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Бизнес в законе.
Экономико-юридический журнал
6'2016
17. ПРЕСТУПЛЕНИЯ В СФЕРЕ ЭКОНОМИЧЕСКОЙ ДЕЯТЕЛЬНОСТИ
17.1. ENCROACHMENTS ON THE ESTABLISHED ORDER FOR FOREIGN ECONOMIC ACTIVITY
Aghayev Isfandiyar, Prof., Dr., Criminal law department Work place: Baku State University
Annotation: Crimes encroaching on the established order for foreign economic activity enters the system of crimes against economic activities. Provisions of penal norms preventing these crimes intend for the protection of legitimate business activities, the State monopoly on the commodity-money system, rights of consumers of commodities and services, customs and tax relations established in the Russian Federation. Typical objects of crimes provided by this chapter are the interests, which occur in the sphere of economic activities, i.e. in the production, distribution, exchange and consumption of commodities and services. Specific interests related to a certain sphere of economy and economic relationship may serve as direct object.
Keywords: Foreign economic activity, customs territory, smuggling, importation, export, cash funds, traveler's checks, alcoholic beverages, tobacco products, weapons of mass destruction, military hardware, cultural property.
ПОСЯГАТЕЛЬСТВА НА УСТАНОВЛЕННЫЙ ПОРЯДОК ВНЕШНЕЭКОНОМИЧЕСКОЙ ДЕЯТЕЛЬНОСТИ
Агаев Исфандияр, Проф., Др., кафедра уголовного права
Место работы: Бакинский Государственный Университет
Аннотация: Преступления, посягающие на установленный порядок внешнеэкономической деятельности входят в систему преступлений в сфере экономической деятельности. Положения уголовно-правовых норм, предупреждающих эти преступления, направлены на защиту законной предпринимательской деятельности, охрану естественной государственной монополии на товарно-денежную систему, права потребителей товаров и услуг, защиту таможенных и налоговых отношений, установленных в Российской Федерации. Видовым объектом рассматриваемых преступлений являются интересы, возникающие в сфере экономической деятельности - производства, распределения, обмена и потребления материальных благ и услуг. Непосредственным объектом могут выступать конкретные интересы, связанные с определенной сферой экономики, конкретным экономическим отношением.
Ключевые слова: Внешнеэкономическая деятельность, таможенная территория, контрабанда, ввоз, вывоз, наличные денежные средства, дорожные чеки, алко-
гольная продукция, табачные изделия, оружия массового поражения, военная техника, культурные ценности.
Criminal liability for the crimes against the established order for foreign economic activity is provided by Chapter 22 of the Criminal Code concentrated norms on criminal liability for crimes in the sphere of economic activities. Taking into account the radical changes of economic relations, substantial expansion of business opportunities and form of ownership in the transition to a market economy, this chapter has undergone major changes. Objective aspects of the majority of crimes against economic activities involves their commitment by actions, for example, compulsion to perform transactions or to refuse to perform it. Some of the crimes may be committed by inaction, for example, malicious evasion of the repayment of payables. Subjective aspects imply an intentional form of guilt, or may have two forms of guilt. Committers of the crimes against economic activities may be sane individuals, who have reached the age of sixteen. Some crimes have the signs of a special crime committer: an official (for example, registration of illegal land transactions).
Smuggling of cash and (or) monetary instruments (art.2001 of the Criminal Code). The direct object of this crime involves the established order for movement of cash funds and monetary instruments across the customs border of the Customs Union.
According to article 2 of the Customs Code of the Customs Union, the Uniform Customs Territory of the Customs Union constitute the territories of the Russian Federation, the Republic of Belarus, the Republic of Kazakhstan, as well as artificial islands, constructions and other objects, which are under the exclusive jurisdiction of State-Members of the Customs Union.
The order for movement of cash funds and monetary instruments across the customs border of the Customs Union is determined by the Treaty on the procedure of movement by individuals of cash funds and (or) monetary instruments across the customs border of the Customs Union adopted by the Decision of InterState Council of EurAsEC of July 5, 2010, No.51.
Article 4 of this Contract defines that cash funds shall be understood as banknotes, treasury notes, coins (except for coins of precious metals), which are in the circulation and represent lawful means for payment in the territories of State-Members of the Customs Union or foreign states, including those ones, which are withdrawn from circulation, but are convertible into the effective bank notes. Monetary instruments involve traveler's checks, bills, bank checks, as well as securities in certificated form evidencing an issuer's obligation to make payments (without pointing a person, to whom such a payment is made).
Importation and exportation of cash funds and (or) traveler's checks by an individual to the customs territory of the Customs Union shall be carried out without restrictions in the following order:
- in case of simultaneous importation and exportation of cash funds and (or) traveler's checks for the total not exceeding ten thousand US dollars, these cash funds and (or) traveler's checks shall not be subject to customs declaration in writing;
- in case of simultaneous importation and exportation of cash funds and (or) traveler's checks for the total exceeding ten thousand US dollars, these cash funds and (or) traveler's checks shall be subject to customs declaration
Aghayev I.
ENCROACHMENTS ON THE ESTABLISHED ORDER FOR FOREIGN ECONOMIC ACTIVITY
in writing through filing the passenger customs declaration for all the amount of the transferred cash funds and (or) traveler's checks.
The obligatory feature of this corpus delicti is a large scale of the transferred cash money and monetary instruments. In accordance with note 1 to art.2001 of the Criminal Code, the act shall be deemed to be committed on a large scale, if the amount of illegally moved cash funds and (or) the cost of illegally transferred monetary instruments exceeds double of the amount of cash funds and (or) the cost of traveler's checks, allowed by the customs legislation of the Customs Union within the EurAsEC to conveyance without the written declaration.
When calculating the amount of illegally moved cash funds and (or) the cost of illegally transferred monetary instruments from the whole amount (cost) of illegally moved cash funds (monetary instruments), the part, which is allowed by the customs legislation of the Customs Union within EurAsEC to conveyance without declaration or which has already been declared, shall make an exception.
The objective aspect of the considered crime is expressed in action and involves illegal movement of the specified subjects across the customs border.
The subjective aspect involves the direct intention. Crime committer is a sane individual, who has reached the age of sixteen.
Part 2, article 2001 of the Criminal Code provides criminal liability for the same acts, committed:
- on an especially large scale, i.e. in the amount of illegal moved cash funds and (or) the cost of illegally transferred monetary instruments exceeding fivehold of the amount (cost) of cash funds (traveler's checks), allowed by the customs legislation of the Customs Union within the EurAsEC to conveyance without the written declaration.
- by a group of persons.
Note 4 to the considered article provides a particular case of exemption from criminal liability in case of voluntary giving out the transferred money or monetary instruments before applying measures of customs control or detection of the specified subjects in investigative actions.
By the Federal Law of December 31, 2014, No.530-FZ, article 2002, entitled "Smuggling of alcoholic and (or) tobacco products", is included into the Criminal Code of the Russian Federation. An obligatory feature of this act involves its commitment on a large scale, i.e. in the amount of two hundred and fifty thousand rubles. Commitment of the same act by a group of persons upon prior conspiracy and by a person abusing his/her official position are features of the qualified corpus delicti (p.2, art.2002 of the Criminal Code), while its carrying out by an organized group is covered by especially qualified corpus delicti (p.3, art.2002 of the Criminal Code).
Illegal export from the Russian Federation or transfer of raw stocks, materials, equipment, technologies, scientific and technical information, or illegal performance of works (rendering services), which may be used for the development of weapons of mass destruction, armaments or military hardware (art.189 of the Criminal Code).
Object of the crime involves the law-protected interests in the sphere of carrying out technology export, scientific and technical information, services, raw stocks, materials and equipment, which can be used for developing weapons of mass destruction, armaments or military hardware. Subject-matter includes raw stocks, materials, equipment, technologies, scientific and technical information, which obviously for the person may be used for the development of weapons and military equipment, and concerning which the export control is established. The subject-matter of this crime partially coincides with the subject-matter of the crime under
art.188 of the Criminal Code. Therefore, the legislator stipulates that qualification shall be carried out under art.189 of the Criminal Code in the absence of signs of the crimes provided by articles 188 and 275 of the Criminal Code.
In accordance with the Federal Law of July 18, 1999, No.183-FZ "On Export Control", in the Russian Federation there is a set of measures (export control), providing realization of the law-provided procedure for foreign economic activities concerning commodities, information, works, services, results of intellectual activity, which can be used for developing weapons of mass destruction, means of its delivery, other types of armaments and military hardware, or for preparations and committing acts of terrorism.
Objective aspect of the crime is expressed in the following illegal actions effecting a foreign organization or its representative:
- export or transfer of commodities, information and technologies;
- carrying out works or rendering services.
According to the Federal Law of December 8, 2003, No.164-FZ "On Bases of the State Regulation of the Foreign Trade Activity", export means the taking out of commodities from the customs territory of the Russian Federation without duty on the return thereof.
Transfer of raw stocks, materials, equipment, technologies, scientific and technical information shall be understood any actions, as a result of which the foreign organization or its representatives become owners of these subjects. Unlike export, transfer of the specified subjects is carried out in the territory of the Russian Federation. Performance of work for a foreign organization or its representative involves doing any works, which may be used for the development of armaments or military equipment, mass destruction weapons, means of delivery thereof (for example, re-equipment of the object intended for production of military hardware).
The crime shall be considered to be completed from the moment of actual moving the specified subjects across the customs border of the Russian Federation or transfer thereof, or from the moment of performing at least the part of works or rendering services.
From the subjective aspect the crime is characterized by direct intention. Crime committer is a person authorized to carry out foreign economic activity. The concept of such a person is defined in note to art.189 of the Criminal Code as follows: "A person empowered to exercise foreign economic activity shall mean in this article the head of a legal entity established in compliance with the laws of the Russian Federation and having a permanent location in the territory of the Russian Federation, as well as an individual, who has a permanent residence in the territory of the Russian Federation and is registered in the territory of the Russian Federation as an individual businessman".
The qualified type of this crime involves the commitment of the act repeatedly or by a group of persons upon prior conspiracy.
Commission of the act by an organized group in respect of raw stuffs, materials, equipment, technology, scientific and technical information, and works (services), which are known to a person, empowered to exercise foreign economic activity, as those that can be used in the development of mass destruction weapons or means of delivery thereof and in respect of which export control has been established.
Not-return to the territory of the Russian Federation of cultural property (art.190 of the Criminal Code). Object of the crime is the established order for export from the Russian Federation and return to its territory of items of the artistic, historical and archaeo-
Бизнес в законе.
Экономико-юридический журнал
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logical heritage of the peoples of the Russian Federation or of foreign countries.
For preservation of cultural heritage of the peoples of the Russian Federation and foreign countries, the current legislation provides a special order for exportation and importation of cultural values, irrespective of their ownership form.
Cultural values include movable subjects of material world, which are in the territory of the Russian Federation, namely they are:
- created by citizens of the Russian Federation or foreign citizens and stateless persons living there;
- essential for the Russian Federation;
- found in the territory of the Russian Federation;
- acquired by archaeological, ethnological and natural-science expeditions or received as a result of voluntary exchanges;
- received as a donation or lawfully acquired with the consent of the competent authorities of the country, whence these values derive.
Export of cultural property means the movement by any person
for any purposes through customs border of the Russian Federation of cultural values, which are in the territory of the Russian Federation, without obligation of their return. Temporary export is characterized by the obligation of returning the cultural property within the specified period. The purpose of temporary exportation may be different: organization of exhibitions, restoration works, etc. Temporary export of cultural property can be carried out both by individuals and legal entities1.
Objective aspect of the crime includes deed (action, mostly inaction) connected with not-return in time into the country of cultural property. Crime shall be deemed to be completed after non-returning the mentioned subject-matters after the fixed term and in defiance of the agreement.
The subjective aspect includes direct intention. The crime com-mitter, alongside general features, has special features, i.e. a person, who is obliged (upon agreement) to return a cultural property in the country in the fixed term.
1 Criminal law. General and Special parts (in Russian) // Under the editorship of professor Vladimir Kashepov. Textbook. Moscow, 2001, p.354.
