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§ 3. Differentiation of responsibility for economic crimes in England by means of Special part means. Comparison with criminal law of Russia

Studying criminally-rules of law about the economic crimes placed in isolated sources of the British legislation, elicits one curious fact: in the given state there is practice of use qualifying (privilegirujushchih) no signs in our understanding for differentiation of responsibility.

Last is carried out mainly by means of formation of special structures of crimes to signs of a way, the purpose, a crime subject. Within the limits of differentiation of the criminal liability the significant place occupies instructions for ways of committing a crime, such as fraudulent or roguish. Presence of such way has essential value at a sanction regulation, for example, for tax evasion.

Thus the English legislator does not use for differentiation one of the most widespread and demanded circumstances in UK the Russian Federation - criminal group. For example, the majority of structures gl. 22 provide such qualifying signs, as «the act made by a group of persons on preliminary arrangement» or «the organised group». Clearly, that association of physical persons with a view of act fulfilment in economic activities sphere by the nature is more dangerous, than fulfilment of the same act by one person. Undoubtedly, if accomplices assist each other, to consolidate efforts with a view of committing a crime, their actions will be more dangerous, than actions of one person. It is characteristic and for encroachments in economic sphere.

The analysis of English norms about economic crimes shows, that action attracts more strict punishment, than made with the passive form of behaviour of the criminal. We will notice, that it is characteristic and for other kinds of crimes, not only economic. In our opinion, allocation of the active form of behaviour as more dangerous element of act, and as a matter of fact, differentiating circumstance, is not absolutely successful, as not always reflects real degree of the social danger sodejannogo. For example, in
The law on an order of payment of taxes differentiation of structures with passive and active forms of behaviour is reduced to differentiation of sanctions for them [273]. However in the absence of such differentiating sign as the certain size of a damage, the real picture of application of the given norms is reduced to that the active form of behaviour with the insignificant sums of not paid taxes will be always qualified by vessels as more dangerous, than made with the passive form, but with the big size of a damage.

At the same time, attraction of the person for criminal inaction is possible only in cases, directly statutory. According to G.Villjamsa, «courts should not establish responsibility for inactivity without the legislative authorisation. The verbs used at the description of criminal action and, first of all, meaning active behaviour, should not be interpreted broadly and include inactivity. Basically courts follow this principle». However G.Williams writes, that it is possible to find examples when the court is broad interprets norms economic crimes, instituting criminal proceedings for a crime in which inactivity of the person [274] has not been provided. In the decision on business SHama [275] convicted has been involved in the criminal liability for a fake of the document demanded for book keeping according to item (1) () Certificate item 17 about plunders of 1968 which says:

«If the person fraudulently on purpose to receive benefit for itself or other person or with intention to cause losses at other person, (destroys, spoils, covers and forges any report either any record or the document made or demanded for any reporting.» The court had been recognised by a fake that convicted has not filled the form which has been obliged to fill.

The decision was appealed in appeal instance, however qualification of act has been recognised by true.

The instructions are most extended to such circumstances, as fraudulent or roguish ways in English criminal law. Presence of the such
Way has essential value at a sanction regulation, for example, for tax evasion. The criminal law defines: «.v the cases set forth above the person is obliged to pay a difference between the sum of the due tax and that sum which it has paid. If the specified actions had roguish character the size of additional payment is doubled» [276]. It is characteristic, that application of a principle of frequency rate concerning the put damage will be applied only in cases of presence of roguish character of actions. Besides, more difficult and dangerous behaviour of the person which purpose is tax evasion, will bear additional responsibility (besides the penalty specified in concrete article), the size of sanctions will depend directly on incomes and the size of property of the concrete person, that, in our opinion, is successful line of differentiation of responsibility in English norms about economic crimes.

However the instructions for more dangerous way of an encroachment not always are defensible, in particular, when act does not put real material or other damage, however formally contains all signs of roguish criminal behaviour, at times even without instructions on quantitative characteristics of scope of criminal activity. Certainly, it causes complexities in pravoprimenitelnoj to practice. Especially representation about a roguish way in the English doctrine is washed away enough, in many respects subjectively and depends on concrete judicial interpretation as the term "swindle" at legislative level accurately is not defined and is formed on the basis of the signs enough washed away in the definition.

For the Russian criminal law, on the contrary, instructions at a regulation kriminoobrazujushchih or qualifying signs in "material" structures for the size of a damage, and in "formal" - on unlawful conduct scale, - frequent criterion of differentiation for the majority of acts,
Fixed in gl. 22 UK the Russian Federation. As to the size of a damage as differentiating sign in criminal law of England it matters, first of all, for competence definition. So, commercial crimes concern competence Serious Fraud Office, the damage from which constitutes more than 300 thousand pounds (a version of serious crimes). Moreover, on a number of economic encroachments for a recognition of act of the person criminal it is absolutely not necessary to prove the injury fact. In our opinion, absence in criminal law of England of such qualifying sign as the certain size of a damage, is a lack of differentiation of responsibility as for the majority of crimes in sphere of economic activities social danger degree will depend appreciably on negative consequences.

However, absence of differentiation on the basis of a damage is somewhat compensated, as it was already marked in the previous paragraph, system of frequency rate of measures of responsibility to the size of the caused damage (so it is defined, for example, already mentioned penalty for deceitful practices at non-payment of tax payments).

For some structures a differentiating sign on criminal law of England presence of the legal person who are representing itself as the perpetrator admits. As it was already marked, in understanding of English criminal law responsibility of the legal person can be or mediated concerning actions of the physical person, or to be identified with actions of its head.

The differentiation of responsibility for crimes in sphere of economic activities depending on fault forms seldom finds the reflexion in normative acts of England. For the given kind of crimes the legislator does not establish distinctions in dependence on fault forms, it is more than attention giving to the description of objective signs of a crime from which formulation it is possible to assume only about presence of this or that form of fault. So, the Law on an order of payment of taxes provides
Responsibility for actions of the person which gives a false information containing in documents, enquired by tax organs. Thus in case the given act has been made moshennicheski the penalty will constitute 500 pounds and if due to negligence - 250 pounds. Representation about a fraudulent way of committing a crime is treated by vessels at times widely enough, therefore similar differentiation will not always correctly reflect the mental relation of the person to sodejannomu.

Other elements of the subjective party allocated with the domestic doctrine, as a rule, do not find reflexion at differentiation of responsibility for economic crimes in England. First, it is connected by that in a science of criminal law of this country representation about the subjective party is limited to concept of the "wine", therefore all other subjective signs will be absorbed by it. Secondly, inclusion of signs "purpose" and "motive" in a disposition of articles about economic crimes is a little mediated. One of signs of a roguish way of the committing a crime, fixed in Certificate item 2 about swindle, is formulated as follows: the person should operate for the purpose of reception of benefit for itself or the certain third parties. Thus, the instructions on the purpose in article disposition are caused by way by which it is made.

Hence, signs of the subjective party of a crime for the English legislator, as a matter of fact, are secondary. In the course of the description of those acts which constitute dispositions criminally-rules of law, signs of various forms of fault are fixed indirectly through lacking general rules transfer of all ways of committing a crime. In process pravoprimenenija the court itself regards, what forms of fault took place in concrete business.

It is easy to see, that in English criminal law in sphere of differentiation of responsibility for economic crimes by means of Special part tools there are positive directions in
Regulations of some signs, however are also variety of serious lacks: first, there is no practice of use of qualifying signs; secondly, unlike the Russian criminal law, in the English legislation such essential differentiating circumstances characterising the size of a damage and fulfilment of group crimes which presence, in our opinion, considerably raises the act social danger are not regulated; and thirdly, in English criminal law responsibility depending on presence of signs of a fraudulent way of committing a crime is unduly differentiated, what not always really reflects the raised social danger of act and complicates pravoprimenitelnuju practice.

From fixed assets of differentiation of the criminal liability in the Special part, named in the first paragraph of the present chapter, perhaps, in the Great Britain special provisions about those or other versions of economic crimes are widely applied only. Are rather indicative in this plan of norm about moshennichestvah.

In English criminal law there is no general structure of the swindle, similar item 159 UK the Russian Federation, and there is a set of special provisions about separate kinds of swindle. Swindle, on criminal law of the Great Britain, is the general definition of a kind of the crimes including «disgraceful nonviolent assignment of any financial benefit or causing of any financial loss» [277]. That is it is a kind of crimes, the basic which way of fulfilment is the deceit, "dishonorableness" and the actions which are carried out "fraudulently" by means of which encroachments on the property or other rights are made, publicly owned, physical or to legal bodies.

In the English criminally-legal theory there is no unity of sights at criminally-legal concept of swindle, but, for example, the Oxford dictionary of 1997, to swindle carries following kinds of criminal behaviour:
cheating (swindle), conspiracy (arrangement), cybercrime (computer crimes), defrauding (deceit) (means obshchepravovoe a crime - conspiracy to defraud - arrangement to the deceit purpose), dishonesty (dishonorableness), false pretence (mis-statements), forgery (fake) [278].

In the Law on swindle (Fraud Act 2006) it is provided three acts, constituting penal swindle: made by mis-statements, illegal disclosing of the information and with use of the official position. So, the person admits guilty fulfilment of swindle by mis-statements, if it:

(a) Disgracefully does mis-statements, and

(b) Intentionally by means of this mis-statement

(I) Receives benefit for itself or other person, or

(II) Causes losses to other person or subjects other person to risk of losses.

The person admits guilty fulfilment of swindle by illegal disclosing of the information in case it:

(a) Illegally does not open the information to other person,

(b) Does it disgracefully,

(c) namereno by means of it is

(I) To receive benefit for itself or other person, or

(II) To cause losses to other person or to subject other person to risk of losses.

At last, the person admits guilty fulfilment of swindle by use of the official position in case it:

(a) Occupies the official position according to which it should operate with care or refrain from the actions contradicting financial interests of other person,

(b) Disgracefully or secretly uses the official position, and

(c) namereno with use of the official position

(I) To receive benefit for itself or other person,

(II) To cause losses to other person or to subject other person to risk of losses.

In the theory the different kinds of a deceit accompanying roguish actions, characterised by the following are allocated:

- Use of false statements. If the statement was truthful, the person cannot be recognised by guilty of a crime;

- Deliberate or roughly careless character. The ordinary negligence (carelessness) or negligences has not enough, that the person has been recognised by guilty of a crime, thus if convicted considers the statement truthful it is not shown negligence, how much its statement was unreasonable;

- The deceit can be expressed in words or in behaviour. «The positive steps undertaken by the seller to hide defects of the goods from the buyer, can constitute swindle in sense of civil law and can be qualified as a deceit according to the Certificate about thefts of 1978»;

- The deceit can be expressed in the form of action and in the form of inactivity. Inactivity constitutes a crime only in cases when fulfilment of certain actions was included into duties of the guilty person;

- The deceit can be expressed by the meant statement. For example, the buyer of certain property considers the seller as its proprietor as the self-evident fact, even if the seller directly not

279

Approves it [279].

Taking into account that in England there is no general provision about swindle, more and more strong tendency to working out of a uniform crime "swindle" (fraud) in system of the criminal legislation [280] now is observed.

It is necessary to notice, that in the Russian criminally-legal science referring to foreign experience the reception so-called was already offered
«Roguish structures» as for the purpose of unification criminally-rules of law [281], and differentiations of responsibility [282], by allocation of special structure (for example, credit swindle or swindle in sphere of trade of the real estate).

Until recently the Criminal code of the Russian Federation contained only one structure about the swindle, fixed in item 159 UK the Russian Federation. However with acceptance of the Federal act from November, 29th, 2012 № 207-FZ «About modification of the Criminal code of the Russian Federation and separate acts of the Russian Federation» began possible to speak about occurrence of family of norms about responsibility for various kinds of swindle: responsibility for swindle is provided now in seven articles UK the Russian Federation (item 159-1596).

Necessity of the brought changes and additions spoke development in the country of economic relations, modernisation of bank sector, development of branch of insurance, investment activity, information and industrial technologies and granting of new types of service which inevitably generate new schemes, ways of plunder of another's property or buying another's property [283].

At the description of structures of new kinds of swindle the legislator was guided that encroachments are made in certain area (sphere) of relations or with use of certain technological means (tools). We will tell, item 1591 UK the Russian Federation specifies in crediting sphere (swindle in crediting sphere), and item 1593 UK the Russian Federation - on use of tools of the financial market - credit, settlement and other cards (swindle with use of payment cards). The special kind of swindle represents swindle in sphere of the computer information - item 1596 UK the Russian Federation.

Certainly, the differentiation of responsibility depending on ways of fulfilment of roguish actions, a subject and other objective signs is possible, that proves to be true, including, and the analysis of foreign experience of counteraction of criminality. But the first, on what it is necessary to pay attention is an inconsistency of the Russian legislator in designing of separate signs of structures, criteria for differentiation of the general and special structures. Their heterogeneity can lead to a competition of special kinds of swindle, that, in turn, is inadmissible, as positions of domestic criminal law provide a competition only special and the general provision (ch. 3 items 17 UK the Russian Federation).

Therefore expansion of quantity of special structures of economic crimes by isolation of this or that sign (object or a crime subject etc.) is possible, but should be made consistently, is system and to pursue the aim of differentiation of the criminal liability. We will remind, creation of such norms along with the general then has practical sense, when this special provision somehow differently solves criminal liability questions in comparison with the general provision (for example, about a kind and the size of punishment) [284]. The Special provision establishes other limits of responsibility therefore there is its differentiation.

In general, in Russia in sphere of differentiation of responsibility for economic crimes it is possible to allocate two tendencies of legislative regulation: first, this use of the qualified and especially qualified structures for differentiation of the criminal liability, and secondly, introduction of the "special" structures regulating responsibility for separate kinds of encroachments. Both these of reception, in our opinion, should be in interaction and be applied in coordination. It is easy to see, that in the English right there is obvious "list" towards the second reception against practically "zero" use of the first, that hardly it is possible to carry to advantages of considered legal system. Together with
That, the analysis of English experience shows, as in the Russian right the potential of the second reception is opened far not to the full.

With 2012 UK the Russian Federation only regarding a regulation moshennichestv has somewhat approached in essence with an English variant of regulation. But even in this part the Russian law in comparison with English norms has reserves for perfection. As it was already marked, in the modern English legislation there is a number of roguish crimes, as today and in Russia. However in England the Certificate about financial services and the markets provides the special provision establishing the criminal liability for misleading statements and actions (misleading statements and practices), focused, first of all, on a deceit from the creditor. According to this norm of a crime any person, which admits guilty:

a) does the statement, the promise or the forecast as it knows, misleading, being false or fraudulent in relation to essential details;

b) disgracefully hides any important facts in relation to the statement, the promise or the forecast made it, or otherwise;

c) it is careless (disgracefully or otherwise) does statement, the promise or the forecast which are misleading, false or fraudulent in essential details.

The important sign for qualification sodejannogo as crimes is the purpose from which the convicted operates. So, the person should make not simply to someone a mis-statement concerning essential facts, but make it on purpose to induce other person:

a) to conclude or suggest to conclude the certain bargain or to refrain from its conclusion;

b) to carry out the rights or to refrain from their realisation in relation to certain investments.

For a legal estimation has no value, whether contained the statement false statement, the promise or the forecast or concealment important took place for
Decision-making of the facts. The person will be recognised by guilty of committing a crime both in case of a deliberate deceit, and in situations when convicted on imprudence induces sustained to make the specified actions.

The certificate provides the additional protection which onus of proving lays on the convicted: the person will not bear responsibility for fulfilment of the specified acts if it had reasonable causes to believe, that such statements will not create false or misleading impression.

As a whole the factor of the personal relation and motives of the convicted play the big role - if not for qualification of actions of the subject as criminal, for awarding punishment. Analyzed act can be made not only officially registered by bank or other credit organisation. So, in business Hartshorna the operating director of the company has been made accountable under Certificate item 35 about bank activity in spite of the fact that the company involved contributions from the population without the corresponding permission of bank of England, contrary to Certificate item 3 about bank activity [285].

As is known, on UK the Russian Federations under special protection are put, first of all, interests of creditors. So, item 1591 and item 176 UK punish debtors for a deceit of the creditor. As subjects of the named crimes borrowers (physical persons, individual businessmen, the heads of the organisations operating from their name), making deceitful practices concerning the creditor act. However not less deceitful practices it is made from the credit organisations concerning the borrower at credit delivery.

The first stage of a deceit under the Code of Russia begins with advertising: newspaper strips, screens of TVs, street prospectuses dazzle with announcements of granting hypothecary, consumer auto-and other categories of credit with instructions of interest rates from 0 to 10 % a year. If the interest rate declared in advertising under the credit below the refinancing rate, the similar
The credit, as a rule, is unprofitable to bank. That is false advertising takes place, the criminal liability for which is now excluded.

The second stage includes consultation of the representative of bank. During conversation that never will give out to all information on the size of the sum which really comes under to pay for the received credit. On a question on possibility of preschedule repayment of the credit to receive the distinct answer very difficult.

The third stage assumes drawing up of necessary documents. Representatives of bank at this stage go on the most various shifts: formulate treaty provisions as much as possible not clear language overloaded with legal and financial terms. Some conditions are written by a small font, sometimes in the word-per-word translation. To the contract various appendices which contain set of figures are constituted, understand in which experts can only. Here it is found out, that for credit delivery it is necessary to conclude one or several contracts of insurance of the various risks connected with possible losses of health, work, sudden death of the borrower. As means for payment of these contracts at the last are not present, the credit sum joins the given costs. In some cases are applied obespechitelnye measures: guarantees etc. consist dogovory pledge,

The fourth stage is connected with execution of a contract. It is found out suddenly, that the bank includes in the sums of the credit a payment for the services (opening of the bank account and manufacture on it of operations). Money resources stand out not in that volume as it was promised, and is far not in those terms which are specified in the contract.

The fifth stage includes repayment of percent and the sums of the basic debt. The creditor in every possible way interferes with preschedule repayment of the credit as it is not favourable to it to lose percent. In some cases banks manage to include in positions of the contract the conditions allowing them unilaterally to review interest rates towards increase.

As a result of the listed actions the borrower undertakes to pay the sum several times exceeding those which has been originally declared it. It gets to financial dependence on the bank which term lasts
For years. For example, under hypothecary credits the time of performance fluctuates from 10 till 27 years, i.e. the most part of an independent life the borrower is forced to fulfil the credit.

Similar actions of employees of banks in Russia can be estimated under the general provision, provided item 159 UK (swindle) as the deceitful practices the specified employees deliberately mislead the client, abducting its money resources constituting a difference between the declared sum under the credit and its real size. But after all practice of excitation of affairs on such facts is not available. Moreover, not only criminal cases, but also dosledstvennyh checks on such facts practically it is not spent. Partly it speaks the legislation on protection of bank secret, and also high latentnostju considered acts as borrowers prefer not to address in law enforcement bodies for protection of the rights. However mass infringement of the rights of borrowers should not remain without attention of the state.

Special provision introduction would allow to solve the specified problems partly. As the similar behaviour possesses the raised social danger, after all in case of a deceit or breach of confidence from the credit organisation the additional object criminal-right protection - an order of granting of the information on conditions of crediting by special representatives subjects actually is always broken. It is important to notice and that circumstance, that the specified behaviour not only is characterised by the raised social danger in comparison with usual swindle, but also is typical, and also extended.

Experience of England in which criminal cases about the similar facts not only were initiated, but also reached court with real bringing to criminal liability guilty, convinces what to solve the given problem, it is valid, possible by introduction of special structure of the swindle focused on a deceit from the credit organisation (1597 UK the Russian Federation). We offer the following variant of a part of first given article: «Plunder
Money resources or other property the authorised worker of bank or other credit organisation, or buying another's property by granting to the borrower false and (or) doubtful data or abusing its trust ».

The Russian structures moshennichestv as it was already marked, are faster an exception of a rule in comparison with the English right. There reception of differentiation by means of special structures is applied much more widely.

In UK the Russian Federation the criminal liability comes under item 172 for realisation of bank activity (bank operations) without registration or without the special permission (licence) in cases, when such permission (licence) necessarily (under condition of a large damage or the income). At the same time, a lack of analyzed norm - uncertainty and razmytost formulations and association in it different in degree of danger of actions that can form the basis for unlimited attraction of the persons occupied in bank sector, to the criminal liability.

In this respect item 172 loses, in our opinion, the criminal legislation of the Great Britain. There the criminal liability is differentiated: it is established for various on degree of danger kinds of illegal bank activity, for example, for bank activity without the permission of Bank of England, for the actions interfering the control from Bank of England and other supervising bodies; for a deceit in financial transactions; for not authorised disclosing of the information on financial activity of banks.

Summing up, we will notice, that as a whole the differentiation of responsibility for economic crimes by means of the criminal law Special part in England has the lacks in comparison with the Russian criminal law (there there is no practice of use of qualifying circumstances for gradation of responsibility, at times it is groundless are divided active and passive forms of criminal behaviour or are consolidated in one structure the acts made with the different form of fault, etc.). At the same time, separate
Decisions of the English legislator, in our opinion, are worthy also loans. It concerns, in particular, wider use of special provisions about economic crimes for differentiation of responsibility. So, in our country has ripened, as it is represented, necessity of addition UK the Russian Federation article 1597 about the criminal liability of the credit organisation for «plunder of money resources or other property the authorised worker of bank or other credit organisation, or buying another's property by granting to the borrower false and (or) doubtful data or abusing its trust».

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A source: Geshelin Michael Ilich. Legislative technics and differentiation of responsibility for economic crimes under the criminal legislation of Russia and England (rather-legal research). The dissertation on competition of a scientific degree of the master of laws. Yaroslavl - 2015. 2015

More on topic § 3. Differentiation of responsibility for economic crimes in England by means of Special part means. Comparison with criminal law of Russia:

  1. § 2. Differentiation of responsibility for economic crimes in England by means of General part means. Comparison with criminal law of Russia
  2. Chapter 3. Differentiation of the criminal liability for economic crimes in criminal law of Russia and England
  3. Geshelin Michael Ilich. the Legislative technics and differentiation of responsibility for economic crimes under the criminal legislation of Russia and England (rather-legal research). The dissertation on competition of a scientific degree of the master of laws. Yaroslavl - 2015, 2015
  4. § 1. Differentiation of the criminal liability: concept, kinds, means and their application at a regulation in UK the Russian Federation economic crimes
  5. § 2. Concept, a general characteristic of signs and classification of economic crimes of criminal law of England
  6. Chapter 1. The General characteristic of economic crimes on criminal law of England
  7. § 3.2. Qualifying signs as means of differentiation of the criminal liability for the false denunciation and false witness under the legislation of Russia, the countries of continental Europe, and also the USA
  8. §1. History of development of the legislation of England about responsibility for crimes in economic activities sphere
  9. §2. Concept of road and transport crimes and their place of system of the Special part of the Criminal code of the Russian Federation.
  10. § 3. Use of tehniko-legal means in construction of structures of economic crimes
  11. § 2. The prevention of crimes against participants of the criminal trial criminally-legal means
  12. § 1. Objective signs of structures of the crimes providing responsibility for creation of the criminal society (the criminal organisation) under the criminal legislation of Russia, Belarus and Ukraine