Features of Corruption in Commercial Organizations: The Criminological Aspect / Особенности коррупции в коммерческих организациях: криминологический аспект

Кострыкина Виктория Витальевна Ассистент кафедры деликтологии и криминологии ФГАОУ ВО "Сибирский федеральный университет" 660075, Россия, Красноярский край, г. Красноярск, ул. Маерчака, 6 Kostrykina Viktoriya Vital'evna Assistant of the Department of Delectology and Criminology of the Siberian Federal University 660075, Russia, Krasnoyarsk Territory, Krasnoyarsk, Maerchaka str., 6 v.kostrykina@mail.ru Другие публикации этого автора

Исследование выполнено при финансовой поддержке РФФИ в рамках научного проекта № 20-311-90028.

The reported study was funded by RFBR, project number 20-311-90028.

Corruption is a significant systemic problem for many states, as it leads to a slowdown in their sustainable development. At a national level, corruption has penetrated almost all spheres of society, including education, healthcare, state and municipal procurement, business activities, etc. Corruption in commercial organizations is no exception.

This negative phenomenon poses a serious social danger, as it encroaches both on the everyday activities of commercial organizations themselves and the interests of the state, society, and individual citizens ^{[1, p. 153]}. According to Y. V. Truntsevsky, the negative consequences of corruption in private business should include a reduction of corporate reputation, financial losses, the destruction caused by the regulatory authority or the law, and loss of human resources ^[2]. According to E. A. Ivanova, Y. P. Garmaeva, and S. A. Markuntsova, "Corruption kills citizens' trust in public authorities, stimulates doing business in the shadow sector and tax evasion" ^{[3, p. 109]}. According to A.V. Shashkova, "Corporate corruption leads to negative consequences both at the level of macroeconomics of an individual state and at the level of its microeconomics: an elementary rise in the price of a product leads to an increase in social dissatisfaction of society, which, not finding a solution at its level, spreads to other levels" ^[4]. Corruption in commercial organizations distorts the competition of market entities, violates natural pricing, distorts the country's taxation system, disorganizes the mechanism of financial state support, destroys investment attractiveness, worsens innovation activity, generates and develops organized crime, shadow economy, raider seizures, illegal privatization of enterprises, etc. ^[5].

In the scientific literature, various aspects of corruption in the field under consideration have devoted their works to E. Yu. Antonova ^{[6; 7]}, V. V. Astanin [8–10], B. V. Volzhenkin ^{[11; 12]}, G. S. Goncharenko ^[13], A. S. Gorelik ^{[14; 15]}, N. A. Egorova ^[16], S. V. Izosimov ^[17], O. S. Kapinus ^[18], M. K. Karandyshev ^[19], S. D. Krasnousov ^[20], N. A. Lopashenko ^{[21; 22]}, S. D. Makarov ^[23], T. A. Nekrasova ^{[24; 25]}, V. A. Nomokonov ^{[26; 27]}, S. Yu. Suikov ^[28], Yu. V. Truntsevsky [29–31], L. P. Tumarkina ^[32], D. R. Fedoriv and M. L. Gachava ^[33], T. Ya. Khabrieva ^[29], G. N. Khlupina ^[1], A. M. Tsirin ^{[29; 34; 35]}, E. S. Shalygina ^[36], E. S. Shimshilova ^[37], I. V. Shishko ^{[1; 38]}, A.M. Shunaev ^[39], P. S. Yani ^{[40; 41]}, et al.

The analysis of the conducted research has revealed the main approaches to understanding the features of corruption in commercial organizations, which reflect its various aspects and ways to prevent it. Meanwhile, the question of the socio-legal characteristics of corruption in commercial organizations remains open today.

Corruption in commercial organizations is a kind of generic socio-legal phenomenon. In turn, this type of corruption has its own characteristic features, which are revealed in the features of the sphere of existence, the subject composition, as well as the purpose of corrupt behavior ^{[42, p. 121]}.

In the sphere of the existence of corruption in commercial organizations, there are both internal management activities of commercial organizations, and external activities of a commercial organization carried out in conjunction with other business entities, including representatives of the public sector.

Most commercial organizations have a general legal capacity, that is, the ability to have civil rights and bear the civil duties necessary to carry out any activities not prohibited by law. One of a commercial organization's main activities is entrepreneurial activity, which is to extract profit ^[43]. In the scientific literature, such categories as "business corruption" is mainly used to denote corruption manifestations in entrepreneurial activity. In reference sources, "business corruption" is defined as "internal corrupt behavior in commercial organizations that do not go beyond the redistribution of an economic entity" ^[44], and "business corruption" is defined as "the provision of property benefits to state or municipal employees by entrepreneurs on their business affairs" ^[45]. According to the researchers, "business corruption occurs when one of the subjects of corruption relations is necessarily a representative of a business, an entrepreneur, and the other party can alternatively be a representative of the government, an official or an employee of a business structure or a citizen" ^[46]. In this case, business corruption is contrasted with everyday corruption, in which ordinary citizens are forced to get involved ^{[47, p. 6]}. The situation in which corruption relations arise between business entities and authorities is referred to in the literature as "state-commercial corruption" ^{[44, p. 96]}.

The concept of "corporate corruption" can also be found in the scientific literature. According to N. A. Podolny and N. N. Podolnaya, the sphere of existence of this type of corruption is "the sphere of corporate relations, that is, relations that arise and unfold in the economy. However, this is not all relations in the economic sphere, as a corporation is a self-governing association of individuals, and therefore the relations that arise in connection with the participation of corporations in them do not cover the entire sphere of the economy" ^{[48, p. 523]}. It seems that the content of the concepts of "corruption in commercial organizations" and "corporate corruption" have some similarities, but they are not identical, as in accordance with Part 1 of Article 65.1 of the Civil Code of the Russian Federation, corporate legal entities include both commercial (business partnerships and societies, peasant [farmer] farms, business partnerships, production, and consumer cooperatives), as well as non-profit organizations (public organizations, social movements, associations [unions], notary chambers, real estate owners' associations, Cossack societies, etc.). At the same time, state and municipal enterprises that are commercial organizations belong to unitary legal entities ^{[49, p. 321]}.

As the researchers note, there is often a conflict of interest between top managers and the organizations themselves in commercial organizations. At the same time, the beneficiaries of organizations experience negative consequences from manifestations of corruption on the part of persons performing managerial functions to a greater extent than ordinary employees ^{[50, p. 14]}. According to T. Y. Khabrieva, "The most common corrupt practices on the part of commercial organizations are manifested in the acceptance of non-existent services and works not done in reality, the creation of an uncompetitive environment during procurement; the use of cheaper materials during construction than was indicated in the estimate for the preparation of a construction contract and, accordingly, paid for by the customer; the initial overestimation of the cost of works and services provided by an organization where the person making the purchase decision has a vested interest" [zm1] ^{[50, p. 20]}.

At the same time, other types of activities of commercial organizations should include, for example, their participation in charity. Charitable activities can be implemented in the form of sending gratuitous donations by the organization at an international level from a centralized fund; making special contributions by local companies to organize charity meetings or events; collecting funds exclusively among employees of organizations or clients (for example, to provide assistance to the local population affected by flooding), etc. According to Y. V. Truntsevsky, "in some cases, such noble donations can be used exclusively as "veiled" corrupt payments from an organization to a bribed person" ^[2] for the purpose of subsequent illegal receipt of both material (obtaining licenses, certificates, permits, preferential lending programs, tax evasion, etc.) and intangible benefits (obtaining immunity from various kinds of inspections by authorized persons, expanding business opportunities, getting to know influential people, entering the circle of trusted persons with whom the authorities are ready to conduct business negotiations on more friendly terms on the part of bribed persons). Some researchers believe that in the modern world, it is difficult to meet a person "who would sacrifice his funds out of personal profit and without the intention to extract much greater dividends from such a donation" ^[51].

One of the criminologically significant aspects of the activities of commercial organizations is their participation in the illegal financing of political activities (election campaigns [52–54], lobbying activities ^[55]), the purpose of which is also to obtain tangible and intangible benefits. In the scientific literature, this phenomenon is called political corruption ^{[56; 57]}. In modern reality, generous donations to election funds received from commercial organizations represent a reward for the subsequent lobbying of their interests by elected officials, which can lead to a decrease in the level of legitimacy of representative government, determination of politicization of organized crime, distortion of real political competition, loss of public confidence in the process of power formation through elections, penetration into power by individuals. With a criminal past, the seizure of power by businessmen not only in a particular region but also in the state as a whole, the creation of an undesirable image of the country, violation of the principle of legality, etc. ^{[58, p. 211]}. As E. I. Kolyushin correctly noted in this regard, "The interest of commercial organizations in the election results is explained from the point of view of the possibility of obtaining additional profit (or not suffering losses)" ^{[59, pp. 255–256]}.

The next characteristic feature of corruption in commercial organizations is the list of its subjects. The range of subjects of corruption relations in commercial organizations is diverse. In the scientific literature, it is traditionally accepted to distinguish two types of subjects of corruption relations: passive bribery and active bribery ^{[54, p. 34–35; 60, p. 711; 61, p. 29–30]}. The presented classification applies to the characteristics of corruption in commercial organizations.

Subjects of passive bribery in commercial organizations are participants in the sphere of activity of a commercial organization (a sane individual who has reached a certain age of criminal responsibility or a legal entity) who use their status or official position contrary to the legitimate interests of organizations, society, and the state to extract property and (or) non–property benefits for themselves or third parties.

The main subjects of passive bribery in commercial organizations include officials, persons performing managerial functions in a commercial organization, and commercial organizations themselves.

In the scientific literature, a proposal is made to classify subjects of passive bribery and persons working in relevant commercial organizations in different capacities (for example, a manager, consultant, engineer, or specialist). At the same time, it should be emphasized that in accordance with the current legislation, the criminal legal qualification of corrupt acts of the latter categories of persons is very difficult. According to T. A. Nekrasova, "the initiators and conductors of corruption manifestations are, as a rule, middle managers. Naturally, such manifestations occur without the knowledge of managers who perform the entrusted powers of the beneficiary" ^{[25, p. 26]}. Sharing this position, the researchers emphasize that "these corruption schemes are outside the scope of criminal law, but at the same time do not lose the criminological properties of everyday corruption; rather, on the contrary, they provide its high latency and form the resource basis of criminally punishable corruption. However, the absence of signs of a special subject does not allow to qualify such acts as receiving a bribe or commercial bribery, and the absence of signs of deception does not give grounds for imputing the composition of fraud" ^[62].

In this regard, we could agree with the opinion of N. A. Lopashenko, who also includes employees of commercial organizations who are not officials and persons performing managerial functions among the subjects of passive bribery ^{[63; p. 100]}. This approach fully complies with the provisions of the UN Convention against Corruption and the Council of Europe Convention on Criminal Liability for Corruption.

The subject of active bribery in commercial organizations is an individual sane person who has reached the age of criminal responsibility and legal entities promising or providing remuneration to the subject of passive bribery, as well as mediating in bribery ^[64]. The subjects of active bribery can be persons with a special official position (status) and those without it.

It should be noted that for some participants in corruption relations in commercial organizations, a combination of statuses is characteristic. Thus, a person performing managerial functions in a commercial organization can act as a subject of passive and active bribery. In the first case, the general director of a commercial organization, being the subject of passive bribery, may receive illegal remuneration from an interested person for committing certain inaction in favor of the latter (for example, a representative of a commercial organization may carry out commercial bribery of the general director of a competing firm so that he does not participate in certain competitive procedures). In the second case, the Director General, acting as the subject of active bribery, may, on behalf of and in the interests of their organization, transfer illegal remuneration to the head of an urban settlement for granting certain municipal preferences.

The public danger and the variety of corruption manifestations in commercial organizations cause the appearance in the scientific and practical environment of proposals to bring to criminal responsibility not only individual but also collective subjects of corruption in commercial organizations. We are talking about the impossibility of bringing legal entities to criminal responsibility, as in the current legislation, criminal liability is established only for a sane individual who has reached a certain age of criminal responsibility (the principle of personal responsibility of the guilty).

Currently, the liability of legal entities for corruption offenses is established at the level of administrative legislation (for example, Articles 19.28 and 19.29 of the Administrative Code). Meanwhile, a reasonable opinion has been expressed in the scientific literature that quasi-criminal liability has been established concerning legal entities that have committed acts of corruption, considered as "the application of administrative and legal measures of influence for acts declared a crime by the legislator" ^{[65, p. 121]}. In practice, administrative corruption offenses are initiated exclusively based on the materials of the criminal case. At the same time, bringing an official or a person performing managerial functions in a commercial or other organization to criminal responsibility for bribery or illegal transfer of the subject of commercial bribery does not exempt the legal entity from liability on whose behalf or in whose interests the relevant corruption actions were committed ^[66]. Judges, as a rule, "do not take into account the arguments of representatives of a legal entity that an individual who gave a bribe to an official acted on their own behalf and in their own interest" ^{[67, p. 85]}.

On the other hand, it is not uncommon for a commercial organization whose managers or employees were brought to criminal responsibility to continue committing corruption crimes but are already under the leadership of other employees of the organization. Accordingly, the existing system of legal protection of public relations in the area under consideration does not perform its preventive functions. In this connection, it seems reasonable to suspend or terminate the activities of such organizations following the procedure established by law ^{[68, p. 684]}. In addition, other authors should be supported, justifying the need to introduce the institution of criminal liability of legal entities for committing acts of corruption, following the example of many foreign countries [69–71; 72, p. 60; 73; 74]. As noted by E. Yu. Antonova, "World practice demonstrates many examples that the subjects of corruption crimes are not only individuals but also corporate (collective) entities. Corporations very often provide illegal rewards to high-ranking officials, for example, for the opportunity to get a large contract and a concession" ^{[6, p. 193]}. According to A.V. Naumova's fair remark, "The market and market relations will almost inevitably lead us to the establishment of criminal liability of corporations for economic crimes" ^{[75, p. 109]}.

The next essential feature of corruption in commercial organizations is the corruption goal. It should be noted that the corruption goal pursued by the subjects of corporate relations is to obtain benefits of both material and (or) non-material nature. Moreover, the subjects of active and passive bribery in commercial organizations are characterized by the desire to extract benefits and advantages of various kinds.

Thus, the head of a commercial organization, in some cases being the subject of active bribery, may commit a corruption offense to illegally obtain a license to conduct business or the right to a long-term lease of real estate, evade cargo transportation payments, overcome bureaucratic delays in interaction with state authorities, avoid inspections by regulatory authorities, exclude the organization from the register of unscrupulous persons, termination of criminal and administrative cases against their organization and (or) its employee, etc. In relations with state authorities and local self-government bodies, the head of a commercial organization may transfer illegal remuneration to a representative of the authorities for granting certain preferences. So, the ex-head of Sakhalin, H, received $5.6 million in kickbacks from the co-owner of the Sakhalin company "Energostroy," K, for the right to receive a contract for the construction of the fourth power unit of the Yuzhno-Sakhalinsk CHP. After H was sentenced to 13 years in prison ^[76]. The case of the colonel of the Federal Security Service for the Samara region, G, who received illegal remuneration from the head of the legal service of LLC ‘Intersectoral Association ‘TNP’ for failure to take measures" in the case of violations in the activities of this oil company, is also interesting. The total amount of the received bribery funds exceeded 100 million rubles. The court sentenced the FSB Colonel G to 20 years in prison ^[77].

Intermediaries, agents, or clients of a commercial organization, acting as subjects of active bribery, can offer remuneration to an employee of a commercial organization both for legitimate activities (for example, for faster provision of services or faster shipment of goods) and for illegal ones (for example, for violating the terms of purchase, selling goods to persons who do not have the right to buy them, and so, the director of the CHU PO "Belevsky Cooperative Technical School," O, received an illegal reward in the amount of 100 thousand rubles for illegally providing citizen X. with an education diploma specializing in "Jurisprudence" without actually teaching the latter. O's actions were qualified according to clause "b" of Part 7 of Article 204 of the Criminal Code of the Russian Federation. A penalty was imposed in the form of a fine of 1 million rubles with deprivation of the right to engage in activities related to managerial functions for a period of two years ^[78].

Within the framework of intra-corporate relations, persons performing managerial functions in commercial organizations, being subjects of passive bribery, may accept illegal remuneration for failure to notify responsible persons of the theft, misappropriation of property, other misuses of company assets, etc., that have become known to them. In other cases, in relation to external economic entities, the heads of commercial organizations may use their official position (status) to obtain illegal remuneration based on self-interest. So, between the Department for Life Support of the city district of the Republic of Bashkortostan (customer) in the person of the head of Department P, and LLC "Construction Management-820" (general contractor) in the person of Director V, a municipal contract was concluded for the performance of works by the general contractor organization under the address program "Overhaul and repair of courtyards of apartment buildings, driveways to yard territories of apartment buildings of the city district of the Republic of Bashkortostan" with a contract price in the amount of 109,461,077 rubles. 54 kopecks. Furthermore, between the customer and the General Director of M, CJSC "Transmonolit" (contractor), a municipal contract was concluded to perform the functions of construction control (technical supervision) within the framework of the implementation of this program, where the general contractor was LLC "Construction Management – 820" and a number of other organizations. M, realizing that without signing the acts of acceptance of the completed works (COP-2), the general contractor LLC "Construction Management – 820" will not be able to hand over the completed work to the customer and receive full payment for the work performed, decided to use this circumstance for their own selfish purposes to illegally receive money or securities after M demanded from the director of LLC "Construction Management – 820" to transfer to him an illegal monetary reward in the amount of 1.5% of the price of the municipal contract, but no less than 1,650,000 rubles for performing actions in V’s interests in connection with his official position, namely for signing acts of acceptance of completed works. V initially agreed to this requirement and then reported it to law enforcement agencies.

The court found M guilty of committing a crime under Part 3 of Article 30 and Part 3 of Article 204 of the Criminal Code of the Russian Federation, sentencing him to a fine of sixteen times the amount of commercial bribery in the amount of 26,400,000 rubles in state revenue with deprivation for two years of the right to hold positions related to the performance of managerial functions in public service related to the performance of managerial functions in the service of local self-government bodies, commercial or other organizations ^[79].

The research has shown that corruption in commercial organizations is a complex and negative socio-legal phenomenon with certain features that distinguish it from other types of corruption. Corruption in commercial organizations disorganizes their normal activities and also causes irreparable harm to the state, society, and individual citizens. In this regard, the study of the essential characteristics of the type of corruption under consideration is important in the development of a set of sufficient measures to prevent corruption in commercial organizations.