solution of the urgent task at that time to stabilize the industrial and credit sectors of the country's economy, which indicates the extreme the significance of this normative act for the development of the legal system of the Russian Empire.

The Code of Criminal and Correctional Punishments of 1845 and 1885 simultaneously acted as the main source containing provisions on criminal liability for actions related to bankruptcy during the period under review. A characteristic feature of these laws in this context was not only the differentiation of criminal liability for malicious and negligent bankruptcy, but also the differentiation of commercial and non-commercial insolvency. Bankruptcy was considered malicious if the insolvency was related to intent or forgery, and careless if the debtor could not pay off debts through his own fault, but without intent or forgery, for example, with frivolous business conduct or extravagance.

The state continued to respond promptly to the abuses of corporate executives in the context of the dynamically developing economy of the Russian Empire. Thus, in the new Criminal Code of 1903, a fairly wide list of acts was criminalized. In particular, according to article 311 of the Code, owners and managers of enterprises were responsible for violating environmental standards, article 326 concerned the responsibility of participants in commercial or industrial companies or partnerships for violations in the field of financial accounting and reporting, article 330 provided for criminal liability of heads of enterprises for illegal transactions, article 604 provided for imprisonment for managers whose negligent management led to the bankruptcy of the company entrusted to them.

In article 599 of the Code, the signs of unlawful bankruptcy were identified: Concealment of one's property upon declaring bankruptcy by omission or providing false information about its existence, issuance of fully or partially fictitious obligations reducing the bankruptcy estate, as well as gratuitous transfer or concealment of property after declaring bankruptcy and issuance of fully or partially fictitious obligations, as well as gratuitous transfer or otherwise concealed property before declaring bankruptcy, but in circumstances that indicate that it is imminent.

It is important to note that the elements of crimes committed by corporate employees, enshrined in the domestic criminal legislation of this period, were very heterogeneous. This circumstance required a more unified approach to establishing responsibility for such crimes, and in some cases the legislator of that time coped with this very successfully, for example, by introducing the generalized concept of "abuse of trust".

The legislator fully understood that property crimes committed in complex economic relations are no less dangerous to society than ordinary encroachments on property, are of equal importance, and sometimes a more serious threat to the property rights of the victim compared to crimes against things "in corpore". In this regard, the use of corporate employees of their position to the detriment of the interests of the service, according to article 578 of the 1903 Code, entailed severe punishment in the form of imprisonment with serving a sentence in a correctional facility, and even hard labor for up to 8 years was provided for causing significant harm. It is interesting to note the significant similarity of this article with Article 201 of the already modern Criminal Code of the Russian Federation.

At the same time, the approach to holding both officials and employees of the private sector accountable for abuse of office remained unchanged - as in the Code of 1845, they were criminally liable on the same grounds, and the very concept of "employee", used to designate the subject of this category of crimes, was interpreted extremely broadly. According to official explanations, an employee was considered to be someone who held a permanent position or performed temporary employment both in public institutions and in any private organizations.

When assigning a certain crime to the rank of official, it was proposed to focus on the qualifying signs of the act itself, and not on the characteristics of the perpetrators. At the same time, persons employed in the private sector were equated in all matters of criminal liability with persons in public service, since, according to legislators, otherwise the former, having a real opportunity to commit crimes, could have avoided punishment established by law ^[9].

All of the above indicates that at the end of the XIX century, in the brightest minds of the Russian Empire, there was an awareness that the corporate sector could not be excluded from the scope of public law, and violation of official duty should be considered a crime, regardless of whether the person who committed it was a civil servant or a commercial one.

Unfortunately, the effectiveness of the innovations of the 1903 Code could not be evaluated in practice, since it never entered into force, and until the Socialist Revolution of the 17th year, outdated provisions of previous editions continued to operate at that time.

After the Revolution, despite the desire of the new government to break the former imperialist mechanism of public administration and build a new socialist model of economic relations, such large-scale changes could not be implemented overnight, and the problem of abuse in the corporate sphere has not disappeared anywhere, and the fight against them has not lost its relevance. Therefore, already in the first decrees of the socialist government, the main directions and principles of the new state's policy in this direction were formulated. Soviet Russia no longer knew private service - comprehensive nationalization turned all private workers into officials: all sales clerks and factory workers, down to the last janitor, were now economic officials, included in the staff of state institutions and receiving monetary allowances according to state-defined tariff plans. As a result, the group of official crimes invariably had to increase enormously in quantity, radically change its criminal-political significance and content in comparison with the old law ^[10].

Thus, from the first days of the RSFSR's existence, all employees, regardless of their position, organization status and managerial functions, began to be considered as subjects of official crimes. Based on this, anyone could abuse their official position, starting with a courier, a watchman or a clerk and ending with a high-ranking official ^[11].Thanks to this approach, there have been cases of criminal punishment for abuse of office by the heads of dairy cooperatives and captains of private vessels.

The Soviet period can be described as a "lull time" in the development of the institution of bankruptcy, since the previous ways of regulating these relations were almost completely forgotten. Due to the specifics of the political structure of society, even the very concept of "bankruptcy" has disappeared. The state was the only significant participant in the field of bankruptcy. There were no rules providing for criminal liability for violations in this area.

The total penetration of the state into all spheres of the Russian economy and its institutions, represented by institutions, organizations and enterprises, was reflected in the Criminal Code of the RSFSR of 1960. The chapter on official crimes of the 1960 Criminal Code did not contain special rules. On the contrary, absolutely all the elements of crimes in this section were common, that is, the public danger of the criminal acts committed by them was assessed equally, regardless of whether they were committed by government officials or employees of enterprises in various sectors of the economy. An official was recognized as a person who permanently or temporarily performs managerial administrative functions in organizations of any organizational and legal forms.

The equating of representatives of almost all professions, having even very minor managerial functions, to officials was quite consistent with the nature of the Soviet economic and political reality, within which any social formations were integral parts of the state mechanism. However, the liberal economic and political reforms of the 80s, carried out by the Soviet leadership itself, made such a system of malfeasance unviable ^[12].

By historical standards, the rapid transformation of the political and economic structure of our country was accompanied by an inevitable transition from a planned economy to a market economy. The transition process itself took place largely spontaneously, without any clear plan for its implementation. Thus, V. F. Yakovlev ^[13] noted that at this stage in the history of our state, the desire to permanently dismantle the old system as soon as possible prevailed over the understanding of the need to first create an adequate replacement for it, which, of course, led to losses, especially noticeable in the economic sphere.

Nevertheless, it is impossible not to note the undeniable achievements of this period, in particular the adoption of the Constitution in 93 and the Civil Code in 94. These documents have consolidated key changes affecting all spheres of society. The most significant of them were economic ones: the expansion of the boundaries of economic freedom, the introduction of the institution of private property and the opportunity to engage in entrepreneurship, as well as the large-scale privatization of the prevailing public property at that time. All this became the foundation for the formation of a completely new economic and legal system ^[14].

However, at the same time, along with positive changes in the economic and legal sphere, problems appeared that our state is still trying to solve. The formation of a market economy, the formation of a multiparty political system, the equalization of private property with state property led to the emergence of organizations that no longer represent the interests of the people, but the interests of certain groups and individuals - corporations with radically different functioning and management processes from state institutions ^[15]. The heads of such entities, who no longer fully fall under the concept of "officials", found themselves outside the perimeter of the criminal law norms on official offenses. In particular, this example shows that the rapid transition to a market economy was not ensured by appropriate criminal law regulation.

At the initial stage, such white spots were tried to be compensated by an expansive interpretation of the legislation proposed by Resolution No. 4 of the Plenum of the Supreme Court of the USSR dated March 30, 1990 "On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and official forgery." This decision was based on the fact that commercial corporations and public organizations consist of several individuals, therefore, they are public associations. However, such a loose interpretation contradicted both the provisions of the USSR Law No. 1708-1 of October 9, 1990 "On Public Associations" and the Law of the RSFSR of December 24, 1990 No. 443-1 (ed. of June 24, 1992, with amendments. dated July 1, 1994) "On Property in the RSFSR", as well as the basic theory of civil law (Business companies represent an association of capitals, not individuals. In addition, two of the three types of business companies can be established by a single founder and fully function with a single participant/shareholder). In this regard, such a dubious practice was discontinued after the Supreme Court of the Russian Federation overturned a number of sentences and terminated a number of cases against corporate executives at the initiative of the Prosecutor General's Office.

Such an order of things naturally led Russian lawmakers to the need to rethink the basics of bringing to justice for official crimes. The fruit of this rethinking was the current Criminal Code of 96, which, among other things, consolidated the idea of distinguishing the legal nature of public and private service. With its adoption, the heads of commercial and non-profit corporate organizations were removed from the scope of the norms on official offenses.

Unlike the Criminal Code of the RSFSR of 60, which contained a chapter devoted exclusively to official crimes, the Criminal Code of the Russian Federation of 96 distinguishes two similar but different categories of crimes - "crimes against state power, interests of public service and service in local government" (Chapter 30) and "crimes against the interests of service in commercial and other organizations" (Chapter 23).

Such differentiation clearly marked the differentiation in the subject composition of the above-mentioned categories of crimes: in addition to the already familiar term "official", there was an objective need to identify another type of special subject, namely, "a person performing managerial functions in commercial and non-profit corporate organizations."

Of course, in both cases mentioned above, we are talking about the improper use of their powers, however, the very nature of these powers differs: the powers of a civil servant are based on public law norms and are carried out within the framework of public law relations. At the same time, the powers of corporate employees in the private sector arise from contractual relations and are of a private law nature.

Unlike state and municipal officials, whose main duty is to serve the public, employees of corporate organizations must first take care of the interests of corporations and individuals who have entrusted them with the management of their property. They have no more obligation to serve society than any other citizen who does not hold any positions. As we can see, the range of responsibilities, as well as the scope of powers of corporate employees, differ significantly from those of state and municipal employees, which cannot be ignored in the criminal legal assessment of the crimes they commit.

At the same time, it should be noted that the concepts of "official crime" and "official crime" themselves are absent in the wording of the Criminal Code of the Russian Federation in force at the time of writing this work, which today creates significant difficulties in qualifying acts provided for in chapters 23 and 30 of the Criminal Code adopted in 96.

The current stage of development of relations in the field of insolvency is associated with the adoption of a number of legislative acts regulating the material and procedural foundations of the institution of bankruptcy, as well as the introduction of criminal liability for violations of the proper bankruptcy procedure.

The first such law was Federal Law No. 3929-1 of November 19, 1992 "On Insolvency (Bankruptcy) of enterprises". Fair criticism of this act was directed primarily at the fact that it fixed “non-payment” as one of the mandatory criteria for insolvency, which required a lengthy judicial procedure to confirm the insufficiency of the debtor's property to pay debts in each specific case. This, in turn, meant an unjustified priority of protecting the debtor's interests over public interests.

Federal Law No. 6-FZ of January 8, 1998 "On Insolvency (Bankruptcy)" was also not without flaws. Many researchers note its liquidation nature, emphasized by the impossibility of transition from bankruptcy proceedings to external management 1-^[1-6].

The current Federal Law "On Bankruptcy" is already the third regulatory legal act of the Russian Federation, which regulates relations related to bankruptcy. Although scientists note a number of its shortcomings ^[17], the positive changes it makes are indisputable ^[18].

An important component of the current law is the identification of the concepts of insolvency and bankruptcy as events of a civil nature and the consolidation of its main criterion - insolvency. This is the termination of the debtor's performance of part of its monetary obligations due to lack of funds. This definition made it possible to coordinate the interests of the debtor and creditors, to clearly define the boundaries between legal and criminal in the field of bankruptcy.

The introduction of legislation regulating insolvency (bankruptcy) relations entailed the establishment of criminal liability for criminal acts in this area, the forms of which are fixed in articles 195-197 of the Criminal Code of the Russian Federation. In the theory of criminal law, such criminal acts are defined as "criminal bankruptcy", "bankruptcy crimes" or "bankruptcy-related crimes". Although these definitions generally correspond to the content, each of them has its drawbacks. From our point of view, we consider the use of the generalizing term "criminal bankruptcy" to be optimal.

The historical analysis of the evolution of the institute of executive responsibility for crimes against the interests of service in corporations conducted in this article allows us to draw the following conclusion: over several centuries, the understanding of the issues of criminal law regulation of corporate executives' responsibility has led to an awareness of the different legal nature of public service and corporate structures, entailing the inadmissibility of a unified approach to the criminal legal assessment of official abuses public authorities and non-governmental employees. Despite the apparent similarity, due to these differences, a different approach is required to the criminal legal assessment and measures to counteract these, undoubtedly, inherently different acts. Thus, the appearance in the criminal legislation of Russia of a system of crimes against the interests of service in corporations is unambiguously historically and economically conditioned and favorably distinguishes domestic criminal law from foreign legal systems ^[19], which have not yet introduced such a division, but are only conducting preparatory work for it ^[20].