Intentional and fictitious bankruptcy (Articles 196-197 UKRF): similarities, differences, consequences, judicial practice

Fictitious bankruptcy, that is, a deliberately false public announcement by the head or founder (participant) of a legal entity about the insolvency of this legal entity, as well as by a citizen, including an individual entrepreneur, about his insolvency, if this act caused major damage -

shall be 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 a period of one to two 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 eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months or without it.

• Article 196. Intentional bankruptcy
• Article 198. Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums

Who is to blame for deliberate bankruptcy?

The Criminal Code of our country has three consecutive amendments regulating the issues of so-called “criminal” bankruptcy. We are talking about articles, and. The first of them talks about punishment for committing illegal actions during the bankruptcy procedure. The second is about intentional, and the third is about fictitious bankruptcies. It is not only a legal entity that can be charged with criminal bankruptcy. According to the law, starting from July 1, 2015, individuals, that is, ordinary citizens, can also become defendants in a case of unlawful bankruptcy.

What does the law say about intentional bankruptcy?

Intentional bankruptcy, according to Article 196 of the Criminal Code of the Russian Federation, means a set of actions or deliberate inaction of a legal entity, individual or individual entrepreneur, which lead to ruin, the inability to pay accumulated bills to creditors, including taxes, mandatory insurance and pension contributions to the state.

This crime is usually discovered during the bankruptcy procedure, regulated by Federal Law, as well as Federal Law, if we are talking about bank bankruptcy.

Criminal liability arises when, as a result of deliberate bankruptcy, the victims are harmed in the amount of one and a half million rubles. Damage is expressed in the loss of property or money by creditors and other interested parties in the bankruptcy case. Losses amounted to over six million rubles? They talk about especially large sizes. For this, the maximum penalty is provided for out of all those provided for by legislative innovations for the case of criminal bankruptcy.

Article 211. State regulatory requirements for labor protection

State regulatory requirements for labor protection, contained in federal laws and other regulatory legal acts of the Russian Federation and laws and other regulatory legal acts of the constituent entities of the Russian Federation, establish rules, procedures, criteria and standards aimed at preserving the life and health of workers in the process of work.

State regulatory requirements for labor protection are mandatory for legal entities and individuals to carry out any type of activity, including the design, construction (reconstruction) and operation of facilities, the design of machines, mechanisms and other equipment, the development of technological processes, the organization of production and labor.

The procedure for developing, approving and amending by-laws containing state regulatory requirements for labor protection, including labor safety standards, is established by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations.

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Difference between intentional, fictitious bankruptcy, unlawful actions in bankruptcy

Bankruptcy committed intentionally becomes a consequence of one or more interested parties performing consistent, clearly planned actions that destroy the assets of a company, individual entrepreneur or ordinary citizen. If these actions had not taken place, the company would have continued to operate as usual without any problems.

It is impossible to hide deliberate bankruptcy from justice. Because the results of an examination of the financial and economic activities of a bankrupt company will give a complete picture of deliberate bankruptcy. Simply put, after a thorough analysis of all the debtor’s transactions for the period preceding the filing of the bankruptcy petition, the bankruptcy trustee receives evidence that the management did everything to destroy their company. So, if previously it got by with small loans for a long time, and then suddenly took out several large loans, exceeding the amount of all the assets the company has, this is a serious reason to think about it. Or the company suddenly suddenly cleared all available warehouses of manufactured goods, selling them at a price below the market price. In all such actions, the expert will immediately see the system and his conclusion will provide an evidence base for accusing specific individuals of deliberate bankruptcy - those who gave orders and signed contracts.

An expert audit of the company’s activities is appointed by decision of the arbitration judge, who, in turn, is encouraged to make such a decision by the report of the financial manager who suspected criminality in a particular bankruptcy.

Distinction based on the time of commission of the crime

Intentional bankruptcy is a strategy of deliberately ruining a company and is always done before a bankruptcy petition is filed. The very fact of filing an application is the culminating moment in the implementation of the criminal scheme. Its authors expect to buy the company's property for next to nothing at an auction at which it is sold as a result of bankruptcy.

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Difference based on the reality of bankruptcy

In case of fictitious bankruptcy there is no bankruptcy as such. If you find assets and property hidden from the court, it will be possible to pay off all debts and avoid the legal consequences of ruin. The organizers of fictitious bankruptcy artificially create the illusion of complete insolvency. Intentional bankruptcy is real: the company has neither money nor property to pay off creditors, even if the latter is completely auctioned off.

Similarities and differences between intentional and fictitious bankruptcies

Many are convinced that both of these types of unlawful bankruptcy are only called differently; in fact, we are talking about the same crime. Let's look at the table of similarities and differences between these criminal acts:

Bankruptcy legislation

As you know, the Government has received the right to introduce a moratorium on bankruptcies. And on April 3, 2021, she took advantage of this power.

A moratorium on bankruptcy was introduced:

• subjects from “affected” industries (currently there are 11 of them);
• for systemically important enterprises (the Ministry of Industry and Trade of Russia on April 21, 2020 included 246 companies from 15 industries in the list of systemically important enterprises of the country);
• strategically important enterprises.

Until October 3, bankruptcy applications from such entities will not be accepted by the courts.
At the same time, the moratorium DOES NOT APPLY to applications for declaring bankruptcy of liquidated debtors!

(Question No. 9 of Review No. 2 dated April 30, 2020)

We also draw attention to the fact that, according to the Supreme Court of the Russian Federation, the legal regime of the moratorium also applies to interest under Art. 395 Civil Code of the Russian Federation

, which are a measure of civil liability.

Thus, the moratorium, among other things, means the cessation of accrual of penalties (fines and penalties) and other financial sanctions for non-fulfillment or improper fulfillment by the debtor of monetary obligations and mandatory payments for claims that arose before the introduction of the moratorium.

1.
Is it enough that my company falls into one of the three listed categories so that I cannot go bankrupt?
That's right. The creditor's application regarding such a company will be returned by the court until October 3, 2021. For what reason the final debt to the creditor arose is not examined by the court and is not taken into account.

In general, a creditor’s statement to the Fedresurs about its intention to go to court for bankruptcy of such a company should not be accepted. But you know, you can’t keep track of everything in our country. Watch for yourself.

2.
Is the creditor required to re-file a notice of intent to file for bankruptcy against the debtor after the moratorium ends?
The notice you filed before bankruptcy was filed is invalid.

When the moratorium expires or your debtor is removed from the list of persons to whom it applies, you, as a creditor, before filing an application to declare the debtor bankrupt, re-send a notice of intent to file for bankruptcy. Only after fifteen calendar days have passed after the publication of the repeated notification can you go to court.

3.
If I did not manage to receive a writ of execution against the debtor company before the moratorium was introduced.
Is this possible now? Possibly if it concerns interim measures. The debtors in this particular case are not to be envied.

In other cases, the introduction of a moratorium against the debtor also means that it is impossible for the creditor to obtain compulsory execution, including by presenting the writ of execution directly to the bank.

4.
What if, because of the moratorium, I, the creditor, miss the procedural deadlines?
Will they be restored? It’s up to you; you need to prove exactly how the moratorium hindered you. “The restoration of deadlines... is carried out taking into account the factual circumstances of each specific case.”

Who investigates and decides a willful bankruptcy case?

Bankruptcy cases of legal entities, ordinary citizens and individual entrepreneurs are considered by arbitration courts serving the areas where the debtor company is located or where the citizen is registered. Arbitration courts do not have the right to consider such cases (clauses 1.3 of Article 33 of the Bankruptcy Law).

If during the bankruptcy procedure facts of deliberate failure to pay bills are established, the arbitration judge transfers them to the investigator of the district police department (). Since deliberate bankruptcy is a crime, you can report it to the prosecutor’s office or the police even before opening a bankruptcy case.

Investigators from agencies that have identified signs of a crime (for example, the tax police) also have the right to investigate cases of criminal bankruptcy. The decision in a criminal case of deliberate bankruptcy is made by the district court (and part 2). Territorial jurisdiction and jurisdiction are established at the place where the crime ended (; , ).

Judicial practice: sentences and punishment under Art. 195 of the Criminal Code of the Russian Federation

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Detection of deliberate bankruptcy

In most cases, signs of a crime are identified at the first stage of bankruptcy - the observation stage. During this period, the bankruptcy manager must check all financial and reporting documentation of the company.

Let's consider the objective signs and features of the deliberate bankruptcy of a legal entity that should alert the inspector:

• An increased-than-usual number of transactions in the last few months leading up to the bankruptcy filing. In this way, criminals usually withdraw money to offshore companies or to the accounts of fictitious persons, zeroing out the assets of a company sentenced to bankruptcy.
• Illogical and even strange transactions of the company's top managers with large sums. For example, sponsoring a local football club for several million dollars, when the company does not have the money to purchase the necessary equipment.
• Transactions that do not comply with market rules. These include, for example, the sale of company property at a dumping price through an agreement with a fraudulent shell company.
• Reporting documentation is hidden, destroyed or falsified. Such illegal actions in bankruptcy are more typical of fictitious bankruptcy.
• Tax and financial statements are inconsistent.
• A sharp withdrawal of assets. The method is typical for a fictitious bankruptcy scheme. Management, through shell companies, withdraws money to fraudulent accounts.
• There is money in the company's accounts, but it does not seek to repay the loans taken out and allows delays in regular payments.
• There is information that the management is involved in crime. This is usually signaled to the financial regulator by company employees, creditors or other interested citizens.

Subjective signs of deliberate bankruptcy

There are a number of subjective signs that characterize the personality of a criminal.

• Age. Only an adult can be charged with criminal bankruptcy.
• Sanity, adequacy. The offender must clearly understand the nature and consequences of his actions. It is clear that it is impossible to deliberately go bankrupt in a state of passion. And a fool is also unable to think through a bankruptcy scheme.
• Special criminal status. Only a top manager of a commercial company or an individual entrepreneur will be convicted of deliberate bankruptcy under Article 196 of the criminal “bible,” but not an ordinary citizen without such status.

There is another criterion - the “quality” of guilt, the degree of the criminal’s attitude towards the crime, whether he committed it through negligence, incompetence or purposefully. In addition, the law takes into account the motive that prompted the citizen to commit a crime.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 27, 2017 No. 12

In order to ensure uniform application by courts of the norms of the criminal law on liability for smuggling (Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), as well as in connection with issues that have arisen among the courts, the Plenum of the Supreme Court of the Russian Federation, Guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ “On the Supreme Court of the Russian Federation”, decides to give the following clarifications:

1. When considering criminal cases of smuggling, courts must take into account that the legal regulation of customs relations in the Russian Federation is carried out in accordance with international treaties and the legislation of the Russian Federation on customs affairs.

International treaties, in particular, include the Treaty on the Eurasian Economic Union of May 29, 2014 (hereinafter referred to as the Treaty and the Union, respectively), as well as other international treaties concluded by the Russian Federation with member states of the Union, other states (for example, the Agreement on unified principles and rules for the circulation of medicines within the Eurasian Economic Union of December 23, 2014).

To draw the attention of the courts to the fact that in accordance with paragraph 1 of Article 101 of the Treaty, before the entry into force of the Customs Code of the Eurasian Economic Union, customs regulation in the Union is carried out in accordance with the Treaty on the Customs Code of the Customs Union dated November 27, 2009 (hereinafter referred to as the Customs Code of the Customs Union) and other international treaties of the member states regulating customs legal relations, concluded within the framework of the formation of the legal framework of the Customs Union (for example, the Agreement on the procedure for the movement of narcotic drugs, psychotropic substances and their precursors through the customs territory of the Customs Union of October 24, 2013).

Taking into account the provisions of paragraph 2 of Article 101 of the Treaty, under the terms used in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation “customs border of the Customs Union within the framework of the EurAsEC” (“customs border of the Customs Union”), “State border of the Russian Federation with member states of the Customs union within the EurAsEC" should be understood accordingly as "the customs border of the Eurasian Economic Union" (hereinafter - the customs border), "The state border of the Russian Federation with the member states of the Eurasian Economic Union" (hereinafter - the state border).

2. Courts should take into account that the procedure for moving goods and other items across the customs border or state border, as well as prohibitions and (or) restrictions associated with such movement, along with the legislation of the Russian Federation (on customs, on the State Border of the Russian Federation, on currency regulation and exchange control, on export control and others) are established by the law of the Union (Articles 6 and 32 of the Treaty).

The law of the Union also includes decisions and orders of the permanent regulatory body of the Union - the Eurasian Economic Commission, adopted within the framework of its powers (for example, decision of the Board of the Eurasian Economic Commission dated April 21, 2015 N 30 “On non-tariff regulation measures”).

When considering cases of smuggling of cultural property, courts should take into account that the list of cultural property for which a permitting procedure for export from the customs territory of the Union has been established, the rules for their export from the Russian Federation to other states that are not member states of the Union are determined by decisions of the Board of the Eurasian Economic commissions.

3. When deciding whether a person’s actions contain signs of crimes provided for in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation, courts must establish that illegally transported goods or other items belong to the contraband items listed in these articles.

If special knowledge is required when establishing that illegally transported goods or other items are contraband, then the courts must have the appropriate opinions of experts or specialists.

4. When determining the value of contraband items illegally transported across the customs border or state border, courts should proceed from state regulated prices, if any; in other cases, the amount of the indicated value is determined on the basis of the market value of goods, with the exception of goods moved by an individual across the customs border for personal use, in respect of which the customs value determined in accordance with Chapter 49 of the Customs Code of the Customs Union is used. In this case, it is necessary to take into account legal norms that make it possible not to take into account that part of the value of illegally moved goods that is allowed to be moved without declaration and (or) was declared (for example, note 3 to article 200.1, note 2 to article 200.2 of the Criminal Code of the Russian Federation).

In the absence of information about the price of a product, its value is determined based on the opinion of an expert or specialist.

5. The movement of goods and other items across the customs border or state border consists of carrying out actions to import, respectively, into the customs territory of the Union or the territory of the Russian Federation or export from these territories of goods or other items in any way.

The illegal movement of goods or other items across the customs border should be understood as the movement of goods or other items outside established places or during unspecified working hours of customs authorities in these places, or with concealment from customs control, or with false declaration or non-declaration of goods, or with the use of documents containing false information about goods or other items, and (or) using counterfeit means of identification or those related to other goods or other items.

When establishing the fact of illegal movement of goods or other items across the state border, courts must take into account that the legal regulation of the import or export of goods and other items from the territory of one member state of the Union to the territory of another member state of the Union has its own characteristics.

In particular, despite the fact that the Union ensures freedom of movement of goods, services, capital and labor, paragraph 3 of Article 29 of the Treaty allows for the possibility of limiting the turnover of certain categories of goods on the grounds specified in paragraph 1 of this article of the Treaty. In this case, the procedure for the movement or circulation of such goods in the customs territory of the Union is determined in accordance with the Treaty, as well as international treaties within the framework of this Union.

In addition, on the territory of the Russian Federation, based on the provisions of paragraph 2 of Article 129 of the Civil Code of the Russian Federation, legal regulation measures may be introduced by law or in the manner prescribed by law that restrict the free circulation of certain substances or items, in particular, those that pose a threat to public safety.

6. Illegal movement of goods or other items across the customs border during smuggling can be accomplished by concealing goods or other items from customs control, that is, by performing any actions aimed at making it difficult to detect such goods (items) or concealing their true properties or quantity, including giving one goods (items) the appearance of others, the use of hiding places specially made or adapted for smuggling in items of luggage, clothing or equipped on vehicles used to move goods or other items across the customs border.

7. Non-declaration as a possible method of committing smuggling consists in a person’s failure to comply with the requirements of the Union law and the legislation of the Russian Federation on customs matters regarding the declaration of goods, that is, the entire product or part of it is not declared to the customs authority (a part of a homogeneous product is not declared, or when declaring a consignment, consisting of several goods, information about only one product is reported in the customs declaration, or a product other than the information about which was declared in the customs declaration is presented to the customs authority).

If the declarant or customs representative in the customs declaration declares untrue (unreliable) information about the qualitative characteristics of the goods necessary for customs purposes (for example, information about the name, description, classification code according to the Unified Commodity Nomenclature for Foreign Economic Activity of the Union, about the country of origin, about the customs value), then these actions should be considered as an unreliable declaration of goods.

It should be taken into account that the information necessary for customs purposes is information submitted to the customs authorities for making a decision on the release of goods, placing them under the selected customs procedure, calculation and collection of customs duties, or information affecting the application of prohibitions or restrictions to goods .

8. Courts should keep in mind that in case of smuggling committed by using documents containing false information about goods or other items to the customs authority as grounds or conditions for the movement (placement under the customs procedure) of goods or other items specified in Articles 200.1 , 200.2, 226.1, 229.2 of the Criminal Code of the Russian Federation, documents may be submitted containing false information, in particular, about the name, description, classification code according to the Unified Commodity Nomenclature for Foreign Economic Activity of the Eurasian Economic Union, about the country of origin, departure, about customs value, about the description of packaging (quantity, type, marking and serial numbers).

The use of counterfeit means of identification or those related to other goods during smuggling is the use of counterfeit customs seals, seals, other means of identification or genuine means of identification related to other goods.

The illegal movement of goods or other items, committed using a counterfeit official document or seal made by another person, is fully covered by smuggling and does not require additional qualifications under Article 327 of the Criminal Code of the Russian Federation.

If a person uses an official document or seal that he has forged, the act is qualified as a set of crimes provided for in Article 327 of the Criminal Code of the Russian Federation and Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation.

9. Smuggling committed when importing goods or other items into the customs territory of the Union or exporting from this territory outside established places (customs border checkpoints) or during unspecified working hours of customs authorities in these places is a completed crime from the moment the goods actually cross or other items of the customs border.

In cases where other methods of illegal movement of goods or other items are used in smuggling, for example, false declaration or the use of documents containing false information about goods or other items, smuggling is considered completed from the moment a customs declaration or other document allowing import is submitted to the customs authority. the customs territory of the Union or the export of goods or other items from this territory for the purpose of their illegal movement across the customs border.

10. In criminal cases of crimes provided for in Articles 226.1 and 229.1 of the Criminal Code of the Russian Federation, in cases where the illegal movement of a contraband item was carried out not only across the customs border, but also across the state border, the offense should be considered as one crime if there is a single intent of the person to performing the listed actions. If a person who has committed smuggling of items specified in Articles 226.1 and 229.1 of the Criminal Code of the Russian Federation across the customs border subsequently has the intent to move the same items across the state border, the act constitutes a set of crimes.

11. Draw the attention of the courts that, in accordance with Note 4 to Article 200.1 of the Criminal Code of the Russian Federation, a person is exempt from criminal liability if he voluntarily surrendered funds and (or) monetary instruments and if his actions do not contain another crime. Within the meaning of the law, voluntary surrender means the issuance of cash and (or) monetary instruments to representatives of law enforcement agencies of one’s own free will, despite the real opportunity to dispose of them.

If a person, along with smuggling cash and (or) monetary instruments, is accused of committing other crimes, he is exempt from liability under Article 200.1 of the Criminal Code of the Russian Federation, regardless of whether he is held accountable for committing other crimes.

12. If a person, along with the illegal movement across the customs border or across the state border of the items listed in Articles 226.1 and 229.1 of the Criminal Code of the Russian Federation, commits an intentional unlawful act related to the illegal trafficking of these items, including their transportation, then the act is subject to classification in its entirety crimes provided for in Articles 226.1 and (or) 229.1 of the Criminal Code of the Russian Federation and the corresponding articles of the Criminal Code of the Russian Federation (in particular, Articles 218, 220, 222, 222.1, 228, 228.1, 228.2, 228.3, 228.4, 234, 355 of the Criminal Code of the Russian Federation).

13. If smuggling is recognized as committed by an organized group, the actions of all its members who took part in the preparation or commission of this crime, regardless of their actual role, should be qualified under the third part of Article 200.2, the third part of Article 226.1, paragraph “a” of the fourth part of Article 229.1 of the Criminal Code of the Russian Federation without reference to Article 33 of the Criminal Code of the Russian Federation (for example, some members of an organized group purchased goods or other items, others illegally moved them across the customs border, and still others directed these actions).

14. If a person in possession of goods or other items has carried out their illegal movement across the customs border or state border, using for these purposes another person who did not realize the illegality of such movement, he is subject to liability under Articles 200.1, 200.2, 226.1 and ( or) 229.1 of the Criminal Code of the Russian Federation as the perpetrator of these crimes. In these cases, the actions of a person who was not aware of the fact that he was committing smuggling are not criminally punishable.

15. The recipient of an international postal item containing contraband, if he, in particular, found, placed an order, paid, provided his personal data, address, provided methods for receiving and (or) concealing the ordered goods, is subject to liability as a smuggler.

16. When deciding on the territorial jurisdiction of a criminal case for crimes provided for in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation, courts should proceed from the provisions of Article 32 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) and take into account paragraph 1 Article 5 of the Treaty on the specifics of criminal and administrative liability for violations of the customs legislation of the Customs Union and member states of the Customs Union, according to the provisions of which a criminal case is initiated and investigated at the place where the crime was committed, and if it is impossible to determine the place where the crime was committed, at the place where the crime was discovered.

In particular, if a contraband item is moved into the customs territory under the guise of goods through a registered international postal item (registered mail, parcel post, small package), the place of commission of such a crime is the place where operations related to its release are carried out with such goods (place of international postal exchange).

If the specified item of smuggling is moved into the customs territory by simple (unregistered) international postal item and it is impossible to establish the exact location of movement across the customs border or the state border of such postal item, then the place of the crime should be considered: the recipient's postal address - in the case when the postal item was received by the addressee ; address of a postal organization - in the case when the postal item is delivered to the recipient at a postal organization or seized from it by law enforcement officers.

17. Draw the attention of the courts to the need to apply the provisions of Chapter 15.1 of the Criminal Code of the Russian Federation on the confiscation of items of illegal movement across the customs border or state border, liability for which is established by Articles 200.1, 200.2, 226.1 and (or) 229.1 of the Criminal Code of the Russian Federation, and any income from this property, with the exception of property and income from it, subject to return to the rightful owner.

If the owner of contraband items is a person found guilty of their illegal movement, then such contraband items are subject to confiscation.

18. In accordance with part three of Article 81 of the Code of Criminal Procedure of the Russian Federation, when passing a sentence, as well as a ruling or resolution to terminate a criminal case, the court must resolve the issue of contraband items recognized as material evidence and vehicles used for the illegal movement of goods or other items across the customs border or state border.

If a vehicle belonging to the culprit was equipped with special storage facilities for hiding goods or other items when moving them across the customs border or state border (hiding places made for the purpose of concealing goods, as well as structural containers and objects equipped and adapted on vehicles for the same purposes, previously subjected to disassembly and installation), then it is considered as an instrument of crime and is subject to confiscation in accordance with paragraph 1 of part three of Article 81 of the Code of Criminal Procedure of the Russian Federation.

When a criminal case is terminated on non-rehabilitative grounds, the person must be explained the legal consequences of such termination, including the possibility of confiscation of property belonging to him, recognized as material evidence.

If the legal owners are not identified, the contraband items must be turned into state property by a court decision in the manner prescribed by law.

Disputes about the ownership of contraband items recognized as material evidence are resolved through civil proceedings.

Contraband items prohibited for circulation (narcotic drugs, psychotropic substances, their analogs, weapons, etc.), in accordance with paragraph 2 of part three of Article 81 of the Code of Criminal Procedure of the Russian Federation, are subject to transfer to the appropriate institutions or are destroyed.

19. Recognize that Resolution of the Plenum of the Supreme Court of the USSR of February 3, 1978 No. 2 “On judicial practice in cases of smuggling” is invalid on the territory of the Russian Federation.

Recognize as invalid the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 No. 23 “On introducing amendments to the resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 2008 No. 6 “On judicial practice in cases of smuggling.”

Bringing to bankruptcy by third parties

The essence of this phenomenon is more often described by the term “raider takeover.” Let's say a company has debts to a bank. The raiders, which include professional lawyers familiar with the intricacies of domestic legislation, buy out the company’s debts from the bank and demand their immediate repayment from its management, and on more enslaving terms than previous creditors. It is clear that if the company could not pay off at a lower interest rate, it is certainly not able to do so now. The manager files for bankruptcy himself, or the raiders do it. Their goal is to buy a company at an auction at a cheap price and dispose of its property and assets at their own discretion. Raider methods, despite the imperfection of modern legislation, are completely legal from a legal point of view. Unfortunately, the Criminal Code of the Russian Federation does not have a specific article for such bringing to bankruptcy.

What transactions are canceled in case of deliberate bankruptcy?

The managers of the company, knowing about the impending bankruptcy, often make no attempt to save the organization, but aggravate its situation by transferring money to shell companies or citizens. Therefore, any transactions made within one year before the opening of a bankruptcy case can be challenged and canceled by the court, especially transactions for the sale of property that is pledged.

They will challenge orders and additional agreements to contracts, according to which the salaries of the company's employees are significantly increased. We are, of course, not talking about ordinary workers, but about individuals close to the management or owners of the enterprise. Although there are cases where, by prior agreement, garbage collectors received huge fees, who then gave these “bonuses” minus a certain percentage for assistance in the criminal scheme to their leaders.

Loan agreements concluded, bypassing the financial manager, during the bankruptcy procedure are definitely cancelled.

They will cancel any write-offs of money from the company’s accounts if they are not approved by the financial authorities.

If the debtor pays off the debts not in the order of priority established by law, these agreements will also be canceled.

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Deferment of rental payments

As we discussed in detail in the Guide to business support measures (taxVID) in accordance with the Decree of the Government of the Russian Federation dated 04/03/2020 N 439 “On establishing requirements for the conditions and terms of deferred payment of rent under real estate lease agreements” for tenants (“organizations” and individual Entrepreneurs from the most affected sectors of the economy) of real estate (or part thereof) of any form of ownership are given the right to receive a deferment in the payment of rent until October 1, 2021.
Carrying out activities in the industry most affected by the pandemic (Resolution of the Government of the Russian Federation of April 3, 2021 N 434), according to the Supreme Court, is the only necessary basis for granting a deferral of rent.

The landlord is obliged by law to enter into an additional agreement within 30 days from the date of the tenant’s application.

At the same time, the deferment, according to the Supreme Court, is considered to be granted to the tenant from the date of the introduction of a high alert regime or emergency situation on the territory of a constituent entity of the Russian Federation (in this case, the parties may provide for an earlier period), regardless of the date of conclusion of the additional agreement to the lease agreement.

The same rules apply to cases where the landlord was forced through the court to enter into such an agreement.

If the tenant does not actually pay rent, and the landlord “knew or could not have been unaware of the tenant’s activities in the sectors of the Russian economy that were most affected by the worsening situation as a result of the spread of the new coronavirus infection,” then the landlord himself must inform his tenant about right to deferment. But even if he does not do this, then in this case he will be considered to have granted a deferment until October 1, 2021.

Similar consequences apply if the landlord avoids concluding an agreement or, by his behavior, gave the tenant reason to believe that a deferment would be granted, or did not raise objections to the granting of a deferment.

When can the landlord object?

If there is evidence that a particular tenant has not actually suffered and obviously will not suffer under the conditions of the imposed restrictions (for example, if he uses the rental object contrary to the established restrictive measures). Then we are talking about deliberately dishonest behavior. In such circumstances, the court, having regard to the nature and consequences of such conduct, may refuse to protect the tenant's right to deferment of rent in whole or in part.

In a sense, this position contradicts the opinion of the RF Armed Forces itself that classification as an affected industry is the only criterion for granting a deferment. This is precisely what support measures are related to, and not whether one could use the property or not. Apparently, the court had in mind the presence of obvious violations in the actions of the tenants and wanted, with its opinion, to somewhat strengthen their responsibility for implementing restrictive measures. But he said what he said.

Examination for deliberate bankruptcy

If there are suspicions of intentional bankruptcy, the financial manager or the meeting of creditors petition the court to conduct a special examination, which will be paid for by the plaintiff. Experienced auditors are hired to carry out this procedure. Within forty days they will complete the inspection and announce their expert opinion. They will have to analyze many reporting documents on the financial and economic activities of the company, at least for the last year. Based on the results of the study, the judge will decide whether to declare bankruptcy intentional or to continue the bankruptcy procedure as usual.

Liability for intentional bankruptcy

For a crime, administrative and criminal liability falls on all company managers, their deputies and the chief accountant. Those whose signatures are on dubious contracts and orders. If the involvement of the founders is proven, they will also have to answer.

First, the guilt of specific individuals is fully proven. The court decides on punishment depending on the severity of the consequences of deliberate bankruptcy for creditors. If, after bankruptcy and bidding, debts remain unpaid, the property of the perpetrators will be confiscated in order to pay in full. Bankruptcy recognized as intentional deprives the bankrupt of the right to write off debts.

Legal advice

The bankruptcy was recognized as fictitious, but it was not such. The chief accountant made a mistake in the documents for the tax office. Can this be proven?

In this case, you will need to submit an application to the Arbitration Court to review the case in connection with the identified circumstances. After providing all the evidence of the absence of fictitiousness, the court will reconsider its decision.

The bankruptcy was declared intentional; who will bear criminal liability if the founders of the LLC were not aware of the violations? Chief accountant or director?

Director. It is he who is authorized to make management decisions regarding the conduct of business activities.

Who benefits from criminal bankruptcy?

Deliberate and fictitious bankruptcy is always committed with the aim of writing off debts and enriching oneself at this expense. The recipient of the benefit carefully disguises his financial interest by withdrawing the assets of the bankrupt company through shell companies registered in the name of a fictitious person.

There are other motives:

• Disablement of a competitor ordered by third parties. In this case, the current general director of the company may be bribed, or as a result of intrigues, the old one is fired, and in his place they put their own person, who implements the criminal scheme.
• Transfer of assets and property to an affiliated (partner) structure. The old company goes bankrupt, debts are written off, and the bankrupt begins a new career in a new place in this partner company.
• Raider seizure.

How to defend against charges of deliberate bankruptcy?

If you come under suspicion of organizing deliberate bankruptcy during interrogations, there are three options for behavior:

1. Fully confess to the crime.
2. Admit some of the accusations as justified.
3. Completely deny your involvement in the crime.

It is better to coordinate the testimony with a lawyer. Without his presence at the interrogation, testimony should not be given. Excessive frankness can be interpreted incorrectly by the investigator and ultimately harm even an innocent person. It is more profitable for law enforcement officers to quickly close the case, especially since often the situation with bankruptcy looks, from their point of view, precisely like a deliberate ruin in order to make a profit.

Therefore, you need to convincingly and consistently prove your personal disinterest in the bankruptcy of the company and the lack of motive for the crime. Ruin may be a consequence of force majeure, and the investigator must be informed about this immediately. It is necessary to demand the production of evidence on the basis of which the defendant began to be suspected of a crime.

The investigator must have the results of an examination of the financial position of the company. Each sign of premeditation of bankruptcy identified by experts must be explained in detail: why exactly did the circumstances arise that prevented the right management decision from being made? Explanations should refute the presence of malicious intent and make the investigator doubt the correctness of the accusations.

For example, if the deterioration in the financial condition of the company occurred as a result of an unexpected jump in the exchange rate of the currencies in which payments to suppliers or regular loan payments were made, this will be a strong argument in defense of the accused.

The lawyer must insist on checking the changed conditions, which did not allow, in principle, to solve the problem with benefit for the enterprise, as was originally intended before concluding the contracts.

Losses suffered by a company as a result of force majeure circumstances cannot be represented as caused deliberately.

Actions in the interests of the injured party

The injured party seeks to force the defendant to compensate for its losses from deliberate bankruptcy. The lawyer representing the interests of the victim seeks to prove the bankruptcy was intentional. If he feels that the investigator is not competent enough, he has the right to file a complaint against him.

The plaintiff's lawyer insists on identifying all of the defendant's assets in order to satisfy his financial obligations to himself and other creditors in the bankruptcy case. The debtor often hides information about his assets and property. Therefore, the task of the investigation is to check all statements from the bankrupt’s accounts. This is done independently of the experts who conducted the inspection following the decision of the arbitration court. If irregularities are found in the financial statements, this will be evidence of intentional bankruptcy. And the plaintiff has hope that all debts will be collected from the defendant found guilty, including by confiscating and selling his personal property.

The victim's lawyer will have to oppose the plaintiff's lawyer. Because their interests are opposite. If he writes a petition to seize the property of the accused, then his lawyer, of course, will challenge this requirement, presenting his own arguments. The fate of the process is decided by who will emerge victorious from this legal competition. Therefore, the victim does not need to skimp on legal support; he must carefully select his lawyer. An aspiring lawyer would not suit him. We need an experienced, successful lawyer who has ate the dog in such cases.

Commentary to Art. 195 of the Criminal Code of the Russian Federation

1. Relations arising in connection with bankruptcy are regulated at the legislative level by the Civil Code, as well as the Bankruptcy Law. This Law defines the terms used in Art. 195 - 197 of the Criminal Code of the Russian Federation, in particular insolvency (bankruptcy). ——————————— See also: Federal Law of June 29, 2015 N 154-FZ “On the regulation of the peculiarities of insolvency (bankruptcy) in the territories of the Republic of Crimea and the federal city of Sevastopol and on amendments to certain legislative acts Russian Federation".

2. In Art. 3 of the Bankruptcy Law establishes the signs of bankruptcy of a legal entity.

Based on these criteria, the conclusion about the presence of signs of bankruptcy of a legal entity does not depend on whether the economic condition of the organization gave the opportunity to fulfill obligations (responsibilities) to creditors: signs of bankruptcy are considered established from the moment when the legal entity is not fulfilled within three months from the date when they had to be fulfilled, monetary obligations to creditors, obligations to pay severance pay and (or) remuneration for persons working or who worked under an employment contract, obligations to make mandatory payments. However, the law provides exceptions to this rule for a number of categories of legal entities. Thus, a credit institution is considered unable to satisfy the claims of creditors for monetary obligations, for the payment of severance pay and (or) for wages of persons working or who worked under an employment contract, and (or) to fulfill the obligation to make mandatory payments, not only if the corresponding obligations are not executed by it within 14 days after the date of their execution, but also when - or only when! — the value of the credit institution’s property (assets) is insufficient to fulfill its obligations to creditors and (or) the obligation to make mandatory payments (Article 187 of the Bankruptcy Law). Thus, the signs of bankruptcy for each entity must be established taking into account their characteristics provided for by insolvency legislation. ——————————— The term “creditors” is used in the meaning established by Art. 2 of the Bankruptcy Law, according to which creditors are persons who have rights of claim against the debtor for monetary obligations and other obligations, for the payment of obligatory payments, for the payment of severance pay and for the remuneration of persons working or who worked under an employment contract.

From the above provisions of the bankruptcy legislation it follows that the beginning of the period during which the aforementioned parts 1 and 2 of the commented article of action (inaction) can be performed is not even associated with the beginning of the arbitration court’s consideration of the bankruptcy case, much less it is not associated with the adoption of decisions on introduction of any of the procedures used in a bankruptcy case.

Signs of bankruptcy of a citizen should be determined based on the analysis of paragraph 2 of Art. 213.3, paragraphs 1 and 2 of Art. 213.4 and other articles of Ch. X Bankruptcy Law. ——————————— See more about this: Thayshaov Z. The circumstances of the commission of a crime as a mandatory sign of unlawful actions in the bankruptcy of a debtor citizen // Criminal Law. 2015. N 3.

3. The purpose of criminalizing the actions (inaction) mentioned in Part 1 of the commented article is to prevent the debtor or other persons from creating obstacles to the court’s application of rules ensuring the satisfaction of the property interests of the debtor’s creditors (such measures are applied by the court in a bankruptcy case even before the decision to recognize the debtor bankrupt) despite the fact that the property, without passing to the creditors, remains either in the ownership (possession, etc.) or in the actual possession of the perpetrators (despite the fact that legally it is in the ownership of other persons). To create such obstacles, the actions (inaction) mentioned in Part 1 of the article are carried out: concealment of property, information about property, alienation of property, concealment, destruction, falsification of accounting documents, etc.

4. On the concept of property and property rights, see the commentary to Chapter. 21 and art. 174. Accounting documents are named in the Federal Law of December 6, 2011 N 402-FZ “On Accounting”; these can be primary accounting documents, accounting registers, etc., approved. Rosstat and the Bank of Russia. A list of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating the storage periods for approved documents. By Order of the Ministry of Culture of Russia dated August 25, 2010 N 558, and Post. Goskomstat of Russia dated May 29, 1998 N 57a and the Ministry of Finance of Russia dated June 18, 1998 N 27n approved. The procedure for the gradual introduction in organizations, regardless of the form of ownership, operating on the territory of the Russian Federation, of unified forms of primary accounting documentation.

5. Concealment of property, property rights, information about property, etc. consists both of actions (moving property to a cache, disguising equipment located on the territory of the organization, etc.) and, possibly, inaction (concealing places where property is stored, etc.). According to the law, property must be transferred into the possession of other persons for a certain time, whereas through alienation the owner loses the right to the property forever. In the latter case, the alienation of property (which, by definition, should not contain signs of embezzlement) is not accompanied by equivalent compensation, otherwise the alienation actions cannot be regarded as aimed at infringing the interests of creditors.

6. Falsification of documents means such a change in their content by, say, erasures or introducing false information, which leads to the same result: creates obstacles to satisfying the interests of creditors.

7. The illegality of satisfying the property claims of individual creditors, knowingly to the detriment of other creditors, means a violation of the priority and other conditions established in the Civil Code and the above-mentioned federal laws for satisfying the claims of creditors (see, in particular, Article 134 of the Bankruptcy Law). In addition to the actual violation of the order, the culprit can, for example, satisfy the demands of one of the creditors in a larger amount than required, i.e. in violation of the rule that if the debtor’s funds are insufficient to satisfy the claims of creditors of one priority, the funds are distributed among the creditors of the corresponding priority in proportion to the amounts of their claims included in the register of creditors’ claims, unless otherwise provided by law (clause 3 of Article 142 of the Bankruptcy Law ).

8. When qualifying under Part 3 of Art. 195 of the Criminal Code, it is necessary to establish exactly what responsibilities are assigned to the arbitration manager or the temporary administration of a credit or other financial organization. These obligations are established by the above laws, as well as by-laws adopted in accordance with them, in particular the Temporary Rules for checking by an arbitration manager the presence of signs of fictitious and deliberate bankruptcy, approved. Fast. Government of the Russian Federation dated December 27, 2004 N 855. Thus, clause 1 of the Temporary Rules determines the list of documents that, according to clause 2 of the same document, is requested by the arbitration manager from creditors, the head of the debtor, and other persons.

For the procedures applied in a bankruptcy case against a citizen, including an individual entrepreneur, see Art. 213.2 of the Bankruptcy Law.

9. The concepts of an arbitration manager and their types, as well as the temporary administration of a credit organization, are contained in the mentioned bankruptcy laws.

10. Major damage can be caused both to creditors of an organization or creditors of an individual entrepreneur, and to a debtor - a legal entity through the alienation of its property, deliberate failure to collect receivables, etc.

The moment of occurrence of damage is determined differently depending on the type of violation of bankruptcy legislation. Thus, unlawful satisfaction of the property claims of individual creditors at the expense of the property of a debtor - a legal entity, committed knowingly to the detriment of other creditors, may take place in the process of external management before the arbitration court makes a ruling on the transition to settlements with creditors. This definition is the basis for starting settlements with all creditors in accordance with the register of creditors’ claims (Article 120 of the Bankruptcy Law). In this case, the moment of causing damage to a specific creditor and, accordingly, the end of the crime provided for in Part 2 of the commented article, is the period from which this creditor had the right to fulfill property obligations in his favor. Thus, the crime is considered completed regardless of the arbitration court’s decision to declare the debtor bankrupt and to open bankruptcy proceedings. However, if the same actions were committed during bankruptcy proceedings, then the moment of infliction of damage by the creditor is determined by the deadline for satisfying the creditor’s claim in accordance with the decision of the arbitration court to declare the debtor bankrupt and to open bankruptcy proceedings.

11. The subject of the crimes provided for in Part 2 of the commented article is the head of an organization or an individual entrepreneur, this is expressly stated in the law. These persons are, therefore, special subjects of a crime, therefore, persons who participate in the commission of a crime are liable with reference to Part 4 of Art. 34 of the Criminal Code of the Russian Federation. However, the range of subjects of crimes provided for in parts 1 and 3 of the commented article is wider. Along with those mentioned above, they can also be other persons, in fact, for example, hiding the property of an organization (in collusion with its leader or not) or, for example, illegally interfering with the activities of an insolvency administrator.

12. Subjective side - direct or indirect intent.

13. Violent actions, including those resulting in harm to health or death, as well as threats of such violence, must be additionally qualified under the relevant articles of the Criminal Code of the Russian Federation.

How is the level of responsibility determined?

As with any crime, the severity of the consequences determines the severity of the consequences. In relation to deliberate bankruptcy, this is material damage caused to creditors and the enterprise. The higher it is, the more severe the punishment.

Major damage is considered to be losses caused by a crime in excess of one and a half million rubles. Especially large - from six million. The damage does not reach one and a half million? The court applies the following rules:

• individuals are fined a symbolic one to three thousand rubles;
• officials – for five to ten thousand “wooden”. In addition, they may be disqualified for periods of one to three years.

The Criminal Code of the Russian Federation (Article 196) allows:

• Fine. This may be only a fine or a fine in addition to the term of imprisonment. In the first case, it varies from 200,000 to half a million, in the second - up to 200,000 rubles.
• Require forced labor for up to five years. In practice, such a measure is rarely used.
• Isolate from society for up to six years, or, more simply, put behind bars. There is always an additional fine attached to landing.

In relation to fictitious bankruptcy, the punishment is the same as under Article 196 of the Criminal Code.

How to prove bankruptcy intentionality

Proving intentional bankruptcy in most cases is not as simple as it seems from the outside. Many signs of completed transactions may indicate the purposefulness of bankruptcy, but do not constitute evidence of the debtor’s malicious intent.

Therefore, the investigation does not operate with any one piece of evidence, but with its totality.

For example:

• an expensive transaction was carried out using unequal barter (the parties exchanged property that differed significantly in price);
• at the same time, there is no feasibility of concluding such an agreement (the company objectively does not need such an exchange);
• the unprofitability of the contract for the enterprise is documented.

But even in such seemingly simple cases, it is not always possible to prove malicious intent, which is clearly read between the lines.

Today there are no strictly regulated methods for determining the value of assets in a specific period of time, except for the classic reference to the average market price. The suspect may justify himself by saying that, despite the apparent unprofitability of the transaction, the resulting property is extremely necessary for his company in the future.

Accomplices often come to the rescue and, after such an acquittal, declare that they are ready to buy back the property received by the debtor at a very favorable price for the accused. And this destroys the accusation of intentional bankruptcy, although it is a lie.

The investigator must be well versed in market economics in order to see the catch. However, a police officer and a genius of economic sciences can hardly fit under the same shoulder straps.

The intentionality of bankruptcy can always be challenged, saying that there are subtle specifics of an asset sold at a dumping price. Bring witnesses, experts in this field, who will swear on the Bible or Koran that this is really so. And time itself can help: while the investigation is ongoing, prices for the controversial asset may fall.

Sometimes the accused justifies a bad deal with circumstances: they say that it was necessary to urgently pay off debts, and money can be quickly found only by selling property cheaply.

Another popular motive: the management got rid of outdated or no longer needed property, as they were going to change the scope of the company’s activities, its profile. The same applies to management mistakes, when the manager allegedly pursued the predicted profit, but these expectations and hopes were not met - the market is harsh!

Investigative actions

First, the investigator speaks with the victims in order to determine the extent of the damage caused by the bankruptcy. Often, the victims include not the enterprise itself that suffered from deliberate bankruptcy, but the creditors. This greatly complicates the investigation process. Because instead of one victim, you will have to work with several at once, repeatedly calling them or their representatives for questioning. Considering that there may be several dozen creditors, this will be a colossal amount of work. It would be more correct to recognize the bankrupt company as the injured party, and the creditors as witnesses.

Then the company's employees are interrogated: they are more talkative than management. An audit is being carried out. The police have the right to seize documents confirming dubious transactions not only from a bankrupt company, but also from its partners.

Information and documents are verified for a period of at least twelve months from the date of filing the bankruptcy petition.

Therefore, many criminal cases initiated under articles of fictitious and deliberate bankruptcy are closed and are not brought to a verdict.

How is the examination carried out?

An economic analysis of the economic activities of a bankrupt enterprise is carried out. The financial and tax reporting of the defendant is studied:

• primary documents on the company's debt and credit obligations;
• accounting registers;
• auditors' reports;
• other information about the company’s activities 24 months before filing for bankruptcy.

Not only static various economic coefficients are assessed, but also their dynamics over certain periods of time (liquidity of assets, provision of own working capital, shares of credit money in the total capital of the company, etc.). To prove the defendant’s guilt based on the combination of many signs of premeditation of bankruptcy.

Cancellation of transactions of a bankrupt company

Transactions that can be challenged and annulled by a court decision in bankruptcy are divided into general (Article 166 of the Civil Code of the Russian Federation applies) and special (bankruptcy law):

Not only one-time contracts, but also long-term ones can be cancelled.

In bankruptcy, contracts are not disputed:

• Concluded based on the results of the won competition, as well as additional agreements on them. They can be challenged in civil lawsuits after the bankruptcy is completed.
• If the amount included in the contract is less than one percent of the value of all company assets, when it comes to long-term relationships between partners (rent, leasing, banking, housing and communal services, etc.).
• If the profit from a transaction far exceeds its costs.

The contract is disputed after the submission of a corresponding application from creditors or the financial manager. In form, this is an ordinary civil lawsuit. The applicant substantiates his claims and attaches copies of documents confirming his case.

Limitation period for challenging bankruptcy transactions

Let's look at two tables with limitation periods when challenging contracts concluded before or during bankruptcy:

According to general principles

For special reasons

Satisfaction of a claim to contest leads to the loss of the legal significance of the contract, the return of the alienated property or assets to the bankruptcy estate and the emergence of the right of the counterparty to demand the return of his money from the debtor.

Obligations, deadlines, force majeure

1. What does the term “non-working day” mean for civil transactions?
As you know, by Decree of the President of the Russian Federation dated March 25, 2021 No. 206 and April 2, 2021 No. 239, a new category was introduced, previously unknown to legislation. The Ministry of Labor assessed the term in the labor sense, the turn is in the civil sense.

So, these “critical” days for business cannot be considered non-working days in the sense given to this concept by the Civil Code of the Russian Federation (which means weekends and non-working holidays). Otherwise, it would be contrary to the meaning of the intended design “and would mean the suspension of the execution of all civil obligations without exception for a long period and a significant restriction of civil turnover in general.”

In total, “non-working days” are the basis for postponing the deadline for fulfilling the obligation under Art. 193 of the Civil Code of the Russian Federation are not.

2. Is it possible to restore the statute of limitations or suspend them due to restrictive measures to combat COVID-19?

Only if, in your particular case, specific restrictive measures specifically affected you (force majeure circumstances), which influenced your performance of actions limited by the statute of limitations. No automation. The burden of proof is on you. See below.

3. So is it force majeure or not?

And in the original. “Is it possible to recognize the epidemiological situation, restrictive measures or self-isolation as force majeure (clause 3 of Article 401 of the Civil Code of the Russian Federation) or as a basis for termination of an obligation due to the impossibility of fulfilling it (Article 416 of the Civil Code of the Russian Federation), including in connection with an act of a state body ( Article 417 of the Civil Code of the Russian Federation), and if possible, then under what conditions?

For all debtors en masse - of course not. This is the difference with an emergency regime.

Recognizing the spread of coronavirus infection as a force majeure event will require you, as a party to the contract, to provide evidence on four points.

A)

the very presence and duration of these circumstances, which depends on:

• the type of your activity;
• conditions for its implementation;
• the region in which the organization operates;
• as a consequence of restrictive measures taken in this region (establishment of mandatory rules of behavior when introducing a high-alert regime, a ban on the movement of vehicles, restriction of the movement of individuals, suspension of the activities of enterprises and institutions, cancellation and postponement of public events, introduction of a self-isolation regime for citizens, etc.) P.)

b)

the presence of a cause-and-effect relationship between the force majeure circumstances that have arisen and the inability to fulfill obligations (either at all or within the period established in the contract).

V)

your innocence in creating force majeure circumstances (conditionally, you could work remotely, but out of despair you sent all the people on unpaid leave, thereby completely disrupting the fulfillment of your obligations)

G)

your integrity, in the sense that you will be able to provide documentary evidence of how desperately you tried to save the situation and get on the path to timely fulfillment of obligations in the future.

In other words, slamming the door, closing the office, and after three months of non-payment of rent, citing force majeure, will not work.

We emphasize that it is documentary evidence, referred to as evidence in court proceedings. In any form, as long as not in words.

The CCI certificate (“conclusions, certificates issued by authorized bodies or organizations” in the text of the Supreme Court) is taken into account, but their practical value is only in the fact that your dispute can be considered after a long period of time, when the evidence of what is happening in the mind of the person considering the dispute the judges will be covered with a haze.

Otherwise, first of all, specific state and municipal acts, correspondence with contractors (any correspondence, but in no case a call back), and in both directions - suppliers and buyers/customers - work for you.

And we are still talking only about the removal of liability for violation of deadlines for fulfilling obligations! And not about forgiving their non-fulfillment! In no case.

At the same time, keep in mind that the debtor’s lack of “necessary funds ... is not a basis for exemption from liability for failure to fulfill obligations.”

But it can be recognized as such in court (and only in court) if the lack of money to fulfill obligations is caused by established restrictive measures (prohibition of certain activities, establishment of a self-isolation regime, etc.), but only if YOU PROVE

that financial disaster could not be avoided (for example, in the event of a significant decrease in profit margins due to the forced closure of a catering establishment to the public).

This should be done using the example of a “reasonable and prudent participant in civil transactions carrying out similar activities.” It is very important now to maintain intra-shop solidarity and confirm to each other with certificates with specific financial figures, which has affected everyone in your industry.

Bad news. Even if you have proven all of the above and are not responsible for violating the deadlines for fulfilling your obligations, the creditor still has the right to refuse the contract if, as a result of your delay, he has lost interest. And this can hit you very hard, so it makes sense to rank your obligations not only by deadline, but also by sensitivity to deadlines (including this criterion).

Good news. By refusing the contract, the creditor cannot “hang” losses on you.

Well, finally.

If the circumstances listed above (including acts on restrictive measures) have led to a complete or partial objective impossibility of fulfilling an obligation that is irreparable, then (and only then) the obligation is terminated in full or in the relevant part.

But! Article 417 of the Civil Code, which the Supreme Court refers to, frankly knows nothing about “high alert regimes”, the expressions “temporarily suspend”, “limit”, etc., which abound in regional restrictive acts throughout the country. Therefore, we do not recommend counting on it. That's how it was intended.

Rely only on your ingenuity and art. 416 of the Civil Code, referring to “proven circumstances”.

If premeditation of bankruptcy is not proven

If the investigator was unable to prove the intentionality of the bankruptcy, and challenging the transactions did not produce the desired result, creditors have to come to terms with the lost money. However, there is an option.

Vicarious liability

We must not forget about the subsidiary liability that its founders and managers bear in the event of bankruptcy of an enterprise. The creditor has every right to file a claim to recover the debt not from the bankrupt company, but from its owners, regardless of whether the company was deliberately bankrupted or whether objective circumstances have arisen ().

The management, founders and owners of a bankrupt enterprise, and members of the company liquidation commission are responsible for the consequences of their management mistakes with personal property.

Illegal actions in bankruptcy

The following are considered illegal actions in bankruptcy:

• concealing one’s own property and any information about it from the financial manager, creditors and judges;
• alienation of this property in the interests of other persons, destruction of both it and documents about it;
• falsification of documents - accounting and other records - about the economic activities of a legal entity or individual entrepreneur;
• unlawful (bypassing the established order) repayment of debts to individual creditors, since it deliberately violates the rights of other plaintiffs;
• untimely filing of a bankruptcy petition, because by law a legal entity is obliged to declare its insolvency within a month of learning about the onset of mandatory signs of bankruptcy (debt over three hundred thousand rubles and a three-month delay in regular payments). The same applies to individuals, only the critical amount here is higher - half a million (Part 5 of Article 14.13 of the Code of Administrative Offenses of the Russian Federation);
• illegal interference with the activities of a financial manager approved to conduct bankruptcy proceedings by an arbitration judge (evasion, refusal to transfer to him financial statements and other documents that he has the right to demand from the debtor (Part 6 of Article 14.13 of the Code of Administrative Offenses of the Russian Federation).

Intentional and fictitious bankruptcy

improper management of a legal entity, i.e. the use of powers to manage an organization contrary to its legitimate interests and (or) the legitimate interests of its creditor, which resulted in a decrease in the organization’s own capital and (or) the occurrence of losses (Article 14.21);

The reasons for the prevalence of such illegal actions are clear. Many businessmen find it tempting to have accumulated debts and immediately liquidate them without paying them off. As a rule, organizations do not even need to make significant efforts to satisfy the criteria for bankruptcy. A company meets the insolvency criteria if it, firstly, is overdue for more than three months in fulfilling its obligations. And, secondly, if the total amount of her debt exceeds 100,000 rubles. (Article 3, 6 of Law No. 127-FZ). An unscrupulous organization transfers all valuable assets to friendly companies. And after the bankruptcy case is terminated, the debts are canceled, and creditors will be able to claim only the small fraction of the previous values ​​remaining on the organization’s balance sheet.

How to protect yourself from fictitious bankruptcy

The purpose of fictitious bankruptcy is to fraudulently remove property and assets from the bankruptcy estate, as if it does not exist at all, and for this reason to write off most debt obligations (except for those obligatory for repayment in any case: alimony, wages, moral and physical harm).

Attempts to commit fictitious or deliberate bankruptcy are more common among legal entities and individual entrepreneurs and are very rare among ordinary citizens. Intentional bankruptcy of an individual is unlikely. The fact is that any illegal scheme costs its creators a considerable amount of money (for example, no one wants to become a figurehead for free, or make a false document, etc.). In any case, the costs of bankruptcy should be more than covered by the benefits from this act. Individuals, as a rule, do not have money for this.

In addition, all these schemes have already been well studied by investigators who have been investigating bankruptcy cases for many years; coming up with something new is much more difficult, time-consuming and expensive.

The most famous way to fake bankruptcy is to create a character in advance as a “friendly” creditor. This role-playing game character called "fake bankruptcy" appears on the scene and files for bankruptcy. The debt that the debtor is obliged to repay to him exceeds all other obligations, therefore, in the register of bankruptcy creditors, this character becomes the first in line. The loan is confirmed by fictitious documents. If the scheme is implemented, subsequently, minus the percentage agreed in advance with the debtor for a well-played role, the character returns the money to the author of the scheme. Woo-a-la!

There are always scammers in the bankruptcy market who make a business out of organizing fake bankruptcies. They work out schemes and offer them to law-abiding citizens who previously wanted to go bankrupt according to the rules. Like, why do it by law, when you can minimize losses and even make money by applying their scheme. They promise speed, profitable restructuring or even 100% debt write-off, etc. It is extremely dangerous to agree to such offers! The arbitration manager will still uncover the scheme by conducting an audit, which is mandatory in such cases. The scheme will work only if you bribe the manager, because according to the law, the manager is now chosen by creditors, and not by debtors, as was previously allowed.

How to protect yourself as much as possible?

• Choose lawyers carefully: only experienced ones with a good reputation in bankruptcy cases will do.
• Do not agree to the proposals of those criminal businessmen who offer to quickly and profitably run a business using “schemes that have been worked out for years.”
• It is prudent to act by strictly following the legal bankruptcy procedure.
• Before submitting documents to the court, carefully check them for errors, typos, and inconsistencies.
• Consult with a specialist and analyze the situation to determine the likelihood of filing a case of fictitious or deliberate bankruptcy. This is something to think about before filing for bankruptcy.

Criminal liability

Let us remind you that on April 1, two criminal articles came into force, providing for serious liability for the dissemination of false information.

One of them provides for liability only when serious consequences occur (on the planet of lawyers this is called “material corpus delicti”). The other allows you to punish the very fact of publishing knowingly false information (in legal terms - “formal composition”).

An article with a formal composition is “included” when it comes to fakes in circumstances that pose a threat to the life and safety of citizens. But at the same time, the Code of Administrative Offenses already has (since last year) administrative liability for essentially the same thing: for false communications aimed at violating law and order and security, creating interference with the activities of organizations of important socio-economic importance.

As a result, questions arose and the RF Armed Forces clarified them (or not so much):

1. The RF Armed Forces confirmed what many suspected: the pandemic is a “threatening” circumstance.
2. How do the articles in the Code of Administrative Offenses differ from the Criminal Code of the Russian Federation?

They will be charged under a criminal article if the actions pose a real danger to society (law and order). The motives and goals of such behavior will be taken into account.

Hmm...following this logic, the Code of Administrative Offenses fines for non-dangerous interference with the functioning of key facilities and a threat to security. It happens?

In fact, the RF Armed Forces cancels Parts 9 and 10 of Art. 13.15 of the Code of Administrative Offences, or, more likely, creates yet another uncertainty, which provides ample opportunities for “people on the ground” to decide who to prosecute under what article.

3. When do criminal articles start working?

Let’s imagine that a blogger has been “reposting” false information since the beginning of March. Will he be jailed?

Yes, if he did not remove the fakes from his page on April 1. And if at the same time there are serious consequences that also occurred after April 1, such an Internet user will be prosecuted under the “material” article (207.2), which implies a more severe punishment.

4. What is the difference between the “material” article (207.2) and the “formal” article (Article 207.1) other than the presence of consequences?

Art. 207.2 of the Criminal Code of the Russian Federation is broader. It involves the distortion of any socially useful information, and not just about circumstances that pose a threat.

5. The Code of Administrative Offenses contains parts 10.1 and 10.2 of Art. 13.15, which almost completely duplicate Art. 207.1 and 207.2 of the Criminal Code of the Russian Federation.

The difference is that according to the Code of Administrative Offenses only legal entities are held liable, while according to the Criminal Code of the Russian Federation only individuals are held accountable.

That is, if a journalist publishes something that does not correspond to the truth, then he can be jailed under the Criminal Code of the Russian Federation, and the media will simultaneously receive a million-dollar fine.

6. What is meant by deliberately false information and its dissemination under the guise of reliable messages, provided for in Art. 207.1 and 207.2 of the Criminal Code of the Russian Federation?

For “fakes” to become a crime, a person must be aware that he is publishing a lie.

We believe that the investigators' logic may be as follows. If a user posts information on his page from a news portal that has a media license, this is unlikely to be grounds for prosecution. It’s another thing to repost “news” from some blogger - there may be a risk.

7. What is the publicity of disseminating information?

The RF Armed Forces directly indicated that in addition to the media and social networks, mass mailings in instant messengers are also public dissemination. And if we are talking about “defective” information, it becomes a crime.

8. In the second review, the RF Armed Forces “reminded” that there is an article for the spread of a mass disease or creating a threat of this. But what does mass mean?

The court noted that this is an evaluative concept. When making a decision, not only the number of infected people will be taken into account, but also the severity of the disease. In the context of current events, this is an unambiguous message for “fugitives” from quarantine.

9. The Supreme Court of the Russian Federation drew attention to the next intersection of the Criminal Code (Part 2 of Article 236 of the Criminal Code of the Russian Federation) and the Code of Administrative Offenses (Part 3 of Article 6.3). Both norms provide for liability for violation of sanitary and epidemiological rules, but with different consequences: the criminal article punishes for death, and the administrative article punishes for death and serious harm.

The court emphasized the difference - the presence of death: if there are dead, then this is a criminal offense. This approach somewhat contradicts the Administrative Code, but adds certainty.

10. Can courts use videoconferencing systems in criminal proceedings?

Yes, you can. The Supreme Court of the Russian Federation allowed courts to work remotely on issues that require urgent consideration. This will allow you to avoid delaying the process.

11. Is seizure of property one of these urgent matters?

Yes. Therefore, “non-working” days and self-isolation are not a reason for refusing to seize property to protect the rights of victims.

12. Is it possible to “imprison” suspects of minor crimes during an epidemic?

Note: let us recall that such crimes include a significant part of economic crimes, including evasion of taxes and contributions, deliberate bankruptcy, etc.

When determining a preventive measure, courts must take into account the epidemiological situation in the respective detention centers. That is, with a high degree of probability, the suspects will be left at home to await trial in “enhanced” self-isolation.

Statistics of intentional bankruptcies in the Russian Federation

The statistics of bankruptcy cases show that they extremely rarely end in verdicts under Article 196 of the Criminal Code. Thus, from 2013 to 2014, out of almost three thousand cases brought, the judge supported the accusers in only fourteen cases. In 2015, there were much fewer cases - only thirty-one. And only eight of them resulted in a conviction. But in general, for all the years of the existence of the bankruptcy law, statistics show only five percent of criminal bankruptcy cases that ended in the failure of bankrupt adventurers. Accordingly, they managed to win 95% of cases. Although, of course, among these ninety-five percent, there were also