Abuse in the issuance of securities is a fairly rare crime. Thus, according to the Judicial Department under the Armed Forces of the Russian Federation, in 2018 and in the first half of 2021, not a single person was convicted under Article 185 of the Criminal Code of the Russian Federation. But criminal cases are initiated under this article, although during the preliminary investigation the act may be reclassified under other articles of the Criminal Code of the Russian Federation, for example, fraud or embezzlement . Abuse in the issuance of securities is a crime with a high degree of latency, since the subjects committing such violations, as a rule, are highly educated people who can calculate their actions several moves ahead.
Concept of issue and types of securities
To understand the topic, you should understand the basic concepts.
In accordance with the legislation of the Russian Federation, namely the Civil Code, securities are documents that meet the requirements established by law and certify obligations and other rights, the exercise or transfer of which is possible only upon presentation of such documents (documentary securities). This definition is given in Part 1 of Article 142 of the Civil Code of the Russian Federation.
Having analyzed the regulatory sources, we can give their most general classification:
- basic (tied to property rights or assets such as money, goods, etc.) and production (depending on changes in prices for exchange assets on which it is based);
- order and registered (depending on the type of person who has the right to demand execution of the paper);
- emission and non-emission (depending on the order of issue).
In turn, the legislation classifies equity securities as:
- shares (documents confirming the share of ownership of any joint-stock organization and receipt of dividends on them);
- bonds (documents guaranteeing the right of the holder to receive, within a specified period, the nominal price of the bond, as well as a predetermined percentage);
- options (documents confirming the holder’s ability to buy shares at a specified time at a set price).
Interesting! Over the entire existence of the Russian Federation, nine different government bonds have been issued.
Judicial practice under Article 185 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 6,
2018 N 1-APU18-9 The court ruling dated October 1, 2021 recognized as legal and justified the decision of the Deputy Prosecutor General of the Russian Federation dated August 14, 2021 on the extradition of Kamluk N to law enforcement agencies of the Republic of Ukraine .N. to bring to criminal liability under Part 3 of Art. 185, part 5 art. 185 of the Criminal Code of the Republic of Ukraine.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 20, 2018 N 127-APU18-12
By the verdict of the Pervomaisky District Court of the Autonomous Republic of Crimea dated October 14, 2008, Krasnobryzhiy was convicted under Part 3 of Art. 185 of the Criminal Code of Ukraine (theft, committed repeatedly, by a group of persons by prior conspiracy, with penetration into a home) to 4 years in prison, under Part 3 of Art. 186 of the Criminal Code of Ukraine (robbery committed repeatedly, by a group of persons by prior conspiracy, with penetration into the premises) to 4 years 6 months in prison.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 15, 2019 N 127-UD18-19
- April 29, 2011 by the Evpatoria City Court under Part 2 of Art. 185, art. Criminal Code of the Republic of Ukraine to 5 years 6 months of imprisonment, released on December 2, 2014 based on the ruling of the Snegurovsky District Court of the Nikolaev Region of the Republic of Ukraine dated November 24, 2014 on parole for 1 year 9 months 4 days,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 16, 2019 N 31-APU19-3
The complaint against the decision of the Deputy Prosecutor General of the Russian Federation N.A. Vinnichenko was rejected. dated October 20, 2021 on his extradition for prosecution under Part 3 of Art. 185 of the Criminal Code of Ukraine. Having heard the report of judge A.N. Klimov, E.A. Skvortsov’s explanations. using a video conferencing system and lawyer S.V. Krotova, who asked the court ruling to be cancelled, the opinion of prosecutor E.N. Lokh, who believed that the ruling should be left unchanged, Judicial Collegium
Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 3, 2017 N 34
"1.1. Detention as a preventive measure in the absence of the circumstances specified in paragraphs 1 - 4 of part one of this article cannot be applied to a suspect or accused of committing crimes provided for in parts one - four of Article 159, Articles 159.1 - 159.3, 159.5, 159.6, 160, 165, if they are committed by an individual entrepreneur in connection with his business activities and (or) management of his property used for business purposes, or if these crimes are committed by a member of the management body of a commercial organization in connection with the exercise of his powers by management of an organization or in connection with the implementation by a commercial organization of entrepreneurial or other economic activities, as well as parts five - seven of Article 159, articles 171 - 174, 174.1, 176 - 178, 180 - 183, 185 - 185.4, 190 - 199.4 of the Criminal Code of the Russian Federation .";
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 18, 2018 N 127-UD18-16
By the verdict of the Simferopol District Court of the Autonomous Republic of Crimea dated December 9, 2013, Asanov was acquitted under Part 3 of Art. , part 3 art. 146 of the Criminal Code of Ukraine and for the totality of crimes provided for in Part 3 of Art. , clauses 6, 9, 12, 13, part 2, art. 115, part 1 art. , part 3 art. , paragraphs 3, 6, 9, 12, 13, part 2, art. 115, part 1 art. , part 3 art. 146, part 3 art. , part 3 art. , part 2 art. 146, part 3 art. , part 3 art. 146, part 3 art. 146, part 5 art. 185, part 1 art. , part 4 art. 187, part 4 art. 187, part 3 art. , part 4 art. 187, part 3 art. , part 1 art. , part 3 art. 190, part 4 art. 190, part 3 art. , part 4 art. 190, part 3 art. , part 2 art. , part 3 art. 357, part 3 art. , part 3 art. 357, part 3 art. , part 3 art. 357, part 3 art. , part 3 art. 358, part 3 art. , part 1 art. 358, part 3 art. , part 3 art. 358, part 3 art. , part 4 art. 358, part 3 art. , part 4 art. 358 of the Criminal Code of Ukraine, sentenced to life imprisonment with confiscation of property, on the basis of Part 2 of Art. The Criminal Code of Ukraine, together with the sentence of August 4, 2005, is to life imprisonment with confiscation of property.
Determination of the Constitutional Court of the Russian Federation dated June 30, 2020 N 1424-O
The special rule enshrined in part one.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation, according to which detention as a preventive measure in the absence of the circumstances specified in paragraphs 1 - 4 of part one of the same article, cannot be applied to a suspect or accused of committing crimes provided for in parts one to four of Article 159, Articles 159.1 - 159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, if these crimes were committed by an individual entrepreneur in connection with his business activities and (or) management of property owned by him and used for the purposes of entrepreneurial activity, or if these crimes were committed by a member of the management body of a commercial organization in connection with the exercise of powers by him to manage the organization or in connection with the implementation by a commercial organization of entrepreneurial or other economic activities, as well as parts five to seven of Article 159, Articles 171, 171.1 171.3 - 172.3, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4 and 190 - 199.4 of the Criminal Code of the Russian Federation, is an additional guarantee of the constitutional right to freedom and personal integrity (determination of the Constitutional Court of the Russian Federation of February 24, 2011, 2011 year N 250-О-О, dated November 20, 2014 N 2637-О, etc.).
Determination of the Constitutional Court of the Russian Federation dated July 23, 2020 N 1863-O
According to part one.1 of article 108 of the Code of Criminal Procedure of the Russian Federation, detention as a preventive measure in the absence of the circumstances specified in paragraphs 1 - 4 of part one of the same article cannot be applied to a suspect or accused of committing crimes provided for in parts one - fourth article 159, articles 159.1 - 159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, if these crimes were committed by an individual entrepreneur in connection with his business activities and (or) management of property belonging to him, used for business purposes, or if these crimes were committed by a member of the management body of a commercial organization in connection with the exercise of powers by him to manage the organization or in connection with the implementation by a commercial organization of entrepreneurial or other economic activities, as well as parts five - seven of Article 159, Articles 171, 171.1, 171.3 - 172.3, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4 and 190 - 199.4 of the Criminal Code of the Russian Federation. This special norm of the criminal procedural law is an additional guarantee of the constitutional right to freedom and personal integrity (rulings of the Constitutional Court of the Russian Federation of February 24, 2011 N 250-О-О, of November 20, 2014 N 2637-О, etc.).
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 4, 2017 N 127-APU17-3
— 07/21/2010 under Part 2 of Art. 289, part *** art. 185, part 2 art. 185, part 1 art. of the Criminal Code of Ukraine to 2 years of imprisonment, suspended, with a probationary period of 2 years, - 12/26/2011 under Part 2 of Art. 289, part 2 art. 185, part 3 art. 185, , Criminal Code of Ukraine to 5 years 6 months imprisonment,
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 10, 2018 N 127-UD17-25
Vinnik Dmitry Alekseevich, ... convicted by the verdict of the Krasnogvardeysky District Court of November 28, 2013 under Part 3 of Art. 185 of the Criminal Code of Ukraine to 3 years in prison, on the basis of Art. Art. , the Criminal Code of Ukraine was released from serving his sentence with probation, by a resolution of the same court dated June 11, 2014, the sentence was brought into compliance with the legislation of the Russian Federation, it was decided to consider him convicted under paragraph “b” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation to 3 years in prison, on the basis of Art. The Criminal Code of the Russian Federation is conditional with a probationary period of 2 years,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 15, 2019 N 127-APU18-13sp
- 02/05/2007 under Part 1 of Art. 115, part 3 art. 185, part 1 art. of the Criminal Code of Ukraine to 9 years in prison, by a court order dated December 21, 2010, he was released on parole for 1 year 1 month 21 days; — 02/16/2016 according to Art. 264.1 of the Criminal Code of the Russian Federation to 9 months of imprisonment with deprivation of the right to engage in activities related to driving a vehicle for 2 years, released on November 15, 2016 after serving the main sentence;
Legal regulation of emissions
An entire chapter of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market” is devoted to the issue.
This process refers to the activities of a special entity (issuer) in printing, verifying, certifying and selling securities. Important! Not only the state, but also legal entities have the right to issue papers. In addition to them, local government and executive authorities participate. The process itself, in accordance with the law, consists of several stages:
- the emergence of an intention to place papers with its subsequent approval;
- registration of circulation of shares or bonds by authorized government bodies;
- issuance to the first holders (introduction to the market);
- subsequent recording of release by government agencies.
Thus, a person purchasing a share or bond a priori has the right to consider it genuine due to the special procedure for putting it into circulation and state control.
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Article 142 of the Civil Code of the Russian Federation
Federal Law of April 22, 1996 N 39-FZ
Article 185. Abuses during the issue of securities
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- Article 185. Abuses during the issue of securities
1. Inclusion of obviously unreliable information into a securities prospectus, approval or confirmation of a prospectus or report (notification) containing obviously unreliable information on the results of the issue of securities, as well as the placement of issue-grade securities, the issue of which has not passed state registration, except in cases where legislation The Russian Federation Law on Securities does not provide for state registration of the issue of issue-grade securities, if these acts caused major damage to citizens, organizations or the state -
punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for the period from one to two years, or compulsory labor for a term of up to four hundred eighty hours, or correctional labor for a term of up to two years.
2. The same acts committed by a group of persons by prior conspiracy, -
shall be punishable by a fine in the amount of one hundred thousand to four hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to one year, or by imprisonment for the same term.
(Part two as amended by Federal Law No. 325-FZ of July 3, 2021 - Collection of Legislation of the Russian Federation, 2021, No. 27, Art. 4258)
3. Acts provided for in the first part of this article, committed by an organized group, -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to three years, or by imprisonment for the same term.
(Part three was introduced by Federal Law No. 325-FZ of July 3, 2021 - Collection of Legislation of the Russian Federation, 2021, No. 27, Art. 4258)
Note. Large damage, large-scale income in Articles 185, 185-1, 185-2 and 185-4 of this Code are recognized as damage, income in an amount exceeding one million five hundred thousand rubles, and in an especially large amount - three million seven hundred fifty thousand rubles .
Commentary on Article 185
An object
crimes - the established procedure for issuing securities, the interests of investors.
According to Art. 2 of the Federal Law of April 22, 1996 N 39-FZ “On the Securities Market” <1> issue of securities is the established sequence of actions of the issuer for the placement of issue-grade securities <2>.
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<1> RG. 1996. April 25
<2> On the issue of state and municipal securities, see: Federal Law of July 29, 1998 N 136-FZ “On the peculiarities of the issue and circulation of state and municipal securities” // RG. 1998. 6 Aug.
Issuer is a legal entity or executive authorities or local governments that bear, on their behalf, obligations to the owners of securities to exercise the rights assigned to them.
The placement of issue-grade securities represents the alienation of issue-grade securities by the issuer to the first owners through the conclusion of civil transactions.
An issue-grade security is understood as any security that is simultaneously characterized by the following features: 1) secures a set of property and non-property rights that are subject to certification, assignment and unconditional implementation in compliance with the form and procedure established by the Federal Law “On the Securities Market”; 2) posted in releases; 3) has equal volume and terms of exercise of rights within one issue, regardless of the time of acquisition of the security.
Shares, bonds and issuer options are issued as issue-grade securities. They can be registered or bearer, as well as in non-documentary or documentary form.
As a general rule, the procedure for issuing equity securities is as follows: 1) making a decision on the placement of securities; 2) approval of the decision on their release; 3) state registration of their release; 4) placement of papers; 5) state registration of a report on the results of the issue of securities.
In the case of placement of issue-grade securities by open subscription or by private subscription among a circle of persons whose number exceeds 500, the issuer registers their prospectus.
A securities prospectus is a document required for state registration of a securities issue, which is submitted to the registration authority and contains information about the issuer’s management bodies, the procedure and conditions for the placement of issue-grade securities, the financial and economic condition of the issuer and its financial and economic activities, about the participants (shareholders) of the issuer, etc.
The securities prospectus of a business company is approved by the board of directors (supervisory board) or the body exercising, in accordance with federal laws, the functions of the board of directors (supervisory board) of this business company. The prospectus for securities of legal entities of other organizational and legal forms is approved by the person performing the functions of the issuer’s executive body, unless otherwise established by federal laws (Article 22.1 of the Federal Law “On the Securities Market”).
The securities prospectus must be signed by the person performing the functions of the sole executive body of the issuer, its chief accountant (another person performing his functions), and, if necessary, an auditor, an independent appraiser, a financial consultant on the securities market, thereby confirming the accuracy and completeness of all information contained in the securities prospectus.
The issuer has the right to begin placement of issue-grade securities after state registration of their issue (Article 24 of the Federal Law “On the Securities Market”).
State registration is carried out by the federal executive body for the securities market, within thirty days from the date of submission of the necessary documents. Upon state registration of an issue of equity securities, it is assigned an individual state registration number.
When establishing a joint stock company or reorganizing legal entities, carried out in the form of a merger, division, separation and transformation, the placement of issue-grade securities is carried out before the state registration of their issue, and the state registration of the report on the results of the issue of issue-grade securities is carried out simultaneously with the state registration of the issue of issue-grade securities .
In accordance with Art. 25 of the Federal Law “On the Securities Market”, no later than thirty days after the completion of the placement of issue-grade securities, the issuer is obliged to submit to the registration authority a report on the results of the issue (additional issue) of issue-grade securities, which contains the following information: start and end dates of the placement; actual placement price of securities and their quantity; share of placed and unplaced securities of the issue; the total amount of proceeds for the placed securities; on transactions recognized by federal laws as major transactions and interested party transactions that were concluded during the placement of securities.
The report on the results of the issue of equity securities must be signed by the person performing the functions of the sole executive body of the issuer, its chief accountant (another person performing his functions), thereby confirming the accuracy and completeness of all information contained in this document.
The registration authority reviews the report on the results of the issue of issue-grade securities within two weeks and, in the absence of violations related to the issue of securities, registers it.
Objective side
the crime is expressed in the following actions: 1) entering knowingly false information into the securities prospectus; 2) approval of a prospectus or report on the results of the issue of securities containing deliberately false information; 3) placement of issue-grade securities, the issue of which has not passed state registration, and the consequences in the form of major damage to citizens, organizations or the state, causation.
The inclusion of knowingly false information in a securities prospectus means the inclusion in this document at the stage of its preparation of information that does not correspond to reality.
Approval of a prospectus or a report on the results of a securities issue containing deliberately false information requires their approval by the collegial (for example, board of directors) or executive (for example, general director) body of the issuer.
The placement of issue-grade securities, the issue of which has not passed state registration, means the alienation by the issuer of the first owners of securities that have not been assigned an individual state registration number.
The act is completed at the moment of causing major damage to citizens, organizations or the state. The corpus delicti is material.
In accordance with the note to the commented article, major damage is understood as an amount exceeding one million rubles. On the qualitative side, damage is expressed in real property losses and lost profits.
A prerequisite for criminal liability is the existence of a causal connection between actions and the resulting consequences. However, as rightly noted by I.A. Klepitsky, there is no single and strict method for calculating damage from such actions and it is hardly possible at all (taking into account the attitude in our civil law to “abstract damages”) <1>.
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<1> Klepitsky I.A. System of economic crimes. M., 2005. P. 204.
Subjective side
crimes are characterized by guilt in the form of direct or indirect intent. The person is aware that he is abusing his actions when issuing securities, foresees the possibility or inevitability of causing major damage to citizens, organizations or the state and desires this or consciously allows these consequences or is indifferent to them.
Motives and goals are not mandatory elements of a crime. At the same time, this crime is characterized by obtaining property benefits and other personal interests.
Subject
special crime - a sane individual who has reached the age of sixteen, responsible for drawing up a prospectus, approving the prospectus and a report on the results of the issue of securities, placement of securities. As a rule, these are members of the collegial body or heads of the executive body of the issuer, chief accountant, financial consultant, appraiser, auditor.
The qualifying feature is the commission of a crime by a group of persons by prior conspiracy (see Part 2 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto) or by an organized group (see Part 3 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto).
For violations by the issuer of the procedure (procedure) for issuing securities that did not cause major damage, administrative liability is established (Article 15.17 of the Code of Administrative Offenses of the Russian Federation).
Concept and corpus delicti
The legal definition of such a phenomenon as abuse in the issuance of securities is given in Art.
185 of the Criminal Code of the Russian Federation. In accordance with this article, it is an abuse to include knowingly unreliable information in a securities prospectus, approving or confirming a prospectus or report (notification) on the results of a securities issue containing obviously unreliable information, as well as placing issue-grade securities the issue of which has not passed state registration. As a result of such actions, a document appears, the obligations under which are not supported by anything.
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Article 185 of the Criminal Code of the Russian Federation
Article 15.17 of the Code of Administrative Offenses of the Russian Federation
The crime can be committed at any stage of the issue.
The subject of a criminal tort is the unreliable issuer, as well as officials responsible for the reliability and validity of the security, and specialists from government agencies. The age for prosecution is 16 years.
Also, the crime is often characterized by complicity, since for successful completion, fraudsters need coordinated work at all stages of the issue of securities, as well as the complicity of government officials.
The subjective side of the composition is guilt, which is characterized by malicious intent. The criminal is aware of the possibility of adverse property or other consequences for persons purchasing a document issued with violations or for the market as a whole, while desiring the occurrence of such consequences or being indifferent to it.
The object is economic relations in the field of securities and their issue. Since liability occurs only in the event of damage, an additional object appears - the welfare and interests of individuals and legal entities, the state.
The subject of the criminal act is contained in the definition itself. It could also be:
- deliberate alteration of the issuer's information or omission of prospectuses with such information by an authorized person;
- printing a prospectus that is known to be false;
- deliberate introduction into civil circulation of unbacked securities.
The objective side is characterized by a number of features:
- the act itself, described in Article 185 of the Criminal Code of the Russian Federation;
- the presence of major damage (in accordance with the note to the article, it must be at least one and a half million rubles);
- direct connection of the above characteristics.
Important!
A crime can be expressed in the form of presenting false information in the prospectus of the Central Bank (securities). In the case of the article in question, it includes data that is mandatory for content as required by Art. 22 of Federal Law No. 39 “On the Securities Market”, but deliberately falsified by the issuer. The design itself is material, because... the violation is considered completed after the occurrence of major damage.
Qualified offenses include the commission of an offense by a group of persons and an organized group (Parts 2 and 3 of Article 185 of the Criminal Code of the Russian Federation).
If the damage as a result of criminal actions is less than 1,500,000 rubles, the actions are qualified under Article 15.17 of the Code of Administrative Offenses “Unfair Emission”.
Commentary to Art. 185 Criminal Code
1. The procedure for issuing securities is determined by Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market”.
2. The securities prospectus must contain information about the issuer, its financial and economic condition and risk factors, information about the upcoming issue of equity securities. The purpose of the prospectus is to provide investors purchasing equity securities with the maximum information necessary to make an independent and informed decision. Deliberate distortion of any information contained in a securities prospectus, resulting in major damage (over 1.5 million rubles), entails criminal liability under Art. 185 of the Criminal Code for entering knowingly false information into the securities prospectus (the first form of a criminal act).
3. The securities prospectus of a business company is approved by the board of directors (supervisory board) or the body exercising, in accordance with federal laws, the functions of the board of directors (supervisory board) of this business company. The prospectus for securities of legal entities of other organizational and legal forms is approved by the person performing the functions of the issuer’s executive body, unless otherwise established by federal laws. If these persons approved a prospectus containing deliberately false information (the second form of a criminal act), thereby causing major damage, then they are subject to criminal liability. In addition, the signing of a securities prospectus (its confirmation) by the persons specified in clause 2 of Art. 22.1 of the Federal Law “On the Securities Market”.
4. No later than 30 days after the completion of the placement of issue-grade securities, the issuer is obliged to submit to the registration authority a report (notification) on the results of the issue (additional issue) of issue-grade securities or, in the case provided for by law, a notification on the results of the issue (additional issue) of issue-grade securities . Approval by the authorized bodies of the issuer of an unreliable report (notification) on the results of the issue of securities or its signing (confirmation) by the entities specified in clause 6 of Art. 25 of the Federal Law “On the Securities Market” form the third form of a criminal act.
5. Placement of issue-grade securities - alienation of issue-grade securities by the issuer to the first owners through the conclusion of civil transactions. The issuer has the right to begin placement of issue-grade securities only after state registration of their issue, unless otherwise established by law. The placement of issue-grade securities without state registration, which causes major damage, entails criminal liability under Art. 185 of the Criminal Code (fourth form of criminal act).
Responsibility for the committed act will be borne by the head of the organization who ordered the placement of securities. Placement can be carried out by professional participants.
