1.3. Формы нарушения и использования должностных полномочий и их коррупционный факт

The criminalistic establishment of actual facts of malfeasances begins with studying of powers of the official that constitutes a legal basis of the given acts. Thus official powers by which the official is allocated, constitute together with it a single whole, defining the legal nature of the subject of considered crimes.
The maintenance of powers is defined by set of the legislative norms regulating a legal status of the official, consisting in properly issued labour relations with certain authority, establishment or the organisation. In general-theoretical legal understanding official powers constitute special franchise of the person, that is ability of the official to be the carrier of the special office rights and the duties allocated and recognised as the state [126]. The maintenance of base concept of powers of the official in criminally-legal value proceeds, as is known, from the note 1 to the item 285 UK the Russian Federation according to which persons admit official, it is constant, temporary or on special power carrying out functions of the public agent or carrying out organizational-administrative, administrative functions in the state bodies, local governments, state and municipal authorities.
The listed imperious, organizational-administrative and administrative functions in essence represent the administrative nature of activity of officials owing to what they are with other persons (physical and legal) in administrative legal relations which act in various displays [127]. Thus any kind of administrative relations has the exact purposes and movement ways to them, defined by the state. On the basis of the designated purposes the state predetermines a corresponding legal status of bodies of the state and local management and its representatives whom in our case powers of officials established by the legislation are. From this follows, that a problem of investigation of malfeasances – an establishment of criminal infringements of the norms containing powers of the official, in a constructive parity with the purposes of these powers in administrative relations which in the general view represent the rights and legitimate interests of citizens and the organisations, a society and the states. About it it is direct or oposredovanno it is underlined in the description of all structures listed above malfeasances. Accordingly, the specified interests when in an ideal reasonable personal, social and common interests are simultaneously and state interests, are the lawful purposes and problems of activity of all officials of the state and municipal levels [128].
In legal expression the maintenance of the named interests, first of all, follows from positions of the Constitution of the Russian Federation (item 1-3, 7, 17–60, etc.) in which the person is underlined, that, its rights and freedom are the higher value in the state; the policy of the state is directed on creation of the conditions providing a worthy life and free development of the person (item 3 and 7) and others.
On the basis of norms of the Constitution of the Russian Federation of the purpose and a problem of the state and municipal service of officials are without fail reflected in the legislation regulating activity practically each state, municipal, law-enforcement, of court of justice and establishment of the power [129].
In laws, basically federal value, and other acts on a level with powers of officials the purposes and the problems of the state and municipal management directed on social efficiency, service to interests of the person and a society [130] are listed. Thereupon, as specifies S.S.Alexey, the government by the nature is intended to provide strict and timely realisation of legal rules and principles [131] where should affirm and receive development democratic and humanistic values [132].
Thereby, from the point of view of the criminalistic characteristic we define malfeasances as guilty infringement or use of hierarchically built set of the legislative and other rules of law carried to activity of officials and regulating the purposes and problems, the rights and duties of realisation of imperious, organizational-administrative or administrative functions, for what they bear legal responsibility.
Why we so give a lot of attention to research of powers of officials, whether these powers can enter into the criminally-legal characteristic of malfeasances? At all is not present. Criminalistic research of malfeasances, first of all, assumes a profound knowledge of a legal status of officials and its main link – official, or office, powers. Round the given element other elements concentrate: participants of a crime – "holders" of these powers; from powers the volume of the purposes and motives of fulfilment of malfeasances, forms of corruption interest is developed; committing a crime conditions are formed of degree and the importance of powers of the criminal and its participants in certain authority or establishment; At last, illegal use, excess or infringement of official powers is connected with the mechanism and way of fulfilment of act, at injury by victim and harmful influence concerning victims. Accordingly, the stated picture of powers of the official, various image being correlated with other elements of the criminalistic characteristic of crimes, constitutes a basis for a planned way of forming of proofs and other details in the course of their investigation.
From this follows, that features of criminalistic studying of malfeasances start with a certain order of research of powers of the official which by their abusing, infringement or excess are used in criminal purposes. The given order assumes, that except studying of direct powers at their system research it is necessary to establish additional components, is direct or oposredovanno influencing character of the rights used or broken in the criminal purposes and duties of the official.
We carry to the specified additional components:
– The purposes, problems and functions of activity of concrete authorities, establishments and the organisations where officials as the provided purposes and problems of system of controls in the state establish borders of the rights and duties of officials serve;
– The legal status of concrete bodies, establishments and the organisations in which work (serve) the officials, defined by the legislation proceeding from directions of their activity, structure, an organizational operating procedure and other standard positions that direct impact on conditions of fulfilment of crimes makes;
– The official position of the official, obrazuemoe from system of the normative acts regulating a legal status of body or establishment where the official works, and its official powers.
Here it is necessary to notice, that the official position category represents sistemoobrazujushchy the factor on an establishment of communications of the official with other officials, bodies and power establishments. The official position can be used in criminal purposes, but in a separation from official powers it seldom forms malfeasance structure, and concerns other kinds of acts (item 159, 160, etc. UK the Russian Federation). In such understanding the official position matters for explanation of conditions of fulfilment of the malfeasance, binding the environment and its elements in which the mechanism of a crime is formed more. At the same time in some cases as we spoke, the official position is underlined as an obligatory sign of structure of malfeasance, that is made by the official (item 141 ch. 3, 188 ch. 3, 290, etc. UK the Russian Federation).
Passing to the analysis of criminal forms of infringement or use by officials of the powers, it is necessary to anticipate its general provisions carried to all structures of considered crimes and important for their criminalistic knowledge at investigation of such acts:
1) official powers on the functional orientation should concern the imperious; organizational-administrative; administrative, that demands the corresponding analysis of rules of law and their parity with established circumstances of a crime [133];
2) legally significant actions of imperious, organizational-administrative or administrative character can matter only when they involve legally significant legal effects characterised by the results by separate structures of malfeasances [134];
3) infringement of official powers in a number of structures of crimes has various (estimated) degree of legal responsibility – disciplinary, administrative, criminal, – that is defined basically by criterion of importance of the put harm pravoohranjaemym to interests or relations (item 285, 286, 302, 169, etc. UK the Russian Federation);
4) the analysis of infringement should be spent by officials of the powers on hierarchical system of legislative and other legal acts: from the general – federal – norms to narrower, concerning only to activity of the concrete official. Improved level of modern legal maintenance of activity of the officials, which legal status is regulated by hierarchy of legislative norms, from federal to departmental, shows, that malfeasances are made with infringement of rules of law simultaneously several levels;
5) in aggregate the official powers described in specified hierarchy of legislative and other legal acts, it is necessary to distinguish what directly concern elements of structure of an investigated crime and subordinatsionno are defined from circumstances and results of fulfilment of official illegal acts;
6) official powers on the basis of time or constant labour relations of the official with corresponding authority or establishment often start with its real acquaintance with the corresponding departmental rights and the duties having individual character;
7) each of forms of infringement of powers can contain some kinds of crimes, differing on groups of official acts and on circumstances of their fulfilment. At the same time infringement of some official powers, obrazuemyh in system of a uniform offence, can constitute one structure or the identical structures of crimes separated from each other by time of fulfilment of separate episodes;
8) forms of criminal infringement of official powers, forming an element of the criminalistic characteristic of crimes, at the same time are the central component of the mechanism of fulfilment of official illegal act, its way.
From stated above positions, the analysis of office functions of officials in their parity with structures of malfeasances we will allocate separate groups of malfeasances on similarity of their criminalistic characteristic, and further – on presence of the general lines of a technique of their investigation:
1. Abusing official powers.
2. Excess of official powers.
3. Default of official powers in the deliberate form.
4. Default of official powers in the form of imprudence.
5. Use of official powers for the purpose of reception of direct material benefit.
Kinds of the crimes containing in given groups, have the general signs of forms of infringement, use or excess by officials of the powers that is a basis of drawing up of their group criminalistic characteristic.
1. Abusing official powers concerns difficult structures of the crimes which criminalistic characteristic is in many respects defined mnogoaspektnostju its estimated objective and subjective approaches. We carry following articles UK to the given structures the Russian Federation: 285 (abusing official powers), 299 (attraction obviously innocent to the criminal liability), 300 (illegal liberation from the criminal liability) and 305 (removal obviously an illegal sentence, the decision, other judicial certificate) (see enc. 6).
In the general view abusing official powers is opened in the Decision of Plenum of the Supreme Court of the Russian Federation № 19 from 16.10.2009 źAbout judiciary practice on affairs about abusing official powers and about excess of official powers╗. In Decision item 15 it is specified, that contrary to interests of service it is necessary to understand fulfilment of such acts which though have been directly connected with realisation by the official of the rights and duties as use of the office powers, however were not caused by office necessity and objectively contradicted as the general problems and the requirements shown to machinery of state and the device of local governments, and those purposes and problems for which the official has been allocated by corresponding official powers. The law limits the given actions only to personal or mercenary interest.
Concerning ways of committing a crime, at abusing the official, including workers of investigation agencies bodies and justice, outwardly operates (or tries to operate) within the limits of the rights and duties, that is in the ratio practical circumstances of a crime and rules of behaviour of the official (powers) are not present visible contradictions. It is a question of a certain range or autonomy of behaviour of the official at its real choice of variants of behaviour when the official, in effect, breaks sense of legal instructions, deforming their purposes and sense in personal or mercenary interests. It can concern activity of the officials using budgetary funds in personal interests, workers of tribunals, for example, at the analysis of proofs judicial and investigatory workers [135]. However freedom in system state (including. Municipal) managements it is impossible without the responsible relation to management and concrete responsibility of all participants of administrative processes for social consequences of the actions. G.V.Atamanchuk names it obligation freedom, meaning under it the phenomenon strictly defined on a special-purpose designation, the organisation, legal regulation, the control and an estimation [136].
Therefore at investigation of abusings by official powers these acts are studied in the ratio with the purposes and problems of activity of all body or establishment where the person works, both the purposes and problems of directly its activity. Other important condition the legislator in item 285 UK the Russian Federation has put the subjective moment in the form of mercenary or personal intention, and in item 299 UK the Russian Federation, 300 and 305 UK the Russian Federation – concept of "guilty knowledge", actually giving, thereby, to the official freedom of choice, including the right to an error, at diligent execution of the powers.
2. Excess of official powers represents actions, characteristic for the majority of malfeasances to which we carry the structures provided by item 141 ch. 3, 149, 169, 170, 188, 215-1, 285-1, 285-2, 285-3, 286, 292, 292-1 ch. 1, 301, 302 and 303 UK the Russian Federation (see enc. 7).
Unlike abusing official powers at their excess more active are provided and acts overt which the person has not the right to make under the set circumstances. It can be circumstances when powers belong to other official or the collegiate body, can be made in coordination with other official or other authority or can be made under the concrete circumstances specified in the law. And at last, excess of official powers acts which anybody under no circumstances has not the right to make [137] are.
At an establishment of circumstances of a crime references to the purposes and problems of the government with which illegal acts as, as is known, the purposes do not justify are quite often covered are excluded, and define means of their achievement. In most cases the motivation of criminal acts also does not influence structure of made crimes if there are no on that special instructions (mercenary or personal motive is provided in item 292 and item 170 UK the Russian Federation).
Some complexity at investigation of such crimes is represented by definition of communication of results of made acts with excess by the official of the powers, instead of, let us assume, with the initiative of the personal character which has been not connected with the official position of the person. In this case defining criminalistic factors are:
1) a finding of the official on the workplace or fulfilment of actions in working hours;
2) absence of a personal contact with sustained or other persons in which relation actions of criminal character are made;
3) a finding of the person in uniform or an official presentation of the documents certificating its official position;
4) the requirements of the official formally connected with its official position.
Usually the establishment of the listed positions does not constitute difficulties, however it should be combined with other elements of the criminalistic characteristic of the given group of malfeasances optimum.
3. Default of official powers in the deliberate form is the rather rare structure of malfeasance provided by item 140 (refusal in granting to the citizen of the information), item 286-1 (default by the employee of law-enforcement body of the order), item 287 (refusal in granting of the information to Federal assembly of the Russian Federation or Schetnoj to chamber of the Russian Federation), item 315 (default of a sentence of court, the decree or other judicial certificate) UK the Russian Federation (see enc. 8).
For an establishment of circumstances of the given form of infringement of official powers except their direct fastening to the official presence of the additional legal factor in the form of the decision issued, as a rule, in a documentary kind is required, ordering to the person to operate under strictly specified scheme within the limits of the duties and powers. In case of the committing a crime provided by item 315 UK the Russian Federation, the official, as a rule, acts as the head of authority or establishment. From this follows, that the characteristic of a crime demands an establishment of following circumstances:
– Legality and observance of the remedial (procedural) form of the taken out judgement or the certificate or the order of officials of law-enforcement bodies;
– Labour agreements of authority, establishment with the official about constant or its time finding in the corresponding post, the judgements connected with appropriate performance or the order;
– Official powers of the person from which it is necessary to obey its duty to performance of judgements or orders of higher persons;
– The fact of default by the official of the requirements following from its official powers.
Criminal behaviour consists in fulfilment by the official of actual actions, in the latent or open ignoring of decisions of other imperious body or the official.
4. Default of official powers in the form of imprudence, as a rule, starts with negligent attitude to the duties, that is the unfair or negligent relation to the service that is provided item 293 (negligence) and ch. 2 items 292-1 (illegal delivery of the passport of the citizen of the Russian Federation, and it is equal entering of false data into the documents, the entailed illegal acquisition of citizenship of the Russian Federation) UK the Russian Federation (see enc. 9).
Default of official powers in the form of the negligence is established by acts of the official which does not fulfil the duties assigned to it together with available powers by inactivity or fulfilment of the actions breaking corresponding norms. Thus in this case the rules of law of departmental character particularly regulating correct behaviour of the person more matter. Though, certainly, and the legislative norms of a general meaning especially regulating the rights and duties of officials of federal level, also play the important role at corpus delicti definition.
It is necessary to notice, that in both named structures (item 293 and ch. 2 items 292-1 UK the Russian Federation) the legislator has specified a criminally-legal category "unconscientiousness" which is not present in gl. 5 and in item 26 UK the Russian Federation regulating and defining the careless form of fault, and is only concepts "negligence" and "levity". Therefore hardly practical workers can and have the right to define and formulate the concept "unconscientiousness" connected more with ethics and morals. Thereof the concept of unconscientiousness, probably, should enter into the maintenance of a category "negligence" as another in a disposition of the named crimes it is not given.
5. Use of official powers for the purpose of reception of direct material benefit is the separate form of infringement of the official powers provided by item 289 (illegal participation in enterprise activity) and item 290 (bribe reception) UK the Russian Federation (see enc. 10).
The specified structures by the nature are various, but are directed on use of official powers in mercenary motives. Thus in both cases can be both infringement of powers, and their execution under ordering rules of law. However reception for it of material benefit actually reduces essence of performance by the official of the office functions to the criminal category, socially dangerous behaviour.
At illegal participation in enterprise activity (item 289 UK the Russian Federation) the official by use of the official powers and the official position participates in granting of privileges and advantages of the commercial organisation which it has founded or takes part in its management. At revealing investigatory by participation of the official in establishment or participation in activity of the commercial organisation, the main thing – to establish privileges and advantages to it on the basis of data of the financial or other material character, certain documentary or witness base. It can be illegal allocation of budgetary funds, prize maintenance in tenders and auctions, bolshee number of concluded contracts (contracts) with the commercial organisations, etc.
For the comparison, the given structure obviously competes to item 285 UK the Russian Federation – abusing official powers, but in this case the establishment or participation of the official in activity of the commercial organisation will be accurate difference.
Bribe reception (item 290 UK the Russian Federation) – the most widespread malfeasance of corruption character. It is connected with official powers by a typical question: for what the official receives a bribe? Differently, between reception of a bribe and execution or default of official powers there is a direct communication.
But it is the obvious party of objective signs of the crime, connected with a category of official powers. From other party, the analysis of a disposition of item 290 ch. 1 UK the Russian Federation says not only about powers of the official, but also about its official position, that in a practical direction is not executed. As shows it is investigatory-judiciary practice, at legal qualification of actions of officials at compensation reception more facilitated variants of investigation of affairs in a kind not always the proved establishment ostensibly plunders and trainings for a new profession of actual reception of bribes on swindle with official position use (item 159 ch are visible. 3 UK the Russian Federation). We will result examples.
Chief SKM ROVD, that is first deputy chief ROVD, gr. S extorted and has cashed for the termination of criminal case by the inspector of the same ROVD. In spite of the fact that the post of the given person, its authority and the importance allowed to influence the inspector that that has ceased business, actions of chief SKM S have been qualified under item 159 ch. 3 UK the Russian Federation [138].
Operupolnomochennyj transport militia (LUVD) gr. T has got business of the operative account on the persons who were engaged in commercial activity on purchase of nonferrous metals, only for the purpose of extortion at them bribes. When businessmen have refused to give money, operupolnomochennyj initiated excitation of criminal case and began to demand a bribe already for its termination by an unaccordance of results of operatively-search activity. At bribe reception operupolnomochennyj has been caught red-handed. It were available all signs of structure of item 290 UK the Russian Federation, but a consequence, and then court actions of guilty person T as qualified swindle [139].
In our opinion, the resulted examples testify to lacks pravoprimenitelnoj experts, absence of an appropriate technique of investigation, instead of about imperfection of legislative norms. It proceeds and from norm of item 290 UK the Russian Federation and, accordingly, from positions of the Decision of Plenum of the Supreme Court of the Russian Federation from 10.02.2000 źAbout judiciary practice on affairs about bribery and commercial payoff╗ where źofficial position╗ accurately enough is underlined concept źoffice powers╗ and on concept [140].
Reduced forms of criminal infringement of official powers, thus, as a whole cover all set of malfeasances, being as we have specified, a basis of knowledge of the mechanism of such acts on each of four before the named groups classified on the basis of the criminal law.
The statistical data testifying to sharp non-uniformity of fulfilment of malfeasances, one of which are estimated in thousand, and others stably hold individual or zero levels, allow to make a number of the conclusions. First, the majority of made malfeasances are qualified on the general structures of crimes (item 285, 286, 292 and a number of others UK the Russian Federation), that among other reasons can specify in a weak readiness of a technique of investigation of acts of a similar sort. Secondly, the number condemned for malfeasances obviously contrasts with kriminologicheskimi and sociological data about considerable degree of corruption of public authorities [141]. Thirdly, the cited statistical data show, that the most widespread malfeasance is bribe reception.
It is in this respect indicative, that practical data about investigation of affairs about reception of bribes find out their indissoluble communication with other malfeasances that specifies in domination in them of interest of property character. For example, in V.N.Borkova's work it is noticed, that at reception of bribes in 3 % of cases illegal liberation from the criminal liability (item 300 UK the Russian Federation) took place; in 43,3 % – abusing official powers (item 285 UK the Russian Federation) and in 53,7 % – office forgery (item 292 UK the Russian Federation) [142]. The Same data about communication of reception of bribes with criminal infringements of official powers result in E.V.Krasnopeeva, A.S.Meshchersky's researches and other authors [143].
Thereby, quantity indicators of infringement of official powers from interests of material benefit and their communication with other malfeasances allow obosnovanno to speak about prevalence of the mercenary beginning at fulfilment of overwhelming majority of malfeasances. For example, our researches of criminal cases about motives of fulfilment of malfeasances have shown, that in 60 % of cases mercenary interests, in 23,5 % – office interests, in 6 % – personal interests and in 10 % – personal and office interests take place. Data of interrogations of practical workers specify in the considered factor of property interest even more: 70 % of malfeasances are made from mercenary interests, 22 % – from is false understood interests of the state or establishment. Actually, about what we will speak further, established personal or office interests, finally, have an exit on same especially mercenary material interests.
Proceeding from told, we suggest the criminalistic characteristic of malfeasances to add with an obligatory component of a corruption direction when activity of officials, leaving system of the state or municipal management playing an is social-useful role in the state, passes in other system – creations of the mechanism of fulfilment of malfeasances at obvious prevalence of valuable interests of executors on the majority of the investigated illegal acts made by officials. From this follows, that at criminalistic studying of malfeasances in a practical channel so, with the further problems of their revealing, disclosing and investigation, it is necessary to provide always corruption factors of their occurrence, development and target functioning.
In the given direction of reflexions we will be defined with a category of corruption and its relation to the criminalistic characteristic of malfeasances.
After an adoption of law of the Russian Federation źAbout corruption counteraction╗ (2008) this concept became a legal category. It includes among others constituting abusing the official position, bribe reception, abusing powers, other illegal use by the physical person of the official position contrary to legitimate interests of a society and the state with a view of reception of benefit in the form of money, values, other property or services of property character, other property rights for itself or the third parties or illegal granting of such benefit to the specified person other physical persons (item 1).
With a certain share of convention it is possible to assume, what not all malfeasances are corruption, but as specifies N.A.Lopashenko, corruption crimes – the most dangerous part from all malfeasances. The author considers as the main sign of corruption illegal vozmezdnuju the transaction between the official and the person interested in certain behaviour of the official, that at all does not mean reception by officials only direct material benefit [144].
S.A.Golovko testifies to the mechanism of similar transactions in sphere of "corruption services╗, illustrating various variants of granting, and actually – sales, official powers in exchange for various material means and services [145].
In the expanded format the various understanding of property benefits at interpretation of concept of corruption became practically conventional sight of scientists when it is identified not only with bribery, and associates and with other various forms obektivirovannogo the behaviour based on material interests [146]. Proceeding from the proved width of understanding of corruption, despite the specified division corruption and the malfeasances, many scientists in the works carry overwhelming majority of malfeasances to the most various displays of corruption, that is their fulfilment with the direct or mediated orientation on property result [147] more and more. Here again hardly it is possible to agree, for example, with V.V. Krjukovym who carries to displays of corruption of officials only structures of the malfeasances provided by item 285, 289 and 290 UK the Russian Federation [148].
According to A.R.Orlova, with institutsionalnoj the points of view corruption is the widespread form deviantnogo behaviour of officials [149]. The Same approach to corruption as to any use of public possibilities for realisation of personal or corporate interests to the detriment of public, J.M.Buravleva [151], D.N.Gavrilenko [152], V.N.Lopatin [153], E.V.Marinoj [154], A.A.Kuznetsovoj [155], A.V.Kurakin [156], A.A.Tirsky [157], V.V. Tolkacheva [158] is marked in V.P.Bahina and I.S.Karpova's [150] researches, S.N.Shishkareva [159], etc.
Features of corruption in modern Russia, writes E.A.Muzalevsky, are formation of corruption networks and their penetration into all spheres of management, prevalence of misappropriation of a state ownership, wide display of clan interests, support and financing of political structures in exchange for penetration of the corrupted officials into power structures, on development of the business [160]. In turn, V.V. Luneev names it "okorystvovaniem" public relations in Russia [161].
In respect of the criminalistic characteristic of malfeasances their corruption component allows to find out a number of the obligatory signs which analysis optimises process of revealing of typical traces, an establishment of a circle of participants and the criminalistic analysis of sense and motivation of many crimes made by officials. For acknowledgement of our thought we will define signs of an obligatory corruption component at fulfilment of malfeasances which prove at their revealing, disclosing, investigation and the prevention.
1. The malfeasances directed on property benefit, in many respects have the organised character – two are involved in their fulfilment and more persons who are not always established, and consequently, involved in the criminal liability. The sign of the organised corruption, writes V.V. Astanin, is shown in two kinds: 1) connected with the illegal order the state or municipal employee state (municipal) actives (the budget, property, privileges, orders); 2) at activity of the organised criminal formations (communities) which act as the customer of actions of the bribed party. Both kinds of displays of the organised corruption can produce or, on the contrary, to represent itself as predicate in relation to criminal and okolokriminalnym to the phenomena (rejderstvo, an unfair competition, "kryshevanie", narcobusiness) [162]. As professor A.I considers. Dolgova, corruption for the organised criminals – the important means of maintenance of their scale mercenary and political interest [163]. It is necessary to notice, that existence obshcheugolovnoj the organised crime in this or that region during the certain period of time is in many respects result of criminal infringements of office powers officials, first of all law enforcement bodies, with an obligatory corruption element [164].
At the same time detection of all persons participating in malfeasances is known, that, constitutes certain difficulties in force as objective causes (professionalism of official criminals, corporate unity, counteraction to investigation, etc.) And subjective (for example, unwillingness of employees of organs of inquiry for the various reasons essentially to establish all participants of a crime). As our researches, two have shown and more officials have been involved in the criminal liability in 30 % of cases. Thus not officials in partnership with the official participated only in 5 % of crimes. However the given figures considerably it is separated with results of interrogation of practical workers. Inspectors specify, that in 52 % of cases not all officials participating in a crime, are involved in the criminal liability; by results of interrogation of operative workers – in 76 % of cases. With the account latentnosti corruption crimes (over 90 %), the specified figures quite can reflect real position about "conclusion" from sphere of criminal prosecution of many officials involved in criminal acts of office character.
2. Corruption crimes of officials, irrespective of their kind, it is hidden or are openly often connected with budgetary sphere as the given part of financial resources represents the closest material resources for the named subjects for various illegal manipulations for the purpose of assignment [165]. A.V.Makarov writes, that the officials who have committed crimes, connected with budgetary financing, share on two groups: 1) the persons authorised on performance of the state functions, illegally received budgetary funds; 2) the persons who have given budgetary funds to other persons. From the named groups, accordingly, appropriated budgetary funds workers of the ministries, committees and their structures in territory of subjects of the Russian Federation – 24 % (58 %); heads of the organisations and establishments – 53 % (12 %); employees of law enforcement bodies – 4 % (5 %); workers of supervising bodies – 0,5 % (2 %); other categories – 18 % (11 %). Thus, by the way, 75 % of crimes in budgetary sphere are made in group [166].
As fairly marks A.K.ShChegulina, polemizing from D.A.Bojkovym, the person, no-purpose image spending budgetary funds, is not a situational kind of the criminal, that is operating of outwardly "comely" situation of expediency of redistribution of budgetary resources, and the deliberate mercenary actions of officials directed on reception of profit at the expense of frauds with various financial, accounting and tax documents [167].
3. Corruption character of malfeasances represents open system of use of official powers at contact interaction with the elements of an environment which are of interest for reception of various benefits. Therefore officials are often connected with the commercial organisations in which there is a constant turn of the monetary and material resources constituting a basis of economic sphere of development of the state. Not pressing in discussion of questions of political expediency of a different sort of relations of authorities with business (in the form of the control, and sometimes and direct pressure), we will notice as the fact, that such communication has under itself the considerable corruption factor [168].
Schemes of mutual relations of spheres of the government and business can include the elementary criminal communications at level of municipal unions and reach federal and international values, and in many respects under cover of legal rules and lobbist relations [169]. One of the most widespread kinds of criminal behaviour of officials here are so-called "recoils", that is the compensations paid to the official for contribution to successful carrying out of transactions in the most different fields of activity [170]. Characterising the given circumstances, A.N.stall says, that thanks to corruption practically all economy has appeared under the control of mafiozno-oligarchical and criminal structures. Using communications in governing bodies, criminal communities have taken root into highly remunerative spheres of economy, and also in systems of the state and municipal management, in work of the economic organisations, having created various firms, the powerful intermediary network which has taken in hand the control over the finance, realisation of production of the enterprises, carrying out of clearings between them [171].
4. The latent character of corruption essence of malfeasances is quite often shown and in creation of other kind of commercial structures – various funds, semipublic and public organisations, various business concerns at the state authorities and the establishments promoting their direct functional activity [172]. It is easy to prove the given communication. It demands tracing of financial mutual relations of such organisations with officials (as a rule, the head of the organisation or one of its assistants) when it is frequent representatives of public or commercial structures are relatives or distant relatives of such officials or consist with them in friendly relations.
5. Corruption malfeasances always nastupatelny, that generates their constant development and institutsionalnuju expansion, reproduction of malfeasances to system of the state and municipal legal relations that promoted by the structural organisation and communication of all components of system of the government [173]. From a position sinergeticheskogo the approach it is a question of self-organising processes korruptsionerov in corruption networks which become a basis and the strongest tool of corruption transactions [174]. In other words, the system of reproduction of corruption of officials in the given cut is closely connected with organizujushchim the beginning when a network of corruption not only structures a circle of made crimes in the official environment, but also becomes the important factor of its expansion in all areas of system of the state and municipal management, bodies and establishments of the power [175].
6. "Korruptsionalizatsija" malfeasances allows to speak about the special mechanism of their fulfilment. It includes the certain preparatory measures directed on the further reception of property benefit, election of the optimal way of committing a crime and further activity on masking of criminal acts, and in case of need – the organisation on counteraction to operatively-search and investigatory actions. Thus actively directly or it is hidden financial resources or other material stimulus for payoff of the persons capable in this or that kind to assist to fulfilment of crimes are used.
7. Results of malfeasances from a corruption component practically always outwardly are shown many material benefits at officials or their close relatives: open monetary (including. Currency) accounts in the country and abroad, the real estate and expensive cars, frequent trips to foreign countries and other vacation spots etc. [176] all it is not provided by real incomes of the official and its close relatives that is why constitutes the important part of a technique of revealing, and is frequent also provings of malfeasances [177].
8. The corruption factor of fulfilment of malfeasances assumes reception not only direct material benefit, but also mediated, shown is reserved, but with a final analysis of achievement of valuable interests. We will list only some actions of the officials committing crimes which are directed on reception of property benefit:
– Bribe reception for fulfilment of any malfeasance in interests of other persons;
– Reception of higher post connected with the order by financial and administrative resources;
– The no-purpose or inefficient order budgetary or off-budget means for the purpose of actual plunder of the state (municipal) property;
– The latent partial or full capture of objects of enterprise activity by fulfilment of malfeasances concerning representatives of enterprise structures, and in case of impossibility of capture – their liquidation;
– Reception of support from officials of law enforcement bodies for fulfilment of certain malfeasances and offences for the purpose of unpunished continuation of fulfilment of official offences;
– Illegal excitation, the termination, stay, the taking to court of criminal cases for the above-stated actions for the purpose of reception of property benefit etc.
9. Malfeasances from a corruption component as we specified, in their system realisation, as a rule, are not one-act, and form usually a series of several crimes or one lasting. S.Rose-Akkerman applies in this case the term źcompetitive bribery╗ at which the spiral of corruption from the lowest level on the higher is untwisted, closing the majority of state employees in a vicious circle, źbehind an exception unless incorrigible moralists╗ [178]. About źnational traditions╗ return development of corruption from a highest level on the lowest P.A.Skoblikov specifies and results following figures: appointment to the post of the governor in the Russian Federation costs about 3-5 million dollars (the price is compared to cost before the Russian Federation operating in subjects of the selective company). Accordingly, it means a pyramid of distribution of corruption by from top to down accruing stream as the corrupted governor will introduce in the subordinated structures the corrupted relations for the purpose of extraction bolshego the income of operation of various spheres of ability to live of region which it supervises [179].
From this follows, that a crime (crimes) are made in the certain period of time during which receptions of safe preservation of all system of criminal official corruption are developed. It cannot do without the direct or mediated help from separate officials or divisions of law enforcement bodies that tends a constant to growth of such phenomena [180]. For example, statistical data show increase in number of the revealed facts of reception of bribes officials of law enforcement bodies (see enc. 11).
As studied data show, the leading role in fulfilment of corruption actions is played by employees of law-enforcement bodies. As show the special researches, the given bodies can participate "according to plan" in reception of a part of profit on actions of officials, odnoaktno to receive bribes, to support activity of the commercial organisations making wrongful acts (actually crimes), to concern activity of criminal groups, including with participation of representatives of bodies of the state and municipal management etc. [181] for example, on influence of criminal structures on law-enforcement bodies in the form of direct pressure have specified 69 % of experts, and 23 % consider pressure rather strong [182]. The given factor also is considered by operative workings out and investigations of malfeasances [183].
Thus, we come to conclusion, that the uniform criminalistic characteristic of malfeasances assumes various forms of use by officials of the powers in the form of abusing or excess of official powers, default of official powers in the deliberate form, defaults of official powers in the form of imprudence and use of official powers for the purpose of reception of direct material benefit. These forms form the various system situations influencing the mechanism of fulfilment of crimes, their conditions, behaviour of officials, achievement of results of made criminal acts, motive and which purpose, as a rule, are the material interests of the officials expressed in the most various latent and open displays and as a whole showing corruption character of malfeasances. At the same time there is an interference of forms of infringement of official powers and the corruption components connected with it at fulfilment of crimes. Depending on conditions of the official environment and circumstances of act valuable interests of the criminal, that is the corruption factor, can define the mechanism of infringement of office powers, dictate favourable ways of criminal acts for illegal enrichment. In turn, powers in the mechanism of made malfeasance quite often focus on possibilities of creation of additional elements for their use at reception of personal profit or other services of property character.
<< | >>

More on topic 1.3. Формы нарушения и использования должностных полномочий и их коррупционный факт:

  1. I. Формирование содержания профессионального образования.
  2. 4.4. Формирование и управление имиджем высшего учебного заведения(региональный асп
  3. 2,3.2, Индикаторы определения экономической безопасности машиностроительного предl
  4. 5.3. Обоснование методики оценки уровня организационной культуры кооперативной орk
  5. 4.3. Аренда как регионально-рыночная форма управления государственной собственносm
  6. 2.3.Оценка целесообразности изготовления конкурентоспособной машиностроительно&#
  7. 2.2.5. Определение приоритетности освоения альтернативных преобразователей энергиl
  8. 3.2.1. Моделирование нефтедобычи но Базисному сценарию
  9. 3.2. Анализ экономических и финансовых последствий льготирования НДПИ для МНК
  10. 2. Управление качеством профессионального образования.
  11. 1.5. Особенности механизма совершения должностных преступлений
  12. 5.2. Концепция TQM и ее использование при управлении качествомобразования в вузе
  13. 4.1.3. Проблемы менеджмента в альтернативной энергетикеи пути их решения
  14. Профессиональная адаптация выпускников вузов
  15. 4.4. Оценка экономических результатов управления материальной сферой организацион