ST 63 of the Criminal Code of the Russian Federation.
1. The following are recognized as aggravating circumstances:
a) relapse of crimes;
b) the onset of grave consequences as a result of the commission of a crime;
c) committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization);
d) a particularly active role in the commission of a crime;
e) involvement in the commission of a crime of persons who suffer from severe mental disorders or are in a state of intoxication, as well as persons who have not reached the age at which criminal liability begins;
f) committing a crime based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity against any social group;
f.1) committing a crime out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission;
g) commission of a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty;
h) committing a crime against a woman who is known to be pregnant by the perpetrator, as well as against a minor, another defenseless or helpless person or a person dependent on the perpetrator;
i) committing a crime with particular cruelty, sadism, mockery, and torture for the victim;
j) committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, narcotic drugs, psychotropic, potent, poisonous and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion;
k) committing a crime during a state of emergency, natural or other public disaster, as well as during mass riots, in conditions of armed conflict or military action;
l) committing a crime using the trust placed in the perpetrator by virtue of his official position or contract;
m) committing a crime using the uniform or documents of a government representative;
o) commission of a deliberate crime by an employee of an internal affairs body;
o) commission of a crime against a minor (minor) by a parent or other person who is charged by law with the responsibility for raising the minor (minor), as well as by a teacher or other employee of an educational organization, medical organization, organization providing social services, or other organization, obligated to supervise the minor (minor);
p) committing a crime for the purpose of promoting, justifying and supporting terrorism.
1.1. The judge (court) imposing punishment, depending on the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator, may recognize as an aggravating circumstance the commission of a crime while intoxicated caused by the use of alcohol, narcotic drugs, psychotropic substances or their analogues, new potentially dangerous psychoactive substances or other intoxicating substances.
2. If an aggravating circumstance is provided for by the relevant article of the Special Part of this Code as a sign of a crime, it in itself cannot be taken into account again when assigning punishment.
Commentary to Art. 63 Criminal Code
1. In the presence of one or more circumstances provided for in Part 1 of Art. 63 of the Criminal Code, the court is obliged to increase the punishment of the perpetrator within the limits of the sanction. However, the law itself does not provide for a mechanism for the influence of one or another mitigating circumstance on the imposed punishment.
2. The list of aggravating circumstances is exhaustive and is not subject to broad interpretation, and their establishment is essential for the correct solution to the issue of individualization of punishment.
3. The commission of a crime by a person while intoxicated caused by the use of alcohol, narcotic drugs, psychotropic substances or their analogues, new potentially dangerous psychoactive substances or other intoxicating substances, on the one hand, may be recognized by the court as an aggravating circumstance, and on the other hand, acts as a constructive, qualifying or specially qualifying sign of a crime under Art. 264 or 264.1 of the Criminal Code.
When resolving the issue of the possibility of recognizing the specified state of a person at the time of commission of a crime as an aggravating circumstance, the court must take into account the nature and degree of public danger of the crime, the circumstances of its commission, the influence of the state of intoxication on the behavior of the person when committing the crime, as well as the identity of the perpetrator (clause 31 of the Resolution Plenum of the Supreme Court of the Russian Federation of December 22, 2015 N 58).
Second commentary to Art. 63 of the Criminal Code of the Russian Federation
1. Provided for in Art. 63 of the Criminal Code, the list of circumstances aggravating punishment is exhaustive and is not subject to broad interpretation. Aggravating circumstances must be indicated in the sentence in the same way as they are provided for in the criminal law (clause 28 of the PPVS 2015).
2. In accordance with Part 11 of Art. 63 of the Criminal Code, the mere commission of a crime in a state of intoxication caused by the use of alcohol, narcotic drugs, psychotropic substances or their analogues, new potentially dangerous psychoactive substances or other intoxicating substances is not a basis for recognizing such a state as an aggravating circumstance. The descriptive and motivational part of the sentence must indicate the reasons why the court came to the conclusion that it was necessary to recognize the specified condition of the person at the time of the commission of the crime as an aggravating circumstance.
When committing crimes under Part. 2, 4, 6 tbsp. 264 and art. 264.1 of the Criminal Code, the state of intoxication is established in accordance with Note 2 to Art. 264 CC. In other cases, the person’s condition can be confirmed both by medical documents and by the testimony of the defendant, victim or other evidence (clause 31 of the 2015 PPVS).
3. Based on the provisions of Part 2 of Art. 63 of the Criminal Code, circumstances related to the elements of a crime provided for in the relevant article of the Special Part of the Criminal Code must be taken into account when the court assesses the nature of the public danger of the crime. However, these same circumstances cannot be taken into account again when assigning punishment (clause 32 of the 2015 PPVS).
4. Within the meaning of Art. 63 of the Criminal Code, aggravating circumstances are taken into account when assigning punishment for a crime with any form of guilt, unless otherwise is directly provided by law (for example, clause “o”, part 1 of article 63 of the Criminal Code) or does not follow from it (for example, from clause “n” part 1 of article 63 of the Criminal Code) (clause 32 of the PPVS 2015).
Declaring a liquidated debtor bankrupt under a simplified procedure
If restoration of the financial position of a legal entity is obviously impossible, the law provides for bankruptcy under a simplified procedure.
According to ch. XI of the Bankruptcy Law, the following simplified procedures may be applied:
- in case of bankruptcy of the debtor being liquidated;
- in case of bankruptcy of an absent debtor;
- in case of bankruptcy of a specialized company and a mortgage agent.
Let's consider one of these procedures, characterized by an increased risk of abuse on the part of unscrupulous debtors - bankruptcy of a liquidated debtor.
The essence of the simplified bankruptcy procedure in this case is that only bankruptcy proceedings are applied to the debtor; then, as a rule, it is liquidated.
Ideally, when liquidation is real, the actions of the liquidator actually replace the monitoring procedure, therefore the legislator provides the opportunity to reduce the costs associated with the bankruptcy procedure by directly moving to the stage of bankruptcy proceedings.
According to Art. 224 of the Bankruptcy Law, if the value of the property of the debtor - a legal entity in respect of which a decision on liquidation was made, is insufficient to satisfy the claims of creditors, such a legal entity is liquidated in the manner prescribed by law. If the circumstances provided for in paragraph 1 of this article of the Law are identified, the liquidation commission (liquidator) is obliged to apply to the arbitration court within ten days with an application to declare the debtor bankrupt. Failure to fulfill the obligation to submit an application entails subsidiary liability of the liquidation commission (liquidator) (Clause 1 of Article 61.12 of the Law).
Thus, if there are signs of insufficient property, filing a bankruptcy petition for the debtor being liquidated is not only the right, but also the obligation of the liquidation commission (liquidator).
Introduction (termination) of bankruptcy proceedings: risks of bona fide participants
Let us consider the stages of bankruptcy of a liquidated debtor.
First
stage: the founders make a decision on liquidation. It must be adopted unanimously. If there are issues with the composition of the company's participants (for example, missing participants or those with whom there is no connection), they must be resolved before the liquidation process. As a rule, such participants are excluded in court as systematically violating their duties and interfering with the normal functioning of society.
Second
stage: an application to begin the liquidation process is sent to the tax authority (based on the information received, an entry about the beginning of the procedure is made in the Unified State Register of Legal Entities, the functions of managing the company are transferred to the liquidator).
Third
: immediately after receiving the entry sheet about the beginning of liquidation, it is necessary to publish the relevant information in the journal “Bulletin of State Registration” and in the register of the Unified State Register of Legal Entities within three working days from the date of registration of the message about the beginning of liquidation in the Unified State Register of Legal Entities.
Fourth
: a notice of the start of the liquidation and bankruptcy procedure is sent to creditors, the authorized body and extra-budgetary funds.
Fifth
stage: the liquidator sends requests to authorized bodies and organizations about the debtor’s property, a reconciliation of taxes and fees is carried out; An interim balance sheet is sent to the tax office, containing information about the existence of a debt to creditors exceeding 300 thousand rubles.
Sixth
: an application for bankruptcy of the liquidated organization is filed with the arbitration court. In this case, it is necessary to prove that the liquidated organization does not have enough funds to satisfy the claims of all creditors, but there are enough funds to carry out the bankruptcy procedure. In addition, you need to pay a state fee, and also attach to the application documents on the presence or absence of property of the debtor being liquidated. If there are grounds, the court makes a decision to declare the debtor bankrupt, open bankruptcy proceedings and appoint a bankruptcy trustee.
Seventh
: within a month after the opening of bankruptcy proceedings, creditors make claims against the debtor; The bankruptcy trustee creates a register.
Eighth
: in the process of bankruptcy proceedings, an inventory of property is carried out, receivables are collected, debts to creditors are repaid, and the debtor’s accounts are closed. Upon completion of all calculations, the final liquidation balance sheet is formed.
Finally, the court issues a ruling to terminate the bankruptcy case, on the basis of which the liquidated company is excluded from the Unified State Register of Legal Entities.
The main risks of bona fide participants in civil transactions arising during the implementation of this bankruptcy procedure are mainly due to the shortened period for submitting creditors’ claims, as well as issues related to mechanisms for protecting their rights directly during bankruptcy proceedings (bypassing the stages of monitoring, financial recovery and external management).
So, from the date of introduction of the competition:
- penalties under enforcement proceedings and writs of execution are terminated;
- the accrual of interest, penalties, penalties, and fines on the debtor’s obligations is stopped;
- the deadline for fulfilling obligations that arose before the introduction of the competition is considered to have occurred;
- creditors' claims are submitted within 30 days from the date of publication in a specialized publication of information about the introduction of bankruptcy proceedings in relation to the liquidated debtor company;
- seizures of property, accounts, and assets are terminated.
The powers of the debtor's manager are transferred from the liquidator to the bankruptcy trustee, to whom the liquidator transfers all documents and valuables by deed.
In practice, business owners often use a simplified bankruptcy procedure for a liquidated debtor to quickly get rid of accumulated debts, hoping that potential creditors will not have time to file their claims. This is especially true when claims have been filed against the debtor, for which a court decision has not yet been made.
Suspension of proceedings on a dispute initiated before filing a bankruptcy claim
In practice, there are situations when unscrupulous participants in market relations try to evade fulfillment of debt repayment obligations through the bankruptcy procedure of the debtor. What should a bona fide creditor do in this case, whose receivables have not yet been established by a court decision and the debt collection proceedings have not been completed?
The Supreme Arbitration Court of the Russian Federation answered this question back in 2012, explaining that not always the claims of a bona fide creditor considered in the procedure of claim proceedings are subject to being left without consideration or terminated due to the existence of a bankruptcy case against the debtor.
From the explanations contained in paragraph 27 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2012 No. 35 “On some procedural issues related to the consideration of bankruptcy cases”, it follows that by virtue of paragraph. 2 p. 1 art. 63, para. 2 p. 1 art. 81, para. 8 clause 1 art. 94 and para. 7 clause 1 art. 126 of the Bankruptcy Law, from the date of introduction of supervision, financial rehabilitation, external management and bankruptcy proceedings, creditors’ claims for monetary obligations and for the payment of obligatory payments, with the exception of current ones, can be presented only within the framework of a bankruptcy case in accordance with Art. 71 or art. 100 of the Law. In this regard, all statements of claim for the collection of debt from the debtor for monetary obligations and obligatory payments, with the exception of current payments and obligations of the debtor-citizen inextricably linked with the personality of the creditor, filed on the day the supervision procedure was introduced or later - during any bankruptcy procedure, are subject to leaving without consideration on the basis of clause 4, part 1, art. 148 Arbitration Procedure Code of the Russian Federation. However, as the SAC explained, the consideration of such claims and the adoption of decisions on them on the merits do not prevent the further inclusion of the corresponding requirement in the register, taking into account paragraph. 3 p. 1 art. 142 of the Bankruptcy Law and paragraph 24 of the said Resolution.
In accordance with paragraphs 28 and 29 of Resolution No. 35, as well as paragraph. 3 p. 1 art. 63 of the Bankruptcy Law, from the date the arbitration court issues a ruling on the introduction of supervision, at the request of a creditor, proceedings in cases related to the recovery of funds from the debtor are suspended. In this case, the creditor has the right to present his claims to the debtor in the manner prescribed by law.
In this regard, if a statement of claim for collection from the debtor of debt on monetary obligations or obligatory payments, except for current payments, was filed before the date of introduction of supervision, then during bankruptcy proceedings the right to choose belongs to the plaintiff: either, at his request, the court suspends the proceedings on the case for on the basis of Part 2 of Art. 143 of the APC, or in the absence of a petition, continues to consider the case in the general manner; Moreover, due to the prohibition on carrying out enforcement proceedings on such requirements in these procedures, a writ of execution in the case is not issued (paragraph 4, paragraph 1, article 63, paragraph 5, paragraph 1, article 81 and paragraph 2, paragraph 2, art. 95 of the Bankruptcy Law). The court does not have the right to suspend the proceedings on this basis on its own initiative or at the request of the defendant.
The presence of a claim that has not been suspended or terminated at the request of a creditor stated in a bankruptcy case is grounds for the court to leave such a claim without consideration in relation to clause 1 of part 1 of Art. 148 of the APC, with the exception of the case when the creditor in the specified claim proceedings petitioned for the suspension or termination of the proceedings.
Thus, the presence of a bankruptcy case initiated against the debtor does not prevent proceedings in a case initiated in the general procedure for litigation, which continues in the usual manner. And only after the introduction of the monitoring procedure, the plaintiffs are given the right to file a petition to suspend the proceedings in these cases, which the court, by virtue of Part 2 of Art. 143 of the APC is obliged to satisfy.
If the creditor acting as a plaintiff does not exercise this right, the claim proceeding continues in the general manner and ends with the issuance of the appropriate judicial act1.
The presence of an initiated bankruptcy case prevents the forced execution of a judicial act (but not its issuance) in the order of enforcement proceedings, in connection with which the creditor can file a claim within the framework of the bankruptcy case. In this case, such a requirement, confirmed by a court decision that has entered into legal force, is considered established2.
The creditor's claim, confirmed by a court decision, is presented to the arbitration court considering the bankruptcy case in the manner prescribed for the corresponding stage of bankruptcy (clause 4 of article 48, clause 1 of article 71, clause 5 of article 81, clause 1 Article 100, paragraph 1 of Article 142 of the Bankruptcy Law).
Thus, it is not always the case that debt collection proceedings considered in lawsuit proceedings are subject to automatic termination or be left without consideration when bankruptcy proceedings are introduced against the debtor. In particular, after the introduction of the monitoring procedure, the plaintiff may file a motion to suspend the debt collection proceedings and submit an application to include his claims in the register within the bankruptcy case, or not file a motion to suspend the proceedings. In the latter case, the court will consider the case on its merits. In this case, it will be possible to submit an application for inclusion of requirements in the register after receiving a court decision.
It is important to note that the right to choose the order of consideration of claims against the debtor (in a bankruptcy case or in a lawsuit) belongs to the creditor only in the procedures of monitoring, financial recovery and external management. From the moment bankruptcy proceedings are opened against the debtor’s property, consideration of the creditor’s monetary claims that arose before the court accepted the application to declare the debtor bankrupt is possible only within the framework of a bankruptcy case.
1 See, in particular, paragraph 6 of the Resolution of the Plenum of the Supreme Arbitration Court of July 23, 2009 No. 59 “On some issues of the practice of applying the Federal Law “On Enforcement Proceedings” in the event of initiation of bankruptcy proceedings”; resolution of the FAS Volga-Vyatka District dated January 19, 2012 No. F01-5903/11 in case No. A17-3988/2010, FAS West Siberian District dated December 22, 2011 No. F04-6157/11 in case No. A03-2254 /2009, FAS East Siberian District dated December 15, 2010 in case No. A58-4349/10.
2 See paragraph 10 of Art. 16 of the Law on Bankruptcy, resolution of the FAS Volga District dated January 31, 2012 No. F06-10995/11 in case No. A12-8013/2011, FAS East Siberian District dated November 23, 2011 No. F02-5305/11 in case No. A19-11681/2011, FAS West Siberian District dated September 16, 2010 in case No. A45-1379/2010.
