§ 3. Use of tehniko-legal means in construction of structures of economic crimes

As it was marked earlier, fixed assets of legislative technics in standard designing are: 1) law language; 2) legal designs; 3) presumptions and axioms; 4) fiction; 5) symbols. Presumptions, an axiom and fiction in the English criminal legislation have through legal effect and do not possess specific features with reference to norms about economic crimes.

Characterising such means as and axioms, it is necessary to notice presumptions, that they have the general constructive beginning: reflect already established knowledge and consequently can be used as a starting point for creation new and interpretation of already existing norms [144]. Legal presumptions have the similar mechanism of action with axioms, but unlike them, the last do not come under to doubt owing to their evidence, they are not assumptions, and the standard positions [145].

Separate criminally-legal presumptions and axioms in England and Russia are similar on sense and the legal maintenance, for example, presumptions of knowledge of the law, responsibility, an age presumption etc. Fundamental axiomatic such positions as will lock criminally-legal statuses traditionally act to condemn twice for the same offence (non bis in idem); the law worsening position of the person (in particular, toughening responsibility), has no retroactive effect; there is no punishment without a crime (nullum crimen sine lege), etc.

However it is possible to result examples which in this sense distinguish compared criminally-legal systems. So, in the English right there is a presumption on which the statute does not become outdated in due course. As a result in a legal field of England there are the certificates of parliament accepted still in XIV-XV centuries and till now used in judiciary practice [146].

The fiction is tehniko-legal reception applied in the right which obviously nonexistent position appears existing and gets a binding character owing to its fastening in the rule of law [147]. Thus, as marked V.I.Kaminskaja, «the legal fiction represents easier rule of law under the maintenance... Regulating relations of the objective validity» [148]. It is necessary to notice, that is far not all scientists carry fiction to means of legal technics. In the operating criminal
The fiction legislation take place (see ch. 2, 3, 5 items 86 UK), however are not so wide, as in other branches of law (for example, civil law). L.L.Kruglikov specifies in use by the legislator of reception fiktsy at

149 legislative definition of criminal group.

In England fiction basically are used in civil and the family law. In criminal law they are applied in general provisions. The closest to sphere of regulation of responsibility for crimes in sphere of economic activities of legal bodies, is the fiction which reflects «a principle of an identification (identification)». Its essence consists that action (or inactivity) and mental condition of the higher officials of corporation (supervising employees) is defined as action and corporation mental condition. In this case there is not displacing, and a corporation direct responsibility. When the crime is made by the official, the corporation answers as the executor if the employee represented itself as the accomplice — the corporation comes under to responsibility as the accomplice [149 [150]. But this fiction is not special in group of economic crimes, since Responsibility of legal bodies extends and on other criminal actions: ecological, sluzhebno-corruption, etc.

Thus, essential value for achievement of the purposes of the present research has the analysis of such means of legislative technics, as normative act language, legal designs and symbols. They are base and essential in the course of designing of norms about economic crimes in the domestic and English right, have both similar, and various lines.

As the basic and necessary construction tool language of the normative act which has features criminally-rule of law acts,

Predetermined by its style and special terminology [151]. Style of legal acts name officially-business, and it predetermines a set used in the text of the law of syntactic, terminological, lexical means [152]. But these features do not cancel the main rule: legal acts should be written a literary language at observance of all standard grammatical rules.

Language of the standard legal act should be exact, ekspressivnoyonejtralnym, clear, accurate, logically consecutive. Unambiguity and the maximum accuracy of the information in legal documents is reached at the expense of logic sequence of a statement of thought of the legislator, its semantic completeness, uniformity of ways of a formulation of instructions, use of terms with the accurate and strictly outlined sense, the uses of words and expressions in direct and their direct value. Necessity of profitability of use for the text of language means follows from requirements of accuracy and simplicity of a statement of legal instructions, means, normativnoyopravovoj the certificate should be laconic and compact. The lakonichnee the text is stated, the better and easier it is perceived by executors [153]. However the economy of a standard material leads to costs in the form of fastening in the law of the additional norms stated in the form of notes, definitions, etc. Unfortunately, the requirements shown to language of a statement of standard instructions, far are not always observed by the legislator.

According to N.A.Vlasenko, as the basic language means grammatical offers, legal phraseological units, words and abbreviations to which use the corresponding are shown act
Requirements [154].

The offer - one of language basic elements, the form of expression of rules of law, main sign unit of the criminally-legal text. At formation of the standard offer the legislator should observe following rules: adequacy of the grammatical form (in particular, the right nature is contradicted by use interrogative and hortatory sentences); absence of an overload of simple sentences homogeneous parts (in our opinion, this rule follows from the brevity requirement); inadmissibility of use uncharacteristic to the nature of rules of law of copulatives "and", "but", "that", «not that», "though" etc.; simplicity and availability of style, impersonal character of the maintenance (but the aspiration to availability should not aggrieve to completeness and accuracy of the instruction) [155].

Designing of offers in norms about crimes in economic activities sphere as a whole is carried out within the limits of linguistic requirements. But it concerns, first of all, proceeding editions of articles as many new editions or norms-short stories are as it was already mentioned, extremely bulky. Such casuistic loading entirely lays down on offers which are used at obrisovke the corpus delicti in gl. 22 UK the Russian Federation. Traditionally elements essential to the offence, the definitions, special kinds of clearing, the sanction etc. in Special part UK the Russian Federation are described in one offer. Hence, obviously overloaded offers in volume in 130 words (ch. 1 items 1701) or 164 words (ch. 1 items 193 UK the Russian Federation) are not perceived adequately, are very difficult for interpretation and confuse pravoprimenitelja. Besides, such offers contain set "blanketnyh" the terms requiring an additional estimation, an explanation, interpretation. On occasion the legislator manages to fix in one volume offer some structures of crimes. Result of it is rule infringement, according to which separate structure should be
Separate article (or article part) is devoted.

The Russian criminal legislation has experience of division and simplification of bulky offers by structurization criminally-rule of law on the basic (base) and the positions providing signs concretising act (ch. 1, ch. 2-3 items 213 (Hooliganism). Such perechnevaja the disposition structure optimises process of perception of norm, its interpretation and application. The English legislator practically ugolovnoyopravovye instructions and, first of all, norms about economic crimes subjects all to such structurization, dividing the text on parts, points and subparagraphs.

Phraseological (grammatical) turns - the steadiest combinations of words reproduced in the standard text as ready units of language. Are often enough applied in gl. 22 UK the Russian Federation following word-combinations: «made by the person with use of the official position» (item 1731, 174, 1741, 175, 178, 1911, etc.), «interfaced to income extraction in large (especially large) size» (item 171, 1712, 172, 1854, etc.) . On occasion, leaning against the branch legislation, pravotvorets alters the settled language designs and applies new terminology, using, for example, the term - «extraction of the excessive income» in ch. 1 items 1853 UK the Russian Federation. In other cases, for not clear reasons, in the settled turn replacement of a word which does not answer linguistic rules and traditions of use of criminally-legal language turns is carried out. So, in item 178 UK the Russian Federation the term "interfaced" is replaced, therefore word-combinations look as follows: «acts... Have entailed income extraction in the large size» (ч.1), «acts... Entailed income extraction in especially large size» (the item « In »ch. 2). It is obvious, that such imperfect language design misleads pravoprimenitelja as in such kind it focuses on approach of adverse consequences and"materiality"of structure whereas actually the sign means scope of criminal activity and"formalizes"act.

The same set phrases are applied also at
Fastening of signs of homogeneous structures of crimes in economic activities sphere, for example, «the legislation of the Russian Federation on securities» (item 185, 185 [156] UK the Russian Federation), «the legislation of the Russian Federation on taxes and tax collections» (item 198-199 [157]).

However a basic purpose of the settled legal phraseological units - use at the description of qualifying and especially qualifying signs of crimes, on what fairly specifies L.L.Kruglikov156. So, at obrisovke the qualified structures in gl. 22 UK the Russian Federations are extended enough following kinds of such phraseological units: «the same act","the same acts","the acts provided by parts of first or second present article», etc. the Given language turns, successfully being combined with reference reception, allow to avoid unnecessary repetitions (at once sending to the core and (or) to the qualified corpus delicti). However the specified grammatical turns in UK not always meet requirements of legislative technics. For example, in a disposition ch. 1 items 169 UK are described forms of hindrance of lawful enterprise or other activity and as an additional sign is specified: « If these acts are made by the official with use of the official position ». The description of the qualified structure in ch. 2 items 169 UK begin with words:« the same acts made... ». As a result there is an uncertainty of a question on, whether it is necessary for imputation ch. 2 given articles to establish all signs named in ch. 1, including a sign of use by the official of the official position. Close interpretation allows to answer the given question negatively, for speech in ch. 2 items 169 go about acts, and acts is, agree ch. 1 articles, hindrance forms (without a sign of use of the official position).

But on sense of item 169 UK for imputation ch. 2 all signs specified in ch are required. 1. And the turn «the same acts», under the general rule, is used
The legislator for a designation of the crime specified in ch. 1 articles, in all variety of its signs. The mess is created by exceptions of the given rule. So, a disposition ch. 2 items 179 begin with a traditional turn «the same acts», but with reference to the item (violence application) should be interpreted it narrowly, for in ch. 1, among other, the sign of threat of violence appears. Therefore in this case it is available an ambiguity of the law which complicates process of interpretation of articles with similar phraseological units and creates preconditions for pravoprimenitelnyh errors [158].

It is thought, that with a view of increase of level of technics of designing of structures and elimination of obvious problems in interpretation it is necessary for legislator to specify and unify the phraseological units used in the prologue of the description of qualified structures. In our opinion, under the general rule it is desirable to use turns «the same crime», «a crime provided by parts of first or second present article», etc. the Term "crime" clearly specifies in necessity of an establishment of all signs forming its structure. If structure in ch. 2, 3 etc. includes not all signs from ch. 1 it is possible as an exception to use other grammatical turns (for example, «the same act») or to reproduce the description of a crime with instructions of necessary signs [159].

The words (terms) used in dispositions of norms of chapter 22 UK the Russian Federation, it is possible to divide conditionally on two groups 1) obshcheugolovnaja terminology: the official, use of the official position, mercenary or other partiality, manufacture, acquisition, storage, another's property, violence or threat of its application etc.; 2) the professional terminology: bank operation, registers of book keeping, share investment fund, the microfinancial organisation etc.

In turn technical terms probably to classify on some subgroups: words, characteristic for an economic lexicon:
Enterprise activity, the transaction, the legal body, financial operations, etc.; narrowly specialised terms used in limited spheres of economic activities: probirnoe a brand, affinazh (a turn of precious metals and stones), depozitarnyj the account, an issue valuable paper, the investment share (securities market), the tax return, the tax agent, shortages under taxes (taxation sphere). On occasion the legislator applies a little used borrowed terms which interpretation demands obligatory references to reference books and special knowledge of economy sphere: the clearing organisation (item 1721 UK the Russian Federation), cartel (item 178 UK the Russian Federation), the insider information (item 1853, 1856 UK the Russian Federation), etc.

As a whole it is possible to tell, that the tendency to saturation of norms gl. 22 difficult, by substantially borrowed, economic terminology it is caused both objective, and subjective factors. Objectivity is connected with specificity of economic activities, it raznoplanovostju, complication of economic mechanisms and economic globalisation. At the heart of subjective factors the general process of filling of Russian by difficult terms speaking another language and turns which in the spirit of a fashion of 90th years are fixed in the branch economic legislation lays, and then sometimes are thoughtlessly transferred in criminally-rule of law.

Use of abbreviations in gl. 22 UK the Russian Federation (as well as as a whole in UK) - the phenomenon rare. The meant linguistic means is used once in item 194 and some times only in item 2001. The abbreviation "EvrAzES" (the Euroasian economic community) is fixed in the note to item 194, ch. 1 items 2001, notes 1, 2, 3 items 2001. We will remind, that in December, 2012 the arrangement on reorganisation EvrAzES with transfer of a part of functions of the Euroasian economic commission is reached. EvrAzES reserves the decision of problems of humanitarian sphere, transport, power and realisation of 15 interstate programs. EvrAzES it is necessary to function till 2015 when the Euroasian economic union will be generated. Hence,
There will be a question on legislative replacement of the given abbreviation on new - EAES.

The language means used by the English legislator in the course of law-making, have certain features. It is necessary to notice, that language requirements to the legal act are expedient for considering, being based in the language typical for given legal system, and also called to express will of the certain subject of law-making.

In English criminal law as it has been told earlier, bulky and volume offers traditionally are not used. Despite lack of general rules of the criminal legislation, thanks to perechnevogo a way, the norm of the criminal law looks well structured and perceived. Within the limits of a structural element of article which can contain parts, points and subparagraphs, it is fixed, as well as in articles of Special part UK the Russian Federation, only one offer.

Let's notice, as in this case much depends on standard "taste" of developers of this or that law. There are in the English criminal legislation the dispositions consisting of enough volume not structured offers. So, the description of the independent corpus delicti in ch. 3 items 5 «the Crimes connected with remittances, securities, passports etc.» the Law on counterfeiting and fakes of 1981 (Forgery and Сounterfeiting Act 1981) consist of the offer in volume in 108 words. But, first, such examples are rare enough, secondly, the quantity of words almost increases by a quarter because of features of English language which in an offer design uses a significant amount of the articles binding of linguistic elements: «a», «an», "SHe", «is», «of», etc., which in itself do not bear the legal maintenance.

Let's result examples of structurization of offers from dispositions of separate norms about economic crimes:

1) item 3 «the Swindle connected with concealment of the information» (Fraud by failing to disclose information) the Law on swindle of 2006 (Fraud Act 2006):

The person admits guilty committing a crime, if it

(a) Disgracefully does not open the information to other person, in the presence of a duty to open such information -

(b) 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;

2) item 647 «the Crimes connected with the list of creditors» (Offences in connection with list of creditors) the Law on the companies of 2006 (Companies Act 2006):

(1) If the employee of the company -

(a) Purposely or thoughtlessly -

(i) Hides a name of the creditor allocated with the right to object of reduction of the capital, or

(ii) Deforms the nature or the amount due or the requirement of the creditor, or

(b) Meaningly promotes any such concealment or distortion, it commits a crime.

For example, in a domestic variant such offer fixed in a disposition, would look so: If the employee of the company purposely or carelessly hides a name of the creditor allocated with the right to object of reduction of the capital, or deforms the nature or the amount due, or the requirement of the creditor, or meaningly promotes any such concealment, or distortion, it commits a crime.

It is necessary to specify, that laconicism and structure of a standard material in separate criminal norms does not contradict our statement about lack of general rules of the English law. We will remind, that rare use of abstract formulations, unreasonable "dispersion" of elements essential to the offence on different norms, fastening in them of actions of accomplices etc. - too is a version of lack of general rules.

The English criminal law actively uses the same set phrases in corpus delicti designing. In England
There are no regulated requirements in application of phraseological units. Traditionally their choice also depends on "taste" of developers of the law. We will notice only that in the concrete law the legislator, as a rule, uses one variant. At the description of structures of economic crimes three basic linguistic turns are used: 1) Sodejannoe is a crime, if the person... (It is an offence for a person to...) in the Law on counterfeiting of 1981 (Forgery and Counterfeitng Act 1981); 2) the Person commits a crime, if... (A person commits an offence if...) in the Law on gamblings of 2005 (Gambling Act 2005); 3) the Person is guilty in committings a crime, if... (A person is guilty of an offence if.) In the Law on the financial markets and services of 2000 (Financial Services and Markets Act 2000). When the legislator considers necessary to underline possibility of impeachment of legal bodies, it applies some other set phrase: Any person is guilty of committing a crime, if... (Any person guilty of an offence if...) in the Law on bank activity of 1987 (Banking Act 1987). However it does not exclude that the legal body can become the perpetrator and in the presence of other formulations. There are norms in which the similar linguistic turns providing the criminal liability only of legal bodies are applied: « The crimes made by partnership and legal bodies »(Offences committed by partnerships and bodies corporate) in item 101 of the Law on trade marks of 1994 (Trade Marks Act 1994), item 285 of the Law on copyrights, samples and patents of 1988 (Copyright, Designs and Patents Act 1988).

Linguistic designs with instructions of the special subject are on occasion used: the Bankrupt is guilty of committing a crime, if... (The bankrupt is guilty of an offence if...) in item 353-360 of the Law on bankruptcy of 1986 (Insolvency Act 1986). Such specialisation of the subject in this case also allows to carry to the last both physical, and the legal body.

Often enough in designs of structures of economic crimes
The turn is applied: «... Within the limits of the powers or under its control...» (... have in his custody or under his control.). The resulted formulation allows to take out sodejannoe for frameworks of office powers of the subject and to qualify as a crime and the actions made out of its competence, but connected with it.

Also the following turn of roguish actions characterising consequence is very extended in dispositions of "economic" articles: receives benefit for itself or other person or causes losses to other person or subjects other person to risk of losses (to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss) [160]. Such terminology in our understanding speaks about an is formal-material design of the mentioned structure and inclusion in the maintenance of adverse consequences not only straight losses, but also the loss of profit.

At studying of the terms used by the English legislator in dispositions of norms, containing crimes in economic activities sphere, it is necessary to allocate also concepts obshcheugolovnogo and special character. To obshcheugolovnoj terminology it is possible to carry the signs characterising fault («mens gea»): the person makes act deliberately, in a variant close to an English translation - is intended (intentionally), the person meaningly supposes unjustified risk, operating carelessly (recklessness), or it has carelessly made criminal action by nonacceptance of measures of "reasonable care" (negilence). In our opinion, with reference to structures of economic crimes, considering positions and traditions of the domestic legislation, it is necessary to mention the term "levity".

obshcheupotrebljaemym terms can carry to another: dishonorableness (dishonestly), official position use (abuse of position), profit reception (to make a gain), causing of losses (to cause loss), the property (property) etc. is frequent enough in editions of economic articles is applied
The term swindle (fraud) which is patrimonial for the description of all kinds kriminalizovannogo a deceit made by subjects of economic activities.

Specialised terms also take places in investigated norms: the bankrupt (bankrupt), insider activity (insider dealing), the taxation (taxation), the gaming software (gambling software), the property which is in pledge (the property, which is pledged), etc. However it is necessary to tell, that saturation of criminally-legal instructions by specific economic terminology is carried out by the English legislator in times less, than it becomes in gl. 22 UK the Russian Federation. This doubtless advantage British criminally-economic law also is connected it with "pure" application blanketnogo reception (what already it was earlier partially mentioned). Unlike domestic normotvorcheskoj experts, English norms do not copy neither completely, nor partially position korrespondirujushchego inootraslevogo the legislation. Therefore the significant amount of difficult economic terms does not get to standard designs of the criminal law.

So, ch. 1 item 350 «the Crimes connected with granting of the information» (Offences relating to provision of information) the Law on the companies of 2006 (Companies Act 2006) provides responsibility for the person who is groundless does not fulfil the requirement of item 349 of the present Law. In item 349 «the Rights of the independent appraiser to information reception» (Rights of independent assessor: right to information) which concerns the corporate legislation, contains about 180 words from which 25 are the technical terms connected with activity quoted and joint-stock companies. Thus, correct use blanketnogo reception allows to limit criminal law "contamination" to special economic terms.

On occasion use of various terms allows to differentiate criminal behaviour from not criminal, that is especially actual
For English criminal law in respect of interbranch differentiation. So, the term avoidance Avoidance) payments of taxes means admissible, lawful attempts of detour of the tax, reduction (softening) of tax burden at the expense of so-called tax planning. At the heart of tax planning (or as it still name, tax maneuvering) complex application of the fiscal incentives provided by the current legislation, skilful use of all blanks and illegibilities in the legislation lays.

Evasion (evasion) from payment of taxes - the basic term used for a designation of criminal actions of individuals and corporations which do not pay taxes, applying illegal ways. Evasion (evasion) usually means deliberate distortion (concealing) of the data necessary for correct calculation of the taxable base to lower tax obligations, granting of the doubtful tax return (nedeklarirovanie or incomplete declaring of incomes, profit and benefits, or exaggeration of expenses and other circumstances considered at deductions) etc. At evasion the tax bearer aspires to reduce the tax obligations in the ways forbidden by the law.

It is interesting, that more recently in the English and American criminal doctrine there was a term «tax avoison» - a combination «avoidance» and «evasion». This term is used concerning actions of persons which resist to payment of taxes by maximum use of legal openings, that is resist to taxes outwardly legally, but, as a matter of fact, maliciously mislead tax organs. In the USA according to item 720 of the Tax code such form of evasion is a crime.

In the legislation the everyday or borrowed professional lexicon is sometimes applied. For example, in point "and" ch. 2 items 4 of the Law on trade marks of 1994 (Trade Marks Act 1994) as a subject criminally-right protection are called the term - Union Jack (the Union Jack), the narrow-minded name of the Royal (state) flag of the Great Britain, and overwhelming majority of norms about crimes on a securities market uses concept
«stock» (the share, the action) which was applied earlier only in professional lexicon of the American exchange dealers.

Abbreviations (the same as and in UK the Russian Federation) practically are not used in criminal law of England, and in designs of economic crimes - in particular. The rare case of linguistic reduction is fixed in item 71 «the Crimes connected with the taxation in EU» [161] (Offences in connection with taxation etc. in the EC) in the Law on criminal justice of 1993 (Criminal Justice Act 1993). In criminal procedure norms the abbreviation - DPP (Director of Public Prosecutions - the Prosecutor General) - item 92 «Function of the Prosecutor General» (Functions of the DPP) the Law on criminal justice (Criminal Justice Act 2003) is sometimes used.

II. Legal designs act as not less important means of legislative technics as otherwise creation of legal instructions could lead to obvious blanks in a standard material. Use of the given means allows to facilitate a formulation of legal rules, gives to a standard regulation of public relations clearness and definiteness. According to A.V.Ivanchina, the criminally-legal design is the means of legislative technics representing structural model of group of the homogeneous legal phenomena, a certain which combination of elements the legislator fills with legally significant information, regulating thereby in the criminal legislation a corresponding version of the given phenomena [162].

However, in spite of the fact that the design represents itself as model, obligatory presence in it of such elements as the rights, duties and responsibility of corresponding persons [163], is not necessary as in the latter case there is a substitution of a legal design by legal relation. S.S.Alexey considered legal designs as «the specific construction of a standard material corresponding
To certain type or kind of the developed legal relations, juridical facts, their communications among themselves »[164]. In each branch of law there are various designs: in criminal law - models of corpuses delicti; in civil law - various designs of contracts etc. A.V.Ivanchin allocates five principal views of criminally-legal designs: 1) crimes, 2) the act made under circumstances, excluding its criminality, 3) punishments, 4) clearings of the criminal liability, 5) clearings of punishment [165]. We will add also designs of partnership, fault, plurality, etc.

Undoubtedly, that the basic criminally-legal design is a design of a crime which consolidates the elements traditionally studied in the general doctrine about the corpus delicti. Traditional for domestic criminal law the design of the corpus delicti developing of four elements (object, the objective party, the subject, the subjective party) acts.

Now in gl. 22 UK the Russian Federation it is fixed only 54 basic of structure, from them 32 have a formal design, 14 - material, 8 - formalnoyomaterialnuju. It is obvious, that in kriminologicheskom the crime plan in sphere of economic activities as the base element defining degree of their social danger, include consequences in the form of causing of an economic damage. However such sign has not got to legislative designs of overwhelming quantity of acts. In 8 cases it has alternative value and in practice, as a rule, is not claimed. So, in overwhelming majority of the studied cases criminal cases under item 171, 172 are initiated exclusively by sign «income extraction in large (especially large) size», and research of the circumstances connected with detrimenting, pravoprimenitelem practically is not carried out [166].

If formal structures on a design in which it is used the cost signs characterising scope of criminal activity, in any measure are claimed pravoprimenitelnoj by practice the exception constitutes a number obshcheugolovnyh economic crimes which are often enough put into practice owing to an associativity to other encroachments or in view of their low latentnosti (item 175, 179, 186 UK the Russian Federations). In such situation the majority of "formal" economic encroachments, in which are absent quantitative kriminoobrazujushchie thresholds (items 174, 1741, 175, 179, 186, 187, 189, 190, 1931), are doomed to remain "dead". A number of formal designs are the "not finished loading", blank all necessary signs. We believe, that: 1) it is necessary to add a number of structures of criminal trespasses with the signs characterising scope of criminal activity - kriminoobrazujushchimi and differentiating thresholds (the item 174, 1741, 190, 1931), 2) the acts fixed in item 169, 170, 183, demand the prompt "materializatsii" [167]. Such legislative decisions, undoubtedly, will correspond to requirements of legislative technics, interbranch differentiation and requirements pravoprimenitelnoj experts.

Otherwise in practice there can be various collisions and nestykovki, for example, in case of deliberate understating of tax payments for the earth there is a question on differentiation tax (item 122 NK the Russian Federation) and the criminal liability (item 170 UK the Russian Federation). Other problem - a competition of item 170 UK the Russian Federation with other tax structures. Operating edition of registration of illegal transactions with the earth provides the criminal liability for understating of tax payments for the earth in any size whereas in notes to item 198 and 199 the certain sizes exceeding 600 thousand and 2 million of roubles are established. The establishment kriminoobrazujushchego a threshold in item 170 will be correct
The standard decision.

At the act description in designs of crimes in gl. 22 UK the Russian Federations are used three variants: 1) a design «active behaviour» (only action) - item 1701, 171, 1712, 172, 174, etc., 2) a design «action - inactivity» - item 169, 178, 1851, 1854, 195, etc., 3) a design "inactivity" - item 177, 190, 192, 193, 194, etc.

At the characteristic of active behaviour traditional "criminal" terms are used, first: acquisition, sale (item 175), storage, transportation, processing with a view of sale (item 1911), illegal moving (item 2001); secondly, special actions, characteristic economy for various spheres are fixed: realisation of enterprise activity (item 171), fulfilment of financial operations (174, 1741), illegal export (item 189), fulfilment of currency transactions (item 1931).

In a regulation of designs "action-inactivity" the legislator applies some standard variants: 1) in a norm disposition directly it is underlined possibility of realisation of act by «. Fulfilment of actions (inactivity)» (item 196); 2) at the description of the objective party of an encroachment signs, characteristic both for inactivity, and for action, for example, «malicious evasion from disclosing or information granting are used...","... Granting obviously incomplete or a false information.» (Item 1851); or «wrongful refusal in the state registration.","illegal intervention in activity.» (Item 169); 3) in this case the legislator speaks about infringement of any rules, and possible forms of act are established by interpretation blanketnogo the branch legislation: «infringement

The established order of the account of the rights to securities. »(Item 1852); 4) in other cases use in a disposition of norm of outwardly neutral term"concealment"is provided (item 195, 1992) which besides active forms of concealment, provides, for example, passive behaviour in the form of default, in the presence of a duty to open the necessary information.

Crime-inactivity designs provide two variants of a regulation - simple and difficult. Idle time is connected with terminology and a feature set which obviously specify in criminal inaction of the subject: malicious evasion... From repayment of creditor debts (item 176), nevozvrashchenie when due hereunder on territory of the Russian Federation of cultural values (item 190), default of duties of the tax agent (item 1991). The difficult variant provides a design when the legislator simultaneously specifies on: evasion from the assigned duties, certain ways (actions) on evasion - «tax evasion and (or) gathering. By inclusion in the tax return or such documents of false data.» (Item 198, 199 UK the Russian Federation). Such edition gives the basis to some jurists wrongly to approve, that the specified encroachments can be made as by inactivity, and action [168].

Construction of designs of economic crimes in the criminal legislation of England has certain differences from domestic normotvorcheskoj experts. The traditional English doctrine discriminates two basic konstitutivnyh a crime element: «actus reus» (criminal action) - the material element characterising the objective party of a crime, and «mens rea» (a guilty condition of mind) - an element characterising the subjective party. However it does not mean, that in a crime design other two elements of structure - object and the perpetrator are not applied.

Other understanding of structure of structure leads to interpretation of the actual and legal maintenance of its signs differing from it, the classification bases. In the doctrine of English criminal law there is no traditional division into structures material, formal, truncated. Nevertheless, making a start from the domestic doctrine it is necessary to make a number of remarks concerning practice of use of designs of a crime in the British
The right.

Designs of economic crimes in it in the majority are formal, and in the remained small part - is formal-material. Considering formal designs, we will notice, that the sign of consequences in the objective party of many encroachments can be designated exclusively on doktrinalnom level and only prezjumiruetsja in the law. In base economic statutes (the Law on counterfeiting of 1981, the Law on gamblings of 2005, the Law on financial services and the market of 2000, the Law on bank activity of 1987, etc.) does not contain criminally-rules of law with a material design. Such technics of construction of structure is quite admissible in the absence of corresponding rules of administrative law, division into offences and crimes is carried out pravoprimenitelem at a choice of the sanction and impeachment procedures.

English experience of a regulation of "formal" designs (without instructions of harmful consequences and kriminoobrazujushchih thresholds) can be partially claimed in construction of structures of economic crimes in UK the Russian Federation. It concerns, first of all, vysokolatentnyh acts in which it is inconvenient to reveal and fix economic scope of criminal activity, for example, the illegal organisation and carrying out of gamblings (item 171 2). The given statisticans on item 171 2 application testify to the following: in 2011 in territory of the Russian Federation 20 crimes have been registered, thus only one criminal case has been directed to court for consideration in essence, one person is involved in the criminal liability. In 2012 the quantity of the registered crimes has constituted 96. 33 criminal cases are directed To court with bills of particulars [169] only. It is obvious, that the small amount of revealed crimes mismatches real kriminogennoj to a situation in gaming sphere. In such cases full "formalisation" of a design of the considered is admissible
Encroachments and an exception kriminoobrazujushchih the signs (thresholds) connected with extraction of the income.

The small amount of is formal-material designs of crimes is fixed in statutes about criminally-right protection property. So, ch. 1 item 1 of the Law on plunders of 1978 (Theft Act 1978) provides responsibility if «the person fraudulently has disgracefully taken advantage of any service», thus on sense of the normative act is a question of services of property character, as really received and in which relation «there was an intention». Any kriminoobrazujushchego a threshold in the Law it is not specified, hence, questions of interbranch differentiation entirely lay down on pravoprimenitelja.

The is formal-material design in crimes, statutory 2006 about swindle (Fraud Act 2006) when signs "materialising" and "formalizing" structure are alternatively specified in the uniform standard position fixed in a concrete part, point, the subparagraph is more obvious. So, according to item 2, 3, 4 Laws, providing responsibility for various forms of swindle, responsibility come, if «the person causes a damage or plunges another, the person to risk of losses» (items (ii) the item «» ch. 1 items 2; items (ii) the item «» item 3; items (ii) the item "with" ch. 1 items 4 of the Law).

Fault forms also cause various variants of designs of economic crimes: 1) deliberate act; 2) careless (thoughtless) act; 3) a design «intention - imprudence».

The majority of criminally-economic interdictions provides the deliberate form of fault. At the description of signs of the subjective party the legislator defines designedness of act, applying such terms as is disgraceful, conscious, intended",« for the purpose of a deceit »(item 42 of the Law on gamblings of 2005, item 2, 4 Laws on counterfeiting and fakes of 1981, item 2, 3, 4 Laws on swindle of 2006). Such standard instruction of the purpose of activity is very actual for English criminal
The right which practically does not use material structures and is not defined by the relation of the subject to criminal consequences.

In the criminal legislation it is a little exclusively "careless" structures of economic crimes, as the overwhelming part of careless acts is provided by not criminal branch legislation. In this case there are earlier mentioned problems of interbranch differentiation in which results absence kriminoobrazujushchih thresholds in structures economic crimes. The instructions on imprudence of an encroachment are carried out by use of such terms, as: «thoughtlessly extends the information», «supposes omissions», «as a result of erroneous representation» (ch. 4 items 177 of the Law on the financial markets and services of 2000, ch. 3 items 355 of the Law on bankruptcy of 1986, item 107 of the Law on the taxation of 1970).

Is much more often there are designs the mixed forms of fault: "intention-imprudence". Such "mixture" obviously contradicts requirements of legislative technics and differentiation of responsibility when strongly differing levels of the social danger of careless and deliberate act probably to consider only within the limits of a responsibility individualization. In domestic criminal law similar situations are possible because of failures in the legislative technics when pravotvorets ignores the signs concretising the form of fault, for example, in structures of ecological crimes (item 248, 250, etc.).

The English legislator intentionally connects in one norm the deliberate and careless form of behaviour, using following formulations: «it is conscious or on imprudence gives in bank a false information» (item 94 of the Law on bank activity of 1987), «if the company for the purpose of a deceit or due to negligence.» (Item 96 of the Law on the taxation of 1970). Such legislative decisions also run counter to requirements of differentiation of responsibility about what it will be told in the subsequent chapter.

III. Symbols. The history of use of symbols as special regulators of public relations leaves in the remote past. There were the symbolical actions having the jural significance which later have stood apart as independent elements of legal system of a society. For today symbols are actively used in legal regulation of public relations. The concept of legal symbols is initially formulated in the general theory of law.

They are understood as "the conditional images fixed by the legislation used for expression of the certain maintenance» [170]. To signs of a legal symbol carry: legislative fastening,

obshcheobjazatelnost, security state-legal measures, obshcheponjatnost, selectivity [171]. In gl. 22 UK the Russian Federation symbols are used for reflexion of the special nature of a subject or criminal trespass means (for example, excise marks, federal special marks in item 1711, a trade mark in item 180, state probirnoe a brand in item 181, bank notes of the Central bank of the Russian Federation in item 186). Under the legal maintenance the mentioned symbols can be divided on two groups: 1) documents, cards or the signs fixing property rights, expressed in a money's worth (securities, currency of the Russian Federation, a foreign currency, credit cards, bills etc.); 2) the symbols reflecting fiscal or commercial laws of the state and other subjects of economic activities (excise marks, conformity signs, trademarks, state probirnoe a brand etc.)

For quite some time now symbols meet at institute of clearing of the criminal liability. So, in the note to item 2001 UK (contraband of cash money resources and (or) monetary tools), providing special clearing of the criminal liability, it is specified, that the person who has voluntary handed over cash money resources and (or)
Monetary tools (traveller's cheques, bills, banker's checks), it is released from the criminal liability.

In the English criminally-economic legislation symbols are used widely enough and much more variously, than in UK the Russian Federation. It is obvious, that, as well as in the Russian right, the greatest quantity of symbols is connected or with monetary tools - the British bank notes (Britsh curency notes), the British coins (Britsh coins), traveller's cheques (travellers’ cheques), actions (shares), or with means of commercial identification: trade marks (trade marks), trade marks (brand marks), sertifikatsinnye signs (сertification marks). It is interesting, that in item 86 term use «the trade mark of the lawyer» (Use of the term «trade mark attorney») the Law on trade marks of 1994 (Trade Marks Act 1994) is specially reserved protection of the intellectual rights of practising lawyers on an individualization of the services.

However it is possible to allocate two features obrisovki symbols in norms about economic crimes. First, on occasion the legislator as much as possible in detail, not using abstract formulations, registers the list of such symbols. In the Law on counterfeiting and fakes of 1981 (Forgery and Counterfeitng Act 1981) 12 subjects which can be carried to symbols are listed. Earlier it it was mentioned in the Law on criminal justice of 1993 (Criminal Justice Act 1993), where also perechislos a considerable quantity of the symbols concerning securities: actions (shares), debt securities (debt securities), varranty (warrants), depozitarnye receipts (depositary receipts), options (options), futures (futures), contracts on a difference (contracts, for differences), the loan bond (loan stock), debentura (debenture).

The second feature is use in investigated norms of the symbols which are not concerning in understanding the Russian legislator to sphere of economy. So, according to ch. 5 items 5 of the Law on counterfeiting and fakes of 1981 (Forgery and Counterfeitng Act 1981) to fake subjects concern: the press of the United Kingdom (the item "with"), the press of the internal
Departments (the item «d»), passports and documents which can be used instead of passports (the item «f»), the certificated copies connected with record in the register of births, adoptions, marriages or the death which have been given out by General registry of Northern Ireland (the item «l»). In the Law on trade marks of 1994 (Trade Marks Act 1994) in item 4 «especially protected emblems» (Specially protected emblems) as symbols are mentioned: the Royal arms (Royal arms), the Royal crown (Royal crown), Royal flag Royal flags. In the same quality in the Law emblems of international organisations Emblems international organisations) are mentioned.

The law on copyrights, samples and patents of 1988 (Copyright, Designs and Patents Act 1988) as the symbols connected with the intellectual rights, mentions the state patent sign (State Patent mark), licences of the legal owner (licence of the copyright owner). The Olympic symbolics is fixed as a subject of the crimes provided in the Law on protection of Olympic symbolics of 1995 (Olympic Symbol etc. (Protection) Act 1995).

povodja results, we will note: 1) casuistic loading in "economic" structures entirely lays down on such linguistic element, as offers which are used at obrisovke the corpus delicti in gl. 22 UK the Russian Federation. Traditionally elements essential to the offence, the definitions, special kinds of clearing, the sanction etc. in Special part UK are described in one offer. Hence, obviously overloaded offers in volume in 130 words (ch. 1 items 1701) or 164 words (ch. 1 items 193) are not perceived adequately, are very difficult for interpretation and confuse pravoprimenitelja. Besides, such offers contain set "blanketnyh" the terms requiring an additional estimation, an explanation, interpretation.

Result of it is that such articles UK the Russian Federations are practically inapplicable and concern so-called "dead". On the contrary, the English legislator practically all criminally-legal instructions and, first of all, norms about economic crimes, subjects to such structurization,
Dividing the text on parts, points and subparagraphs. In rare instances the similar structure is applied in UK the Russian Federation (item 213, 256, 258). We believe necessary to apply this experience in a regulation of "bulky" structures of crimes in gl. 22 UK the Russian Federation.

2) it is necessary to carry out the deep analysis of use of material and formal designs in gl 22 UK the Russian Federation. Separate formal structures should be reformatted in material (item 169, 170, 180, etc.). It is necessary to add some designs of the crimes which are obviously "not finished loading", with signs (kriminoobrazujushchimi and differentiating thresholds), characterising scope of criminal activity (item 174, 1741, 190, 1931). On the other hand, considering English experience of struggle against highly latent economic crimes, it is necessary to exclude in the basic structures of separate acts (item 171 2) quantitative signs (kriminoobrazujushchie thresholds). Such legislative decisions will undoubtedly correspond to requirements of legislative technics, interbranch differentiation and requirements pravoprimenitelnoj experts.

3) positive looks English experience of use of numerous special economic terms not in dispositions criminally-rules of law (as it is done often by the domestic legislator), and in special definitivnyh or interpretatsionnyh sections of normative acts. Such way allows not to overload the criminal law with difficult concepts, to optimise and systematise process of interpretation and pravoprimenenija.

<< | >>
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. Use of tehniko-legal means in construction of structures of economic crimes:

  1. § 3. Differentiation of responsibility for economic crimes in England by means of Special part means. Comparison with criminal law of Russia
  2. § 2. Differentiation of responsibility for economic crimes in England by means of General part means. Comparison with criminal law of Russia
  3. 2. Receptions of legislative technics in designing of structures of economic crimes
  4. Tolmachyov Vyacheslav Vladimirovich. TEHNIKO-LEGAL MEANS of the ESTABLISHMENT And REALIZATION of INTERDICTIONS In the RUSSIAN RIGHT (THEORY And PRACTICE QUESTIONS). The dissertation on competition of a scientific degree of the master of laws. Saratov - 2014, 2014
  5. Tolmachyov Vyacheslav Vladimirovich. TEHNIKO-LEGAL MEANS of the ESTABLISHMENT And REALIZATION of INTERDICTIONS In the RUSSIAN RIGHT (THEORY And PRACTICE QUESTIONS). The dissertation on competition of a scientific degree of the master of laws. Saratov,
  6. § 1. Differentiation of the criminal liability: concept, kinds, means and their application at a regulation in UK the Russian Federation economic crimes
  8. § 2. The prevention of crimes against participants of the criminal trial criminally-legal means
  10. Organizational construction of corporate structures in gas branch
  11. 2.1. Organizational construction of corporate structures in gas branch
  12. the CHAPTER the SECOND. The legal analysis of object and subjective signs of structures of road and transport crimes and a problem of their legislative designing.
  13. §2. Perfection of the legislation of the Russian Federation in taxation sphere, as legal means of struggle against tax crimes.
  14. CHAPTER 2. The criminally-legal characteristic of structures of the crimes providing responsibility for creation prestupyonogo of community (the criminal organisation) on UK Russia, Belarus and Ukraine