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6ORGANIZED CRIME AS A FORM OF CRIME SELF-DETERMINATION
The article examines the impact of organized crime on the criminalization of modern Russian society - the so-called self-determination of crime. To effectively prevent crime self-determination, it is necessary to study all its forms and mechanisms in a comprehensive manner, and special emphasis should be placed on organized crime due to its increased public danger. The proposed approach allows deeper and more precise investigation of the self-determination of organized crime and related phenomena. Recently there has been a transformation of Russian organized crime into economic crime, and this explains the deep criminalization of the Russian economy. The article also discusses another form of self-determination of crime, closely related to organized crime - corruption. The Russian experience of preventing organized crime results in the need to develop a comprehensive strategy in this area. The results of the conducted research can be applied in the educational process when studying the course of criminology in higher educational institutions. Mission: To consider organized crime as a global problem of the modern world, as well as a mechanism for its self-determination. Methodology: analysis, synthesis, induction, deduction, formal legal method, statistical method. Results. Effective measures to counteract organized crime and corruption, in addition to the available ones, will be the following: toughening criminal prosecution for crimes committed as part of a criminal group (criminal community), for taking bribes; it is necessary to exclude the possibility of conditional sentencing to corrupt officials, as well as house arrest as a preventive measure; development of programs to encourage members of the public to counter organized crime and corruption; increase in the professionalism of law enforcement officers; the formation of a negative attitude towards organized crime and corruption in society. Moreover, in order to prevent transnational organized crime, states need to effectively implement the UN Convention against Transnational Organized Crime in Palermo in 2000, the UN Convention Against Corruption 2003, etc. Undoubtedly, these Conventions are the legal basis which is necessary not only for developing and implementing more effective interstate measures, but for improving international cooperation to counter crime throughout the world. Scientific and practical significance. The significance of the study consists in determining the nature of organized crime as a global problem, considering the mechanism of self-determination of organized crime and the interaction of organized crime and corruption crime, as well as developing recommendations on countering organized crime.
Keywords
crime, corruption, organized crime, transnational crime, criminal community, criminalization of Russian society, self-determination of crime, forms of self-determination of crime, crime prevention, criminology
AUTHORS
Elena V. Bochkareva
postgraduate student of the department of criminology and criminal-executive law Moscow State University of. O.E. Kutafin (MSAL) 9, Sadovaya-Kudrinskaya street, Moscow, 125993 Russia E-mail: [email protected]
1. Introduction
Organization is a special qualitative state of crime. Organized crime should be regarded as a specific social subsystem, which, like any other, interacts with other social phenomena and structures while developing. In the case of organized crime, this
interaction has criminalizing nature. Organized crime integrates various types of crimes into its system.
The relevance of the research topic is due to its focus on determining the conceptual framework for ensuring consistency in criminological assessment and social and legal practice of preventing organized crime, the need to develop recommendations for improving the system of interaction between government and management, law enforcement agencies, various institutions of civil society in this area of social and legal control .
The subject area of criminological systems analysis of criminal activity is based on the theoretical and methodological platform for the scientific analysis of the theory of social systems, the foundation of which was laid by A.I. Dolgova, V.N. Kudryavtsev, V.E. Eminov and others.
2. Materials and methods
The purpose of the study is to obtain new criminological knowledge about the manifestations of organized crime through the use of a systematic approach to its study, to develop on this basis a set of optimal measures to prevent organized criminal activity, as well as to determine the mechanism of self-determination of organized crime.
The achievement of this goal is aimed at solving the following interrelated tasks:
- analysis of theoretical data on organized crime, as well as its forms and its self-determination;
- identification and analysis of complex criminological indicators of organized crime as a systemic socio-legal phenomenon and object of criminological research;
- analysis of the modern system of scientific support for the study of organized crime, its determination and self-determination, social and legal implications and prevention practices;
- analysis of the relationship of organized crime and other manifestations of modern Russian crime;
- identification and analysis of the aggregate of criminogenic factors of organized criminal activity, criminogenic sources of formation and development of individual forms of participation in organized criminal activity;
- analysis of the modern system of prevention of organized crime;
- identification of prospects for interaction and coordination of the activities of international actors in the prevention of organized crime;
- development of proposals and recommendations aimed at improving the system of criminological study of organized crime, as well as a system for its prevention.
The methodological and methodological basis of the study consists of theoretical and methodological statements on the nature of crime, its patterns and trends, the system of criminological determination, self-determination and prevention.
The author used the following methods: analysis, synthesis, induction, deduction, formal legal method, statistical method.
3. Results
Criminologists consider organized crime as a complex social phenomenon. It is so closely intertwined with other social institutions and processes, it has grown so deeply in the public issues that it can hardly be pulled out of it for study.
As Professor A.I. Dolgova points out, "organized crime is a complex system of organized criminal groups, their relationships and activities."
According to E.V. Topilskaya, "organized crime is a system that results from the actions of criminogenic and victimogenic determinants of manifestations of deviant
behavior of society members as a form of crime. These manifestations are intentional in nature and are expressed in the creation of antisocial associations for the extraction of illegal profits and in long-term, unlimited participation in the activities of such associations, provided that the achievement of the activity purpose is provided by the apparatus of coercion, and the safety of activities - by contacts with representatives of authorities and government having antisocial background."
From our perspective, the most comprehensive concept of organized crime is given by I.V. Godunov, considering it as "a negative social phenomenon, emerging from organized criminal activities of a permanent nature, in the form of committing a multitude of crimes on a criminal and professional basis for the purposes of criminal enrichment by individuals united in stable highly organized, conspiratorial, criminal groups operating independently or as part of an even more complex hierarchy at the regional, state or international level."
The statistics showed that in the last five years the number of grave and gravest crimes committed by organized groups or criminal communities as a whole decreased by 22.3%, but it should be noted that in 2017, compared to 2016, the number of such crimes has increased by 6,5%. Organized groups or criminal communities committed 12.1 thousand grave and gravest crimes in 2016, comparing to this figure in 2017 which was 12.9 thousand. It should be highlighted that organized crime has a high level of latency, which makes it difficult to identify and prevent such crimes.
Within organized crimes, the majority of them are economic crimes and crimes related to illicit traffic in narcotic drugs.
Considering organized crime as one of the forms of crime self-determination, it should be noted that once organized criminal community generates a number of different criminal acts. For example, if a criminal community is engaged in illegal business, in the course of this activity, forfeits of documents, bribery of officials, tax evasion, etc. become inevitable. Organized crime in our country has generated a wave of selfish and violent crimes by individuals "serving" the higher echelons of organized criminal communities. Organized crime is becoming one of the main factors of political and socio-economic instability in the Russian Federation. This was repeatedly pointed out in the addresses and speeches of the President of the Russian Federation, the leaders of the Government and the Parliament of Russia, in the documents of the leading state bodies.
Losses from organized crime in the form of illegal profits, unpaid taxes, the destruction of legal business, as well as corruption in politics and economy, far exceed losses suffered by society from street crime.
Another form of crime self-determination - corruption - is closely connected with organized crime. Organized criminal groups are the main corruptor, they act as the customer of actions of the bribed party. At the same time, opposite correlation also exists when corrupt officials contribute to the preservation and development of criminal structures, helping them, for example, to evade taxes, illegally acquire property, etc.
Bribery entails:
1) "white-collar" crimes of corrupt employees in the illegal disposal of state or municipal budgetary funds, federal or municipal property, etc.;
2) crimes committed under corrupt patronage, such as "laundering" of money obtained illegally, etc.;
3) the escalation of organized crime, expressed in unfair competition, "corporate raiding", "protection racket";
4) criminalization of the law enforcement system, which entails the commission of such crimes as false arrest, detention or custody (Article 301 of the Criminal Code of the Russian Federation), illegal liberation from criminal responsibility (Article 300 of the Criminal Code), etc.
The difficulty of detecting corruption is undeniable due to the fact that status of officials creates a significant obstacle in identifying and detecting such crimes. Thus, a closed system of corruption links is formed in practically all spheres of society, which increases the scale of the latency of corruption crimes. It should be noted that corruption itself is a factor in the growth of latency in many other types of crime, which indicates its self-determination.
It is necessary to focus on corruption in the law enforcement and judicial systems, self-determination of which can lead to disorganization of law enforcement agencies, which will have a negative impact on public relations in general. At the same time, the high latency of corruption in the law enforcement and judicial systems often leads to impunity, in which one of the main mechanisms of crime self-determination is expressed.
Recently there has been a transformation of domestic organized crime into economic crime, and this explains the deep criminalization of the Russian economy. Such penetration of criminality into the economy explains the following difference between Russian organized crime and foreign ones: "While the economic basis of organized crime is 70-80% of the criminal business (drug business, illegal arms trade, piracy, contract killings, etc.) in the West, Russia has legal or semi-legal types of financial and economic activities as most profitable." While the West has a direct self-determination of organized economic crime, Russia's process of such self-determination is of an indirect nature: organized crime has the opportunity to engage in legal business, and then, for example, the income from this type of activity will be hidden.
It is necessary to distinguish three directions of the negative impact of organized crime on the economy:
1) investment of funds received illegally in a "legal" economy;
2) illegal property takeover. The practice of business "protection racket" is gradually being replaced with deprivation of property from the legitimate owner by the leaders of organized criminal structures;
3) gaining control over property resources as a result of entering political power institutions.
Self-determination is expressed not only by the influence of organized crime on the economic sphere, but also by the presence of the reverse process. One can observe the process of vertical disintegration of organized criminal groups: "As leaders of economically successful organized criminal groups developed relations with legitimate authorities and integrated into legal business, middle and lower-level members of groups became unnecessary. Many of them have now joined the ranks of ordinary, unorganized crime." Even if a business structure with a criminal past completely refuses to commit crimes, the mere fact of its entry into a "legal" economic life may, to some extent, demoralize society, contribute to anomie and be one of the independent factors of self-determination of crime.
The mechanism of organized crime self-determination manifests itself in its connection with violent crimes. In this regard, we can distinguish two branches:
1) the commission of violent crimes by organized criminal groups in order to eliminate competitors in the criminal world and criminal business;
2) the participation of organized criminal groups in the commission of contract killings, abductions of people for the purpose of using slave labor, organ transplantation, etc.
The main goal of an organized criminal group is to get the maximum profit from criminal activity. At the same time, all parties of this "activity" are a professional necessity. And everything that becomes an obstacle to gaining superprofits or creates a threat of their loss, or the existence of the criminal group, according to the logic of any organization functioning, is subject to elimination. The elimination function in this case
is also a professional necessity, like any other. Murders, as a means of eliminating the danger for an organized criminal system, are transformed into professional work.
The steady ability of organized crime to self-reproduction (self-determination) is due to its following features:
1) the merging of the general criminal and economic component;
2) the existence of a "common fund" and a continuous process of legalizing money obtained by criminal means;
3) corrupt relations;
4) entering the political sphere;
5) the existence of international criminal relations;
6) the systematic nature of criminal activity associated with the existence of a special structure, interchangeability, distribution of roles and the presence of specific functions in the mechanism of criminal activity.
This allows to commit crimes with the least dependence on the role of the individual, since the most important factor in the system is a function that is performed by one or more members of the group. And if such members of the group turn out to be excluded from the mechanism of criminal activity for various reasons, for example, in case of criminal prosecution or death, they are immediately replaced. Thus, stability and continuity of the system functioning is ensured. Organized crime is a classic example of successful functioning of such qualities of the system as self-development and self-reproduction.
One of the forms of organized crime is the creation of a criminal cartel (article 178 of the Criminal Code of the Russian Federation) - an association of, as a rule, several firms of the same industry, which enter into an agreement relating to various aspects of a company's commercial activities in order to restrict competition.
The cartel is characterized by the following features:
1) the contractual nature of the association (collusion of a group of producers for the purpose of completely or partially eliminating competition between them and obtaining monopoly profits);
2) the preservation of the right of ownership of the cartel participants to their enterprises and the economic, financial and legal independence that this ensures;
3) the merger of a number of companies, usually one industry;
4) joint activities for the sale of products, which may extend to a certain extent to its production;
5) the presence of a system of coercion, including the identification of violations and sanctions against violators.
For the restriction of competition provides for administrative and criminal liability. As part of the study, a cartel was considered, whose activities fall under Article 178 of the Criminal Code of the Russian Federation (Restriction of Competition), the so-called criminal cartel.
4. Discussions
It seems that there is no need to separate cartel collusion into a separate form of self-determination of crime, since the mechanism is similar for carrying out criminal activity in cartel collusion and organized crime.
Counteracting the crime self-determination can be ensured only in the process of identifying and eliminating its factors, the causes and conditions that contribute to it. Within law enforcement activities, it is about counteracting latent and undisclosed crime, preparing and implementing criminal activity, concealing evident, using the results of crimes as factors in of crime self-determination.
5. Conclusion
The Russian experience of counteracting organized crime points to the need of developing a comprehensive strategy in this sphere, a competent combination of operational search, organizational tactical and investigatory actions, clear interaction between law enforcement agencies, prosecutors, courts, etc.
Particular attention should be given to the media. The media, and especially television, often cultivate a criminal ideology especially among young people. At the same time, on the one hand, the fear of crime is fueled: daily dozens of broadcasts tell viewers about various types of crimes, showing the cadres of the criminal chronicle; meanwhile journalists, willing to make the plot brighter, embellish details of the commission of gravest crimes (for example, murders, rapes), often passing ethical standards. On the other hand, the same level of harm is caused by media by popularizing and romanticizing the criminal way of life, as a result, the idea that the thieves' "concepts" are simpler and more understandable, and the thieves' world is cruel, but just, is created. In this regard, the mass media need to take into account these shortcomings and adjust their activities towards the formation of anti-criminal social attitudes in society.
From our perspective, effective measures to counteract organized crime and corruption, in addition to the available ones, will be the following:
1) toughening criminal prosecution for crimes committed as part of a criminal group (criminal community), for taking bribes;
2) it is necessary to exclude the possibility of conditional sentencing to corrupt officials, as well as house arrest as a preventive measure;
3) development of programs to encourage members of the public to counter organized crime and corruption;
4) increase in the professionalism of law enforcement officers;
5) the formation of a negative attitude towards organized crime and corruption in society.
Moreover, in order to prevent transnational organized crime, states need to
effectively implement the UN Convention against Transnational Organized Crime in Palermo in 2000, the UN Convention Against Corruption 2003, etc. Undoubtedly, these Conventions are the legal basis which is necessary not only for developing and implementing more effective interstate measures, but for improving international cooperation to counter crime throughout the world.
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THE RECOVERY OF TAX LOSS CAUSED BY THE INACCURACY OF THE REPRESENTATIONS ABOUT THE CIRCUMSTANCES
Since June 1, 2015, the institution of assurances (article 431.2 of the Civil Code) appeared in Russian civ'l law, which in fact is an analogue of the English Institute of warranties. Initially, English law actively applied the institution of assurance to m&a transactions (the seller transferring shares made the buyer know what is transferred to him - the cost of the share, the presence of encumbrances, their profitability, etc.). This institution has become actively integrated by business participants in the contract law in the form of separate tax representations.
Keywords
warranties, tax losses
AUTHORS
Yana S. Butakova
senior lawyer of the Russian division of Jungheinrich 3/5, Polkovaya Street, Moscow, 127018, Russia.
E-mail: [email protected]
1. Introduction
The relevance of this topic is determined by the positive impact of the Institute of assurances about the circumstances on the business process in general and the good faith of the parties to contractual relations in particular, which allows to insure the tax risks of counterparties and not to bear an unreasonable tax burden.
