If verification came
Initially, it is necessary to find out the purpose of the visit and the authority of employees to perform certain actions. These powers can be expressed in various documents (resolutions of the head of the inquiry body, court, investigator, inquirer) depending on the law that regulates their actions (pre-investigation check in the framework of Articles 144, 145 of the Criminal Procedure Code of the Russian Federation or activities within the Law "On the police", "On the OSA").
Make sure that in front of you are really employees of the service that is authorized to conduct software legality checks. To do this, check the service certificates of those who arrived and be sure to overwrite all the data from the documents. Those inspectors who refused to show identity, do not allow to check.
Specify the grounds for verification. Police officers may come only for the purpose of conducting pre-investigation checks.
')
Do not allow testers to use a soft scanner (a special software product that allows you to determine the presence of certain programs). It is not certified in Russia, and its use is illegal. Let them check visually.
Refuse to report BIOS passwords on the pretext of forgetfulness.
Do not show documents confirming the legality of using the software, but answer that they are. Police officers have the right to demand any information only upon a written request, which you consider in the manner prescribed by law.
Be sure to include in the act of checking for violations that were made by the reviewers (and do not forget to keep a copy of the act with objections!).
Remember that the corpus delicti under the Criminal Code of the Russian Federation only provides for an intentional form of guilt. This means that you must be aware in advance that you are using counterfeit software and that you deliberately wanted or allowed the possibility of causing material damage to the copyright holders.
Therefore, answer all questions that all software products found during the checkout are absolutely legal because you bought them from the store. You do not have to know what supporting documents are required for the software product.
If necessary, in the course of the inspection, the police officer is entitled to receive explanations, since the Code of Criminal Procedure of the Russian Federation does not contain any prohibitions on this issue. The procedure for this event is generally fairly standard. The particulars lie only in who the explanations are derived from and what exactly becomes clear. Accordingly, the firm’s employees and the manager will be invited to give explanations.
Usually, surveys are conducted immediately after or during the inspection in order to surprise and eliminate the possibility of preparing personnel for giving explanations. In this case, the interviewed person (the head of the organization or an employee who is not tempted by legal subtleties) has the right to use the provision of art. 51 of the Constitution of the Russian Federation and do not testify against yourself and point out the readiness to give explanations at a later date. Of course, it should be understood that these actions of employees of the company will not cause the approval of the police officers, but still there will be no violation of the law in this situation by the respondent. Subsequently, you can resort to professional legal assistance.
Therefore, employees of the enterprise must respond to the insistent requirements of the company: “I do not know”, “I am not authorized”, “This is not my competence”, “This is not my workplace”, etc. If the director is not sure what to say, in order not to harm himself and the enterprise, then it is better for him to keep quiet. The only thing that should be communicated to law enforcement officers upon their request is their name, surname and address, so that the inspectors have no reason to take you to the department for identification.
Negotiate with the inspector should only director or lawyer.
In no case should an employee of an enterprise help the verifier: approach the desktop, turn on the computer, load programs. Let the verifier do it himself, violating the current legislation.
It is desirable that the employees of the company during the checkout remain at the office as little as possible. But the staff from the neighboring offices, just curious, appeared as much as possible. If the inspectors make gross violations during their visit: threaten, use physical force, break cabinets, gut personal belongings of employees, you will have a real opportunity to get reliable witnesses who can later confirm the facts of violations in court.
Warn inspectors that their illegal actions will be made public and challenged in court. Telephone numbers of the anti-corruption department and the internal security department of the Ministry of Internal Affairs should always be at hand.
In no case should not argue with the police, and even more so - to insult them. Why give them a legitimate reason for detention?
In the event that police officers withdraw a system unit that allegedly has an unlicensed program, a protocol must be drawn up in which the following facts should be reflected: the official making the withdrawal, place, time of withdrawal, presence of attesting witnesses, explanation to the participants of their rights and duties, which technical means of detection, fixation are used and by whom; consistently describes the actions of the person performing the inspection, specialists, the detected objects, their type and condition at the time of the inspection, the item to be seized and its individual identifying features (series, model, number).
The seized item must be packed in such a way that access to the information contained in the system unit is impossible without damaging the security seals, tags, stamps (sealed with the signatures of the witnesses), which is recorded in the protocol. In the same way, the removal of relevant documents should be executed. The protocol is signed by all participants of the inspection after reviewing its text, and they should be given the opportunity to exercise their right to make comments or additions to the protocol.
A representative of a commercial organization and other employees should not interfere with police officers in carrying out their legal actions. However, it is necessary to control each event and, if possible, fix the actions of employees in any possible way that violate the rights and legitimate interests of the business entity and are capable of causing irreparable economic damage and deterioration in the business reputation index. After the inspection, removal of objects, documents, a representative of a commercial organization must be issued documents evidencing the removal of objects (copies of the inspection report, withdrawal, certificate, etc.).
Summing up, we can draw the following conclusion: to make a decision on initiating a criminal case, the inquiry officer, the inquiry body, the investigator, the prosecutor must have the answers and their documentary confirmation on the following issues:
whose rights are violated and which ones;
what confirms the ownership of the exclusive right to the computer program (copies of contracts (licenses), other documents, confirmations from organizations representing rightholders);
in what form the violation occurred (use of the right or reproduction);
what is the damage from the violation, what justifies the large size, from which it is composed (how is the calculation made).
Only if there are answers to these questions will the decision to initiate a case be lawful and justified.
Make sure that in front of you are really employees of the service that is authorized to conduct software legality checks. To do this, check the service certificates of those who arrived and be sure to overwrite all the data from the documents. Those inspectors who refused to show identity, do not allow to check.
Specify the grounds for verification. Police officers may come only for the purpose of conducting pre-investigation checks.
')
Do not allow testers to use a soft scanner (a special software product that allows you to determine the presence of certain programs). It is not certified in Russia, and its use is illegal. Let them check visually.
Refuse to report BIOS passwords on the pretext of forgetfulness.
Do not show documents confirming the legality of using the software, but answer that they are. Police officers have the right to demand any information only upon a written request, which you consider in the manner prescribed by law.
Be sure to include in the act of checking for violations that were made by the reviewers (and do not forget to keep a copy of the act with objections!).
Remember that the corpus delicti under the Criminal Code of the Russian Federation only provides for an intentional form of guilt. This means that you must be aware in advance that you are using counterfeit software and that you deliberately wanted or allowed the possibility of causing material damage to the copyright holders.
Therefore, answer all questions that all software products found during the checkout are absolutely legal because you bought them from the store. You do not have to know what supporting documents are required for the software product.
If necessary, in the course of the inspection, the police officer is entitled to receive explanations, since the Code of Criminal Procedure of the Russian Federation does not contain any prohibitions on this issue. The procedure for this event is generally fairly standard. The particulars lie only in who the explanations are derived from and what exactly becomes clear. Accordingly, the firm’s employees and the manager will be invited to give explanations.
Usually, surveys are conducted immediately after or during the inspection in order to surprise and eliminate the possibility of preparing personnel for giving explanations. In this case, the interviewed person (the head of the organization or an employee who is not tempted by legal subtleties) has the right to use the provision of art. 51 of the Constitution of the Russian Federation and do not testify against yourself and point out the readiness to give explanations at a later date. Of course, it should be understood that these actions of employees of the company will not cause the approval of the police officers, but still there will be no violation of the law in this situation by the respondent. Subsequently, you can resort to professional legal assistance.
Therefore, employees of the enterprise must respond to the insistent requirements of the company: “I do not know”, “I am not authorized”, “This is not my competence”, “This is not my workplace”, etc. If the director is not sure what to say, in order not to harm himself and the enterprise, then it is better for him to keep quiet. The only thing that should be communicated to law enforcement officers upon their request is their name, surname and address, so that the inspectors have no reason to take you to the department for identification.
Negotiate with the inspector should only director or lawyer.
In no case should an employee of an enterprise help the verifier: approach the desktop, turn on the computer, load programs. Let the verifier do it himself, violating the current legislation.
It is desirable that the employees of the company during the checkout remain at the office as little as possible. But the staff from the neighboring offices, just curious, appeared as much as possible. If the inspectors make gross violations during their visit: threaten, use physical force, break cabinets, gut personal belongings of employees, you will have a real opportunity to get reliable witnesses who can later confirm the facts of violations in court.
Warn inspectors that their illegal actions will be made public and challenged in court. Telephone numbers of the anti-corruption department and the internal security department of the Ministry of Internal Affairs should always be at hand.
In no case should not argue with the police, and even more so - to insult them. Why give them a legitimate reason for detention?
In the event that police officers withdraw a system unit that allegedly has an unlicensed program, a protocol must be drawn up in which the following facts should be reflected: the official making the withdrawal, place, time of withdrawal, presence of attesting witnesses, explanation to the participants of their rights and duties, which technical means of detection, fixation are used and by whom; consistently describes the actions of the person performing the inspection, specialists, the detected objects, their type and condition at the time of the inspection, the item to be seized and its individual identifying features (series, model, number).
The seized item must be packed in such a way that access to the information contained in the system unit is impossible without damaging the security seals, tags, stamps (sealed with the signatures of the witnesses), which is recorded in the protocol. In the same way, the removal of relevant documents should be executed. The protocol is signed by all participants of the inspection after reviewing its text, and they should be given the opportunity to exercise their right to make comments or additions to the protocol.
A representative of a commercial organization and other employees should not interfere with police officers in carrying out their legal actions. However, it is necessary to control each event and, if possible, fix the actions of employees in any possible way that violate the rights and legitimate interests of the business entity and are capable of causing irreparable economic damage and deterioration in the business reputation index. After the inspection, removal of objects, documents, a representative of a commercial organization must be issued documents evidencing the removal of objects (copies of the inspection report, withdrawal, certificate, etc.).
Summing up, we can draw the following conclusion: to make a decision on initiating a criminal case, the inquiry officer, the inquiry body, the investigator, the prosecutor must have the answers and their documentary confirmation on the following issues:
whose rights are violated and which ones;
what confirms the ownership of the exclusive right to the computer program (copies of contracts (licenses), other documents, confirmations from organizations representing rightholders);
in what form the violation occurred (use of the right or reproduction);
what is the damage from the violation, what justifies the large size, from which it is composed (how is the calculation made).
Only if there are answers to these questions will the decision to initiate a case be lawful and justified.
UPD: If someone has a familiar lawyer who doesn’t feel sorry to take the time to create competent and clear instructions, please write a very large one.
Source: https://habr.com/ru/post/87748/
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