Formation and development of criminal liability for crimes infringing on fair competition

Danilovskaia Anna Vladimirovna PhD in Law Associate professor, Department of Civil Law and Civil Procedural Law, Pacific State University 680000, Russia, Khabarovskii krai, g. Khabarovsk, ul. Tikhookeanskaya, 134, of. 417 d_a_v@list.ru Other publications by this author

One of the current directions of Russia's criminal law policy is the law-making and law enforcement activities of the state in the field of fair competition protection, predetermined by decrees of the President of the Russian Federation dated 13.05.2017 No. 208 "On the Strategy of Economic Security of the Russian Federation for the period up to 2030" and dated 2.07.2021 No. 400 "On the National Security Strategy of the Russian Federation", according to which Countering monopolistic activities and anticompetitive agreements are recognized as elements of national and economic security of the country. Due to the fact that the modern criminal law policy of the Russian Federation in the field of competition protection arose not so long ago, namely with the formation of a market economy in the country, a retrospective analysis of the process of its formation and development in an earlier period is important, because the first signs of state policy in the field of protection of public relations from various kinds of abuse on the part of entrepreneurs, in order to limit competition among themselves, they are noted in fairly early sources of Russian law. Such a historical digression can be useful in order to understand not only possible criminal law measures to counteract the designated violations of antimonopoly legislation that pose a threat to the national security of the country, but also other encroachments on competition, substantiate their criminalization, penalization, differentiation of responsibility, as well as research the specifics of legislative techniques for formulating criminal law prohibitions.

In studies of Russian antimonopoly law, it is noted that restrictive measures against merchants (merchants, merchants) were applied in the era of Ancient Russia in connection with the spread of cases, in modern terms, abuse of a dominant position, as a result of which there was a shortage of salt and other goods. In the XVII century. as a result of the intensification of competition between foreign and Russian traders, legal acts appeared in Russia that banned certain types of monopolistic speculative abuses and established a system to counter them, including sanctions for violating prohibitions. These include, for example, the Decree "On the collection of measured duties" of 1681, which prohibited monopolistic actions, including agreements; the Boyar verdict "On non-compliance with the purchase of supplies brought to the markets by peasants" of 1694, aimed not only against the actual high cost of monopolization, but also to protect consumers and bona fide producers and traders, and He also assigned the functions of antimonopoly control to a number of bodies ^{[1, pp. 22-34.]}.

The reign of Peter the Great is characterized by the adoption of legal acts, which, in addition to defining penalties for monopolistic actions related to price increases for food and some other vital goods, introduced new competitive institutions. The first included, for example, the Senate Decree of January 14, 1725 "On the sale of edibles in all cities at reasonable prices and on the prohibition of overbooking cattle brought to St. Petersburg and supplies and products brought to the surrounding residents", the punishment for violating the provisions of which was confiscation of property, and for the most audacious abuses, whipping was supposed ^{[1, p. 34]}; the second is a decree adopted in December 1723, according to which the Regulations of the Manufactory Board were drawn up [Regulations of the Manufactory Board dated 12/03/2723: extract from the book "Legislation of Peter I. 1696-1725" / comp., author of the preface. and vst. V. A. Tomsinov. M.: Zertsalo, 2014 // Reference.-the legal system "Garant"], which allowed the establishment of factories, which, however, should not have harmed previously established factories and the market situation in general. A. N. Golomolzin sees this as a prototype of the modern mechanism for controlling large mergers and acquisitions, the purpose of which is to prevent restrictions on competition, including due to the emergence or increasedthe dominant position of companies in the relevant commodity markets ^{[2, p. 15]}. Later, there is an active development of legislation aimed at curbing monopolistic trends in trade, clarifying the functions of regulatory authorities, regulating the administrative and police procedure for handling cases. Adopted in 1782. The decree of the Senate approving the Charter of the deanery or the Police also contained a provision on the qualification of overbooking – speculative monopolistic actions – as criminal offenses ^{[1, pp. 35-42]}.

The 19th century is characterized by progressive changes in Russian legislation related to its codification and the appearance of the Code of Laws of 1832. The Charter on the Provision of National Food contained therein defined various antitrust mechanisms, including the procedure for bidding, the establishment of prohibitions on collusion that could lead to higher prices, the assignment of control functions to local police officials and their accountability to the provincial authorities [The Code of laws of the Russian Empire: in 5 books. / edited by I. D. Mordukhai-Boltovsky; comp. N. P. Balkonov, S. S. Voit, V. E. Herzenberg. St. Petersburg: Rus. book of tov. "The Doer". Book 5. Vol. 13-14. pp. 1-80 // URL: https://civil.consultant.ru/reprint/books/220/1.html (date of access : 12.12.2023]. It is noteworthy that the ban on collusion between merchants or industrialists with the aim of raising or lowering prices, enshrined in Article 121 of ed. 2 "On the establishment of Torzhok and the organization of markets", has existed since 1785 and has been repeatedly changed.

In the late XIX – early XX centuries, countering unfair competition, which at that time included not only its well-known forms related to violation of competition rules and directed against bona fide competitors, but also abuse of a dominant position, as well as anti-competitive agreements ^{[3, p. 130]}, was one of the important economic issues ^{[4, p. 48]}. In the period 1890-1929, there was a sharp increase in the concentration of production, the joint-stock form of ownership, expressed in the dominance of sectoral family corporations in the form of cartels and trusts, became the leading one ^{[5, p. 12]}. At the same time, the problems of restraining both competition itself, which was recognized as dangerous and unusual in the industries of industrial production and sales ^{[6, p. 163]}, and its unfair manifestations, therefore, the legal foundations of deterrence began to worry many scientists of that time.

Criminal policy in the field of competition protection, as well as antimonopoly policy, was poorly developed at that time. Until the second half of the 19th century, public law and civil law mechanisms for countering monopolies prevailed in Russia. The rapid development of industry, the increase in economic concentration, and the economic crises that gave rise to the cartel movement required a review by the government of existing legal measures aimed at deterring cartels ^{[1, pp. 56-57]}.

The situation with the application of legal measures of protection against unfair competition was not the best, in the fight against which economic means ^[7], as well as civil law ^{[8, p. 206]}, turned out to be useless. Due to the insufficiency of legislation and law enforcement in countering unfair competition, scientists of that time tried to answer many questions from the perspective of foreign experience. These studies led them to the conclusions about the need to use criminal law tools, which already contained sources of Russian criminal law at that time.

For the first time, the description of a number of crimes against competition, including its unfair forms, was provided for in the Code of Criminal and Correctional Punishments of 1845 [Code of Criminal and Correctional Punishments. St. Petersburg : Type 2 of the Department of the Office of E. I. V. Chancellery, 1845. [4]. IV. 898. XVII p.Although these crimes did not form a system of crimes against competition recognized in science at that time, scientists expressed the opinion that prosecution for unfair competition under the articles of the Code could counteract it. For example, such articles included Articles 1535-1537, which provided for liability for slander and insult, Articles 1360, which established a ban on being called a master or even practicing a craft without having an established right to do so, Articles 1416 and 1418, which punished for appropriating insignia, ranks, titles and surnames, Articles 1187 and 1355, which Liability was provided for causing damage to the creditor by disclosing trade secrets or harmful disclosures, as well as for disclosing production secrets ^{[8, p. 207]}. Modern authors in the Code of 1845 see a description of a homogeneous group of crimes encroaching on fair competition ^{[9, pp. 264-265; 10, pp. 21-26; Kornienko V. T. Criminal law protection of fair competition in the consumer market : abstract. dis. ... cand. Jurid. sciences'. Rostov n/A, 2004. pp. 30-31; 11, pp.49-52; 12, pp. 40-43; 13, pp. 106-110; 14, pp. 46-48; 15, pp. 15-16)]}. They include in this group the crimes contained in Section VIII "On crimes and misdemeanors against public improvement and deanery" in Chapter 2 "On violation of regulations for the provision of national food", Section 2 "On illegal actions for outbidding and exorbitant elevation or lowering of prices for life supplies" art. 913 (art. 1130) – strike (collusion) of traders on raising prices for food items; in Chapter 13 "On violation of trade charters", Section 6 "On violation of charters of trade institutions", Article 1180 (1615) – strike on raising or lowering the price of necessary goods, Article 1181 (1619) – inducement to strike on participation or non–participation in tenders; in Chapter 14 "On violations of the statutes of the factory, factory and craft industry", ed. 1 "On violation of the statutes of the factory and factory industry" art. 1353-1357 (1788-1790) - violations of the rights to inventions, other people's brands and marks, violation of the mark of protection, encroachments on trade secrets illegal use of other people's drawings or models ^[16].

The characteristic of illegal behavior, the acts of which are included in the main group of crimes, allows us to talk about the presence of their common elements, which primarily included their impact on the economic sphere, characterized by bona fide competitive relations, although competition itself as an object of protection was not provided for in any of the listed compositions. Moreover, scientists of that time demanded legal restrictions on its excessive freedom, since competitors, using it, more often began to "resort to techniques that offend the interests of not only private individuals, but sometimes public ones, eventually disastrously affecting even industry and trade itself" ^{[8, p. 205]}. Of course, in this case we are not talking about restricting freedom of competition as such, but about suppressing its unfair manifestations, which, by the way, it was recommended to distinguish from inconvenient or illegal competition ^{[3, p. 114]}.

Judgments about the object of these crimes, as in modern science, were intertwined with the concepts of private and public interest, their property and intangible content. Thus, L. S. Belogrits-Kotlyarovsky proposed to classify strikes (agreements) of merchants or industrialists in order to raise prices for basic necessities or lower prices, the result of which was the restriction or termination of their supply and sale (Article 1180 of the Code), as property crimes and explained this by the fact that these acts "threaten the danger of not only the personal interest of the victim, but also the interests of the entire dormitory, the correct flow of economic turnover ... undermining its very foundations, its fundamental foundations" ^{[17, p. 77]}. N. A. Neklyudov, commenting on Article 1354 "Forgery of factory brands and signs" of the Code, attributed it to a group of crimes against the social order ^{[18, p. 5]}: "The purpose of Article 1354 is to protect industrialists from illegal competition" ^{[18, p. 530]}. A. I. Kaminka pointed out that certain methods of unfair competition cause significant harm to consumer rights, without affecting the interests of competitors ^{[19, p. 228]}.

Foreign experience was of great importance for understanding the object, which aroused increased interest among Russian scientists of that time. Thus, F. List, when presenting various aspects of criminal liability for unfair competition, noted that both the property rights of bona fide competitors and non-property rights related to name, reputation, experience need protection here, which "should serve as a creation of individuality, an object of individual law equivalent to copyright" ^{[20, pp. 126-133]}. The "individual right of an industrialist" was also called as an object of unfair competition by such German lawyers as Gareis, Kohler, Gierke ^{[3, p. 135]}.

In the criminal law literature of that time, there is a description of the signs of these crimes, the analysis of which also leads to a conclusion confirming the competitive and conscientious nature of the relations protected through their application. Thus, N. A. Neklyudov ^{[21, pp. 429-431]}, describing the signs of the elements of crimes provided for in Articles 913 and 1180, which criminalize, in modern terms, anticompetitive agreements, pointed to a number of important characteristics that are relevant for modern law enforcement. Firstly, the scientist drew attention to the fact that in a competitive environment, only in collusion, a decrease or increase in prices has a social danger. Secondly, they highlighted the general rule regarding the number of participants in a conspiracy, in which a conspiracy can be recognized as criminal, characterizing the quantitative and qualitative aspect of the composition of participants: 1) the number of merchants in a given area must be so significant that it is possible to suppress the competition of a minority, or 2) the number of participants in the conspiracy, although insignificant, but in their hands wholesale or production is concentrated, which allows them to restrain competition from other representatives of trade or production. The subject of the crime can only be merchants and industrialists, as stipulated in the articles. It is noteworthy that the scientist pointed out the impossibility of involving other persons either as independent subjects of the crime or as accomplices. This remark is also relevant for the current state of criminal law, characterized by trends in a broader understanding of the subject matter of the crime provided for, in particular, Article 178 of the Criminal Code of the Russian Federation, which established criminal liability for a cartel, whose participants, according to the Federal Law "On Protection of Competition", can only be business entities.

Comments on the form of collusion are also relevant: any form of collusion means its criminality, as well as the exclusion of such in relation to imitation or following each other's example (modern coordinated actions).

These articles of the Code provided for criminal liability for both formal actions, that is, the strike itself, and such actions of the participants in the conspiracy, which had harmful consequences for society in the form of deficiencies in essential goods and violations of public peace as a result.

The legislator clearly distinguished strikes (collusion of business entities) and actions aimed at eliminating competition at auctions, which included the crime provided for in Article 1181 of the Code – inducing some bidders not to participate in public auctions of others. This act also aims to avoid competition. As N. A. Neklyudov pointed out, collusion at auctions is directed directly against the interests of the owner, paralyzes competition and reduces the purchase price of property ^{[22, p. 670]}.  

The greatest public danger, in the opinion of the legislator of the late 19th century, were strikes (Articles 913 and 1180), forgery of other people's brands and signs (Article 1354) and disclosure of trade secrets (Article 1355), their commission entailed the most severe punishment. Criminal liability for strikes has been differentiated. Thus, for the main part of the crime provided for in Article 1180 of the Code, the guilty instigators of the crime were imprisoned for a period of 4 to 8 months. Other persons who only took part in such a strike, depending on the degree of participation, could be sentenced to arrest for a period of 3 weeks to 3 months or to monetary penalties in the amount of not more than 200 rubles. In the presence of signs of qualified personnel, expressed in the occurrence of a real shortage of essential goods and, as a result, a violation of public peace, the instigators were sentenced to deprivation of certain rights and privileges (Article 50 of the Code, defining the class category of perpetrators, lists the types of rights and privileges that they are deprived of) and to imprisonment for a term from 1 year and 4 months to 2 years, other accomplices of the crime – to imprisonment for a period of 4 to 8 months. It is noteworthy that collusion at the auction was punished only with a monetary penalty of up to 500 rubles.

The Code provided for liability for violations at auctions on the part of officials: such acts were attributed not to crimes, but to misconduct, according to Section 6 "On illegal acts of officials when concluding contracts and supplies, accepting things supplied to the Treasury and making a public sale" Chapter 11 "On crimes and misconduct of officials in some special cases to the genera of the service" Regulations. The grounds for such criminal liability are of interest due to the fact that the issue of criminal liability of officials for violations at auctions is again relevant for modern Russia. In particular, such acts included: admission to the auction of persons whose goods or activities do not have the necessary quality (Article 491); collusion (strike) of the official conducting the auction with some of their participants to prevent others, "as well as the sale without bidding of anything designated for sale with auction and for any connivance to one buyer to the loss of others" (Article 498); failure by the official conducting the auction to report a conspiracy (strike) "aimed at a loss to the treasury or a private person", which he was aware of, to the authorities (Article 499). The acts entailed penalties not related to imprisonment, in the form of a severe reprimand, dismissal from office or exclusion from service. The act provided for in Article 499 was punished more severely: in addition to dismissal from office or exclusion from service, according to Article 528 of the Code, the guilty person was imprisoned for a period of 2 to 4 months or arrested for a period of 3 weeks to 3 months.

Forgery of other people's brands and signs was punishable by deprivation of all rights and privileges and exile to remote provinces (except Siberian ones) or imprisonment for a period of 4 to 8 months. Disclosure of trade secrets entailed imprisonment for the same period.

The Code did not provide for criminal liability for the use of copyright objects in economic activities: Articles 1683-1685 of ed. 3 "On the appropriation of scientific and artistic value" Chapter 4 "On the appropriation and concealment of other people's property" The Regulations contained elements of crimes whose objective side was plagiarism (Article 1683), the appropriation and use of other people's exclusive rights to works (art. 1684) and the use of borrowings in excess of what is permissible by law (art. 1685).

Another crime should be noted, which forms a form of unfair competition on the stock exchange and is provided for in Chapter 13 of Section 6 "On violation of the charters of trading institutions", Part 1 "On violation of the charters of the Stock Exchange" by Article 1277, which provides for liability for the dissemination of deliberately false news on the stock exchange harmful to the course of commerce. It seems that this composition should also be singled out as a crime committed against bona fide competitive relations, since the deliberate dissemination of deliberately false information can have an extremely negative impact on the position of competing business entities, affecting prices, and therefore income from participation in stock trading. In the modern Criminal Code of the Russian Federation, there is a similar corpus delicti, enshrined in Article 1853 "Market manipulation", which researchers increasingly began to recognize as unfair competition.

In the Criminal Code of 1903, which A. I. Kaminka assessed as a stricter legal act in relation to cartels ^[23], the norms in the fight against cartels and unfair competition were revised. For example, according to Article 242 of Chapter 11 "On violations of regulations protecting the national welfare", it was punishable by imprisonment for a period of at least 3 months for a merchant or industrialist guilty of excessively raising prices for food items or other necessary items in agreement with other merchants of these items or industrialists, if the perpetrator took advantage of extreme need the local population in such subjects [Criminal Code of 1903 // Collection of legalizations and orders of the Government. April 16, 1903, No. 88. Department One // URL: http://pravo.by/upload/pdf/krim-pravo/ugolovnoe_ulogenie_1903_goda.pdf (date of access : 12/15/2023)]. It was supposed to counteract manifestations of unfair competition by establishing liability for the use in industry or trade of trademarks similar to trademarks belonging to other industrialists or merchants (Article 356; punishable by imprisonment for up to 6 months with the destruction of trademarks), the use in industry or trade of trademarks with prohibited inscriptions or images (357; punishment in the form of a fine of up to 200 rubles. with the destruction of trademarks), use in economic activity without permission of a mark belonging to a legally established company (Article 359; punishment in the form of arrest for up to 3 months or a fine of up to 300 rubles.), disclosure of a deliberately false circumstance undermining confidence in the industrial or commercial activities of a person, society or institution or to the ability of a person to perform the duties of his rank or occupation (Article 540; punishment in the form of arrest or a fine of up to 500 rubles.), disclosure of production secrets (Article 543; punishment in the form of arrest and a fine of up to 500 rubles., if the act was intended to cause damage to the enterprise or property benefit for the perpetrator – imprisonment for a term up to 6 months), disclosure of banking and shareholder secrets (Article 544; the sanction is similar to the sanction of Article 543), disclosure of commercial secrets (Article 545; punishment in the form of imprisonment for up to 6 months). It is noteworthy that the descriptions of the subjective signs of the last three crimes included a special subject for each of them, which were a worker and an employee to whom the secret of production was entrusted (Article 543), employees of banking, joint-stock and credit institutions (Article 544), persons employed in a commercial enterprise (Article 545).

Violation of the rights to works and inventions entailed criminal liability, according to Articles 620-622 of Chapter 35 "On criminal acts against the rights of authors and privileges to inventions" of the Criminal Code. The corpus delicti provided for in Article 622 had signs of unfair competition, as it was focused on countering violations using copyright and patent rights in the field of trade: a trader was indicated as its subject, who introduced into circulation an object knowingly manufactured in violation of copyright and patent rights (punishment was assumed in the form of arrest and a fine of up to 500 rubles).

Thus, at the beginning of the formation of antimonopoly legislation, competition itself was not considered as an object of protection. As such, scientists of that time called mainly the legitimate interests of bona fide business entities and related protected property and non-property rights, as well as consumer rights. However, it should be noted that these rights and interests were considered by the authors precisely through the prism of competitive relations. Fair competition was presented by them as a necessary condition for the observance of law and order in society, one of the foundations of its economic structure. In addition, the signs of the listed crimes are formulated in such a way that their analysis clearly shows the anti-competitive orientation of the acts, despite the fact that the description of the crimes were in different chapters of the criminal law.

Meanwhile, the analysis of legislation and the changed criteria for assessing illegal acts indicate both the existence of a number of problems in criminal law and law enforcement as one of the policy directions in the field of protecting public relations from monopolistic tendencies and unfair competition, and attempts by the state to change the situation. The situation is especially acute around business unions – cartels. Among the problems of countering them, the main ones were: 1) the inflexibility of existing criminal law prohibitions, 2) the availability of investigative powers and qualifications of business associations for judges and judicial investigators who do not have either special knowledge or the necessary means to analyze the market, and, conversely, the lack of investigative functions for authorized bodies with the listed resources ^{[1, p. 68]}.

All this affected criminal law enforcement: criminal prosecution for cartels did not exist in Russia at that time ^[19], which was explained by the lack of investigative and judicial capabilities to understand market conditions and the activities of business associations, the inability to properly qualify them from the point of view of both civil and criminal law ^{[1, pp. 66-67]}.

To address these issues, in order to form a new system of antimonopoly regulation in the country, a number of measures have been prepared. One of the priorities was to improve the mechanisms of criminal liability for monopolistic actions and the use of civil law mechanisms by courts in relation to cartels. The emphasis on these aspects is made in connection with the ambiguous attitude towards cartels that existed in the country as a whole: despite the provisions of the 1845 Code on Criminal and Correctional Punishments, Articles 913 and 1180, prohibiting strikes (collusion) between merchants and industrialists, the Russian government demonstrated its loyalty to cartels ^[19], and in the judicial In practice, there were decisions that were made within the framework of civil law disputes between cartel members ^{[7; 1, pp. 62-63]}. There were even prerequisites for the emergence of an independent branch of law – cartel law, which included state law, administrative law, criminology, civil law and political economy ^[24].

Attempts have been made in the scientific community to give a civil law concept of a cartel, to study the structure of cartels. At the same time, Russian scientists also recognized the current criminal law prohibition on collusion (strikes) contained in Article 913 (1180) of the Code of Criminal and Correctional Punishments of 1845, which could also be applied to syndicates. Thus, G. F. Shershenevich noted: "If the contract fits Article 1180 of the Penal Code, it is also invalid on the civil side. The second of the above articles recognizes the invalidity of the contract if the motive for concluding it is the achievement of a goal prohibited by law. The modern "public order" is built on the beginning of free competition, and therefore an attempt to eliminate it can be considered as an encroachment on this public order. But the same "public order" is based on freedom of contract, and therefore any agreement, since it is not directly blocked by law, must be considered as consistent with the established public order. If the syndicate has in mind to enrich several entrepreneurs at the expense of the mass of consumers, then this can be considered inappropriate for the "deanery". But if the syndicate sets out to prevent the disruption of a well-known industry, which is threatened by economic anarchy, then its goal is not opposed to the "deanery" ^[7].

In order to resolve these contradictions, in 1914-1916, a number of amendments to the current Code of Criminal and Correctional Punishments were developed, which: 1) it was supposed to increase the range of subjects of the crime provided for in Article 1180 "conspiracy to raise prices for essential goods" (it was proposed to include not only members of the cartel, but also members of its board, attorneys and other persons involved in the cartel); 2) criminal liability was introduced for refusing to provide documents or information to the supervisory authority about activities of an entrepreneurial association (Article 1197(4)), as well as for individual actions of a merchant or industrialist aimed at unjustifiably raising prices (Articles 913(1) and 1180(1)), for creating an artificial shortage of goods (Article 1180(2)); 3) criminal liability for monopolistic activities was tightened by increasing sanctions ^{[1, pp. 70-75]}. The civil legal assessment of cartels now consisted in applying to them the institution of invalidity of transactions as contrary to the prohibitions of the criminal law, which entailed a refusal to notarize them ^{[1, pp. 76-77]}.

Other measures aimed at improving the work of authorized state bodies in the field of countering cartels were also envisaged. In part, the adaptation of previously existing mechanisms for the purposes of antimonopoly control has become control over the merger of business entities, the creation of professional societies, and the provision of resources by the state to business entities. The state registration of business associations, which was under the jurisdiction of the Ministry of Trade and Industry, should be mentioned as an important element of antimonopoly control. In addition, the Ministry of Trade and Industry was given the authority to conduct a preliminary investigation and make a basic decision on the nature of the activities of business associations, as well as monopolistic enterprises, and the need to initiate criminal proceedings against the leaders and participants of such an association ^{[1, pp. 89-90]}.

Thus, in the XIX century. in Russia, the concept of protection and support of competition began to emerge, a system of relatively independent crimes encroaching on bona fide competitive relations appeared, which stood out among other crimes in the field of economic activity for their anti-competitive orientation. Subsequent changes at the beginning of the 20th century aimed at clearer regulation of the types of crimes related to the restriction of competition, solving criminal procedural problems of investigating such crimes, especially on the facts of cartels, granting appropriate functions to public authorities, clarifying the criteria of antimonopoly policy in general indicate the perception by the state of a high degree of public danger of these acts, the need to counteract to them and to strengthen the foundations of such counteraction.

After the 1917 revolution, the normative legal acts adopted by the new state provided for criminal liability for crimes that bore some resemblance to modern monopolistic activities. Thus, the Decree of the Council of People's Commissars on liability for violation of the decrees on natural taxes and exchange of July 15, 1921 established criminal liability for artificially raising prices for goods by collusion or strike between merchants or by malicious non-admission of goods to the market ^{[25, p. 100]}. In general, despite the change in the political and economic foundations of the state, when competition ceased to be an important element of the country's economy, some previously laid down criteria for its protection persisted for some time. In the legal literature of the first years of Soviet power, the question was raised about the importance of countering those manifestations of unfair competition that, despite everything, remained in the economy, and the relevance of existing criminal law provisions that could protect "public interests from clearly unfair actions of traders" was recognized ^[26].

The first Criminal Code of the RSFSR, which entered into force on June 1, 1922, contained Chapter IV "Economic crimes", Article 137 of which provided for criminal liability for artificially raising prices for goods by collusion or strike of merchants among themselves or by malicious non-admission of goods to the market [Criminal Code of the RSFSR: post. VTSIK "On the introduction of the effect of the Criminal Code of the RSFSR" dated 06/01/1922 // URL: http://docs.cntd.ru/document/901757375 (date of access : 12/16/2023)]. The act was punishable by imprisonment for a period of at least six months and confiscation of part of the property with the prohibition of the right to trade. The policy of creating state monopolies led to the appearance of Article 136 in the Criminal Code, which established criminal liability for violation of the provisions governing their implementation. Thus, public interests related to centralized public administration were put under protection. In the first Criminal Code of the Soviet state, attention was also paid to unfair competition, which as a phenomenon could not be completely excluded, as evidenced by the presence in Chapter 6 "Property crimes" of Article 199. In accordance with this article, unauthorized use of someone else's trademark, factory or craft sign, drawing, model, as well as someone else's company or someone else's name for the purpose of unfair competition was prosecuted. The act was punishable by forced labor for up to 1 year or a triple fine against the benefits derived from unauthorized use.

The prohibitions on defamation and insult that existed in the Criminal Code of the RSFSR in 1922 (Articles 172-175) did not have the same character as those that existed in Article 540 in the Code of 1903, since they were aimed solely at protecting individual rights and could not be applied to the protection of legal entities in unfair competition. This approach to criminal law protection against defamation and insult remained in subsequent criminal laws and is preserved in the modern Criminal Code of the Russian Federation.

The Criminal Code of the RSFSR, adopted on November 22, 1926 [The Criminal Code of the RSFSR: post. VTSIK "On the enactment of the Criminal Code of the RSFSR" dated 11/22/1926 (as amended. Decree of the Presidium of the Supreme Soviet of the RSFSR dated 11.01.1956) // URL: http://docs.cntd.ru/document/901757374 (date of appeal : 12/16/2023)], in general, continued the main trends in the field of criminal law protection of state monopoly and countering unfair competition. Thus, Article 107 contained a composition almost identical to Article 137 of the Criminal Code of the RSFSR of 1922, but it was placed in Chapter II "Crimes against the order of management", which indicates a shift in emphasis in criminal law protection: compliance with the established order in price regulation directly affected national interests. The article provided for liability for malicious price increases for goods by buying, hiding or not allowing them to enter the market, the punishment for its commission was provided in the form of imprisonment for up to 1 year with or without confiscation of all or part of the property. The same actions, when establishing the existence of a conspiracy of merchants, were punishable by imprisonment for up to three years with confiscation of all property. In 1932, the editorial board of the article was significantly changed, the objective side began to be expressed in the purchase and resale by private individuals for profit (speculation) of agricultural products and consumer goods, which were punishable by imprisonment for a period of at least 5 years with full or partial confiscation of property.

Article 178 of Chapter 7 "Property crimes" contained a description of the signs of criminally punishable unfair competition: unauthorized use of someone else's trademark, factory or craft sign, drawing, model, as well as someone else's company or someone else's name for the purpose of unfair competition. The act entailed punishment in the form of forced labor for up to 6 months or a fine of up to 3 thousand rubles. In the future, the changes affected only the type of punishment: forced labor was replaced by correctional labor.

Attention is drawn to the absence in the Criminal Codes of 1922 and 1926 of criminal liability for encroachments on commercial secrets: "the institution of commercial secrecy simply sank into oblivion, as a relic of the bourgeois past, becoming absolutely irrelevant for the newly built economic system" [Zhigalov A. F. Commercial and banking secrecy in Russian criminal legislation: abstract. dis. ... cand. Jurid. Sciences. N. Novgorod. 2000. p. 16].

The Criminal Code of the RSFSR, adopted by the Supreme Council of the RSFSR on October 27, 1960 [Criminal Code of the RSFSR: Law of 10/27/1960 // URL: http://www.libussr.ru/doc_ussr/usr_5602.htm (date of appeal : 12/16/2023)], did not provide for liability for either monopolistic actions or unfair competition. Significant changes in the Criminal Code of the RSFSR began to occur with the country's transition to a market economy. The attitude towards state monopolism has changed to the opposite, and the processes of denationalization and privatization have begun in the country. Accordingly, the formation of a multi-layered mixed economy, its decentralization, and the liberation of the state from the functions of direct economic management became the main tasks of state policy at that time. In 1991, with the adoption of the first special antimonopoly act in Russia – the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets" (hereinafter – the Competition Law of 1991), criminal liability for violation of its norms was established in the country. Initially, it was provided for in Article 24 of the 1991 Law on Competition and concerned officials of government and management bodies and business entities guilty of repeatedly evading or late execution of the antimonopoly authority's orders, as well as repeatedly providing knowingly unreliable (false) information necessary for the antimonopoly authority to carry out its activities. Corresponding changes in 1992 were made to Chapter VII "Official offenses" of the Criminal Code of the RSFSR by including in its content Article 1751 "Violation of antimonopoly legislation". According to this article, criminal liability was incurred for failure by an official of an authority, management or business entity to comply with the lawful instructions of an antimonopoly authority on time if it was committed by a person who was subjected to administrative punishment for the same actions during the year.

Further, by the Law of the Russian Federation of July 1, 1993, in Chapter VI "Economic crimes" of the Criminal Code of the RSFSR, Article 1543 "Illegal increase or maintenance of prices" was introduced. Criminal liability was provided for illegal price increases or price maintenance committed as a result of monopolistic activity by creating obstacles to market access to other business entities, or removing goods from circulation, or restraining them from sale, or otherwise eliminating them from consumers (Part 1). The qualifying feature was the commission of the same actions by prior agreement between citizens -entrepreneurs, as well as officials of business entities or representative and executive authorities (Part 2). Illegal price increases or maintenance through violence or threat of its use were qualified under Part 3 of the specified article. Part 4 provided for liability for crimes under Parts 1 and 3 committed by an organized group or a person previously convicted of these crimes. This is the first corpus delicti, which contains signs of illegal monopolistic activity directed against the competitive foundations of the nascent market economy of the country. An analysis of the activities of antimonopoly and law enforcement agencies of those years indicates that Articles 1543 and 1751 of the Criminal Code of the RSFSR were practically not applied in suppressing violations of competition rules, which was explained both by imperfection of legislation and by the peculiarities of law enforcement activities of the relevant authorities ^{[27, p. 55]}.

As one of the potential forms of unfair competition at that time, one can also name the corpus delicti that appeared in 1993, provided for in Article 1565 "Violation of trade rules". The signs of the objective side of this crime consisted in violation of the procedure established by the state for the sale of goods, illegal trade in goods whose free sale is prohibited or restricted, sale of goods that do not meet the requirements of standards, specifications and samples (standards) in quality, completeness and packaging, or in violation of sanitary rules, sale of goods without documents containing information about the manufacturer, supplier or seller, as well as without the use of cash registers, committed after the imposition of an administrative penalty for the same offenses. This composition, as well as the corpus delicti provided for in Article 156 "Consumer deception", reflected the criminalization of such a form of unfair competition that existed then in the Competition Law, as misleading consumers about the nature, method and place of manufacture, consumer properties, quality and quantity of goods or their manufacturers.

Criminal law norms on possible unfair competition were also enshrined in Article 155 "Illegal use of trademarks".

Thus, by 1996, in the Criminal Code of the RSFSR there was a group of crimes encroaching on a common object – bona fide competitive relations: Articles 1543, 155, 156, as well as Article 1751, whose object of encroachment is somewhat different – it is broader, since it encroaches on relations in the field of administrative and administrative activities of the state, but It is also related to ensuring fair competition in the market between business entities. The elements of crimes were formulated as formal, which meant a high degree of public danger recognized by the state. At the same time, the crimes provided for in Parts 3 and 4 of Article 1543, as well as Part 3 of Article 156, were classified, according to Article 71 of the Criminal Code of the RSFSR, as serious crimes. An important condition for criminal liability under Articles 1751 and 1565 was administrative prejudice. The same crimes were committed by a special subject specified in the disposition of the criminal law norm. With respect to other compositions, the subject is common, but based on the nature of the objective side of these crimes, it is a person engaged in activities in the field of trade.

The prohibitions of the 1991 Competition Law were also reflected in the Criminal Code of the Russian Federation of 1996, which provided in Chapter 22 for a number of crimes constituting a group of acts directly or indirectly directed against fair competition. These include Article 169 "Obstruction of legitimate entrepreneurial activity", Article 178 "Monopolistic actions and restriction of competition", Article 180 "Illegal use of a trademark", Article 182 "Knowingly false advertising", Article 183 "Illegal receipt and disclosure of information constituting a commercial or banking secret", Article 200 "Deception consumers", as well as those contained in Chapter 17 of Article 129 "Defamation", in Chapter 19 of Article 146 "Violation of copyright and related rights", Article 147 "Violation of inventive and patent rights, in Chapter 30 of Article 285 "Abuse of official authority" and Article 286 "Abuse of official authority".

The original version of Article 178, containing the main composition of the considered group of crimes, which existed from 1996 to 2003, was called "Monopolistic actions and restriction of competition" and provided for responsibility for a wide range of actions, in particular monopolistic ones, committed by setting monopolistically high or monopolistically low prices, as well as restricting competition by dividing the market, restricting access to the market, the elimination of other subjects of economic activity from it, the establishment or maintenance of uniform prices. The composition of the crime was formal, and the qualifying signs were the repetition or commission of acts by a group of persons by prior agreement or an organized group (Part 2), as well as the commission of acts provided for in parts 1 and 2, with the use of violence or with the threat of its use, as well as with the destruction or damage of other people's property or with the threat of its destruction or damage, in the absence of signs of extortion (Part 3).

In 2003, the article changed its title to "Prevention, restriction or elimination of competition". The composition of the crime became material, the established amount of damage amounted to over one million rubles, the qualifying signs changed: the use of official position and a group of persons by prior agreement were named as such (part 2).

In 2009, after the adoption and entry into force in 2006 of a new antimonopoly law – the Federal Law "On Protection of Competition", the description of the signs of a crime changed dramatically, criminal liability came for preventing, restricting or eliminating competition by concluding agreements restricting competition or implementing coordinated actions restricting competition, repeated abuse of a dominant position, expressed in the establishment and (or) maintenance of a monopolistically high or monopolistically low price of goods, unjustified refusal or evasion from concluding a contract, restriction of market access, if these acts caused major damage to citizens, organizations or the state or entailed the extraction of income on a large scale. The large amount of damage still amounted to over 1 million rubles, the amount of income in a large amount was determined at 5 million rubles. From the list of qualifying signs, the sign of the commission of an act by a group of persons by prior agreement and an organized group was eliminated, the sign of particularly large damage and the extraction of income in an especially large amount was added, the amounts of which amounted to 3 million and 25 million rubles, respectively. The article was supplemented with a note containing the conditions for exemption from criminal liability, which included contributing to the disclosure of a crime, compensation for damage caused or transfer to the federal budget of income received as a result of actions provided for in this article, the absence of other elements of a crime in the actions of a person. The note also provided for the concept of repeated abuse of a dominant position: it was predetermined by bringing a person to administrative responsibility for abuse of a dominant position more than twice within 3 years.

In 2015, the legislator, once again changing the name (now to "Restriction of competition"), significantly narrowed the list of signs of this crime, establishing criminal liability only for the cartel and excluding it for all other forms of monopolistic activity. In particular, the signs of a crime amounted to the conclusion of a competition-limiting agreement (cartel) between business entities-competitors, prohibited in accordance with the antimonopoly legislation of the Russian Federation, if this act caused major damage to citizens, organizations or the state or entailed the extraction of large-scale income. At the same time, the amount of large and special large damage increased – over 10 and 30 million rubles, respectively, as well as the amount of income in large and especially large amounts – over 50 and 250 million rubles.

The conditions of exemption from criminal liability have been transformed: now the person who was the first among the accomplices of the crime voluntarily reported this crime, actively contributed to its disclosure and (or) investigation, compensated for the damage caused by this crime or otherwise made amends for the damage caused, and if his actions do not contain any other corpus delicti. This form of exemption from liability for the cartel, as well as the new editions of the article since 2009, were the result of the reform of the state antimonopoly policy and a reflection of global trends in the fight against cartels.

Over time, changes have also occurred with the editorial offices of other articles of the Criminal Code of the Russian Federation, the elements of crimes in which have signs of violations of antimonopoly legislation. So, unlike the initial signs of the designated group of crimes:

– obstruction of legitimate activities has become a criminal offense when extending the illegal behavior of an official to any types and forms of legal entities, which corresponds to the idea of the Law on Protection of Competition to understand as an economic entity persons who implement any forms of entrepreneurial and other income-generating activities; a dimensional definition of major damage has appeared;

– the composition of the illegal use of means of individualization of goods (works, services) has been supplemented with qualifying and especially qualifying signs in the form of the commission of a crime by a group of persons by prior agreement and an organized group;

– in the description of the crime provided for in Article 183 of the Criminal Code of the Russian Federation, there was an increase in the types of protected secrets due to the inclusion of tax secrets among them; the signs of selfish or other personal interest provided for earlier in Part 2 and major damage became qualifying signs along with a group of persons by prior agreement and an organized group provided for in Part 3, and in Part 2 there was a description of a crime committed by a person to whom the secret was entrusted or became known through service or work;

– the composition of libel, after the return of criminal responsibility for this act, is supplemented by other qualifying features, of which only those provided for in Part 2, that is, slander contained in a public speech, a publicly displayed work, the media, or committed publicly using information and telecommunications networks, including the Internet, or in relation to several persons, including those not individually defined, as well as Part 3 – defamation committed using one's official position – can be considered as hypothetical forms of unfair competition committed against individual entrepreneurs;

– criminal liability for violation of copyright and related rights was differentiated according to the main signs of the crime: part 1 provides for liability for plagiarism, Part 2 – for the illegal use of objects of copyright or related rights, as well as the acquisition, storage, transportation of counterfeit copies of works or phonograms for sale; both compositions are material, the legislator in In the note, he pointed out the rules for determining large and especially large amounts of damage;

– the composition of the violation of inventive and patent rights has changed only in relation to qualifying features: repetition is excluded from those contained in Part 2 of Article 147 of the Criminal Code of the Russian Federation;

– deception of consumers and deliberately false advertising are decriminalized.

Thus, in the history of the Russian state, the description of crimes against fair competition was provided in the sources of criminal law in different periods of the country's development. The concept of protection and support of competition in Russia began to emerge in the 19th century, a system of relatively independent crimes encroaching on fair competition relations appeared, which stood out among other crimes in the field of economic activity for their anti-competitive orientation. A more complete description of the signs of crimes against fair competition contained the criminal law norms provided for by the Criminal Code of 1903. The events that took place after 1917 stopped the stage of formation of state policy in the field of protection and support of competition, which began to develop actively. With the transition to a market economy and the adoption of the first antimonopoly law in 1991, the country actually returned to the previous problems of 100 years ago. That is why the historical analysis of Russian legislation is so important: the decisions taken earlier can help in the development of modern legislation, including in the formulation of criminal law prohibitions, law enforcement, and criminal law policy in the field of fair competition protection in general.

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