Verdict under Article 196 of the Criminal Code of the Russian Federation (Intentional bankruptcy)

ST 196 of the Criminal Code of the Russian Federation.

Intentional bankruptcy, that is, the commission by the head or founder (participant) of a legal entity or a citizen, including an individual entrepreneur, of actions (inactions) that obviously entail the inability of the legal entity or citizen, including an individual entrepreneur, to fully satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to pay obligatory payments, if these actions (inaction) caused major damage -

shall be punishable by a fine in the amount of two 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 five years, or by imprisonment for a term of up to six years with a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months or without it.

Commentary to Art. 196 Criminal Code

1. Unlike Art. 195 of the Criminal Code in the crime in question, signs of bankruptcy are created specifically, purposefully.

2. The objective side is characterized by an act (action or inaction) that resulted in the debtor’s inability to satisfy the property claims of creditors. Such actions include, for example, receiving or providing on unfavorable terms, concluding unprofitable transactions, non-collection of accounts payable, etc. As a result, the debtor's insolvency and signs of bankruptcy should appear.

3. Criminal liability is provided if the intentional bankruptcy resulted in major damage (over 1.5 million rubles).

4. To bring a person to criminal liability, a decision of an arbitration court to declare a person bankrupt is not necessary.

5. The subject is special, directly specified in the law. Arbitration managers cannot be subjects of this crime, since by the time they are vested with managerial powers, signs of bankruptcy already exist.

Article 196. General limitation period

Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 02/05/2019 N 308-ES15-12864 in case N A15-1976/2014 Guided by Articles 181, 195, 196, 200 of the Civil Code, the courts recognized that the statute of limitations for the stated claims had not been missed , indicating that the Company, since June 2012, learned or should have learned about the failure of a local government body to fulfill an obligation arising as a result of an oral agreement (transaction), and filed a corresponding claim on May 20, 2014.

Ruling of the Supreme Court of the Russian Federation dated January 11, 2019 N 310-ES18-23438 in case N A68-11736/2017

In rejecting the claim, the appellate court, with which the district court agreed, was guided by Articles 195, 196, 199, 200 of the Civil Code of the Russian Federation and, as a result of the study and assessment of the evidence presented in the case according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that that the plaintiff learned about the amount of electrical energy consumed in May 2014 by the defendant, determined by calculation, after receiving the act of provision of services for the transmission of electrical energy for May 2014, sent to him by the network organization on June 23, 2014, signed with a protocol of disagreements. Therefore, the recognition of the missed statute of limitations by the plaintiff, who applied to the arbitration court with this claim on October 26, 2017, corresponds to the circumstances of the dispute established by the court.

Ruling of the Supreme Court of the Russian Federation dated January 25, 2019 N 308-ES18-23634(2) in case N A63-20918/2017

Refusing to include the applicant’s claim in the register, the courts were guided by the provisions of Articles 797, 195, 196, 199, 200 of the Civil Code of the Russian Federation, and proceeded from the terms of the transportation agreement concluded between the debtor and the creditor, and therefore came to the conclusion that the entrepreneur had missed the deadline for the claim statute of limitations on the stated claim.

Ruling of the Supreme Court of the Russian Federation dated January 10, 2019 N 310-ES18-23137 in case N A09-725/2017

In rejecting the claim, the courts were guided by Articles 181, 196, 197, 199, 200 of the Civil Code of the Russian Federation and, having examined and assessed the evidence presented in the case materials in accordance with Article 71 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that the plaintiff had missed the statute of limitations.

Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated January 29, 2019 N 305-ES18-15149 in case N A40-126230/2013

In accordance with Article 196 of the Civil Code of the Russian Federation, the general limitation period is three years. In addition, the plaintiff’s filing of this statement of claim actually pursued the goal of restoring corporate control over the Bars company. A claim to restore corporate control is subject to a general statute of limitations of three years, which is calculated from the moment the person seeking protection knew or should have known about the violation of his right and who is the proper defendant in the claim for the protection of this right .

Ruling of the Supreme Court of the Russian Federation dated January 18, 2019 N 310-ES18-23944 in case N A84-2909/2017

According to Articles 195, 196 and 197 of the Civil Code of the Russian Federation, a person whose right has been violated has the right to exercise his right to defend it by filing a claim within the general or special limitation periods. By virtue of paragraph 2 of Article 181 of the Civil Code of the Russian Federation, the limitation period for a claim to recognize a voidable transaction as invalid and to apply the consequences of its invalidity is one year. The limitation period for the said claim begins from the day the violence or threat under the influence of which the transaction was concluded ceases (clause 1 of Article 179), or from the day when the plaintiff learned or should have learned about other circumstances that are the basis for declaring the transaction invalid.

Ruling of the Supreme Court of the Russian Federation dated January 30, 2019 N 309-ES19-248 in case N A76-15488/2017

In satisfying the claim, the courts were guided by Articles 195, 196, 200, 309, 310, 314, 395, 457, 486, 487, 506 of the Civil Code of the Russian Federation and, having examined and assessed the presented evidence according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that the defendant (supplier) has no grounds for withholding funds received from the plaintiff (buyer) in payment for goods that were not supplied by the defendant.

Ruling of the Supreme Court of the Russian Federation dated January 28, 2019 N 309-ES18-24337 in case N A60-17512/2018

Having examined and assessed, according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, the presented evidence of execution of the loan agreement, taking into account the defendant’s statement about the application of the limitation period, the courts rejected the claim, guided by Articles 195, 196, 199, 200, 207, 807, 809, 810 of the Civil Code Russian Federation.

Ruling of the Supreme Court of the Russian Federation dated 02/04/2019 N 305-ES18-24802 in case N A40-135868/2017

In resolving the stated claims, the courts, guided by Articles 195, 196, 200, paragraph 3 of Article 222 of the Civil Code of the Russian Federation, the explanations given in paragraph 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 9, 2010 N 143 “Review of judicial practice on certain issues application by arbitration courts of Article 222 of the Civil Code of the Russian Federation", establishing that the ownership right of the city of Moscow to the controversial unauthorized construction was recognized on the basis of the decision of the Arbitration Court of the city of Moscow dated October 12, 2011, left unchanged by the decisions of the appeal court dated January 31, 2012, and the cassation court ruling dated On 05/18/2012, and this statement of claim was filed by the company on 07/24/2017, we came to the conclusion that the plaintiff missed the statute of limitations, the application of which was declared by the defendant.

Ruling of the Supreme Court of the Russian Federation dated 02/05/2019 N 309-ES19-1097 in case N A07-39537/2017

Partially satisfying the requirements within the limitation period and guided by Articles 196, 200, 395, 539, 544, 1102, 1107 of the Civil Code of the Russian Federation, Federal Law of March 26, 2003 N 35-FZ “On Electric Power Industry”, Basic provisions for the functioning of retail electricity markets energy, approved by Decree of the Government of the Russian Federation dated 04.05.2012 N 442, the courts assessed the evidence presented in the case materials in accordance with Article 71 of the Arbitration Procedural Code of the Russian Federation and came to the conclusion that there was unjust enrichment that arose in connection with the payment of electricity by the consumer at an inflated tariff, designed for higher voltage levels.

Ruling of the Supreme Court of the Russian Federation dated 02/04/2019 N 310-ES18-23137 in case N A09-725/2017

In rejecting the claim, the courts were guided by Articles 181, 196, 197, 199, 200 of the Civil Code of the Russian Federation and, having examined and assessed the evidence presented in the case materials in accordance with Article 71 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that the plaintiff had missed the statute of limitations.

Second commentary to Art. 196 of the Criminal Code of the Russian Federation

1. The objective side is deliberate bankruptcy, i.e. when the director or founder (participant) of a legal entity or an individual entrepreneur commits actions (inactions) that obviously entail the inability of the legal entity or individual entrepreneur to fully satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to pay mandatory payments, if these actions ( inaction) caused major damage.

The crime must result in major damage.

2. Composition - material.

3. The subjective side is characterized by intentional guilt.

4. The subject is the director or founder (participant) of a legal entity or an individual entrepreneur.

What is deliberate bankruptcy?

Reading time: 6 minute(s) Not all business leaders want to run their business according to the rules. For example, many do not want to pay their creditors and begin deliberate bankruptcy of the enterprise. Detecting this crime is difficult because it requires a lengthy and thorough analysis of the legal entity's agreements. Today we will talk about how to do this.

Concept

Intentional bankruptcy is the deliberate bringing of a business by its management to a state of insolvency. Unlike fictitious bankruptcy, deliberate bankruptcy leads to a real deterioration in the financial performance of the company. As a result, the individual entrepreneur or legal entity becomes unable to pay debts and taxes.

Intentional bankruptcy is regulated by Art. 196. of the Criminal Code of the Russian Federation, as well as Article 14.12 of the Code of Administrative Offences. Accordingly, criminal and administrative liability is provided for this.

When identifying signs of deliberate bankruptcy, the temporary manager must also be guided by the regulations of the Government and the Supreme Arbitration Court of the Russian Federation.

1. RF PP dated December 27, 2004 N855 contains the main methods for carrying out a comprehensive audit and recommendations for conducting an examination.
2. RF PP dated June 25, 2003 N 367 - this document contains the primary methods for identifying a crime.
3. Resolution of the Plenum of the RF Armed Forces on cases of deliberate bankruptcy dated November 15, 2016 No. 48 contains details of the consideration of economic crimes in court.

Objects and goals

The object of the crime is the relationship between creditors and debtor. The motive for bringing a company to bankruptcy is the reluctance of management to meet its economic obligations. Intentional bankruptcy according to Article 196 of the Criminal Code of the Russian Federation is not only an action, but also an inaction of a legally competent person who has access to the management of an organization.

By deliberately worsening the financial performance of their company, management harms creditors. For dishonest business owners, this is an easy way to liquidate a legal entity by refusing to pay their obligations. The arbitration manager must find evidence of deliberate bankruptcy.

Intentional bankruptcy under Article 196 of the Criminal Code of the Russian Federation is not always the bankruptcy of the debtor through the fault of any persons involved in the management. This is simply a deliberate deterioration of the company's affairs. The commentary to Article 196 of the Criminal Code of the Russian Federation states that in order to initiate a criminal case, a legal entity or individual does not have to be declared bankrupt.

Differences from fictitious bankruptcy

When a legal entity is deliberately brought to insolvency, all its real signs are present. The company's management begins to conduct business incompetently, enters into unprofitable deals, which leads to a deterioration in solvency.

Fictitious bankruptcy consists of hiding the real economic indicators of the company from creditors. For example, management sells equipment and real estate to third parties in order to immediately conclude a lease agreement with them. In reality, there are no signs of economic insolvency, but formally the company is on the verge of bankruptcy.

It is interesting that even if the fact of intentional bankruptcy is revealed, the procedure does not stop. Because solvency can no longer be restored. In case of fictitious insolvency, it is still possible to roll back, because solvency is normal, but is deliberately distorted.

Signs of deliberate bankruptcy

The temporary rules for checking by the arbitration manager for the presence of signs of fraud define them vaguely, as does Article 196 of the Criminal Code of the Russian Federation. The main feature is the deliberate infliction of financial damage on the company, which can be expressed in the actions and inactions of management.

The difficulty of analysis is caused by the large amount of data on the company’s activities. The economic activity of a person can be assessed not only through a set of contracts, but also using an array of primary documentation, as well as tax and audit data.

Inaction by management is also a sign of a crime, but it is almost impossible to detect it in practice. The best way to analyze the presence of signs of a crime is through financial expertise and analysis of the company’s documentation.

Individual

Individual entrepreneurs can also evade obligations to creditors, deliberately bringing themselves to bankruptcy. The following are clear signs of deliberate bankruptcy of an individual entrepreneur:

1. a sharp increase in debt obligations not backed by assets;
2. increased frequency of violations in the loan payment schedule;
3. deterioration of liquidity ratios.

Legal entity

Actions leading to bankruptcy:

1. replacement of the enterprise's assets with others, less liquid;
2. acquisition by the company of additional obligations unsecured by property;
3. concluding transactions with the alienation of property, without which the work of the company is impossible;
4. sale of property at a reduced price.

It is difficult for an arbitration manager to identify the first point because there are no official methods for identifying the liquidity of assets. Whether the fact of deliberate bankruptcy will be revealed depends on the professional qualities of the appraiser. Replacement of assets is usually not enough to prove a crime. Sanctions can be applied not to management as a whole, but to individuals within it.

The acquisition of additional obligations without the ability to pay for them should be considered a sign of deliberate bankruptcy if the enterprise is already on the verge of ruin. An example of such a transaction: concluding an expensive lease agreement when the company has no funds on its balance sheet.

Transactions involving the alienation of property, without which the company will not be able to function normally, also occur in ordinary cases of bankruptcy. When the manager realizes that he needs to pay off creditors, he can sell some of the company's main assets. If, after such a transaction, the funds were used to pay the company’s obligations, this is not a sign of deliberate bankruptcy.

Intentional bankruptcy involves concluding many transactions that are unfavorable for the debtor at once. However, incompetent company management does not always have malicious intent. To prove the fact of an economic crime, it is necessary to find out what the proceeds were spent on. If for obligatory payments, then it is unlikely that there was a motive to deceive creditors.

Identification procedure

The bankruptcy law stipulates that an arbitration manager appointed by the court must investigate the fact of intentional bankruptcy. He is obliged to check for fictitious and deliberate bankruptcy, otherwise he himself should be brought to administrative responsibility.

After his appointment, the manager must conduct a two-step review.

1. At the first stage, the financial indicators of the company or individual entrepreneur are analyzed, liquidity indicators and solvency are examined.
2. If an abnormal deterioration in financial performance has been identified, the manager must analyze the transactions that were carried out during this period.

At the first stage, the expert traces the dynamics of financial indicators . According to the legislation of the Russian Federation, a conclusion is drawn about intentional bankruptcy if an increase in the average rate of deterioration of indicators in the last quarter in relation to the entire period under study was established.

Liquidity ratios, which reflect the debtor's ability to pay off its obligations, are the main ones, but not the only ones. It checks how much the security of debts with assets has deteriorated during the reporting period.

The ratio of accounts receivable to total assets is of great importance. An indicator exceeding a value of 0.7 is considered critical, and one between 0.4 and 0.7 is considered alarming.

At the second stage, the manager analyzes the entire volume of business documentation . It is determined whether the transactions concluded during this period corresponded to the interests of the company. The manager must take into account market conditions, the motives of managers, and even the possible influence of the political situation on the company's affairs.

The inspection ends with the release of a conclusion on the presence or absence of signs of fictitious or deliberate bankruptcy from the bankruptcy manager. It contains one of the following conclusions:

1. the fact of planned bankruptcy was revealed;
2. no facts were found to support it;
3. There is not enough information to make a specific conclusion.

Lack of information may arise due to loss or intentional destruction of reporting documents. It in itself leads to another check - the fact of concealment of important business and financial documents. Illegal actions to conceal them indicate fictitious bankruptcy.

The conclusion describes in detail the stages of the examination performed. If a deterioration in financial performance was identified, then it is indicated in what period this occurred. All suspicious transactions are listed. After this, the application to bring the perpetrators to justice is sent to the Department of Economic Crimes, where they will have to investigate the revealed facts.

If the report is confirmed, they open an administrative violation report or a criminal case. The temporary manager must make a publication in the EFRSB about the presence of deliberate bringing to insolvency.

Creditors have a direct interest in the correct conclusions of the interim manager. If he did a poor job or was intentionally negligent, interested parties can submit a petition to appoint an independent examination. This threatens sanctions not only for the management of the company, but also for the manager himself.

Liability for premeditated bankruptcy

Criminal liability arises if creditors have suffered major damage - from 2 million rubles. It involves payment of a fine from 200 to 500 thousand rubles, or up to 6 years in prison.

Otherwise, administrative and subsidiary liability . The administrative fine can range from 1 to 3 thousand rubles. Judicial practice on economic crimes in criminal proceedings shows that even if it comes to a criminal court, the prosecution loses in 95% of cases. And in a very small percentage of cases, criminal cases are even opened, usually management receives administrative fines, and bankruptcy proceedings continue.

Question answer

Who is the subject?

Company management, including the chief accountant, or an individual entrepreneur.

Who is held administratively liable?

Those involved are brought to justice by the arbitration court.

Who can file a bankruptcy case?

Information about intentional bankruptcy may come from individual employees, creditors and the interim trustee.

Where to report a crime?

An application for an inspection must be sent to the Department of Economic Crimes. Once the application has been submitted, it can no longer be withdrawn. If they refuse to take action, you need to contact the prosecutor's office.

How to write a statement to the police?

You do not need to write the application yourself; police officers will help you with this on the spot. You will only need to indicate your data, as well as the facts indicating the offense.

Who can be an expert in an independent audit?

An expert can be a person with special knowledge and skills in the field of bankruptcy. He is appointed by the arbitration court.

How to prepare a conclusion?

Analyze the company’s economic activities over the past 2 years and draw appropriate conclusions. This is usually done by experts or temporary managers.

Sample documents

Petition to appoint an examination of signs of deliberate (fictitious) bankruptcy

To download the application for the appointment of an examination, click here: https://yadi.sk/i/ltbxD75BPIv6gw

Based on this, deliberate bankruptcy is an administratively and criminally punishable act consisting of deliberately bringing a company to a state of insolvency. In this situation, creditors suffer, as well as the state.

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Third commentary to Article 196 of the Criminal Code of the Russian Federation

1. The direct object is the relationships and legitimate interests of participants in economic activity, individual entrepreneurs and commercial organizations that are harmed when carrying out deliberate bankruptcy. The subject of the crime is monetary obligations and mandatory payments.

2. The objective side is characterized by the act, the consequences in the form of major damage and the causal relationship between them. Due to the change in the disposition of the article, the content of the act has undergone changes. It can be committed in the form of actions (inaction) that resulted in the debtor’s inability to fully satisfy the demands of creditors or make obligatory payments. The corpus delicti is material. The legislator associates its end with the infliction of major damage, which, in accordance with the note to Art. 169 of the Criminal Code of the Russian Federation means damage in an amount exceeding 1 million 500 thousand rubles.

3. The subjective side is characterized by an intentional form of guilt. At the same time, the legislator identifies the motive as a mandatory subjective feature. The perpetrator acts in personal interests or in the interests of others.

4. A special subject of a crime is an individual who has reached the age of 16 and is a director or founder (participant) of a legal entity or an individual entrepreneur.
‹ Article 195. Illegal actions in bankruptcyTop Article 197. Fictitious bankruptcy ›

Does the Criminal Code of the Russian Federation need bankruptcy proceedings?

Does the Criminal Code of the Russian Federation need bankruptcy[1] compositions?

It is no secret that the application of a norm of criminal law, burdened with a blanket disposition, is associated with certain difficulties of both theoretical and practical nature. In this sense, the rules on so-called “criminal bankruptcies” (Article 195 of the Criminal Code of the Russian Federation “Illegal actions in bankruptcy”, Article 196 of the Criminal Code of the Russian Federation “Intentional bankruptcy”, Article 197 of the Criminal Code of the Russian Federation “Fictitious bankruptcy”) are no exception in this sense. and therefore firmly established in the orbit of interests of forensic scientists. The difficult search for an optimal model of criminal legal protection of public relations related to insolvency (bankruptcy) was naturally accompanied by a number of changes and additions to the relevant provisions of the Criminal Code of the Russian Federation, which was largely due to the high degree of variability of the bankruptcy legislation itself.

A unique result of this many years of theoretical and legislative work was summed up by the law enforcement officer. At the end of April 2019, at a meeting of the Public Council under the Ministry of Internal Affairs of Russia, representatives of the law enforcement agency proposed to exclude from the Criminal Code of the Russian Federation the provisions on fictitious and deliberate bankruptcy, since, in their opinion, there are no reasons and conditions for committing fictitious bankruptcy, and deliberate bankruptcy is often covered by elements of theft, criminal cases in which it is procedurally easier and faster to initiate[2].

However, later the Ministry of Internal Affairs of the Russian Federation hastened to clarify that he was misunderstood, and the speech of the representative of the ministry was exclusively about the decriminalization of fictitious bankruptcy (Article 197 of the Criminal Code of the Russian Federation)[3]. However, as they say, a residue remains.

The idea of ​​“disarming,” albeit partially, the criminal legal protection of public relations in the field of bankruptcy generally found a positive response among fellow lawyers[4]. So the Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs, Boris Titov, who cautiously expressed concern about the arguments of the authors of the initiative, ultimately proposed transferring bankruptcy crimes to the category of administrative offenses, that is, in other words, decriminalizing them[5].

On the issue of the advisability of preserving bankruptcy offenses in the Criminal Code of the Russian Federation, there is a point of view that they are fully covered by the elements of theft (Articles 159, 160 of the Criminal Code of the Russian Federation) and abuse of power in a commercial organization (Article 201 of the Criminal Code of the Russian Federation), and therefore are redundant[6] . We will try to figure out whether this is so within the framework of this article.

I. Fictitious bankruptcy extra composition?

Fictitious bankruptcy (along with, for example, a fictitious marriage) is a type of fictitious legal state, when in our case the action in form fully complies with the requirements of the law, but in content contradicts it. Consequently, if the law does not regulate the appropriate legal form of the subject’s action or the subject does not adhere to it when committing an act, there are no grounds for imputing fictitious bankruptcy.

Let me remind you that the objective side of fictitious bankruptcy consists of a deliberately false public announcement by the debtor of his insolvency . However, the current bankruptcy legislation, in principle, does not provide for a legal form of public announcement by the debtor of his insolvency. Such an announcement (or, more precisely, recognition) by virtue of Art. 25, Civil Code of the Russian Federation, as well as Art. 6 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Federal Law on Bankruptcy) can only be done by the court. That is why the actions of a person who publicly, for example in the media, announces that the organization he heads is bankrupt, should be qualified, if there are grounds for this, as fraud, but not as fictitious bankruptcy, since the procedure for publicly announcing one’s insolvency is currently law not installed[7].

The very wording “public announcement by the debtor of his insolvency” migrated to the Criminal Code of the Russian Federation from the Law of the Russian Federation of November 19, 1992 No. 3929-1 “On the insolvency (bankruptcy) of enterprises”, Art. 51 of which provided for the procedure for a public official declaration of bankruptcy by the debtor himself together with creditors.

At the same time, formulating the concepts used for the purposes of this regulatory legal act, the legislator defined fictitious bankruptcy precisely as a knowingly false announcement by an enterprise of its insolvency with the aim of misleading creditors in order to obtain from them a deferment and (or) installment payment due to creditors or a discount with debts

What is typical is that until February 1, 2006, the disposition of Art. 197 of the Criminal Code of the Russian Federation (“Fictitious bankruptcy”) was as follows: “Fictitious bankruptcy, that is, a deliberately false announcement by the head or owner of a commercial organization, as well as an individual entrepreneur, of his insolvency in order to mislead creditors in order to obtain a deferment or installment plan for payments due to creditors or discounts on debts, as well as for non-payment of debts, if this act caused major damage...” As they say, find ten differences.

The later adopted Federal Law of January 8, 1998 No. 6-FZ “On Insolvency (Bankruptcy)” in Art. 24 also provided for the procedure for the debtor to declare bankruptcy and voluntary liquidation. However, by fictitious bankruptcy, the law in question understood only an application submitted by the debtor to the arbitration court if he had the opportunity to satisfy the creditors’ demands in full (Article 10). There is no longer talk of any public announcement.

The current Federal Law on Bankruptcy does not contain such an institution as a public announcement by the debtor of his inability to fully satisfy the demands of creditors for monetary obligations and (or) fulfill the obligation to make obligatory payments, just as it does not contain a definition of fictitious bankruptcy. It is this circumstance, in my opinion, that determines that the norm of Art. 197 of the Criminal Code of the Russian Federation in its current version is “dead”.

At the same time, the point of view of the representative of the Ministry of Internal Affairs of the Russian Federation about the absence of reasons and conditions for committing fictitious bankruptcy and, as a consequence, about the need to abolish Art. 197 of the Criminal Code of the Russian Federation, I think, is erroneous.

The reasons why a person seeks to create a false impression of his insolvency, although not directly stated in the criminal law, are quite obvious. These are the benefits and advantages that the institution of bankruptcy provides[8].

So, for example, in accordance with Art. 63 of the Federal Law on Bankruptcy, from the date of the arbitration court’s ruling on the introduction of supervision, the execution of enforcement documents on property penalties is suspended; It is not allowed to satisfy the demands of the founder (participant) of the debtor for the allocation of a share (share) in the debtor’s property in connection with the withdrawal of its founders (participants); repurchase or acquisition by the debtor of the placed shares or payment of the actual value of the share (share); payment of dividends, income on shares; distribution of profits between the founders (participants) of the debtor, which can be used by an unscrupulous business entity to its own advantage within the framework of a corporate conflict. Similar consequences occur from the date the arbitration court issues a ruling on the introduction of financial recovery (Article 81 of the Federal Law on Bankruptcy).

The introduction of external management implies, among other things, a moratorium on satisfying creditors' claims for monetary obligations and making mandatory payments (Article 94 of the Federal Law on Bankruptcy). Similar consequences occur when introducing a procedure for restructuring a citizen’s debts (Article 213.11 of the Federal Law on Bankruptcy).

In addition, entrepreneurs or heads of debtor organizations who fictitiously declare bankruptcy may seek to conclude a settlement agreement (Chapter VIII of the Federal Law on Bankruptcy), the subject of which may be an agreement to terminate the debtor’s obligations, debt forgiveness, deferment or installment payments, and also discounts on debts[9].

Thus, not only the reasons, but also the necessary legal conditions for applying to the court for fictitious bankruptcy exist today. In this case, decriminalization of Art. 197 of the Criminal Code of the Russian Federation can lead to a situation where an unscrupulous debtor, committing an obviously socially dangerous act accompanied by causing major damage, will nevertheless not be considered a criminal. This is unlikely to benefit conscientious entrepreneurs. Therefore Art. 197 of the Criminal Code of the Russian Federation must not be repealed, but amended in such a way that it complies with current bankruptcy legislation, to which, in fact, the legislator refers in this case when formulating the blanket rule.

II. Bankruptcy and theft.

The elements of bankruptcy crimes and theft have much in common. Therefore, the natural question of their relationship remains highly debatable in the doctrine. For the purposes of this work, we will try to correlate the elements of crime under consideration with each other, presenting their elements in the form of a table:

Table 1

From the presented Table 1 it is clear that in the case of decriminalization of bankruptcy proceedings, such illegal actions as concealment and transfer of property into the possession of other persons (Part 1 of Article 195 of the Criminal Code of the Russian Federation), unlawful satisfaction of property claims of individual creditors at the expense of the debtor’s property (Part 2 of Art. 195 of the Criminal Code of the Russian Federation), as well as illegal obstruction of the activities of an arbitration manager or temporary administration (Part 3 of Article 195 of the Criminal Code of the Russian Federation) will not be covered by elements of theft.

In addition, since theft is always an action, the elements of theft under consideration will not cover intentional bankruptcy (Article 196 of the Criminal Code of the Russian Federation), committed through inaction, when a person does not carry out specific actions that could objectively eliminate insolvency, provided that it was obliged and had a real opportunity to perform such actions.

We should not forget that the subjective side of theft is a selfish goal, which is not a mandatory feature of bankruptcy cases. Therefore, in the case of decriminalization of crimes provided for in Art. 195, 196 of the Criminal Code of the Russian Federation, the acts specified therein, the mercenary purpose of which is absent (not established), will not fall under the signs of theft.

It is impossible not to mention such an obligatory element of the objective side of the crimes under consideration as damage. In the case of theft, property damage is directly related to the seizure of the property of the victim-owner, while in bankruptcy cases the damage consists of the creditor’s failure to receive the debtor’s property due to him, that is, the failure to receive what is due. This is how this aspect is illustrated by I.Ya. Foinitsky. within the framework of the relationship between fraud and bankruptcy: “In fraud, deception is aimed at stealing, i.e. for the acquisition of property that the perpetrator did not have until that moment; Meanwhile, the bankrupt disposes of his property, being punished only for the fact that he illegally evades the fulfillment of his obligations towards creditors. Fraud is one of the types of criminal taking, theft of someone else’s property, which bankruptcy does not constitute”[10].

In this regard, I note that Ch. 22 of the Criminal Code of the Russian Federation “Crimes against property” contains elements in the commission of which socially dangerous consequences are also expressed not in the loss of available property from the owner’s possession, but in the failure to receive what is due. We are talking about causing property damage through deception or abuse of trust (Article 165 of the Criminal Code of the Russian Federation). At first glance it may seem that the objective side of the crime provided for in Art. 165 of the Criminal Code of the Russian Federation, fully covers, for example, cases of causing property damage to a creditor, when the debtor, if there are signs of bankruptcy, alienates his property through deception for mercenary purposes in favor of a third party. However, it is not. The objective side of the crime under Art. 165 of the Criminal Code of the Russian Federation, is designed in such a way that, within the framework of its implementation, property damage is considered only in relation to the owner or other owner of the property. It is obvious that the creditor in relation to the property of the unscrupulous debtor, from which his claims must subsequently be satisfied within the framework of bankruptcy procedures, is neither the owner nor any other legal possessor. Therefore, the possibility of applying Art. 165 of the Criminal Code of the Russian Federation is extremely controversial.

III. Criminal bankruptcy and abuse of power.

It has long been known that the general norm of criminal law is a kind of reserve for those cases that are not covered by special offenses[11]. For criminal bankruptcies, such a general norm is abuse of power in a commercial organization (Article 201 of the Criminal Code of the Russian Federation). Let's try to answer the question: can the general norm of Art. 201 of the Criminal Code of the Russian Federation become a full-fledged alternative to bankruptcy proceedings when they are abolished, including in those cases that are not covered by theft offenses?

Rules on criminal bankruptcy and art. 201 of the Criminal Code of the Russian Federation compete with each other according to the rules provided for in Part 3 of Art. 17 of the Criminal Code of the Russian Federation. At the same time, Art. 201 of the Criminal Code of the Russian Federation is a general rule in relation to Art. 195, 196 of the Criminal Code of the Russian Federation. This can be clearly seen if we compare the indicated compounds according to the characteristics of the object of the crime:

table 2

As can be seen from Table 2, in this case the classic formula for competition of general and special norms with different types of objects takes place, since both mandatory conditions for such competition are met [12], namely:

1. the main direct object of the general norm (Article 201 of the Criminal Code of the Russian Federation) coincides with the additional direct object of the special norm (Articles 195, 196 of the Criminal Code of the Russian Federation);
2. the main direct object of the special norm (Articles 195, 196 of the Criminal Code of the Russian Federation) is a special case of the additional direct object of the general norm (Article 201 of the Criminal Code of the Russian Federation).

For convenience, we will try to present the ratio of the crimes under consideration in the form of tables based on the elements of the crime, as well as the nature and degree of public danger of each of them.

1. ratio based on the objective side:

Table 3

1. relationship between the subject and the subjective side:

Table 4

1. ratio by nature and degree of public danger:

Table 5

Analysis of the information presented in the tables allows us to draw some conclusions:

1) since the subject of the crime provided for in Part. 1 and 3 tbsp. 195 of the Criminal Code of the Russian Federation, which is broader than a similar sign of abuse of power (Article 201 of the Criminal Code of the Russian Federation), acts provided for by the norm on unlawful actions in bankruptcy, if it is repealed, will be outside the scope of criminal law regulation of the general norm (Article 201 of the Criminal Code of the Russian Federation), provided that the act is not committed with the complicity of an entity other than a person performing managerial functions in a commercial or other organization;

2) a similar situation is observed when the norm of Art. 201 of the Criminal Code of the Russian Federation and Part 2 of Art. 195, as well as Art. 196 of the Criminal Code of the Russian Federation. In this case, the general norm of Art. 201 of the Criminal Code of the Russian Federation does not cover the corresponding acts committed by the founder (participant) of a legal entity, unless, of course, such a person simultaneously performs organizational, administrative and/or administrative functions in the organization;

3) in the event of the abolition of the rules on criminal bankruptcies, such a subject of crime as a citizen, including an individual entrepreneur, completely falls out of the orbit of criminal legal regulation;

4) since significant harm in case of abuse of power is not specified by law, in the event of the abolition of the rules on bankruptcy crimes, under Art. 201 of the Criminal Code of the Russian Federation may include acts for which the amount of damage will be significantly lower than 2,250,000 rubles, that is, which are currently not criminal offenses;

5) it is easy to see that the application of the general rule on abuse of power to criminal bankruptcies will lead to a situation where the public danger (and, consequently, the punishment) of illegal actions in bankruptcy will be artificially increased. The fact that intentional bankruptcy is more serious than Part 1 of Art. 201 of the Criminal Code of the Russian Federation category of crimes, in this case cannot indicate an improvement in the situation of the subjects of the crime, since the consequences in the form of bankruptcy of the organization may well be qualified as grave, which entails liability under Part 2 of Art. 201 of the Criminal Code of the Russian Federation, which, as can be seen from Table 5, is significantly higher than under Art. 196 of the Criminal Code of the Russian Federation.

As a result, the abolition of Art. 195, 196, 197 of the Criminal Code of the Russian Federation seems unjustified both from a legal point of view and from the point of view of the impact of such abolition on the rights and interests of entrepreneurs.

First of all, the general norm of Art. 201 of the Criminal Code of the Russian Federation, even together with theft offenses, as shown above, in the case of decriminalization of bankruptcy proceedings, is not able to cover the entire range of socially dangerous acts in this area, which, it seems, will negatively affect the rights and legitimate interests of business entities - creditors. First of all, this, of course, concerns the actions of such subjects of criminal bankruptcies as citizens, including individual entrepreneurs, for whom the decriminalization of bankruptcy proceedings opens up broad prospects for unpunished evasion of repayment of accounts payable through the procedure of deliberate and fictitious bankruptcy.

On the other hand, there is no reason to assert that the use of the article on abuse of power instead of bankruptcy proceedings will have a positive impact on entrepreneurs as potential subjects of crimes in the field of bankruptcy. The prospect of imputation in this case of a less serious offense is apparent. In my opinion, the assessment criterion of significant harm and grave consequences makes it possible to unjustifiably expand the circle of subjects of bankruptcy crimes at the expense of persons whose amount of damage from their actions currently does not allow them to be classified as criminal.

It seems, therefore, that the reform of the criminal law in this part should follow the path of modernization of bankruptcy proceedings, and not their decriminalization. Only further improvement of criminal and criminal procedural law, coupled with proper training of investigative personnel, can send the problem of enforcement of bankruptcy proceedings to the periphery of theoretical and practical jurisprudence.

[1] In Russian it is correct to say “bankrupt”, but “bankrupt” in this context, in my opinion, sounds more aesthetically pleasing.

[2] https://tass.ru/ekonomika/6372976.

[3] https://tass.ru/ekonomika/6378309.

[4] https://pravo.ru/news/211147/.

[5] https://tass.ru/ekonomika/6378092

[6] https://zakon.ru/discussion/2018/10/26/v_otlichie_ot_moshennichestva_sostav_zloupotrebleniya_polnomochiyami_mozhno_nazvat_rezinovym__interv

[7] See, for example: Criminal law in the practice of the district court: Scientific and practical manual / Ed. Honored Lawyer of the Russian Federation, Ph.D., Associate Professor. A.V. Galakhova. – M.: Norma, 2007. P. 427.

[8] Veklenko S., Zhuravleva E. Rules on liability for bankruptcy: new edition - new problems // Criminal law. 2006. No. 5. P. 26.

[9] Volzhenkin B.V. Crimes in the sphere of economic activity (economic crimes). St. Petersburg, 2002. P. 133; Criminal law of Russia: Textbook for universities / Under. ed. L.L. Kruglikova. M., 2004. P. 197.

[10] Foinitsky I.Ya. Fraud under Russian criminal law. St. Petersburg, 1871. P. 271.

[11] Trainin A.N. Selected works / Compilation, introductory article by Dr. legal Sciences, Professor N.F. Kuznetsova. – St. Petersburg: Publishing house “Legal Center Press”, 2004. P. 185.

[12] Inogamova-Khegai L.V. Conceptual foundations of competition in criminal law: monograph. M.: NORMA, INFRA-M, 2015. P. 67.

[13] In relation to concealment, we are also talking about property rights or property obligations, information about property, its size, location or other information about property, property rights or property obligations (Part 1 of Article 195 of the Criminal Code of the Russian Federation).

[14] Also a citizen, including an individual entrepreneur (Article 196 of the Criminal Code of the Russian Federation).

[15] Extracting benefits and advantages for oneself or other persons or causing harm to other persons (Part 1 of Article 201 of the Criminal Code of the Russian Federation).