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ž 1. Genesis of terms "promise", "bribe" and "lihoimstvo" by the Russian right XIV-has begun XX centuries

Bribery - the most ancient negative social phenomenon which the roots leaves in the deep past. The history of bribes does not concede on an antiquity to existence of a human civilisation as a whole. Bribery, as well as prostitution, very ancient "craft".

At all times bribes were condemned from the point of view of morals by governors, religious prophets, writers, the people. The bribery existed in a society always as soon as there was an administrative personnel. In 1550 the Lithuanian publicist and diplomat Mihalon Litvin noticed, that “even laws of pagans forbid to trade in justice” [7].

Such phenomenon of a public life as the bribery, indissolubly accompanied the government of Russia throughout all its history. This original "sign" of Russian validity was widely shined as in fiction, publicism, memoirs of contemporaries, and in works of the historians, dealing with with problems of the organisation of the government and bureaucracy [8].

In the Russian literature the theme of bribes has got special topical character. And, it was underlined, that the bribery is both defect of a society, and a character trait of the person. For example, I.A.Goncharov in the novel "Oblomov" so describes one of the heroes which collective image could consolidate representatives at once some layers of the Russian society: “It was the bribe taker in a shower, under the theory, managed to take bribes, for the lack of affairs and from applicants, from colleagues, from friends, the god knows as well as for what - forced, where also whom only could, cunning importunity, to treat itself, demanded from all not deserved respect, was captious.” [9]

The bribery in Russia as the social phenomenon is closely connected with the period of formation of statehood in Russia in IX-X centuries. At this time the material maintenance of the public agent obshchinnikami was norm.

In XII century under legends letopistsa, combatants “mnogu burden sotvorisha ljudem sales and virami” [10]. This "burden" has not decreased and could not decrease and later as ruling class position became more and more strong.

In Short edition of "the Russian Truth” there are norms on a payment of combatants of the prince at execution of judicial functions (item 41) and works mostnikov (item 43). In article 42 the volume of forages for princely servants - virnika [11] is accurately regulated.

In Vast edition volumes of forages for virnikov find the fastening in article 9 “Russian Truth”. The specified norm in many respects
Repeats positions of Short edition, with one important change: the sizes of a forage find more accurate outlines. Used earlier uncertain formulations “on kolku disappear can jasti”, “kolku can zobati” concerning some products (bread, millet, a forage for horses, etc.) and on change by it concrete figures (“breads 7 for a week”, “millet 7 uborkov” etc.) come. All it speaks about desire of the legislator to limit nenormirovannye requisitions of officials from the population.

Thus, though in norms of the most ancient Russian law “Russian Truth” also was absent as that concept of a bribe, but certain steps to introduction in more strict frameworks of requisitions from the population various officials were already undertaken. But concrete sanctions while were absent.

The predecessor of a definition "bribe" is "promise" which appears in the legislation of Russia in XIV century the Most ancient certificate knowing "promise", the Dvinsky authorised reading and writing For example is 1397 (1398), in article 6 it is a question first of all about utajke the penalty which the deputy should receive. However in this norm also speech comes and about holiday of the caught thief for the repayment. [12] these actions fell under the concept the gibbet law which is key in given article.

The majority of researchers of history of the Russian laws believes, that "promise" in value a bribe starts to be used for the first time in the Pskov Judgement Reading and writing 1397г., which last processing was made between 1462 and 1471 Reading and writing Article 4 contains following positions: “And the prince and posadnik on vechi to court not sudjat, suditi it at the prince on seneh, vziraa in the truth on the Godfather tselovanju. Instead of vsudjat in the truth, ino the God awake with it sudia on second coming Hristove. And secret promises not imati
To the prince, posadniku. ”[13] V.O.Kljuchevskogo and A.A.Zimin's point of view according to which the legislator ostensibly underlined definition"secret"Is interesting, thus, that the lawful fee was supposed [14]. Really the promise had many values in Russian and could define both a bribe, and the duty, both the repayment, and the promised payment. But in other normative acts of same time the term"promise"designates a bribe, therefore, in our opinion, in this norm there was an aspiration of the legislator to strengthen sense of the established interdiction.

Ambiguity of concept "promise" proves to be true in Record about dushegubstve (1456-1462). In this certificate containing mainly norms of the law of procedure, the promise was understood as compensation of officials for their service: “About posuljat bolshemu namestniku, and dvema tretnikom too, and tiunu that will promise the grand duke.” [15] and though in the Moscow Russia practice of struggle against promises but while in the given certificate the order of their gathering and distribution on a level with judicial stamp duties is established already began.

Thus, speaking about bribery in XIV-XV century, it is necessary to have in view of such legal term, as "promise". According to J.G.Alekseeva, this voluntary private compensation to the official which at first had certainly legal character, began to be criminalised gradually in XV century [16]

In second half XVII century definitively there is a system various podnosheny to officials. Rather legal prinosami "honours" and the "commemoration" which sizes were considered in special izderzhechnyh books were considered. In account lists of the Moscow orders exact instructions of products and the money brought “contain in
Honour ”(money, pies, sugar etc.). [17]. Gifts in kind became also to lackeys of the clerk and old podjachego.

More extensive data contain in documents on incomes of clerks and podjachih remote northern cities. Though from the centre numerous reading and writing with interdictions for requisitions from the population were regularly sent, nevertheless it did not give due effect. “So, in reading and writing 1668 and 1677 on CHerdyn it is readable:“ Voevodam and podjachim monthly forages, both fire wood, and hay, both ware everyones, and strikers to itself imat not veleno ”[18 [19]. However gifts in kind continued to practise.

One more type of income “from affairs” steels for local officials of a trip on district. Money for such departures gathered from the population. Besides, any arrival of the clerk or podjachego has been connected with necessity to organise a worthy meeting "bread-salt". In some cases the natural forage was replaced with the monetary payments quite often masked under taxation. Mostly similar trips were made on office affairs, but sometimes only for the purpose of extortion. So, in 1653 lebedjanskie inhabitants complained on lebedjanskogo podjachego with which “about Christmas Hristove to glorify goes... In a city, on large villages, on districts and on villages; not to glorify, a sovereign, goes, us nasilstvom plunders, zhivotishkov ours, that at kovo at us in houses 19 will see, nasilstvom and takes”.

The sizes of gifts “in honour”, apparently, depended on importance of business and from those legal consequences which could come for the applicant if business has not been solved in its advantage. For example, the shortage of taxes from the population threatened collectors with the big troubles and pravezhem to a missing part. Therefore usually honours in such cases
Represented the large sums. For example, in 1677 at a supply in JArensk the incomplete sum okladnyh money on streletskomu to gathering collectors have paid to two podjachim on rouble, having explained the large sizes of "honours" to that it was possible to gain a little and to give in the income of the state to them there is nothing.

As to the second kind concerning legal podnosheny ("commemoration") unlike "honours", they were paid for already perfect actions which though entered into duties on service of the official, but could be any way accelerated or detained it. Other discriminating line was that "commemoration" was paid more often by money whereas "honours" - basically natural products. To similar podnoshenijam payments podjachim for vychityvanie "podkresnyh" concerned, a writing of various formal replies etc. These kinds of bribes were considered as them harmless enough since the population, ostensibly, did them at own desire in quality of gratitude for the decision of the affairs. The government preferred to shut eyes these podnoshenija, seeing in them “old obyklost”. Interdictions for acceptance of these kinds of bribes were a measure exclusive and reminded, to a certain extent, summary punishments. For example, in 1677г. Large scandal has burst because 40 mandative clerks have not started up to themselves home hristoslavit for Christmas of imperial singing clerks. The tsar, having seen in it impudence, has enjoined over it to work in orders disinterestedly and has forbidden to receive any honours and commemoration. However, this emergency measure of punishment was time, leaving reception possibility having overcome in other time and under other circumstances.

As to punishable prinosov "promises" concerned them. As a rule, it were bribes which were extorted by officials from the population. The negative relation of the government to reception of "promises" it is possible to illustrate in practice clerk I.Semenova to whom in 1654 for reception with gorohovljan flanks of wine and extortion 30 rbl. have been told"
The terrible imperial decree in which its actions were qualified as follows: “you have made that, aki Christ's traitor Judas, having forgotten fear divine and gosudarevo a God kissing for nasty pribytkov” [20].

To the beginning of board of Peter I the various legal and other measures directed on eradication of bribes in Russia were already undertaken. “But the bribery has too deeply grown into a body of the Russian statehood and from this statehood as we will see more low, received too many nutritious juice that it was possible to pull out it” [21]. Peter I, certainly, could not disregard tradition "posulnichestva", decomposing official layer.

The concept "bribe" appears in the Russian legislation in 1699 when the Nominal decree “About punishment posadskih people for bribes” [22 [23] has been published. After the lapse of several years the certificate which it is safely possible to name the core in the legislation on bribery during the considered historical period - the Nominal decree “About vozpreshchenii bribes and promises and about punishment for this” on December, 24th, 1714 has followed. Guilty often tried to protect itself that on similar acts there was no legislative interdiction. To warn similar abusings in the future it was supposed to give exact legalisations concerning the office rights, duties and interdictions of separate officials. Norms could contain in decrees of the senate or is direct in "partikuljarnyh" certificates, 23

Signed by the emperor.

Analyzing the given certificate, we come to conclusion, that the concept which has appeared in the same time "lihoimstvo" became generalising in relation to already known "promises" and "bribes", meaning, that they are it
Kinds. We do not observe accurate distinction of a bribe and a promise, it is possible to speak about punishment of any private compensations of officials [24]. There is the uniform corpus delicti punished by the state.

Change of a legal language concerning bribery is traced in one of the first acts signed by Catherine II. The nominal decree from July, 18th, 1762 “About deduction of judges and officials from lihoimstva” [25] became them. As we see, lihoimstvo it became valid patrimonial concept for any illegal requisitions.

After the lapse of some time it became clear, that the published decree is inefficient. The empress has been revolted by that the manifesto from July, 18th, 1762 has not conceived action [26]. In 1766 Ekaterina has made decision to publish all results of impeachment for bribery for general data, again underlining, that “bribes both mzdopriimstvo corrupt justice and utesnjajut living in misery” [27]. Thus, during this period there is a new term - "mzdopriimstvo". However this designation of the decoding has not found in the law.

For the purpose of promulgation and finishing to general data of results of struggle against bribe takers the corresponding decree - the nominal decree given to the Senate from November, 11th, 1766 “About raspublikovanii in all State about the made punishments for bribes and for lihoimstvo” has been published. From one name of this certificate it is already visible, that there is a distinction between "bribes" and "lihoimstvo". Apparently, the first were understood as any gifts to officials, and as the second - reception by the person of a "dashing" payment, i.e. over that, that has been put under the law.

1802 was marked by decree acceptance “About eradication lihoimstva” to which could become the basic certificate

The first quarter of XIX century in sphere of struggle against bribes. “With the warm condolence it is concluded, - Alexander І, - that fatal lihoimstvo marked, or bribes in Our Empire not tokmo exist, but even extend.” [28] Alexander I in this decree confidently enough puts an equal-sign between "lihoimstvom" and "bribes", understanding these phenomena as identical. It is impossible to tell, that it was the tendency of development of concept "bribe" in the Russian right. We are inclined to believe, that is faster in such identification of terms imperfection of legislative technics of that period was shown.

In Nikolay's board I work on ordering of the Russian legislation has been finished kodifikatsionnaja. At this stage the uniform theory of responsibility for bribery starts to develop, receive the legislative fastening the basic concepts of this area.

In the Code of laws the Chapter the sixth “About lihoimstve” Section V was devoted to bribery. Though the legislation operating for 1832 also did not offer accurate definition of bribery and lihoimstva, but it was specified, that lihoimstvo is “the general sort of this crime; bribes constitute one of its kinds”.

To separate kinds lihoimstva, besides bribes from applicants [29], illegal requisitions and extortion not only money, but also various other subjects concerned also. We will underline, that the law on the first place put illegal requisitions, then extortion and already then bribes. Thus, the social danger of various kinds lihoimstva towards its fall was defined.

Articles 309-311 opened concepts of all three kinds lihoimstva. According to these norms, illegal poborom were uncertain
The law gathering, excessive taxes and duties, dresses of inhabitants for own benefit or under the pretext of the established duty (item 309).

Extortion “any benefit forced on affairs of service by fear of oppression in business” admitted, and “any gifts, done to officials for easing of force of the law are called as bribes.” [30]

That in norm of item 1 of item 312 about the bribe promise, is again mentioned promises though this term already became archaic (when money, supplies, the goods is interesting or things “tokmo are promised to the Official, as promises”). Similar discrepancies testified to negligence in the legal technics and once again underlined gap in law presence - absence of accurate definition "lihoimstva".

With acceptance of the Penal code of criminal and corrective 1845 it is possible to speak about essential transformation of norms about lihoimstve, containing in T.XV the Code of laws of 1832.

Already from the name of the head it is possible to conclude, that the legislator divided concepts "graft" and "lihoimstvo". Positions of the head specify as well that graft on social danger degree was less dangerous, than lihoimstvo as which higher degree bribe extortion was considered.

Article 415 of the chapter of the sixth Ulozhenija understood a situation when the official accepted a gift without infringement of official duties [31] as graft. The subjective party of graft assumed acceptance of such gift and not its returning within three days to the donator that became a short story of the legislation on bribery. Norms of article 415 Ulozhenija defined, that as a gift should understand money, things or “that or other”. Doing this list opened, the legislator with one
The parties provided visible flexibility of norm and its adaptability to a concrete situation and at the same time brought confusion in the course of its application.

Lihoimstvo abusing of the power or the heads power of attorney ”was understood as“. lihoimstva and most socially a dangerous kind of bribery extortion bribes (article 420) was considered as the higher degree. It was understood as any profit received on service on pain of oppression, the requirement of any gifts, services, incomes, unstated by the law requisitions, illegal dresses of inhabitants for work [32]. Thus, positions of article 308 T.XV of the Code of laws of 1832, concerning kinds lihoimstva, have been essentially expanded.

In 1866 new edition of the Penal code of criminal and corrective 1845 has not brought essential changes in norms about bribery. The opinion has definitively affirmed, that lihoimstvo is patrimonial concept in relation to a bribe

Separate authors undertook attempts of more detailed judgement of such categories, as lihoimstvo, bribery and other adjacent concepts with them. For example, I.P.Liprandi divided all mentioned synonyms of the general name of bribes as follows:

1. Lihoimstvo - the bribery kind the high-ranking officials could be which subjects only, making considerable impact on an expenditure of the state and private sums going on podrjady, preparations for the state needs, etc. the author considered as the Basic difference of this kind of bribes the fabulous sums received at such abusings, and also that lihoimstvo has always been interfaced to plunder of the state treasury.

2. Extortion - the kind of bribery especially extended in organs of inquiry.

3. Payoff - the bribes given in various Offices, “that from white to make black, and on the contrary”. [33] gradation of kinds Offered by this author lihoimstva has not received official fastening though undoubtedly is an interesting coil of development of the legal doctrine about bribery.

The uniform legal term "bribery" in the criminal legislation of Russia still did not exist. Attempts to develop this definition at least at ordinary level nevertheless became: “ The bribery represents specially-malfeasance; the official can be its subject only, is indifferent what department. It consists in reception of property benefit from private persons for acts or omissions within the office competence of the official ”[34]. In legal researches of last quarter of XIX century by authors various kinds of bribery to which the extensive characteristic - graft was given, lihoimstvo and bribe extortion, as the higher degree lihoimstva were allocated. N.A.nekljudov differentiates these concepts so: it defines graft as bribe acceptance on business or the action concerning to duties guilty on service. According to the author it is necessary to divide it on idle time - when it is made already after that execution, for what gift has been intended, and on qualified - if gift has been accepted or received before fulfilment of this action. Lihoimstvo represents bribe acceptance for riot or an assumption of illegal action.

As to bribe extortion the researcher believed, that it at all does not receive in the law of the general definition [35 [36].

By the end of XIX century there was a necessity of preparation essentially other project of the criminal law. The editorial commission on preparation of the new Criminal code included the famous both deserved jurists and public figures - E.Frank, N.Nekljudov, E.Rozin, V.Sluchevsky, N.Tagantsev, I.Fojnitsky. In the explanations prepared for the given project, the editorial commission marked, “that the bribery is an act, certainly mercenary property, assuming a criminal profit; that as that it can consist only in the bribes having a property, or in acquisition of another's property tsenoju riots any office 36

Actions ”. At the same time it was specified, that the bribe, gift can consist in property or in the right on property and should be considered got, so far as the guilty has received property, the right to it or clearing of obligation execution in general or in its this or that part.

Conclusive advantage of the prepared project was that it has fixed legal concept of a bribe. In article 570 it has been established, that “Vzjatkoju gift of property or the right on property, or the promise of that gift is esteemed.” [37]

The project regulated responsibility for lihoimstvennye gathering - the monetary or natural receipts summoned to employees under the pretext of execution of the law or the ordinance of the power, or under the pretext of execution in more details

Conditions of public contracts with the state. Attracts attention that legislatively fixed concept “lihoimstvennyj gathering” in Russia then was not. N.A.nekljudov specified, that along with laws on gratuitousness of public service, there are also laws that any taxes, gathering and natural duties can be established only in a statutory order and in the certain size. Abusings in this sphere (an establishment of illegal gathering or natural duties, excess of the size of levied taxes etc.) Constitute a subject of extortion which, according to the researcher to name “lihoimstvennye gathering” more correctly. Proving the point of view, N.A.nekljudov wrote, that bribes and lihoimstvennye gathering are close on a way of their receipt and even have the same general mercenary motive, but between them there is an essential difference. It consists that at lihoimstvennom gathering the guilty official does not accept and does not demand any illegal bribe for the office actions, and directly levies unstated requisitions under the pretext of their reference in the state or public cash desk or a deceit forces the payer most to bring illegal сбор38.

Concepts of bribery and lihoimstva have found the definitive differentiation in the Explanatory note to the Criminal code of 1903. In it it is specified, that both these acts are as a matter of fact illegal capture of another's property or kinds of criminal enrichment, lihoimstvo is otobranie property under the pretext of its natural receipt in the bribe taker property, and the bribery represents irregular reception of property.

Under the social danger the least harm the graft representing acceptance of a bribe for, as before, admitted
The action entering into a circle of official duties of the official [38]. New Ulozhenie allocated the simple and qualified grafts differing on time of acceptance of a bribe - to or after fulfilment by the official of the actions put under the law. Thus, graft-payoff and graft-compensation was allocated.

As to bribe extortion such legal formulation was exposed to the sharp criticism from jurists of the end of XIX century. For example, in the objections presented by the Petrograd Legal Society we we find following arguments in this occasion: “the concept acquired by composers“ bribe extortion ”not obemlet cases of extortion office ; a bribe gift or the gift promise admits; bribery - acceptance voluntary lihodatelem darimogo; such bribe cannot be extorted; if it be extorted, that, obviously, it not gift. The bribery esteems reception of property benefit for office actions, correct or wrong; there is, thus, an exchange of services. The concept of extortion includes such exchange; to difficultly itself to present the made employee who oppression threat would extort money that it will break the official duties or that it will make on service duties.” [39]

In project Ulozhenija of 1903 of norm about lihoimstvennyh gathering were fixed in article 658. They were understood as an establishment or collection by employee to own advantage illegal requisitions. According to V.N.Shiryaev, at lihoimstvennom gathering the official does not accept any illegal bribe for the office actions, and directly levies unstated requisitions under the pretext of their reference in the state
Or public cash desk or under the pretext of the following to it under the law of receipts - “the act comprising signs mercenary

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Excesses of authority. ”

Summing up, it is necessary to conclude, that system of "honours" existing in Russia, "commemoration" and "promises" preceded occurrence of the first rules of law which have fixed responsibility for bribery. The concept "bribe" officially appears much later, during Peter I board. The concept which has appeared in the same time "lihoimstvo" was patrimonial in relation to "promises" and "bribes". In the subsequent period the legal approach according to which bribery kinds were graft, lihoimstvo and extortion the bribes divided on degree of the social danger of act was generated.

Thus, evolution of concept "bribery" has led to that in the first quarter of XX century there was rather uniform and accurate understanding of that it is necessary to have in view of under "bribe" and what kinds of bribery demand the legislative fastening in normativnoyopravovyh certificates.

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In the same place. With. 460.

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A source: Bychkova Svetlana Borisovna. state-LEGAL MEASURES of COUNTERACTION to BRIBERY In Russia (XV - the BEGINNING of XX CENTURIES). The DISSERTATION on competition of a scientific degree of the master of laws. Nizhni Novgorod - 2015. 2015

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