Some aspects of the consumer markets functioning
Неверова А. В., Барташук Н. В. Some aspects of the consumer markets functioning // Молодой ученый. 2012. №5. С. 340-343.
The state of the consumer market is one of the most important indicators of socio-economic situation of the country. Many complex processes that arise while matching supply of and demand for goods and services on the market ensure both cash income and total production and selling of goods, thus laying the foundations of financial stability. That is why the problem of effective legal operation of the consumer market is one of the most acute and urgent at the moment.
In order to confront crimes and other offenses on the consumer market effectively, it is necessary to examine the reasons for their occurrence and spread. This approach allows the most profound understanding of their nature and also helps to respond with appropriate measures. The responsibility of public authorities to detect and eliminate the causes and conditions that entail administrative violations is fixed by law. The factors leading to these reasons are the following:
organization of law enforcement and other government agencies;
the legal regulation in trade relations;
legal education and legal nihilism [1, p.111].
The economic reasons are preconditioned by the imbalance of economic development (inequality of economic needs and opportunities) and objective contradiction between the economic interests of persons engaged in sales, production of goods, and providing services, and economic interests of the State. But the main reason for administrative violation of law in the consumer market is a significant financial benefit associated with the illegal business.
The social causes of crime are derived from the conflict between the person, society and the State. The main reason here is dissatisfaction of a person with his or her status in society. As a result, he or she refuses the rules of conduct accepted in the society and the State.
An important factor that contributes to administrative violations in the consumer market is current law enforcement system imperfection. This happens through disunity and diversity of the legal and regulatory framework, as well as complicating of the illegal acts detection scheme by limiting the grounds for conducting inspections of businesses.
The other causes happen through the undermining of values among the greater part of the population (especially youth), resulting in the ideas about the easy ways to become rich by fraud and participation in the criminal and semi-criminal business. Various forms of antisocial and even criminal behavior have become recognized as socially approved.
Crimes committed in the consumer market belong to the category of crimes which are the most dependent on the willingness of law-enforcement agencies to combat them. In other words, if there is a political will, all necessary organizational efforts are taken and material costs are incurred, in this case law enforcement agencies are quite capable of reducing the crime rate dramatically. However, crimes and other offenses in the consumer market have become increasingly sophisticated. The steady growth in the wholesale, retail and service industries is accompanied by a steady increase in the number of offenses committed at the consumer market businesses along with the decrease in their quality and public danger. As far as offenses in the consumer market are concerned, the current situation requires some changes in criminal law that will improve law enforcement, prosecution and legal procedure. It will help to prevent, combat and investigate crime in the consumer market.
Crimes in the consumer market are generally considered to be a kind of economic crime and they are distinguished as a separate classification group in the criminal law literature. We can identify the characteristics of crimes in question: they must be committed during the process of production or selling of goods (or importing goods for the purpose of their selling in the Russian Federation), performance of work and rendering services, and these acts must be committed by producers, performers, vendors, importers, authorized by the manufacturer (seller) or the consumers. These crimes are committed by the subjects in the exercise of social relations emerging in the consumer market which in themselves are legitimate or may be legitimate.
Crimes committed in the consumer market are divided into: the crimes infringing upon the legitimate interests of producers, performers, vendors, importers and authorized by the producers (seller) individuals (Art. 159, 165, Criminal Code, RF1); crimes infringing upon the rights and legitimate interests of consumers (Art. 159, 171, 171-1, 236, 237, 238, Criminal Code, RF), which in their turn can be subdivided into crimes that cause or may cause direct harm to rights and legal interests of consumers (Art. 159, 171, 171-1, 236 and 238, Criminal Code, RF), and crimes that cause or may cause indirect harm to rights and legitimate interests of consumers (Art. 237, Criminal Code, RF).[2, p.106]
Currently, a lot of practical work is being done to improve the situation in the consumer market. Federal Law “On the basic State regulation of commercial activities in the Russian Federation”2 was passed. The labour conditions of retail markets have been put into order since the beginning of 2007. There control over the quality of manufactured and sold in the consumer market goods and services rendered was also tightened (Art. 22, 23)3.
A new revision of Art. 174-1 was formulated in 2010 (legalization (laundering) of money or other property acquired by a person through committing a crime). The offence specified in the Act was considerably concretized. The offence that involves small amounts of money was considered to be a non-criminal act and is punishable by a fine of 120 thousand roubles or in the amount of wages or other income obtained by a person during the period up to one year. The upper limit of the norms of the majority of the acts specified in Chapter 22 of the Criminal Code RF was significantly raised “Crimes in the sphere of economic activity”. Large size, damage, large-scale income or debt is considered to be the amount exceeding 1,500000 roubles. Particularly large refers to 6,000000 roubles. (That is six times more than it used to be).Thus, the vast majority of offences committed in the sphere of economic activity are transferred from the sphere of criminal law to administrative, civil or any other area of law.
January 10, 2010 new regulations on punishment in the form of the restraint of liberty came into force. This kind of punishment is provided for the number of crimes in the consumer market, such as fraud, committed by a group or on a large scale, a crime committed by a person using his or her official status, transportation, storage, sale of goods, works or services that do not meet the requirements of safety of life or health of the consumer, as well as the illegal issue or use of an official document certifying the conformity of goods, works or services to the safety requirements (Art. 159, 174, 174-1 and 238, Criminal Code, RF).
Corruption has a significant impact on crime in the consumer market. It can take many forms – from lobbying corruption, patronage and protection of private businesses to providing benefits and granting privileges (especially access to budget funds and State property, the supply of confidential proprietary information). It puts pressure on competition through the enforcement authorities, or vice versa – guards businesses against such checks. In this regard, governmental measures taken in the Federal Law on May 4, 2011 № 974 seem to be quite adequate and modern: the task is to make a bribe or a commercial bribe unprofitable.
Federal Law of December 7, 2011 № 420-FL5 (Art. 180) provides for a sanction as a penalty ranging from 500 thousand to 1 million roubles or other income of convict for the period from 3 to 5 years for the unlawful use of a trademark on the prior agreement of parties.
At present criminalization of the consumer market makes questions of responsibility for production and sale of adulterated and counterfeit products urgent (especially excisable like spirits, etc.). At this stage the legislative framework and adopted by the State penal measures are ineffective and require revision. Simplification of the work of legal entities due to the reduction of planned inspections by State control to one time in three years (except for tax control), limits the possibility of controlling authorities to monitor adulterated and counterfeit products. The abolition of compulsory certification of consumer products also complicates the situation.
To save time, effort and money in the process of creating a mechanism for the effective management and protection of the consumer market we should refer to foreign experience in this area.
Returning to the problem of rare inspections of legal entities in Russia, it should be noted that in Germany controlling authorities decide themselves how often they will carry out inspections. The regularity of inspections depends on the type and origin of products, practices of internal company control, health, education and quality of personnel, previous record of violations. When there is information about possible violations the checks over and above the plan are carried out [3, p.47].
It should be emphasized that the European Union (EU) monitors the quality of products though the Food and Veterinary Service of the Directorate General for Health and Consumer Protection, which is guided by EU directives on health and consumer protection. Its tasks include among other matters control over compliance with the Union directives in the field of food quality in the EU and in the Third World countries, supplying EU markets with their products. In Russian conditions, the protection of consumer interests in terms of quality of goods, the range of products, prices and saturation of the market with the goods is entrusted to the Department of Consumer market and Services in Moscow and similar agencies in the regions. However, this department is unable to control the importation of counterfeit goods, which led to its saturation (35%) in Moscow market. The situation ended up with a fact that check of each product requires permission.
German society for quality control and research institutes studying the market from Mainz provides information for consumers about the quality of the goods. The federal government helps to publish the journal "Test" which informs the consumers about new products, examines the quality, offers alternative products to compare, reports the indicative prices, and gives advice to consumers [4, p.64]. In Russia these functions are executed by publications of the Union of Consumers of the Russian Federation and to a lesser extent – the TV program "Test Purchases", "Habitat" and others.
Also in Germany there is a practice when the enterprises of provisions area have special journal where you can find all information about the deal like the time and the place and the price etc. Such a system allows analyzing the supply chain, identifying the direct perpetrators and thus preventing further movement of defective products.
One of the main forms of State regulation of foreign consumer market is price regulation when the public authorities undertake pricing for specific types of goods and services that are crucial to the national economy. From 5 to 10% of the consumer prices in the United States are regulated. Herewith direct regulation is limited – only in monopolized industries under antitrust laws. The most extensively used methods of indirect price regulation such as regulation of the discount rate of the Federal Reserve Banks are the reduction of government deficits, large-scale purchases of goods and services for federal purposes with fixed prices, tax incentives for consumption and sales. There are approximately 20% of prices controlled by State in France and 10% in Spain. A wide-range price control makes the market less flexible, inhibits the growth of production, restrains competition, and limits the intersectoral mobility of capital. However, the limited State regulation of prices takes place in all countries with developed market economies.
The selective credit policy is a very significant trend in the sphere of State regulation of consumer market. Credit support can be obtained both by sellers of consumer goods and consumers (in case of expensive, but necessary purchase). When credit privileges are not enough the measures of direct subsidies to consumers may be applied to increase demand.
Taxation methods are widely used in developed countries for consumer markets regulation. In particular, in the most countries essential goods are imposed by taxes to a lesser extent and luxury goods, alcohol and tobacco products carry the main tax burden.
Different public organizations have a large impact on consumer markets along with public authorities in countries with developed market economies. In the majority of developed countries there are large national organizations of consumers such as Consumers Union in the USA, British Association of Consumers, and National Institute for Consumers in France.
The legislation is being improved under the influence of public organizations. Strict standards of environmental safety, quality of goods and services are being developed. Consumers Unions conduct an independent examination of goods and services, educate consumers, interact with legislators, manufacturers, conduct public opinion and consumer preferences polls, publish reference and technical literature, provide citizens with necessary legal assistance. Two public organizations in Russia are Consumers Union of the Russian Federation and the National Foundation of Consumer Protection.
Thus, at this moment in Russia the basis for effective functioning of consumer market is developed but not in detail. There is no single conceptual legitimate approach to regulate and protect the relations arising in the market. The task to speed the completion of the formation of a legislative package regulating economic relations should be put forward as a top priority. We should also take into consideration the experience of foreign management practices in consumer market regulation but do not copy particular control measures and accept only the basic ideas. The State is obliged to take care of the population: its activity and self-organization, the flexibility and absence of ideology for all forms and types of regulation.
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1 Уголовный кодекс Российской Федерации от 13 июня 1996 г. № 63-ФЗ (с изм., внесенными Постановлениями Конституционного суда РФ от 13июля 2010 г. № 15-П) // Рос. газ. 2010. 8 июня
2 Федеральный закон РФ от 28 декабря 2009 г. № 381-ФЗ «Об основах государственного регулирования торговой деятельности в Российской Федерации» // Рос. газ. 2011. 26 ноября
3 Федеральный закон РФ от 30 декабря 2006 г. № 271-ФЗ (с изм., внесенными 21 ноября 2011 г. Федеральным законом РФ № 327-ФЗ) «О розничных рынках и о внесении изменений в Трудовой кодекс Российской Федерации» // Рос. газ. 2011. 26 ноября
4 Федеральный закон РФ от 4 мая 2011 г. № 97-ФЗ «О внесении изменений в Уголовный кодекс Российской Федерации и Кодекс Российской Федерации об административных правонарушениях в связи с совершенствованием государственного управления в области противодействия коррупции» // Рос. газ. 2011. 6 мая
5 Федеральный закон РФ от 4 мая 2011 г. № 420-ФЗ «О внесении изменений в Уголовный кодекс Российской Федерации и отдельные законодательные акты Российской Федерации» // Рос. газ. 2011. 8 декабря