The use of official position in conjunction with the abuse of authority are controlled by the Criminal Code of the Russian Federation. Scholars of jurisprudence refers to such legal expressions ambiguously. There is no single interpretation of the phenomenon by judicial practitioners. Brief of the Criminal Code. Indeed, in article 201 there is no definition and concept of the use of official position, the text is devoted to abuse, where it is emphasized that officials should not act in violation of the interests of the enterprise in which they had to work, as well as harm other citizens. Convicts under this article are punished with heavy fines and even imprisoned.
Close connection
No matter how many issues related to the activities of high-ranking officials who commit misconduct aimed at infringing on someone’s civil rights and freedoms, the types of criminal acts of high-ranking officials often overlap in judicial practice. Jurisprudence has divided unlawful actions into types when officials:
- abuse their position;
- exceed powers, performing duties;
- the act qualifies as the use of official position.
The complexity of the interpretation lies in the large variation of different cases in practice, which are difficult to reason and bring under jurisdiction the correct article. If, with abuse and abuse of authority, there are a number of legislative acts in the Criminal Code - 286, 285, 201, then the use of official position is implied, as it has a fine line with every illegal activity.
In each case, there are legal elements:
- subject;
- object;
- parties subjective and objective.
To qualify and criminalize an action, a proven fact of selfish intent is needed.
Characteristics
The use by officials of their official position is considered on the part of actions and inactions, taking into account their competence and responsibilities.
A broader interpretation reveals the concept of how the process is performed:
- Within the scope of official authority.
- Not related to work, but influenced by authority and connections.
- Beyond job responsibilities.
The last 3 paragraph, characterizing the use by a person of his official position, means that during the implementation of measures the authority established by the standards and job descriptions for a particular person was exceeded.
An example is the actions of the hostel’s commandant, when he, without authority, suddenly enters the tenants room and starts:
- search the premises;
- inspect things;
- seize property.
In this case, there is a fact of illegal use of official position with the absence of the commandant’s right to do so.
Legislative definition
There is another position of jurists who do not consider the execution of specific actions by officials as criminal, even if their powers are exceeded. The fact is that this is the prerogative of criminal laws. Similar provisions cannot be applied even in an expansive interpretation of the phenomenon. Prohibition measures are determined by the principle of legality of the Criminal Code of the Russian Federation in part 2 of article 3.
We should not exclude the past experience of judicial practice, when the USSR Supreme Court at the Plenum in 1990 clarified the concepts. If legal elements are separated - abuse from excesses of fiction by the authorities, their distinguishing features should be taken into account in court:
- the first case is the illegal use of rights and authorities by officials, neglect of official interests;
- when official position is used in personal or any illegal intentions, acts are performed that are not within the competence of the official or may occur, but under other circumstances approved by laws, by-laws.
It also provides for events that no one, regardless of circumstances, is given the right to commit.
In criminal law there are no separate standards with liability for persons exceeding their authority in the performance of duties or during managerial functions, as these are special cases. The absence of special legislative norms allows to prosecute for misconduct in this area according to the standards provided for in the general character under article 201 of the Criminal Code of the Russian Federation.
Type of crime
The Criminal Code of the Russian Federation dedicated its article 159 in part 3 to liability for a criminal act with special qualifications on the grounds of fraud using official position. As a result of such unlawful acts, the withdrawal of monetary or material assets by fraudulent means by one person in favor of another. In the courts, evidence is accepted on the facts of the receipt of benefits by persons because of the presence of
- official status, which belong to the representatives of the authorities, in the performance of their duties in a state or municipal institution, organization, power, military formation;
- work in a state or municipal institution;
- leadership position on the board of directors of a non-state enterprise or in the performance of organizational and administrative, administrative, and economic functions.
Actors and Performers
Committing fraud using your official position may:
- simple employee;
- head of a large concern;
- private enterprise worker.
Analysts have taken into account many such crimes. For example, the head of a commercial enterprise prepares a loan, pays real estate to the company as a pledge, but he himself does not think of returning money to the bank. Or the construction team leader receives a salary for the entire group under a contract and powers of attorney. He assures that workers should not interrupt production processes to visit the cash register, and he disappears, not paying off workers. Cases show the fact of using one's official position for the purposes of one's own criminal gain.
What does a measure of responsibility depend on?
Misconduct is committed by one performer or criminal conspiracy of several participants. If only one person involved has an official position that he has used, only he will be convicted under Article 159, the norm will be applied to the others in accordance with the gravity of the actions committed. It is considered the use of the official position of the Criminal Code of the Russian Federation with large thefts since the damage inflicted in the amount of 250,000 rubles.
If several cases are included in the fraud case, they will be combined provided:
- one method is used;
- there is a single intention;
- the qualification of a major theft will be determined with an amount exceeding 250,000 rubles.
Sanctions
For such violations are punished:
- penalties from 100,000 to 500,000 rubles;
- deduction from salary, other income for a year or 3 years;
- forced labor with imprisonment for 2 years;
- a fine of 80,000 rubles with a correctional institution up to 6 years;
- imprisonment for up to 1.5 years with monetary sanctions in the amount of six-month earnings.
The legislator has seriously begun to amend these laws and develop new bills to prevent fraudulent activities where the use of the official position of the Criminal Code is present.
Aggravating circumstance
Any corpus delicti should be understood as mandatory objective and subjective attributes. The combination of these elements allows us to determine one of the types of crime according to the Criminal Code of the Russian Federation or to qualify it. When they indicate that an unlawful act was committed using a position, this is an aggravating circumstance and a sign that is part of the crime.
Without objective and objective signs in the actions of an official, it is impossible to bring him to justice. If an official endowed with authority, improperly performs his duties, his work involves the use of his official position for personal purposes - all these criteria are from law enforcement acts.
What action is attributed to violations?
When the manager uses his power, orders the staff to carry out production activities that prevent harmful consequences and other actions could not be applied - this is not a crime, but an extreme necessity.
Legislation states that misuse of a guideline is expressed in various forms:
- financial discipline is violated;
- targeted funds are used for other purposes;
- falsified data are provided to audit, fiscal authorities;
- released or sold commodity and material values ​​at a reduced price;
- low-cost premises, equipment, vehicles, property;
- contracts are concluded under unfavorable conditions that worsen the financial position of the organization;
- hiding theft and shortages;
- without reason transfer property to individuals or legal entities;
- profit from the property of others;
- for personal purposes they use labor, vehicles, mechanisms, real estate without paying;
- do not reimburse the cost for work performed, services.
The Criminal Code of the Russian Federation provides for liability if the heads of enterprises, high-ranking officials used their position for personal gain or other personal interests.
Criminal composition
Unlawful use by an official of the power that is prescribed to him by law, by appointment or election for his own benefit is a crime. The Criminal Code of the Russian Federation from Articles 201-204 shows that the illegal intentions of employees of enterprises of different status are subject to these legal acts.
Different structures abuse, exceed powers, make various commercial bribes, therefore they are under the strict control of the legislative and executive authorities. Service interests are not interpreted within one agency. They should be combined, but not in opposition to state interests.
Resident Complaint
We give an example from life. A resident of the city K. came to the legal advice department for help. She had a dispute with a girl serving in the Ministry of Internal Affairs. Having decided to take advantage of her official position and access to some bases, she found data on all members of her opponent’s family by phone number. This was not enough. She began to threaten the disclosure of personal correspondence and confidential data.
Lawyer answer
The Moscow lawyer answered her what signs of a crime from the actions of a policeman who used his official position, he found:
- illegal collection of information about a private person - Art. 137 h. 2;
- privacy of personal correspondence is violated - Art. 138 h. 2;
- unlawful interference with computer information was committed, provided that there was a hacking of servers and data copying - Art. 272 part 3;
- an official uses his authority to the detriment of official interests, if there is a vested or personal interest - Art. 285 h. 1.
The actions of a policeman are clearly criminal, but only a court can determine guilt. The listed articles indicate a moderate crime with a maximum sentence of up to 4 years in prison. To implement their plans in stopping infringement of privacy, blackmail, you need to contact the CSS at the place of residence with a statement. The prosecutor's office can initiate proceedings on the complaint.
Recommendations of the entrepreneur
When an enterprise is created, the manager accepts it as a tool to achieve production goals. Everybody thinks how bad it is when they use a leadership position to get some benefits. The position that is provided to the director of the company is a kind of tool similar to equipment, a computer. It would never occur to anyone that working with them is criminal.
It is not permissible to use a rank to:
- make people act to the detriment of their own interests;
- forcibly harass.
Achieving your goals is always good when actions take place without interference to others. Books, instructions, and development of technological processes using someone else's best practices will be useful, if the published one does not affect trade secrets, does not discredit the reputation of the company.
To achieve positive results, increase productivity is not forbidden to anyone by legal means, without violence - moral and material.