The first mention of bribery takes place in written sources of the 14th century during the era of tsarism. Later, during the reign of Peter the Great, state officials were given salaries from the sovereign power, after which bribery was considered by the state as a crime. And much later, after the Bolsheviks came to power with the creation of a socialist state, “corruption did not disappear anywhere” [4, p. 152].
Currently, bribery is a certain form of manifestation of corruption, and corruption can also include a sufficient number of other illegal acts, such as embezzlement, collusion, fraud and abuse of power. In this we see a clear difference between bribery and corruption.
Mediation in bribery is a crime committed by an intermediary in bribery, who performs the instructions of the bribe giver or bribe taker, acting on their behalf [2, p. 147]. These crimes are interconnected by the commonality of the object and subject, the content and nature of the criminal acts.
It should also be noted that the object of bribery is the activities of the public apparatus of power and administration carried out in accordance with the law, the interests of the state and municipal service.
Bribery refers to official crime. Official delinquency is a set of crimes committed by officials (and the persons who committed them) against state power, the interests of public service and service in local governments .
At the same time, bribery includes common features of related offenses. Thus, in the domestic theory of criminal law, stable norms have been formed to distinguish between crimes that cover the most typical situations. The delimitation of adjacent criminal structures is carried out according to the accepted common features that characterize the object, the objective side, the subject, the subjective side. Therefore, the following types of differentiation can be distinguished:
- by object;
- by subject;
- on the objective side (the most common);
- on the subjective side.
The problem of delimitation of crimes is one of the most complex and at the same time insufficiently developed by the theory of criminal law. A fairly large number of errors made by the courts in the application of criminal law norms fall on the wrong qualification of crimes.
Receiving and giving a bribe has similar features to the following crimes:
– Abuse of official powers (Article 285 of the Criminal Code of the Russian Federation);
– Commercial bribery (Article 204 of the Criminal Code);
–Bribing participants and organizers of professional sports competitions and spectacular commercial competitions (Article 184 of the Criminal Code of the Russian Federation);
– Separation of bribery from abuse of official powers (Article 285 of the Criminal Code of the Russian Federation).
Often, taking a bribe is associated with abuse of official powers, which is the use by an official of his official powers contrary to the interests of the service, when the act is committed out of mercenary or other personal interest and entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.
The decision should be based on the general rule of competition of criminal law norms. Since taking a bribe is a special type of official abuse, the deed is qualified under Art. 290 of the Criminal Code of the Russian Federation .
In practical terms, distinguishing between a bribe and abuse of power presents a certain difficulty, since the signs of the elements of these crimes largely coincide. Both crimes are characterized by: encroachment on the same object; committing them from the subjective side only with direct intent; the single subject of the crime is an official. However, there are some differences in the features of the composition:
— a mercenary purpose when receiving a bribe is a mandatory feature, in case of official abuse — an alternative one;
— the composition of official abuse is constructed in the law as material (for its existence, the onset of consequences is necessary — a significant violation of law-protected interests), the composition of taking a bribe is formal.
The main differences between these crimes in practical terms are as follows.
In case of abuse of official powers, the law refers only to such an action (inaction) of an official that followed from his powers and was associated with the exercise of the rights and obligations that this person is endowed with by virtue of his position. The specified action when receiving a bribe is only one of the options for the possible behavior of an official, along with facilitating such actions (inaction) for the corresponding benefit of a property nature by virtue of official position.
Of no small importance in delimiting the receipt of a bribe from the abuse of official powers is the definition of the content of the benefits received by an official for the use of official powers. In particular, the receipt by an official of an intangible benefit for actions (inaction) related to the use of official powers excludes his liability for taking a bribe. If there is a significant violation of legally protected interests, such behavior of an official can be qualified as abuse of official powers. The content of the intent of the perpetrator is essential for distinguishing between the receipt of a bribe and the abuse of power. If the consciousness of the perpetrator covers the fact that material values are transferred to him illegally and for certain behavior in favor of the giver, there is a bribe taking. If an official does not have such consciousness, then his actions are qualified as abuse of official powers.
Thus, when qualifying, it is necessary to find out whether the abuse of power is an independent corpus delicti.
Separation of bribery from commercial bribery (Article 204 of the Criminal Code of the Russian Federation).
Commercial bribery has many features in common with receiving and giving a bribe, which undoubtedly raises questions about their correct distinction. The fundamental difference between the compositions of the crimes under consideration lies in the features of their subjects, which, accordingly, determines another object of encroachment.
The subject of receiving a bribe is an official who performs the relevant functions in state bodies and local governments, state and municipal institutions, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.
Thus, the difference in the subjects determines the difference in the objects of bribery and commercial bribery. In the first case, damage is caused to public relations that ensure the normal (legal) functioning of the state apparatus and the apparatus of local self-government, and in the second case, to the apparatus of commercial and other organizations.
The owner of valuables in such cases is liable for an attempted bribe or commercial bribery, if the transfer of valuables pursued the goal of committing the desired action (inaction) by the indicated persons, paragraph 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2000 No. 6 «On judicial practice in cases of bribery and commercial bribery” .
Separation of bribery from bribing participants and organizers of professional sports competitions and spectacular commercial competitions (Article 184 of the Criminal Code of the Russian Federation).
For similar reasons, there is a distinction between bribery and bribery of participants and organizers of professional sports competitions and spectacular commercial competitions (Article 184 of the Criminal Code of the Russian Federation).
The distinction between the above crimes is clearly traced on the basis of the object, the subjective side and the subject.
The object of the crime under Part 4 of Art. 184 of the Criminal Code of the Russian Federation, are public relations that regulate the organization and holding of professional sports competitions and spectacular commercial competitions, and not the interests of the public service.
On the subjective side, this crime, in addition to direct intent, implies the presence of such a special purpose as influencing the results of competitions or contests.
Subject, according to Art. 184 (parts 3 and 4), is a circle of persons clearly defined by the legislator — athletes, sports judges, coaches, team leaders, organizers and other participants in professional sports competitions, as well as organizers or jury members of spectacular commercial competitions, while the subject of receiving a bribe may be only an official, the signs of which are defined in the note to Art. 285 of the Criminal Code of the Russian Federation. An official who is at the same time an organizer, jury member (judge) of sports competitions, spectacular commercial competitions and receives illegal remuneration in order to influence the results of these competitions and competitions, should be liable only under Art. 184 of the Criminal Code of the Russian Federation. If it, using its official position, influences the indicated persons for the corresponding remuneration for the same purposes, then there is an element of taking a bribe.
Some difficulties arise in matters of delimitation of bribery from various forms of theft of other people’s property.
In the literature, when distinguishing between theft and bribery, it is indicated that the actions of the perpetrator contain the composition of theft, and not taking a bribe, if the following signs are present:
— the acquisition of material goods due to their withdrawal as a result of official abuse;
— transfer of material assets to an official by accomplices of theft or persons not involved in the crime, not for any actions in the service, but in the form of a division of illegally seized funds or for the stolen property being sold;
— intent aimed at the gratuitous illegal conversion of property into one’s own property, even if it is transferred to an official either in the form of a share of the stolen property or in the form of payment for an unlawfully alienated material value.
In the case when an official receives or intends to receive material valuable material objects for actions committed by him through the use of his official position, which are included in the scope of the objective side of the theft of these values, then this can be defined not as bribery, but namely the receipt by the subject of the crime of his share from the stolen person (in the case under consideration, the official acts as the executor (co-executor) of the theft).
If an official did not take a direct part in the theft and received an unlawful reward for committing actions that were implemented using his official position, they could undoubtedly contribute to the theft, but at the same time did not become an element of the most objective side, and therefore, there is no theft of these valuables, and receiving a bribe.
A similar problem occurs in situations where a citizen personally receives a monetary reward, imitating his attitude towards an official who has virtual opportunities to perform actions in the interests of the giver, while, in reality, “the citizen is not such a person either, although is, but the commission of these actions is outside the scope of his service competence” [5, p. fifteen]. If the subject of criminal law relations receives material reward from the bribe giver in order to transfer it to the real official and appropriates some part for himself, then his illegal actions should be qualified according to the totality of such crimes as complicity in giving (receiving) a bribe and at the same time embezzlement in the form fraud, which is sane to impute in the amount that the offender kept for himself.
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3. On judicial practice in cases of bribery and commercial bribery: resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6. (As amended by the Decree of the Plenum of the Supreme Court of the Russian Federation of December 23, 2010 No. 31) // Rossiyskaya Gazeta. 2010. No. 296.
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