Problems of classification and optimization of the system of criminal legal norms on responsibility for white-collar crime and practices of their implementation

Karpova Elena Aleksandrovna Postgraduate student, the department of Criminal Law, Oryol State University named after I. S. Turgenev 302038, Russia, g. Orel, ul. Metallurgov, 54 EK1122@list.ru Other publications by this author

The system of norms on official crimes is given special significance and place in the process of systematization of the entire criminal legislation of Russia, including relatively separate groups (subsystems) of regulations on criminal liability for certain types of crimes against the interests of the service.

Despite its well-known conservatism, it is characterized by permanent variability. According to the author's calculations, out of one hundred and forty-two Federal laws on amendments and additions to the criminal code of the Russian Federation in recent years, sixty-four (45%) have affected the content of the norms on official crimes, affecting its system relations. Over time, certain problems of systematization of the criminal legislation of Russia on responsibility for official crimes become more and more obvious.

The problem of classification is of particular importance in this issue. Being one of the most common methods of legal technique, classification allows you to combine a variety of studied phenomena into single groups, based on certain established rules. The method serves as a kind of basis for all types of scientific classifications, the complexity of which consists in the complexity of the process of establishing a cause - and-effect relationship that connects classification objects.

An important aspect of accurate classification is the use of an epistemological approach. This facilitates this process, so it is not for nothing that lawyers are puzzled by the choice of the correct approach to this classification problem in criminal legislation ^{[10, p.22]}.

Thus, classification is very important for criminal legislation, since it has practical value. This understanding of classification gives it a great informative load. This fully applies to the classification of official crimes, the issue of which is currently debatable.

In our opinion, the classification of crimes is complicated, firstly, by the fact that official crime relatively recently separated (since the adoption of the current criminal code in 1996); and, secondly, the lack of consistency (existence of malfeasance in other chapters of the criminal code) causing problems for their groups.

In addition, the modern doctrine of criminal law contains an insufficient number of theoretical developments on the grounds of classification of official crimes and their specific differentiation within a particular group, based on various criteria of differentiation. Analyzing this group of criminal attacks, the authors mostly address the problems of the terminological apparatus, considering them the most difficult.

Based on the opinions of modern researchers, we will highlight the main directions of development of modern science of criminal law and problems of classification of official crimes.

The first problem is the lack of uniform criteria for classifying official crimes based on one or another criterion for distinguishing them.

In the modern Russian legislation classification of these criminal acts can be based on a systemic consolidation of the signs of crimes in the criminal law, in other words, the systematization of crimes, the proposed criminal code and the classification of certain characteristics of the elements constituting malfeasance. Based on the main elements of the composition of official crimes, namely: object, subject, objective and subjective characteristics, we present the following variety of their classifications.

Initially, we emphasize crimes are the only category of criminal acts, the norms providing responsibility for Commission of which are United in one Chapter of the criminal code on the basis of the signs of a special subject.

Taking as the basis of which, V. N. Borkov offers the following classifications ^{[10, p. 22-28]}:

1) according to the temporary criteria for the exercise of powers by an official (temporary and permanent);

2) functional criteria (administrative and economic, organizational and administrative, etc.);

3) by the level of implementation of state power (Federal, regional).

The classification of official crimes formulated by A. A. Kostenko is based on the position of the legislator, namely Chapter 30 of the criminal code of the Russian Federation ^{[16, p.96-98]}.

The author suggests differentiating these compositions into the performed ones:

1) exclusively by officials (art. 285, 286, 287, 289, 290, 293 criminal code);

2) state and municipal employees (article 288 of the criminal code of the Russian Federation);

3) a common subject (article 291, 291.1 of the criminal code).

Classifies them with an emphasis on the signs of the subjective side of the crime structure by T. B. Basova ^{[7, p. 291-293]}:

1) according to the motive of criminal attacks, divides into corruption (art .285, 285.1, 285.2, 285.3, 286, 289 criminal code of the Russian Federation) and non-corruption (articles 286.1, 287, 291, 291.1 of the criminal code);

In turn, the authors proposed to divide corruption-related crimes into the following groups:

- main acts of corruption;

- related corruption-related crimes;

- other types of official «near-corruption » crimes.

There are also other classifications, so I. K. Slyadnev classifies crimes of corruption, based on the characteristics of the subject who committed them, into those that are committed by officials, and those that are committed by other persons. They are also asked to divide them into public and non-public ^{[17, p. 7-10]}.

We find the position of the authors offering to single out corruption-related crimes in a separate Chapter of the criminal code of the Russian Federation quite interesting ^{[8, p. 37-43]}.

However, the legislator did not do this. Perhaps this is due to the multidimensional nature of the concept of corruption, which can be manifested in various areas: education, public administration, etc. each of them has its own specific object of criminal encroachment, i.e. groups of public relations protected by criminal law.

2) based on a form of guilt – committed with direct or indirect intent (article. 285, 285.1, 285.2, 285.3, 285.4, 286, 286.1, 287, 288, 289, 290, 291, 291.1, 291.2, 292, 292.1 of the criminal code) and negligence (article 293 of the criminal code).

Pointing to the structural features of the composition, E. Karpova classifies official crimes on ^{[14, p. 9-11]}:

1) committed with material composition (article 285, article 285.4, article 286, article 286.1, article 288, article 293 of the criminal code of the Russian Federation);

2) having a formal composition (article 285.1, article 285.2, article 285.3, article 287, article 289, article 290, article 291, article 291.1, article 291.2, article 292, article 292.1 of the criminal code).

Thus, within the framework of the study, various classifications of official crimes were presented, based on a specific element of the crime: 1) relative of offender – criteria: a) the term of office; b) exercise certain functions; C) the level of public authorities, etc.; 2) regarding the subjective side of a crime – criteria: a) motive; b) the form of guilt.

The study presented the classification of official crimes based on the structure of the crime structure.the differentiation of this group of criminal acts was carried out on: a) material; b) formal.

In the legal literature, there are other groups of official crimes, in particular, V. M. Bobrov, A. A. Moiseeva propose to distinguish official crimes in the field of health care ^{[9, p. 37-38]}.

N. B. Khlystova, V. Yu. Drozdov obosoblivayut in the system of official crimes corruption acts committed in the field of public procurement ^{[18, p. 250-257]}.

It is also proposed to allocate official crimes when performing a state contract.

It is clear that such a division of official crimes at its core contains the object of criminal legal protection of specific social relations in various spheres of activity of individual links of state authorities, etc.

In modern legal doctrine, it is possible to find judgments about the separation in the criminal code of the Russian Federation of a group of criminal encroachments that are committed by officials of foreign States. The authors propose to fix the priority of international criminal law in establishing the characteristics of the subject of transnational bribery, as well as to expand the range of criminal attacks, the subjects of which will be recognized as officials of foreign States ^{[12, p.127-135]}.

In our view, it is unnecessary to offer complex classifications on various grounds. this will only complicate the process of investigating criminal cases, complicate the qualification process, and create new problems. Based on the above, taking as a basis the structure of sections of the Special part of the Criminal code of the Russian Federation, all official crimes are divided into four groups:

— official crimes in the social sphere of society (crimes against the person);

— official crimes in the economic sphere of society (crimes in the sphere of economy);

— official crimes in the political sphere of society (crimes against state power, crimes against public service);

— official crimes against the judicial power and the procedural activities of the preliminary investigation bodies and those called to execute sentences and other judicial acts. Which, based on the current version of Chapter 31 of the criminal code of the Russian Federation, we believe it is correct to divide Into: crimes in the sphere of judicial administration of justice;crimes in the field of procedural activities of preliminary investigation bodies; crimes in the field of execution of judicial acts.

Thus, we made an attempt to create a theoretical framework within which we could build a clear and popular system of official crimes that allows us to deeper reveal the content of criminal – legal prohibitions, assess the adequacy of each of them individually and their totality.

The next problem that I would like to draw attention to in this study is related to legal technology and consists in the systematization of official crimes in the criminal code of the Russian Federation and the designation of structural components of its chapters, which fix the responsibility of officials of public authorities and public service.

In this regard, the science offers a variety of options for its resolution from the creation of a "single" Chapter of all types of official crimes, including those committed against the interests of management in commercial and other organizations, its renaming, for example, "Crimes in the field of management", "Crimes against the interests of the service"to the expediency of establishing criminal liability of state officials in a special law ^{[10, p. 27]}.

In our opinion, using the positive experience of a foreign legislator in this direction, the criminal code of the Russian Federation should provide for a section "Crimes against public authority and management". This section should include in the following order: the Chapter "Crimes against the interests of the public service, service in local government bodies and management in commercial and other organizations"with two paragraphs" « §ion; 1.«Crimes against the interests of the public service and service in local government bodies » and«§ion; 2.Crimes against the interests of management in commercial and other organizations ».

Here we suggest paying attention to another problem, as follows from the title of Chapter 31 of the criminal code of the Russian Federation, you can not assign law enforcement agencies, the functions of justice, which only the judiciary has. In this regard, we consider it appropriate to formulate the title of Chapter 31 of the criminal code of the Russian Federation as follows: "Crimes against the judicial power and the procedural activities of preliminary investigation bodies and those called upon to execute sentences and other judicial acts".

When examining the system of official crimes enshrined in the criminal code of the Russian Federation, one cannot but pay attention to the ongoing work of the legislator in this direction.

An interesting proposal is the legislative initiative of the Deputy Alexander Starovoitov, who introduced a bill to the state Duma that provides for the addition of the Criminal code with a new article 286.2 "Insult committed by an official" ^[3].

According to the author of the draft law, it is unfair and completely unacceptable to date to fix in the criminal code of the Russian Federation the criminal responsibility of a citizen for insulting a representative of power (article 319 of the criminal code), however, the absence of rules on the responsibility of officials for insulting citizens.

The disposition of the article refers to an insult committed by an official in the direct exercise of their duties in the service against another person.

The bill also intends to strengthen criminal liability for a similar act committed during a public speech, a publicly displayed work or in the media; for insults committed with the use of violence or with the threat of its use, causing serious consequences.

In our opinion, the proposed amendments to the criminal code of the Russian Federation should be recognized as topical and sufficiently relevant, allowing«equalize » the legal position of public authorities and citizens in terms of a balanced action of criminal liability for offensive statements.

The Ministry of justice has put forward a legislative initiative to exempt officials from criminal liability for accepting bribes ^[4].

The Bill indicates the presence of a combination of objective circumstances of force majeure that exempt officials from criminal liability. However, their list has not yet been developed.

The bill is currently under public discussion. Then the Ministry of justice with the participation of the interior Ministry, the Investigative Committee of the Prosecutor General of the Russian Federation plans to compile a list of specific cases where the violation of anti-corruption laws would not qualify as a crime.

We do not support this legislative initiative, considering it a kind of loophole for officials to avoid responsibility.

Thus, we come to the conclusion that the legislator continues to improve the system of official crimes, taking into account the needs of practice.