Criminal Restriction of Competition (Part 1 of Art. 178 of the Criminal Code of the Russian Federation): Objective Aspects
The paper researches all elements of the objective aspect of restricting competition. The interpretation of these elements presents some difficulties caused by the changes in the disposition of part 1, Art. 178 of the CC of the RF, its blanket character and the complexity of the antimonopoly legislation that was updated by the «fourth anti-monopoly package». The authors research all elements of a cartel agreement - the agreement, its sides and consequences to which it leads or might lead - to distinguish the unlawful restriction of competition from those illegal agreements that do not fall into the category of cartel agreements or from the coordinated activities of businesses that superficially resemble a cartel. These consequences (the authors call them consequences - elements of the cartel itself to differentiate them from the consequences of crime described in part 1 Art. 178 of the CC) and the description of the parties in a cartel make it possible to recognize it among other unlawful agreements. The authors conclude that amendments to part 1, Art. 178 of the CC and notes to this Article resulted in a considerable de-criminalization of restricting competition, while antimonopoly legislation novels lead to its partial criminalization. Taking into consideration the legislative recognition of cartels as agreements that unavoidably lead to restricting competition and are, thus, definitely prohibited (per se), the authors analyze the reasons why the objective aspects of crime include such elements as the prohibition of agreement in the antimonopoly legislation of the RF and the restriction of competition. In the end, the authors recognize that these elements are necessary as they minimize the risk of recognizing other unlawful agreements as cartels or criminalizing a cartel that is permissible as an exception.