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Clarification of legislation "Impeding legal entrepreneurial or other activity"

Article 169 of the Russian Criminal Code - "Impeding legal entrepreneurial or other activity" was introduced in the new Criminal Code of the Russian Federation, and even underwent a number of changes, including in a package of presidential amendments aimed not only at mitigating punishment for economic crimes, but also to strengthen the job responsibility of officials for impeding legal entrepreneurial activity.  

But, according to many experts, art. 169 of the Criminal Code of the Russian Federation in the Chelyabinsk region does not work, including due to a lack of awareness of small and medium sized businesses about such a possibility to protect their rights.

Crimes impeding legal entrepreneurial activity are characterized by a special subject - the official.  

Crimes committed by the special subject, as a rule, can be committed in the process of business registration, and subsequently in its implementation.

 Already during the registration of necessary documents an entrepreneur may have difficulty: intentionally delay of the registration process by the authorities carrying out state registration, licensing and more.

  So, by the verdict of the Chelyabinsk Regional Court a former mayor of Karabash city was sentenced to eight years' imprisonment in a strict regime colony.  The official was caught red-handed while taking a bribe from a commercial director of the firm. Money was intended to address the issue of land allocation under construction in the children's health camp "Orlyonok", located near the monument of nature - Lake Uvildy.

 In this example we see that Article 169 of the Criminal Code of the Russian Federation competes also with an art. 285 and art. 286 of the Criminal Code, and in some cases, also with other rules of malfeasance.

That is why it should be understood that the scope of the article is the relations arising in connection with the officials' exercise of licensing, inspection and enforcement, fiscal and other functions of business regulation, in particular in the area of decision-making, inspections, agreements, placing orders, licensing , monitoring of compliance with the rules of trade, services, production activities, taxation and levying various fees, lending, public service structures.

Thus, the disposition of part 1 art. 169 of the Russian Criminal Code, bearing the objective side of the component elements of a crime, contains the following aggravating circumstances impeding legal business activity by officials:

- Wrongful refusal to register an individual entrepreneur or legal entity or evasion of their registration;

- Unlawful refusal to grant a special permit (license) to carry out certain activities or evasion of its issuance;

- Restriction of the rights and legitimate interests of an individual entrepreneur or a commercial organization, depending on the legal form or forms of ownership;

- Unlawful restriction of independence of business entities;

- Other illegal interference in the activities of an individual entrepreneur (or a commercial organization).

However, all of these actions (inaction) can be considered acts only if they were committed by an official using his official position.

 The motive of the crime on the part of an official can be revenge, desire to achieve certain services, misconceived interests of the service, the desire to demonstrate their power and relevance, etc. The crime is consummated with the commission of at least one of mentioned in part 1 art. 169 of the Russian Criminal Code actions (inaction), regardless of whether they caused consequences for the achievement of which they have been aimed.

Lack of practice of art. 169 of the Criminal Code indicates that businessmen prefer to "resolve their issues" with officials rather than seek an appropriate statement to law enforcement authorities, which, of course, does not give the opportunity to fully realize the potential of anti-corruption in this article.

 

 

First Deputy Director

of the attorney of Chelyabinsk

 Councillor of Justice D.S. Boyarinov