Acts restricting fair competition: issues of criminalization and differentiation of criminal liability

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

Criminalization (decriminalization) of acts and differentiation of responsibility for their commission are indicators of the state of criminal law policy at a particular stage of society's development. The timely amendment of the criminal law establishing criminalization or decriminalizing acts in the field of economic activity, differentiating and individualizing responsibility for their commission, represents a certain guarantee of ensuring not only human rights as a bearer of economic rights and freedoms, a participant in economic relations, but also the security of the state. However, the current legislation is characterized by imperfection of the mechanism of criminal law counteraction to dangerous anticompetitive acts, to which the state has focused attention in its strategic acts [Decree of the President of the Russian Federation dated 05/13/2017 No. 208 "On the Strategy of Economic Security of the Russian Federation for the period up to 2030", Decree of the President of the Russian Federation dated 2.07.2021 No. 400 "On the National Security Strategy of the Russian Federation Federation"]. It follows from the documents that in order to support and protect competition, it is necessary to counteract monopolistic activities, including cartels, which are recognized as a threat to the economic security of the country, and other anti-competitive agreements.

Meanwhile, according to the study, the Criminal Code of the Russian Federation contains only one Article 178 of the Criminal Code of the Russian Federation "Restriction of competition", which directly provides for a criminal law ban on the conclusion by business entities-competitors of a competition-limiting agreement (cartel), which is directly related to the ban formulated in Article 11 of the Federal Law of 26.07.2006 "On Protection of Competition". At the same time, this law prohibits other anti-competitive behavior, in particular, individual anti-competitive acts of state authorities or local self-government (Articles 15, 17, 19) concluded by officials of state authorities or local self-government with business entities (Article 16), including at auction. The analysis of law enforcement indicates that such behavior of officials can be qualified under Articles 169, 285 or 286 of the Criminal Code of the Russian Federation. Article 2004 of the Criminal Code, recently included in the Criminal Code of the Russian Federation, is designed to counteract violations at auctions involving another special entity - a contract service employee, a contract manager, a member of the procurement commission, or another authorized person representing the interests of the customer in the field of procurement, who are not officials or persons performing managerial functions in a commercial or other organizations.

However, the lack of special criminal law norms that would describe the prohibition of other anti-competitive agreements has led to the fact that, firstly, there is competition between articles of the Criminal Code of the Russian Federation in the qualification of official crimes that restrict competition, secondly, official records of such crimes as anti-competitive are not maintained, thirdly, the prohibition on anti-competitive agreements does not seem obvious for its criminal legal assessment due to the "vagueness" of the signs of the elements of crimes contained in the Criminal Code of the Russian Federation used to qualify illegal behavior in appropriate cases. All of the above, as well as the imperfection of the description of the signs of crimes, leads to a low level of effectiveness in countering crimes in the field of economics in case of encroachment on one of its foundations – fair competition, and also raises questions about the effectiveness of criminal law policy in the field of protection of fair competition and competition policy in general.

In this regard, it seems relevant to consider the current state of criminalization of acts restricting competition, to study the existing state of differentiation of responsibility for their conclusion, as well as the reflection of these aspects in law enforcement. In science, a number of dissertation studies are devoted to the criminal law protection of fair competition, for example, V.T. Kornienko "Criminal law protection of fair competition in the consumer market" (2004), A.N. Boitsova "Prevention, restriction or elimination of competition under Russian criminal law" (2005), K.M. Khutova "Criminal monopolism: criminal-political and criminological research" (2006), Yu.G. Sledya "Criminal-legal protection against unfair competition" (2007), M.H. Khakulova "Crimes encroaching on freedom and integrity of competition in the field of entrepreneurial activity" (2009), D.B. Lapteva "Criminal liability for prevention, restriction or elimination competition" (2016), I.V. Serebrueva "Crimes encroaching on the integrity of competitive relations: genesis, system, criminal law characteristics" (2016), I.V. Batsina "Institute of competitive Relations as an object of criminal law protection: theoretical and applied research" (2017), O.E. Derevyagina "Criminal restriction competition: theoretical and applied aspects" (2021), R.A. Zhabaginova "Criminal liability for restriction of competition" (2021). However, many issues of criminalization of acts encroaching on fair competition remain unexplored, as a system of such crimes based on prohibitions of antimonopoly legislation, the issues of differentiation of criminal liability need to be understood, and the issues of constructing the elements of crimes encroaching on fair competition remain relevant. 

In the light of the above, the immediate object of the crime should be called paramount, as it is important to determine the protected relations in the system of values placed under the protection of the criminal law.  The direct object of the crimes listed above to varying degrees, and despite the fact that their description is contained in different chapters of the Criminal Code of the Russian Federation, is related or may be related to the legitimate economic interests of business entities, consumers, and the state, the main focus of which is to achieve and maintain economic and social well-being, with respect to which fair competition performs a security function, being the key to satisfying these interests.

Criminalization of the cartel (Article 178 of the Criminal Code of the Russian Federation), and therefore the need for criminal protection of fair competition from its conclusion and implementation, although disputed in science, has a strong economic justification due to the undermining of one of the economic foundations by the act, which is fraught with many negative consequences for the security of the state as a whole. Within the framework of this study, the direct object of the crime provided for in Article 178 of the Criminal Code of the Russian Federation is proposed to understand public relations arising from the conscientious observance of competing economic entities of the legal regime of competition in entrepreneurial activity established by the state.

Examining the nature of the direct objects of acts forming the anticompetitive behavior of officials of public authorities and local self-government and provided for in Articles 169, 285, 286 of the Criminal Code of the Russian Federation, it should be borne in mind that the nature of public relations arising in the field of public administration is predetermined primarily by the strategic activities of public authorities (to a certain extent and local governments) aimed at maintaining vital activity, comprehensive development and ensuring the national security of the Russian Federation. At the same time, the object of the crime provided for in Article 169 of the Criminal Code of the Russian Federation is characterized in science by an economic component based on freedom of activity, freedom of choice of its type [Leonov M.G. Criminal liability for obstruction of legitimate entrepreneurial or other activities: abstract. dis. ... cand. Jurid. sciences'. Saratov, 2009. p. 14; Rudover E.A. Obstruction of legitimate entrepreneurial activity: criminal law and criminological aspects: abstract. ... cand. Jurid. M., 2004. p. 7; Ustinova T.D. Actual problems of criminal liability for crimes encroaching on entrepreneurial activity: abstract. dis. ... doct. Jurid. M. 2005. p. 26.]. Obstruction can extend to any economic activity, including those in which there is no competition. Thus, the immediate object of the crime in question is social relations that ensure the implementation of the constitutional principle of freedom of economic activity, including those based on fair competition. The general specific object of crimes described in Chapter 30 of the Criminal Code of the Russian Federation, which is also encroached upon by acts provided for in Articles 285, 286 of the Criminal Code of the Russian Federation, represents public relations that ensure effective interaction between the state and civil society ^{[1, p. 112]}. Its important element is the activity of public authorities and local self-government in the field of public administration, regulated by law and in accordance with the interests of the development of society. Violating the prohibitions established in Articles 15, 16, 17, 19 of the Federal Law "On Protection of Competition", an official commits actions that infringe on competition, as a result of which both the economic interests of society, business entities, and relevant state institutions protected by Chapter 30 of the Criminal Code of the Russian Federation suffer. Thus, the direct object of the crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation, containing signs of violation of the prohibitions of antimonopoly legislation, can be designated as bona fide competitive relations in commodity markets, the effectiveness of which is ensured by the activities of state authorities and local self-government.

The direct object of the crime provided for in Article 2004 of the Criminal Code of the Russian Federation is logically associated in science with state and municipal purchases ^{[2, p. 240]}, which are carried out according to the rules of the Federal Law "On the Contract system in the field of procurement of goods, Works, services for state and Municipal needs" dated 04/5/2013 (hereinafter – the Law on contract system) and the Federal Law "On Procurement of Goods, Works, and Services by certain types of Legal Entities" dated 07/18/2011. In accordance with these laws, procurement is subject to a number of interrelated principles, the content of which is openness, transparency of information about the contract system in the field of procurement in general and procurement in particular, equality, fairness, absence of unreasonable restrictions on competition, absence of restrictions on admission to participate in procurement by establishing disproportionate requirements for procurement participants. Thus, competition in procurement is very important. But due to the fact that purchases can be carried out outside of competition, bona fide competitive relations between procurement participants should be recognized as a direct additional object of the crime provided for in Article 2004 of the Criminal Code of the Russian Federation, while the main direct object is the procedure established by law for procurement in order to meet state and municipal needs.

A special feature characterizing the public danger of anti-competitive crimes in order to justify their criminalization is their objective side. The objective side of the crime provided for in Article 178 of the Criminal Code of the Russian Federation is presented in the form of restriction of competition by concluding 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 income on a large scale. Thus, the current version of the article establishes liability only for a group violation in the form of a cartel as an agreement to limit competition.

When examining the signs of the objective side of this crime, the different nature of agreements restricting competition was established. Cartels can be conditionally divided into two types – classic cartels on joint activities of business entities and collusion at auctions, which are concluded either only between business entities or business entities with the organizer or customer of the auction. It is the collusion at auctions and their varieties that become the subject of initiation and investigation of criminal cases under Article 178 of the Criminal Code of the Russian Federation. There are cases of a cartel when the parties agree on a coordinated marketing policy, but subsequently the participants agree on joint participation in tenders, the victory of which one of them involves "bypassing" competitive bidding conditions, involving the organizer or the customer in collusion.

An important question arising from this situation is whether the classic cartel and the bidding conspiracy are identical to each other. The answer seems to be negative due to the fundamental differences between these anti-competitive agreements, the responsibility for which should be differentiated by the method of committing a crime that increases the degree and nature of public danger.

Collusion at auctions is characterized by a number of features due to the legal regulation of bidding procedures. In order to prevent restrictions on competition at auctions, the Federal Law "On Protection of Competition" provides special requirements for them (Article 17), expressed in a number of prohibitions on the commission of the actions listed in the article, which unscrupulous bidders violate using various "circumvention" schemes ^{[3, p. 79]}, including using digital technology. In fact, collusion at the auction is carried out by deceiving the organizer of the auction (the customer of the auction) or the owner of the property, which makes it possible to compare it with fraud.

It follows from the above that collusion at auction as a type of anticompetitive agreement, due to its essential features, differs significantly from classical cartels in commodity markets. The main difference between collusion at auction and classic cartels in commodity markets is the way to achieve the desired result, which affects the public danger of the entire crime ^{[4, pp. 119-131]}.

In this regard, collusion at auctions should be distinguished as an independent type of anti-competitive agreement having its own direct object, which can be defined as public relations arising by virtue of the principle of ensuring competition at auctions established by law in order to increase the efficiency and effectiveness of procurement of goods, works, services to meet state and municipal needs. The immediate additional object should be recognized as the property interests of the owner of the property, the organizer or customer of purchases, business entities-competitors, the interests of the state or municipal service.

The composition of the crime provided for in Article 178 of the Criminal Code of the Russian Federation is formulated as material: the objective side is expressed in the conclusion of a cartel if this act caused major damage to citizens, organizations or the state or entailed the extraction of income on a large scale. According to the note to Article 178 of the Criminal Code of the Russian Federation, major damage is damage that exceeds 10 million rubles, and large-scale income is an amount over 50 million rubles. The position of the legislator on the material composition of the crime provided for in Article 178 of the Criminal Code of the Russian Federation does not find unanimous support in the doctrine [Chugunov A.A. Criminal law protection of entrepreneurial activity: dis. ... cand. Jurid. M., 2001. p. 148; Klepitsky I.A. The system of norms on economic crimes: the main development trends: dis. ... doct. Jurid. M., 2006. p. 268]. In addition, it should be noted that when qualifying acts under this article, the law enforcement officer every time faces problems proving these signs of the objective side, which can have a very different nature and are sometimes insoluble, as indicated in scientific research ^{[5, pp. 26-32]}. Against the background of the recognition of cartels as a threat to the economic security of the country, consideration of the criminal consequences of the cartel, which, on the one hand, represent the presumed general negative results of such anticompetitive activities of economic entities in the commodity market in connection with the restriction of competition, on the other hand, are criminally forming signs subject to mandatory establishment, inevitably raises the problem of the correlation of these two phenomena, their objectivity and sufficiency to bring the perpetrators to criminal responsibility.

It seems that in order to resolve the issue of criminal liability for a cartel, it is important to assess the state of competition in the market and the consequences of the existence of a cartel for it. When studying the practice of the FAS in connection with the identification of cartels, it was found that the antimonopoly authority conducts an economic analysis of the state of the commodity market, without examining it for restrictions on competition or any harmful consequences for it, stating only the fact of the presence or absence of competitive relations between cartel participants. This procedure is defined by special rules provided for by FAS Order No. 220 dated April 28, 2010 "On Approval of the Procedure for Analyzing the state of competition in the commodity market." However, it is precisely the lack of a detailed assessment of the situation on the commodity market that is a frequent reason for the cancellation of decisions of the antimonopoly authority and the loss of its position in the courts ^{[6, p. 61]}.

In this case, the consequences of restricting competition in the commodity market established by the antimonopoly authority could become the indicator that should be used when deciding on responsibility for the cartel. However, the signs of restriction of competition are only partially disclosed in the law and objectively cannot reflect all the harmful consequences. In this regard, A.N. Varlamova's proposal to assess the harm of competition is of interest, by which it is proposed to understand any adverse changes in the competitive environment, in particular, a decrease in the number of competitors, limiting the independence of their actions, deterioration of the qualitative characteristics of competition (no need to lower prices, improve product quality), the impossibility or difficulty of using appropriate (legitimate) methods of competition, the lack of advantages for subjects using appropriate methods of competition [Varlamova A.N. Legal assistance to the development of competition in commodity markets: dis. ... doct. Jurid. M., 2008. p. 15].

Thus, it seems advisable to establish criminal liability for cartels regardless of the specific harmful consequences. At the same time, the identification and investigation of cartels should be accompanied by an assessment of the damage that the cartel has caused to the country's economy as a whole or to a particular commodity market. The last thesis is that the current trend, which can be traced in world practice and domestic law enforcement, should be reflected in domestic legislation in order to ensure fairness and objectivity of prosecution.

The arguments about the criminalizing criteria of collusion at auction, which, according to the law, is a type of cartel, but has a number of signs characterizing it as an independent violation, are also indicative. Firstly, tenders are held in connection with the need to carry out purchases to meet state or municipal needs in accordance with the procedure established by the Law on the Contract System. According to paragraph 4 of part 1 of Article 93 of the said law, the purchase of goods, work or services for an amount not exceeding 600 thousand rubles is possible from a single supplier, that is, without bidding, and therefore without the risks of collusion by their participants. Consequently, the voluntary nature of the decision on the holding or non-holding of tenders makes it pointless to compete in them, because the customer can negotiate with any person whose offer he finds interesting. This means that we can talk about criminal liability at auctions only if they are mandatory [This is the option of criminalizing collusion at auctions proposed in draft law No. 848246-7 "On Amendments to Article 178 of the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation." URL: https://sozd.duma.gov.ru/bill/848246-7 (accessed 10/20/2021)].

Secondly, as you know, an important feature of the auction is the conclusion of contracts based on the results of their conduct, the purpose of which is to satisfy state or municipal needs for large sums of money. Accordingly, when collusion is detected at auctions, as a rule, there is always major damage or large-scale income extraction. But the amount of damage and income as a criminalizing sign of an act is subject to periodic changes, as a result of which the act provided for in Article 178 of the Criminal Code of the Russian Federation is also periodically decriminalized. This raises a fair question about the appropriateness of thinking about the amount of damage as a crime-forming criterion when it comes to encroachments on budgetary funds, which ensure national security and resolve other important issues of society and the state.

Thirdly, collusion at auctions is precisely that dangerous type of anti–competitive agreement, which is recognized as a threat to economic security and is characterized, in addition to huge damage to the budget, by high latency. Collusion at auction is a peculiar form of fraud associated with deceiving the owner of the property in the end. That is, the nature of the collusion at the auction itself represents a high degree of public danger sufficient for criminalization, reflecting the criminal type of behavior. Thus, the public danger of collusion at auctions is expressed in a criminal type of behavior associated with deception of the organizer of the auction (the customer of the auction, the owner of the property), which should come to the fore.

It seems that the signs of a crime under Article 178 of the Criminal Code of the Russian Federation do not reflect the level of public danger of cartels, especially collusion at auctions. In connection with the above, it seems necessary to formalize the corpus delicti provided for in Article 178 of the Criminal Code of the Russian Federation and provide for independent liability for collusion at auctions.

Analyzing the objective side of the crimes provided for in Articles 169, 285 and 286 of the Criminal Code of the Russian Federation, it should be noted that their signs, despite all the evidence of their generalization to establish a connection with the prohibitions of the Federal Law "On Protection of Competition", based on the analysis of sentences, correspond to paragraphs 1-11 of its Article 15. Of the listed in Article 15, most often in actions officials meet: unlawfully established prohibitions or restrictions on the implementation of certain types of activities, production or movement of certain types of goods; unjustified obstruction of the implementation of activities by business entities, including by establishing requirements not provided for by law for goods or business entities; other restrictions on the rights of business entities to sell, purchase, other acquisition, exchange goods; giving instructions to business entities on the priority supply of goods for a certain category of buyers (customers) or on the conclusion of contracts on a priority basis; violations in the provision of state or municipal preferences.

As the analysis of practice shows, qualification can be carried out both under Article 169, and under Article 285, and (or) under Article 286 of the Criminal Code of the Russian Federation. At the same time, when analyzing the sentences, cases of qualification of the acts of officials under Article 169 of the Criminal Code of the Russian Federation were established in connection with the existence of agreements with individual entrepreneurs and (or) heads of organizations, on the basis of which obstacles were created in the activities of other economic entities [Verdict of the Zadneprovsky District Court of Smolensk No. 1-134/2017 dated 06/13/2017 URL: http://sudact.ru/regular/doc/2i7SMWfw9MrX (date of access: 05/20/2023)]. In practice, the actions of officials who limit competition during bidding by interfering in their individual procedures are often qualified as abuse of official authority [Verdict of the Kamensky District Court of the Rostov Region No. 1-297/2015 of 08/10/2015 URL: http://sudact.ru/regular/doc/Rz0NYwwu78U5 (date of appeal: 06/15/2023)], there are other cases of abuse of official authority related to the violation Federal Law "On Protection of Competition" [Verdict of the Petrozavodsk City Court of the Republic of Karelia No. 1-34/2015 1-852/2014 from 11/26/2015 URL: http://sudact.ru/regular/doc/3uDNW7k8fclT (date of access: 06/15/2023)].

When assessing the possibility of qualifying the actions of an official as abuse of official authority, it is very important to take into account the position of the Plenum of the Supreme Court of the Russian Federation, reflected by it in the resolution "On Judicial Practice in cases of abuse of official Authority and Abuse of official authority" dated 10/16/2009 No. 19, on what constitutes the use of official authority, which is the main element the objective side of this crime. In particular, the court clarified that the use of authority is the commission of such acts, which, although they were directly related to the exercise by an official of his rights and duties, however, were not caused by official necessity and objectively contradicted both the general tasks and requirements imposed on the state apparatus and the apparatus of local governments, and those goals and objectives, to achieve which the official was given the appropriate official powers (these are actions that fall within the scope of official powers, but are performed in the absence of mandatory conditions or grounds for their commission).

At the same time, it is necessary to note the permissibility of concluding agreements provided for in Part 2 of Article 13 of the Federal Law "On Protection of Competition", the cases of which are determined by the Government of the Russian Federation. In this regard, when qualifying acts in the form of violations of the Federal Law "On Protection of Competition" under Article 285 or Article 286 of the Criminal Code of the Russian Federation, one should be vigilant to details, because illegal behavior can have signs of abuse of official authority, expressed in the commission by an official of actions that no one has the right to commit under any circumstances.

Another important aspect of the qualification should be noted. The elements of crimes provided for in Articles 169, 285 and 286 of the Criminal Code of the Russian Federation are in competition with each other. It is expressed in two forms: 1) competition of Article 169 of the Criminal Code and Article 285 of the Criminal Code, 2) Article 169 of the Criminal Code and Article 286 of the Criminal Code. In addition to the fact that such situations lead to unstable judicial practice, such competition gives grounds for abuse when deciding on the imposition of punishment for the commission of these acts: after all, the sanction of Article 169 of the Criminal Code of the Russian Federation provides for a much milder punishment than the sanctions of Articles 285 and 286 of the Criminal Code of the Russian Federation.

The objective side of the crime provided for in Article 2004 of the Criminal Code of the Russian Federation is the actions of a contract service employee, a contract manager, a member of the procurement commission, a person who accepts delivered goods, completed works or services rendered, or another authorized person representing the interests of the customer in the field of procurement of goods, works, services to ensure state or municipal needs that are not officials or persons performing managerial functions in a commercial or other organization and expressed in violation of the Law on the Contract System. From the description of the objective side of the analyzed crime, it follows that the essence of abuse is primarily violations of the Law on the Contract System, which is atypical for understanding abuse in criminal law.

As it was noted when studying the direct object of this crime, its objective side is associated with an encroachment on the procurement procedure, which can be implemented in competitive or non-competitive forms in accordance with the principles established by the Law on the Contract System. The most important among these principles should be recognized the principles of openness, transparency of information and ensuring competition, which are relevant specifically for the competitive form of procurement. In the practice of the antimonopoly authority, their violation is qualified on the basis of the provisions of Article 17 of the Federal Law "On Protection of Competition", which provides for antimonopoly requirements for bidding. Thus, abuse in the field of procurement has signs of violation of antimonopoly legislation. Failure to comply with these principles may also indicate the presence of another crime - collusion in bidding to restrict competition.

The composition of the crime is material, the mandatory signs are expressed by a combination of selfish interest and causing major damage, the amount of which is determined at 2.25 million rubles. It seems that the inclusion of damage as a criminalizing sign in the composition of a crime that encroaches on the procurement system for state and municipal needs is a fundamentally wrong decision, since it is not only about the interests of business entities involved in procurement, but also about public – state, public. Given the susceptibility of such a feature to periodic changes, which means the decriminalization of the act in the previous version, which provides for the amount of damage in a smaller amount, each such change actually entails the "assumption" of causing damage to the budget in an increasing and larger amount. In this regard, there are grounds to assert the need to exclude the considered feature from Article 2004 of ^the Criminal Code of the Russian Federation.

An important criterion for criminalization is the subject of the crime. Taking into account the blank nature of the signs of the corpus delicti provided for in Article 178 of the Criminal Code of the Russian Federation, conclusions about the subject of the crime should be drawn based on the analysis of the content of paragraph 5 of Article 4 of the Federal Law "On Protection of Competition", which reveals the concept of an economic entity, because the cartel is formed by economic entities-competitors. Accordingly, the subject of the crime may be individuals who are directly related (by virtue of the law, the charter of the organization, a legal act, contract, power of attorney) to business entities, as a result of whose actions the cartel was concluded and then implemented.

In the science of criminal law as a whole, it is necessary to recognize a stable position on the special subject of the crime provided for in Article 178 of the Criminal Code of the Russian Federation, which means: 1) an individual entrepreneur; 2) a direct supervisor (sole executive body), another representative of a legal entity (for example, a member of a collegial management body, a manager, a participant in a legal entity) who has legal grounds (by virtue of a contract, law, power of attorney, other legal act) to carry out legally significant actions on his behalf (or on behalf of in his name) and in his interests; 3) an individual who is not registered as an individual entrepreneur, but carries out professional income-generating activities in accordance with federal laws on the basis of state registration and (or) license, as well as by virtue of membership in a self-regulatory organization (for example, an auditor, an arbitration manager).

At the same time, the listed persons should be related only to competing business entities that operate in the same commodity market and are not part of the same group of persons, that is, business entities should not exercise control over other business entities, and also should not be under the control of one person (paragraph 7 of Article 11 of the Federal Law "On Protection competition").

In practice, difficulties often arise when qualifying an act committed in complicity ^{[7, pp. 28-30]}, because employees of an organization of various levels and powers may be involved in this activity. The key figure in the cartel's conclusion is the head of the organization.

Questions about qualifications arise when, along with an individual entrepreneur or a member of an organization's governing body, a person who does not have the status of a special entity is involved in committing a crime, for example, an assistant to the head of an organization, a specialist, or another employee. This situation is very common both at the conclusion of the cartel and at the implementation of the agreements reached.

As noted in the resolution of the Plenum of the Supreme Court of the Russian Federation "On the practice of applying legislation by courts regulating the specifics of criminal liability for crimes in the field of entrepreneurial and other economic activities" dated November 15, 2016 No. 48, the fulfillment by an employee of the orders of the head related to the implementation of criminal activities cannot be the only reason for holding an employee accountable for co-execution in such a crime; it is necessary to clarify all the circumstances indicating the subjective attitude of each of the accomplices to the deed, the direct participation of each in the performance of all or part of these actions, forming the objective side of the crime.

The subject of crimes under Articles 169, 285, 286 of the Criminal Code of the Russian Federation is special, they are officials. In science, an official is characterized by a functional feature, which consists in having a public authority – the authority of an official position to make and implement an independent personal decision ensuring the interests of public authority on behalf of an organization ensuring the interests of such authority, mandatory and entailing legal consequences for this organization, as well as for an indefinite circle of persons [Sorochkin R.A. Theoretical andthe legal foundations of the doctrine of the subject of a corruption crime: dis. ... doct. Jurid. M., 2021. p. 125].

In this regard, it is necessary to highlight some characteristics of the functions of the subjects of crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation as anticompetitive acts. Firstly, as representatives of the authorities, the subjects of these crimes are persons endowed with the rights and obligations to exercise, first of all, the functions of executive authorities, as well as other persons of supervisory authorities endowed with administrative powers in accordance with the procedure established by law in relation to persons who are not dependent on them, or the right to make decisions, mandatory for execution. Secondly, violation of antimonopoly legislation may occur both in the performance of organizational and administrative functions. Thus, a violation in the performance of organizational and administrative functions characterized by the authority to make decisions of legal significance and entailing certain legal consequences may be expressed, for example, in an official making an unjustified decision to include business entities in the list of persons to whom subsidies will be provided; to exclude trading places belonging to business entities from the list Violation in the performance of administrative and economic functions related to the powers of an official to manage and dispose of property and (or) monetary funds may be in the form of concluding a state contract for the transfer of state or municipal real estate for rent without bidding; making an unreasonable decision to refuse to conclude contracts with business entities on termination of contracts already concluded and the conclusion of new contracts with business entities that are competitors of these persons, including for the purpose of taking away a real estate object from one business entity and transferring it to another business entity that is a competitor of the former user.

In practice, these violations were established during the exercise of authority by officials of district, city administrations, state, municipal and unitary enterprises and institutions.

The subject of the crime under Article 2004 of the Criminal Code of the Russian Federation is a special one, in particular, an employee of the contract service, a contract manager, a member of the procurement commission, a person who accepts delivered goods, completed works or services rendered, or another authorized person representing the interests of the customer in the field of procurement of goods, works, services to provide for state or municipal needs that are not officials or persons performing managerial functions in a commercial or other organization.

The status of the listed persons is determined by the Law on the Contract System. According to its Article 38, the contract service is created by the customer if its total annual volume of purchases exceeds 100 million rubles. At the same time, the creation of a special structural unit is not required, which means that the functions of the contract service can be assigned to an existing department, the management of the organizational structure of the customer. Therefore, an employee of the contract service can be either a person whose position as an employee of the contract service was specifically introduced by the employer-customer, or a person who is an official by virtue of other powers.

By virtue of Article 38 of the Law on the Contract System, a contract manager is an official responsible for the implementation of a purchase or several purchases, including the execution of each contract, who is appointed by the customer in cases where the total annual volume of purchases does not exceed 100 million rubles and the customer does not have a contract service.

The contract service, represented by its employee, and the contract manager carry out functions and powers directly related to procurement – their planning; placement of relevant information and documentation in a single information system; ensuring procurement, including the conclusion of contracts; organization of consultations with suppliers in order to determine the state of the competitive environment in the relevant markets of goods, works services; participation in the consideration of cases on appeal against the results of the determination of suppliers (contractors, performers), etc.

Thus, a contract service employee and a contract manager are persons who can hold positions in government bodies, local governments, state and municipal enterprises and institutions, therefore, their powers may have an organizational, administrative and economic character, not differing from the organizational, administrative and administrative functions of an official, being the subject of crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation. However, according to Article 2004 of the Criminal Code of the Russian Federation, the subject of this crime is not an official and a person performing managerial functions in a commercial or other organization. Accordingly, the subject of abuse in the field of procurement can only be an employee whose powers are not related to making important decisions of legal significance and entailing certain legal consequences, do not relate to the management and disposal of property and (or) funds, as well as who is not a person performing the functions of a sole executive body, a member of the board of directors or other collegial executive body, as well as a person who permanently, temporarily or by special authority performs organizational, administrative or economic functions in these organizations.

As for the member of the procurement commission, the Law on the Contract System does not impose special requirements on him and does not formally define who can be a member, but lists in paragraph 6 of Article 39 individuals who cannot be members of the commission. A member of the procurement commission may be an official whose attributes are defined in a note to Article 285 of the Criminal Code of the Russian Federation, but may not be such by virtue, in particular, paragraph 4 of Article 39 of the Law on the Contract System, according to which, when conducting tenders for concluding contracts for the creation of works of literature or art, performance (as the result of intellectual activity), to finance the rental or screening of national films, the commissions should include persons of creative professions in the relevant field of literature or art.

The person who accepts the delivered goods, completed works or rendered services carries out his activities at the final stage of the purchase, when the competitive procedures are completed by determining the winner of the auction. Therefore, it seems that the person who accepts the delivered goods, works performed or services rendered cannot be recognized as the subject of an anti-competitive act: restriction of competition at this stage of procurement is already unlikely.

Another authorized person representing the interests of the customer in the field of procurement of goods, works, services for state or municipal needs, who is not an official or a person performing managerial functions in a commercial or other organization, is, in fact, a general entity with powers in the field of procurement based on any special the legal basis. Probably, these include representative civil law contracts, for example, assignments, agencies, commissions.

The subjective side of crimes, according to the traditional position available in criminal law, is guilt as its mandatory feature, motive and purpose, which can act as both mandatory and additional features. As shown by the analysis of sentences and signs of the elements of crimes provided for in art.169, 178, 200 ⁴, 285, 286 According to the Criminal Code of the Russian Federation, an important aspect of their subjective side as anti-competitive crimes is the orientation of all its elements towards competition as an undesirable phenomenon that does not allow subjects to achieve their goals in entrepreneurial activity by lawful actions.

The subjective side of the crime provided for in Article 178 of the Criminal Code of the Russian Federation is direct and indirect intent. In science on this issue, the prevailing understanding is that the attitude to damage can be expressed in the form of indirect intent, while obtaining criminal income is possible only with direct intent, but there are also opinions that intent is only direct [Repin P.N. Prevention, restriction or elimination of competition: criminal lawlegal characteristics (based on the materials of St. Petersburg and the Leningrad region): dis. ... cand. Jurid. St. Petersburg, 2007. p. 104; Khakulov M.H. Crimes encroaching on the freedom and integrity of competition in the field of entrepreneurial activity: dis. ... doct. Jurid. Sciences. M. 2009. p. 96].

Nevertheless, it should be noted that the cartel causes damage not only to direct competitors, but also to a wide range of consumers, harm to whom may not be expected for various reasons, including due to the belief of cartel participants that there is no harm to third parties from their activities. This fact is confirmed by the results of a study of foreign cartels: when interviewing cartel participants, it was found that cartelists understand that certain economic actions and business behavior they commit are strictly unacceptable, but they do not perceive it as unfair or morally unacceptable ^{[8, pp. 106-124]}. Therefore, their intent may not cover the possibility of harming third parties at all, or the attitude towards this fact is indifferent.

The subjective side of official crimes provided for in Articles 169, 285 and 286 of the Criminal Code of the Russian Federation is expressed by an intentional form of guilt. These crimes are characterized by a motive, which may be different and which may be manifested through other signs provided for in the description of crimes, for example, a sign of selfish or other personal interest. Revenge, the desire to achieve certain services, misunderstood interests of the service, the desire to demonstrate their power and importance, etc. are called as a motive for obstructing legitimate business or other activities ^{[9, p. 74]}. Selfish or other personal interest is associated with restricting competition in the interests of those close to the guilty person, as well as organizations controlled by the official, if they want to please the person who asked to ensure the victory of a particular participant in the auction, for fear of work problems and criticism from other officials.

The subjective side of the crime under Article 2004 of the Criminal Code of the Russian Federation is also characterized by an intentional form of guilt (direct intent) and self-interest. The Plenum of the Supreme Court of the Russian Federation in paragraph 12.1 of the resolution "On judicial practice in cases of abuse of office and abuse of office" dated 16.10.2009 No. 19 interpreted selfish interest as personal interest, which may be expressed in the desire of the subject of the crime to extract non-material benefits for himself or others, including to receive a mutual service, to enlist support in solving any issue, for example, in the employment or promotion of a relative, the desire as a result of a violation to receive a promotion, a state or other award, to take a higher position, etc.

In addition to the conclusions about the anti-competitive signs of crimes provided for in Articles 178, 169, 200 ⁴, 285 286 of the Criminal Code of the Russian Federation, it is necessary to focus on the problems of their construction, because the effectiveness of criminal law policy largely depends on how clearly and clearly the criminal law norms are formulated for the law enforcement officer, in which the legislator included the construction of one or the other other elements of the crime.

First of all, we note the general intersystem rule of legislative technique [Ivanchin A.V. Conceptual foundations of the construction of the corpus delicti: dis. ... doct. Jurid. sciences'. Yaroslavl, 2014. pp. 140-156], according to which the designed composition must comply with the norms of other branches of law. In particular, we are talking about the compliance of criminal law norms with the prohibitions formulated in the Federal Law "On Protection of Competition". Of course, there are no good reasons for each antimonopoly ban to be reflected in the Criminal Code of the Russian Federation, however, in some cases, gaps in criminal law norms should be noted. Thus, the collusion of government officials – organizers (customers) of tenders with bidders – representatives of business entities on restricting competition does not have an independent criminal legal assessment in the Criminal Code of the Russian Federation. The consequence of this is the established practice of holding representatives of business entities accountable under Article 178 of the Criminal Code of the Russian Federation, officials under Articles 169, 285 or 286 of the Criminal Code of the Russian Federation, and the fact of collusion between them remains without qualification.

A similar situation may arise in connection with the inclusion of Article 2004 in the Criminal Code of the Russian Federation, which provides for a description of violations of legislation in the field of the contract system by an employee of the contract service, a contract manager, a member of the procurement commission and allows an economic entity to avoid criminal liability for collusion with the specified entity, as well as the latter's collusion with an economic entity remains without attention.

At the same time, it should be noted that Part 3 of Article 286 of the Criminal Code of the Russian Federation provides grounds for liability for group commission of a crime, however, such a mechanism for bringing to justice for an anticompetitive agreement is questionable due to the need to combine different legal structures. It seems that for the purposes defined by the Decree of the President of the Russian Federation dated 2.07.2021 "On the National Security Strategy of the Russian Federation", it would be correct to single out anti-competitive agreements as an independent corpus delicti, rather than using criminal law techniques for constructing basic and qualified (especially qualified) corpus delicti, in the signs of which the description of anti-competitive actions, as a result of which their criminal prosecution is either not obvious or does not exist at all.

In connection with the competition in practice of the elements of crimes provided for in Articles 169, Articles 285 and 286 of the Criminal Code of the Russian Federation, it should be noted the rule of inadmissibility of constructing excessive elements of crimes, which are generally understood as excessive structures [Ivanchin A.V. Conceptual foundations of the construction of the corpus delicti. p. 172]. The corpus delicti provided for in Article 169 of the Criminal Code of the Russian Federation seems superfluous, which, on the one hand, is a classic example of a violation by an official of an authority of the requirements of Article 15 and, in the presence of collusion with another business entity, Article 16 of the Federal Law "On Protection of Competition", but, on the other hand, competes with the compositions provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation, being a special case of the acts described in them. In this regard, it seems advisable to exclude Article 169 from the Criminal Code of the Russian Federation.

Another intersectoral system rule in the construction of the corpus delicti is to take into account the problems of proving this crime. As noted by A.V. Ivanchin, the problems of proving a crime can, and sometimes should, serve as a basis for correcting the constructed or reconstructed corpus delicti [Ivanchin A.V. Conceptual foundations of constructing corpus delicti. p. 165]. The most acute problems are proving the signs of the composition provided for in Article 178 of the Criminal Code of the Russian Federation, in particular, the amount of damage caused by the crime, which was noted earlier. If the damage from collusion at the auction can be assessed, then determining the damage from a classic cartel is a very difficult task ^{[5, pp. 26-32]}.

Among the intra-sectoral system rules for the construction of the corpus delicti, attention is drawn to the rule on the consistency of the constructed corpus delicti with other prescriptions of the criminal law, including signs of other compositions [Ivanchin A.V. Conceptual foundations of the construction of the corpus delicti. pp. 170-171]. It seems that such compositions should have common (or insignificantly different) criminalizing signs, in particular, with the economically identical nature and social danger of such actions, the essence of which is the illegal use of competitive advantages to the detriment of other business entities.

In this context, attention should be paid to the construction of the elements of crimes provided for in Article 2004 of the Criminal Code of the Russian Federation and Article 286 of the Criminal Code of the Russian Federation. At first glance, the compositions cannot be called homogeneous or related, if you do not pay attention to the practice of applying Article 286 of the Criminal Code of the Russian Federation in connection with violation of the Federal Law "On Protection of Competition" during bidding. Violations during procurement at the bidding stage can be considered both as signs of a crime under Article 2004 of ^the Criminal Code of the Russian Federation and as signs of a crime under Article 286 of the Criminal Code of the Russian Federation, which indicates a certain commonality of the counteraction mechanism, but with a difference in the subject of the crime. However, the corpus delicti provided for in Article 2004 of ^the Criminal Code of the Russian Federation provides for signs of committing an act out of self-interest and causing major damage, while a sign of the objective side of the crime provided for in Article 286 of the Criminal Code of the Russian Federation is a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state.  It seems that it is the latter feature that looks like a more objective measure of the public danger of violations during procurement, which should be included in the objective side of the crime provided for in Article 2004 of the Criminal Code of the Russian Federation, excluding signs of self-interest and causing major damage. At the same time, it should be recognized that a sign of selfish or other personal interest may well accompany violations in the field of procurement and have the same meaning as when exceeding official authority. In this regard, it seems advisable to provide for this feature as a qualifying one in Part ² of Article 2004 of the Criminal Code of the Russian Federation.

One of the problems of applying Article 178 of the Criminal Code of the Russian Federation in practice should be recognized as a violation of the linguistic rules of legislative technique [Ivanchin A.V. Conceptual foundations of the construction of the corpus delicti. pp. 331-353] when describing the signs of the objective side of the corpus delicti contained therein. In particular, there is an incorrect description of the cartel, the addition of other terms from the Federal Law "On Protection of Competition" – "restriction of competition" - to it has aggravated the situation and led to difficulties in applying this article in practice, due to the question: is it necessary to establish specific signs of restriction of competition? The negative answer to this question is justified by researchers of this problem in science ^{[10, pp. 45-49]}.

Another situation – the insufficiency of the description of the signs of the objective side of the crime – is noted in the analysis of part 1 of Article 178 of the Criminal Code of the Russian Federation, in which criminal liability is established for the conclusion of a competition-limiting agreement (cartel) between business entities-competitors. At first glance, criminal liability arises for the fact of concluding an agreement. However, by itself, the conclusion of a prohibited agreement cannot entail not only the consequences specified in the article, but also cause any harm to competition, since this requires the implementation of the agreement reached by a cartel member. Thus, the signs of the objective side of the crime provided for in Article 178 of the Criminal Code of the Russian Federation are clearly insufficiently stated and its description should be supplemented by a ban on the implementation of a competition-limiting agreement.

There is a problem with the term "abuse" in Article 2004 of the Criminal Code of the Russian Federation and its uniform understanding in the case provided for in Article 285 of the Criminal Code of the Russian Federation. This term is interpreted in these articles in absolutely different ways - in Article 2004 of the Criminal Code of the Russian Federation, abuse is presented as a violation of the law, in Article 285 of the Criminal Code of the Russian Federation – as the use by an official of his official powers contrary to the interests of the service, which does not imply violation of the law. It is obvious that the nature of the abuse qualified under Article 2004 of the Criminal Code of the Russian Federation is completely different and corresponds rather to abuse of authority. In order to avoid a contradiction, it seems correct to replace the word "abuse" with "violation" in the name of the crime provided for in Article 2004 of the Criminal Code of the Russian Federation.

Taking into account the proposals formulated above to improve the structural elements of anti-competitive crimes, the new general and special formulations (as well as the current norms) could look like this:

I.         Article 178. "Conclusion of an agreement restricting competition"

1. The conclusion of a cartel prohibited by the antimonopoly legislation of the Russian Federation, as well as participation in its implementation, is punishable …

2. The conclusion by an official of an agreement restricting competition prohibited by the antimonopoly legislation of the Russian Federation, as well as participation in its implementation, is punishable…

II. Article 178 ¹. "Conclusion of a competitive bidding agreement"

1. The conclusion of an agreement restricting competition by bidders, the holding of which is mandatory in accordance with the legislation of the Russian Federation, as well as participation in its implementation, if this entailed an increase, decrease or maintenance of prices at the auction, is punishable …

2. Conclusion of an agreement provided for in Part 1 of this article, which entailed the same consequences, by an official or an employee of the contract service, a contract manager, a member of the procurement commission, or another authorized person representing the interests of the customer in the field of procurement of goods, works, services for state or municipal needs, who are not officials or persons performing managerial functions in a commercial or other organization, as well as participation in its implementation, are punished ....

Along with criminalization, differentiation of criminal liability is important for criminal law policy in the field of protection of fair competition, which allows us to focus on the dynamism of legislation, to identify priorities in the legislative process [Lesnievsky-Kostareva T.A. Differentiation of criminal liability: dis. ...Dr. Yurid. M., 1999. p. 27]. Qualifying and especially qualifying signs are recognized as one of the most important means of differentiating criminal liability, which should reflect a significant difference in the level of public danger compared to the main composition, be typical for the type of crime and uncharacteristic for most of the acts described in the main composition ^{[11, p. 114]}. Among the unnamed features that should be given criminal legal significance, it should be noted:

1) in relation to agreements restricting competition (cartels, including collusion at auctions):

a) the commission of an act by a person performing managerial functions in a commercial or other organization (replacing the existing feature "using his official position", delineating the responsibility of employees and the head, because it is the highest official of the organization who makes legally significant decisions);

b) the commission of an act by a person who disposes of more than 50% of the total number of votes attributable to voting shares (shares) in the authorized (pooled) capital of a business company (partnership, business partnership) (the special role of the specified person, which has criminal legal significance, is the ability to influence the adoption of legally important decisions in commercial the organization [The initiative belongs to the FAS of Russia (see: Bill No. 848246-7 "On Amendments to Article 178 of the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation" // URL: https://sozd.duma.gov.ru/bill/848246-7 (date of appeal: 10/20/2022))], which is revealed in practice, in particular, by antimonopoly authorities);

c) the commission of an act by an organized group (a circumstance often encountered in the practice of identifying cartels);

d) committing an act with obstruction of economic activity or with threats of obstruction of economic activity (also a circumstance occurring in practice of committing a crime under Article 178 of the Criminal Code of the Russian Federation [E.g., verdict of the Novgorod District Court of the Novgorod Region No. 1-347/2014 dated 04/22/2014 // Archive of the Novgorod District Court of the Novgorod Region 2014]);

e) grave consequences (meaning grave consequences in case of collusion at auction, may occur if a contract is concluded on the basis of the results of the auction on terms that exclude the effective use of budgetary funds, as a result of which significant material damage is caused to the state. There may also be other consequences, for example, the suicide of the victim of collusion at the auction);

2) in relation to violations at the auction - a previously noted sign of selfish or other personal interest.

As a means of differentiating responsibility, sanctions deserve attention, especially those provided for in Parts 1-3 of Article 178 of the Criminal Code of the Russian Federation. An analysis of legislation and law enforcement in this regard leads to the following conclusions. Firstly, all three sanctions belong to the category of cumulative sanctions, which are given an ambiguous assessment in science regarding their effectiveness. Secondly, the sanction of Part 1 does not reflect the degree and nature of the public danger of the act, since it refers to crimes of minor gravity, which indicates the lack of a proper criminal legal assessment of the level of public danger of cartels recognized as a threat to economic security. Thirdly, when setting the terms of imprisonment, and therefore, when determining the degree and nature of the public danger of a crime in relation to part 1 and part 2, it turns out that the legislator "stepped over" one category of crime. Thus, the crime provided for in Part 1 belongs to the category of crimes of minor gravity, while the act recorded in part 2 of the same article belongs to the category of grave.

Another problem is the lack of precise limits of the upper and lower limits of punishments and their correlation with sanctions in the main and qualified compositions. Thus, the sanctions provided for in Parts 1, 2 and 3 of Article 178 of the Criminal Code of the Russian Federation contain a punishment in the form of imprisonment, the terms of which are up to 3, up to 6 and up to 7 years, respectively. The absence of a lower limit of punishment under Part 2 and Part 3 increases the risks of judicial discretion and the imposition of punishment that does not correspond to the nature and degree of danger of the act. At the same time, the difference in the terms of imprisonment under Part 2 and Part 3 is insignificant, which does not give an objective assessment of the difference in the public danger of acts provided for in different compositions with aggravating and especially aggravating signs. Imprisonment is imposed together with deprivation of the right to hold certain positions or engage in certain activities, the terms of which are up to 1 year under Part 1, up to 3 years under Part 2 and Part 3. As can be seen, the sanctions of parts 2 and 3 are almost equivalent, with the only difference that deprivation of the right under Part 3 is characterized as the main additional punishment, and according to part 2 – is imposed at the discretion of the court.

In general, analyzing the sanctions for the commission of a crime under Article 178 of the Criminal Code of the Russian Federation, the fact of an unjustified reduction in the size of all major punishments for the cartel is stated. In particular, the size of the fine is such that it allows us to conclude that it is profitable to commit a crime [Batsin I.V. Institute of Competitive Relations as an object of criminal law protection: theoretical and applied research: dis. ... cand. Jurid. N. Novgorod, 2017. p. 109; Sidorenko E.L. Speech at the conference-workshop "Fraud in the field of entrepreneurial activity", organized by the REC of the Application of Criminal law of the O.E. Kutafin University (MGUA) in conjunction with the digital platform for working with entrepreneurs' appeals ZABUSINESSR.RF. Moscow, June 9, 2020]. By the way, it should be noted that economically economic entities are ready for sanctions, as evidenced not only by Russian practice, but also by foreign studies ^{[8, pp. 106-124]}. Consequently, there is a problem of the adequacy of the sanction to the illegal behavior of the perpetrators and the harmful consequences of the cartel. Summing up the analysis of the sanctions of Article 178 of the Criminal Code of the Russian Federation, it should be recognized necessary to raise the category of the crime provided for in Part 1 of Article 178 of the Criminal Code of the Russian Federation, classifying it as a crime of moderate severity and establishing the main punishment for its commission in the form of imprisonment for up to 4 years, provided for in Part 2 and Part 3, – grave, establishing punishment in in the form of imprisonment under part 2 – from 4 to 7 years, under part 3 – from 5 to 10 years.

In the light of the self-criminalization of collusion in auctions proposed in this article, it seems necessary to present a judgment on the sanction for committing this act. Criminal liability for collusion at auctions should differ due to the recognition of cartels as a threat to economic security precisely because of the danger of collusion at auctions, and therefore its implementation should be embodied in the imposition of more severe penalties. The proposal for tougher penalties should also be extended to collusion at auctions concluded by officials of government or local government, as well as with the participation of a contract service employee, a contract manager, a member of the procurement commission.

As noted earlier, collusion at auctions has elements of fraud - they are based on deception (abuse of trust) of the organizer of the auction (the customer of the auction, the owner of the property). As a result, when determining the type and amount of sanctions for collusion at auctions, it would be logical to focus on the analysis of sanctions imposed for qualified fraud committed in complicity, as well as by a person using official position. Thus, fraud committed by a group of persons by prior agreement is punishable by imprisonment for up to 5 years, and using official position – for up to 6 years. Since collusion at auctions is always an act committed by a group of persons by prior agreement, the punishment in the form of imprisonment cannot but amount to up to 5 years in prison, similar to the punishment for qualified fraud.

Collusion at auctions with the participation of persons acting on behalf of the organizer of the auction or the customer of the auction, holding positions in government or local government, as well as collusion with the participation of a contract service employee, a contract manager, a member of the procurement commission, can be equated to fraud committed by a person using official position. At the same time, in order to determine the type and amount of punishment for this type of conspiracy, it is necessary to take into account the qualifying sign contained in Part ² of Article 2004 of the Criminal Code of the Russian Federation that a group of persons committed a crime by prior conspiracy and punishment for violation of the Law on the Contract System committed in this form of complicity. This feature, although it involves the commission of a crime by two or more co-^executors who have the characteristics of a special entity described in Part 1 of Article 2004 of the Criminal Code of the Russian Federation, can serve as a guideline in what punishment the legislator considers fair for committing a crime encroaching on fair competition in collusion with persons with special official duties. Its commission is punishable by imprisonment for up to 7 years. Thus, in comparison with the cartel, which is a conspiracy of economic entities to restrict competition, punishable by imprisonment for up to 4 years, violation of the Law on the Contract System, including in the form of encroachment on the principle of ensuring competition in procurement, committed in complicity, is punished much more severely. Consequently, such a trend cannot be ignored when determining the punishment for collusion at auctions between officials and business entities, an employee of the contract service, a contract manager, a member of the procurement commission with business entities on restricting competition – it should be up to 7 years in prison.

In addition to the above analysis of individual existing sanctions, as well as proposals for the most severe sanction for collusion in the auction, it is also important to note the need to establish (increase) the lower and upper limit of the fine for all crimes under consideration, as well as to increase the importance of such punishment as deprivation of the right to hold certain positions or engage in certain activities, which should It would be established as the main type of punishment. If deprivation of liberty in relation to representatives of business entities causes discussion, then deprivation of the right to hold certain positions or engage in certain activities, although it is a much less severe punishment, will also contribute to the direct termination of the activities of a person in whose actions signs of a crime have been established. As noted in foreign literature ^{[8, pp. 106-124]}, changing the leadership of an organization is sometimes the only chance to stop the criminal activities of a leader who puts economic priorities above legal ones and allows violations of antimonopoly legislation both in his managerial activities and in the economic activities of the organization he heads. By the way, only if there are signs of the elements of crimes provided for in the current versions of Part 2 of Article 169, part 1 of Article 285, part 1 of Article 286 of the Criminal Code of the Russian Federation, deprivation of the right to hold certain positions or engage in certain activities is indicated as the main punishment (alternative).

The conducted study of the state of criminalization and differentiation of criminal liability for crimes restricting competition showed, firstly, the presence in the Criminal Code of the Russian Federation of a number of articles, the signs of which directly or indirectly reflect antitrust prohibitions, which also manifested itself in the analysis of signs of the elements of crimes provided for by them; secondly, it allowed to identify problems requiring the attention of the legislator. Due to the need to counteract these crimes as a threat to economic security, which have a negative impact on one of the economic foundations of the constitutional system of the Russian Federation - fair competition, it is necessary to reconsider the existing approach to criminalizing acts that restrict competition, in particular, by clarifying the signs of their objective side, expanding the grounds for criminal liability for anti-competitive agreements, differentiation of responsibility for their commission by clarifying qualifying and especially qualifying features, improving the sanctions mechanism.

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