The Organizational Structure of a Legitimate Company Cannot Be a Sign of a Criminal of a Criminal Organization

Abstract

The subject of the article was the negative tendency in recent years to use by law enforcers the high repressive potential enshrined in art. 35 and 210 of the Criminal Code of the Russian Federation (CC RF) on liability for the creation, leadership and participation in criminal communities for the purpose of criminal prosecution of owners and heads of legal companies that use the latter to commit crimes in economic field. More and more often, the law enforcer began to consider the organizational structure of a commercial organization, fixed in the charter and well-documented, as indisputable evidence of the presence of structural features of a criminal community (criminal organization). Until recently, such an interpretation of the criminal law was not hindered by either the criminal law or the position of the highest court in criminal matters. An attempt to solve this problem by the Federal Law of April 1, 2020 No. 73-ФЗ initiated by the President of the country, according to the author, is a “half measure”. This novelty also raises new problems for the law enforcer in interpreting such valuation concepts as “reliable knowledge” and “are not subject to criminal liability ... due to the organizational and staff structure of the organization”. In this regard, the legislator will be forced to continue the search for new, more effective and reliable barriers for the incorrect application of Article 210 of the Criminal Code of the Russian Federation. The author proposes to the expert community a number of specific legal and technical solutions to the problem of the unreasonably widespread application of art. 210 of the CC RF, including: using judicial control over the conformity of the legal entity with the goals of its creation and removing unreasonable restrictions when deciding whether there is a reason for initiating a criminal case under art. 210 CC RF in relation to owners, beneficiaries and heads of organizations, if the latter is charged with creating a legal entity for the purpose of committing a grave or especially grave crime; legislative limitation of the range of grave and especially grave crimes for the commission of which a criminal community (criminal organization) can be created; consolidation in the criminal law of the concept of creating a criminal community (criminal organization) in the form of a legal entity that does not belong to the state and municipal sectors, on the basis of the exceptional character of the criminal purpose of creating such a person.