Malicious evasion of repayment of accounts payable

New edition of Art. 177 of the Criminal Code of the Russian Federation

Malicious evasion by the head of an organization or a citizen from repaying accounts payable on a large scale or from paying for securities after the relevant judicial act has entered into legal force -

shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred and eighty hours, or by forced labor for a term of up to two years, or by arrest for a term of up to six months, or imprisonment for a term of up to two years.

Note. Lost power.

Dangerous accounts payable

Accounts payable are obligations that must be paid within the period specified by agreement or legislation.
In the course of their activities, organizations and citizens consume various services, acquire assets, resulting in a creditor. The creditor may be current or past due. A current debt is an obligation that has not yet become due for payment. In our article we will talk about an overdue creditor, i.e. a debt that is not paid on time.

An example of a delinquent creditor would be a loan obligation that has not been paid as scheduled, or arrears in taxes and fees.

ConsultantPlus experts explained in detail what to do if you independently discover tax arrears. Study the material by getting trial access to the K+ system for free.

It is the overdue creditor that carries the risk of criminal liability against the heads of legal entities and the risk of loss of property, as well as the reputational risk of having a criminal record for individuals.

Intention or negligence?

Judgment of the FSSP of the Russian Federation on the severity of evasion.

“Thus, based on the established judicial and investigative practice, malicious evasion should be understood as a deliberate failure by a person to comply with court-ordered decisions obliging him to pay accounts payable or pay for securities for a long time after a warning by the bailiff about criminal liability if the debtor has a real opportunity to fulfill this obligation, that is, when the person’s behavior indicates a persistent, persistent reluctance to comply with the court’s decision.”

Evasion always involves intent, not negligence. The term “evasion” itself indicates activity and not weak-willedness. From the conclusion it can be understood that ordinary evasion can be careless, some kind of accidental, but malicious evasion is only intentional.

This is wrong.

Regarding “stubborn, persistent reluctance.”

But these are value judgments: whether reluctance is persistent or not, persistent or not.

We come back to “malicious – this is an evasion that is carried out with an evil face.”

Conditions for the application of criminal liability under Art. 177 of the Criminal Code of the Russian Federation

If the debtor has the opportunity to repay the overdue creditor, but does not do so, criminal liability may be applied to him in accordance with Art. 177 of the Criminal Code of the Russian Federation for malicious evasion of repayment of accounts payable.

What are the consequences of non-repayment of a loan for the borrower? The answer to this question is in ConsultantPlus. If you do not have access to the K+ system, get a trial demo access and go to the material for free.

To apply criminal liability under Art. 177 of the Criminal Code of the Russian Federation, the following conditions are sufficient:

• the obligation to the creditor exceeds 1.5 million rubles;
• the rights of the creditor were recognized by the court, and a writ of execution was issued to collect the debt;
• the debtor intentionally fails to repay the debt or fails to take any action to fulfill its obligations.

The bailiff may see in the actions or inaction of the debtor signs of malicious evasion of repayment of accounts payable and petition to initiate a criminal case.

Inaction is considered to be the absence of measures to improve the financial situation of the debtor, as well as failure to appear when summoned by the bailiff.

The bailiff will consider the debtor's actions to be a deliberate evasion of debt payment if he discovers that the debtor is spending money on personal needs. For example, he pays for expensive services, buys railway and air tickets, acquires movable property, without repaying the debt. Changing your place of work and residence without notifying the bailiff is also one of the signs of deliberate evasion of debt payment.

Note! Collection of overdue debts is a subject of civil law until signs of evasion from repayment of accounts payable are identified. Malicious evasion of repayment of accounts payable is already an area of ​​criminal law.

However, the very concept of “malicious evasion of repayment of accounts payable” in Art. 177 of the Criminal Code of the Russian Federation is not clearly defined and is of a rather subjective nature. Thus, the decisive factor in the application of criminal liability is the behavior of the debtor in the process of debt collection.

If a company or citizen takes measures to repay or restructure a debt and openly interacts with a bailiff, there is an opportunity to avoid criminal liability. Let us consider in more detail what activities can contribute to this.

Debtor's warnings

In the Methodological Recommendations of the FSSP of the Russian Federation without a number from 2010 and No. 04-12 from 08/21/2013, prosecution under Article 177 of the Criminal Code of the Russian Federation was accompanied by some preliminary warnings about the corresponding criminal liability, handed by the bailiff to the debtor. As a result, the FSSP of the Russian Federation decided on the number of such warnings, establishing in 2013 that one such preliminary warning is enough, after which, if the act continues, the FSSP of the Russian Federation considers the evasion as malicious.

At the same time, the institution of warning itself is nothing more than information, and in the overwhelming majority of cases, the legislator nowhere considers such information as a procedural action giving rise to legal consequences, with the exception of those provisions where such information is established as a formal duty of the bailiff, which can become the subject of evaluation of his actions, that is, ultimately creating an obstacle to execution.

In other words, it is necessary to warn someone about something if ignorance of the law exempts them from liability. But society is guided by a diametrically opposite thesis: ignorance is not an argument, Ignorantia non est argumentum - ignorance of the law does not relieve one from responsibility.

This means that any warnings are nothing more than poetry, an attempt to fill the work with something obviously useless.

In addition, the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings” contains more than a dozen types of such meaningless warnings, and there is a warning about criminal liability under Article 315 of the Criminal Code of the Russian Federation, and warnings about criminal liability under Article 177 There is no Criminal Code of the Russian Federation, and in this sense, Methodological Recommendations 04-12 call for illegal activities as necessary for prosecution under Article 177 of the Criminal Code of the Russian Federation.

Preventing criminal penalties for evading payment of accounts payable

The most effective way to prevent criminal punishment for malicious evasion of repayment of accounts payable is competent management of receivables and creditors. Very often, a company cannot repay a creditor due to the fact that debtors have not paid it off. Constant monitoring and timely collection of receivables is the main way to prevent overdue obligations to creditors.

One of the elements of control is the inventory of receivables and payables. Read about the procedure for carrying it out in the article “Inventory of receivables and payables” .

However, if an overdue creditor is discovered, it makes sense to take urgent measures to restructure it. Creditors in most cases are not interested in litigation, since it is a time-consuming and expensive way to collect debts.

If the creditor has filed a statement of claim and a court hearing cannot be avoided, you can propose to conclude a settlement agreement in court, which will also indicate the intention to repay the creditor.

If the situation has reached a dead end and there are not enough assets to pay off obligations, a citizen or organization can initiate bankruptcy. The debtor's filing of an application to the court to declare him bankrupt will not be regarded as malicious evasion of repayment of accounts payable .

Bankruptcy is one of the ways to prevent criminal liability, but it imposes a number of restrictions on the activities of a debtor declared bankrupt.

Logic and degree of malice

I am sure that the FSSP of the Russian Federation will not spend so much time and such a new type of warning will appear in 229-FZ 2007, but this appearance will not make the approach any different, it will still be “evasion with an evil face,” and not a qualifying sign.

Methodological recommendations 04-12 on many issues contain a logical justification, let’s say there is common sense in explaining why it is impossible to sum up all judicial acts to the amount necessary to attract over 2.25 million rubles, if none of them exceeds the said amount, then the person cannot be brought to criminal liability under the article under discussion, or take the debtor’s lack of more than 2.25 million rubles necessary for repayment, which the FSSP of the Russian Federation quite reasonably does not consider a necessary condition; it is possible to evade even if only a part is available. But if the judicial act contains an amount in excess of 2.25 million rubles, then criminal prosecution under Article 177 of the Criminal Code of the Russian Federation is possible if the debtor has insufficient funds.

But as soon as we talk about malice, Methodological Recommendations 04-12 do not offer any logic.

In the list of acts of the debtor, in which, according to the FSSP of the Russian Federation, the maliciousness of evasion can be expressed, there is not a single example where it would be possible to apply the formula “in the case of ordinary evasion, the debtor would act like this, but in the case of malicious evasion in the actions of the debtor in this In the example, the following component is added."

In other words, to each of the examples of the list of acts from 04-12, in which supposedly “the maliciousness of evasion may be expressed,” one can add “the same act is an example of ordinary evasion.”

Results

Evasion from repaying obligations to creditors may entail not only material losses, but also criminal liability against the debtor.
Even in the most difficult situation, it is easier to prevent negative consequences than to jeopardize your reputation and successful activities in the future. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Why is it important?

It would seem that the FSSP has a certain position on what is considered malicious evasion, whether it is a good position or not, but it exists, and that’s enough.

The fact is that all or part of what is said in this analysis can be used in one form or another by a lawyer when considering a specific case in court, where the lawyer will always return the prosecutor’s office to the arguments of the FSSP of the Russian Federation with questions about why everything said by the FSSP of the Russian Federation is marked “ this and this is malicious” cannot have the marker “this and this is as common as it is malicious,” and with the questions “How in this or that example does the FSSP of the Russian Federation formulate the difference between ordinary and malicious evasion, when in fact to any ordinary “The term malicious is completely arbitrarily added to the deviation with the intonation of auto-da-fé as a victorious sermon designed for blind faith and not for critical, thoughtful comprehension?”

And the court, if it turns out to be impartial, is not at all obliged to follow the peremptory judgments of the FSSP of the Russian Federation, but may well ask exactly the same question - why.

What does the law say?

In 04-12, the FSSP of the Russian Federation writes:

“The law does not regulate the period during which the act of a person who evaded repayment of accounts payable or payment for securities (after an official warning of criminal liability) will be regarded as malicious.”

I don't think everything has been said. We can go further: not only is the law not regulated by the period for judging malice, but also the list of acts of the debtor that constitute signs of malice is not regulated.

When a federal executive body receives some murky rule of law, in which the disposition of such a rule is completely incomprehensibly formulated, it has an obvious reason to seek clarification from the judiciary, and having received clarification from the Plenum, it will know what to do and what not to do. But we know nothing about such an appeal; instead, the federal body is trying to independently continue rule-making for the legislator.

At the same time, the situation under discussion most directly forces one to turn to the institution of analogy; the Criminal Code of the Russian Federation does not allow the analogy of law, but the analogy of law has no prohibitions, and the analogy of law is needed only when we need to see the “meaning of legislation”, the term “malicious” is This is exactly the case when we need to clarify whether the legislator puts some meaning into this term, or has allowed himself, I’m not afraid of this word, meaninglessness.

For example, in paragraph 5.8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 2011 No. 21 “On the practice of application by courts of legislation on the execution of sentences” there is something that can be used as the meaning of the legislation:

“In the cases provided for in subparagraphs “b”, “c”, “d” of paragraph 2 of Article 397 of the Code of Criminal Procedure of the Russian Federation, when deciding whether evasion from serving compulsory labor or correctional labor, as well as from restriction of freedom, is malicious, the courts must check whether the warnings specified in part 1 of article 29, part 2 of article 46 and part 2 of article 58 of the Penal Code of the Russian Federation were applied to those convicted by the penal inspection.”

Let’s make a reservation right away: the warning in the above example is also present, but it is filled with a different meaning, this is not some kind of careless information about the existence of this or that criminal liability in the law, which the debtor is obliged to know without such information. The example is about a warning about replacing one type of punishment with another, more severe one. Whether or not there was a sign of malice, this is already decided by the court within the framework of the Code of Criminal Procedure of the Russian Federation, and along with other things, it checks whether such warnings about replacing the type of punishment with a more severe type were applied to the convicted.

Responsibility

Punishment under the Criminal Code of the Russian Federation for evading accounts payable can be of 5 types:

Also see “Limitation period for accounts receivable: how long is it and how is it calculated.”