ST 201 of the Criminal Code of the Russian Federation.
1. The use by a person performing managerial functions in a commercial or other organization of his powers contrary to the legitimate interests of this organization and in order to obtain benefits and advantages for himself or other persons or to cause harm to other persons, if this act entailed causing significant harm to the rights and legitimate interests citizens or organizations or legally protected interests of society or the state, -
shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by forced labor for a term of up to four years. , or arrest for a term of up to six months, or imprisonment for a term of up to four years.
2. The same act, which entailed grave consequences, -
shall be punishable by a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years or without it, or by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without it, or imprisonment for a term of up to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Notes. 1. In the articles of this chapter and Article 304 of this Code, those performing managerial functions in a commercial or other organization, with the exception of the organizations specified in paragraph 1 of the notes to Article 285 of this Code, or in a non-profit organization that is not a state body, local government body or state or a municipal institution, a person performing the functions of a sole executive body or a member of the board of directors or other collegial executive body, or a person permanently, temporarily or by special authority performing organizational, administrative or administrative functions in these organizations is recognized.
2. Lost power.
3. Lost power.
Commentary to Art. 201 Criminal Code
1. The use of powers contrary to the legitimate interests of the organization, as an act constituting the objective side, involves both the commission of actions and inaction, when a person does not carry out the necessary actions of a managerial nature in the presence of an obligation and the possibility of performing them.
It is criminally punishable to commit actions within the limits of the powers formally granted to the person, but contrary to the legitimate interests of the organization, and to exceed the powers, i.e. performing actions that go beyond the powers formally granted to the person.
2. The crime is considered completed from the moment of causing significant harm. This concept is evaluative and is expressed in causing property and other economic damage.
3. The subjective side is characterized only by direct intent and an alternatively provided purpose for committing a crime: a) the purpose of obtaining benefits and advantages for oneself (i.e., for the perpetrator) or other persons, or b) the purpose of causing harm to other persons.
4. Special subject: a person performing managerial functions in a commercial or other organization (note 1 to the article). The content of legally significant features of this subject is disclosed in paragraphs 4, 5, 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and abuse of official powers.”
Organizational, administrative and administrative duties must be performed by a person permanently, temporarily or under special authority. The constant performance of the relevant duties involves their performance for an indefinite period of time or a period of time limited by law or regulation; temporary - their implementation for a short period specified by a by-law or contract (for example, replacing a temporarily absent head of an organization). Fulfilling duties under a special authority means performing certain actions that form these duties on the basis of a law, by-law, court decision or agreement. Persons performing organizational, administrative and economic responsibilities under special authority include, in particular, arbitration managers and heads of temporary administration during bankruptcy procedures and other procedures related to the latter; attorneys representing the interests of the state in the management bodies of joint-stock companies, part of the shares of which (no more than 50%) is assigned (located) in federal ownership.
5. The concept of grave consequences in Part 2 is evaluative and is expressed in the infliction of property and economic harm that goes beyond the essential.
What falls under the concept of “abuse” under Art. 201 CC
The use by a person holding managerial positions in a commercial or other non-governmental organization of his powers in order to obtain financial or other benefits , to the detriment of the interests of the headed organization, its structural unit or legally protected interests of citizens, is an abuse of official powers (Part 1 of Article 201 of the Criminal Code ).
The law defines the concept of abuse very broadly, allowing for free interpretation on the part of law enforcement officers. The corpus delicti under an extensive list of actions of the leader, including:
- conclusion of initially unprofitable contracts;
- provision of loans to counterparties on behalf of the enterprise on unsuccessful terms;
- conspiracy with contractors, suppliers, performers in order to obtain a kickback;
- appropriation of the organization's property;
- overestimation of the amount of work performed, etc.
For example, in Nevinnomyssk, the deputy director of an enterprise was brought to justice, who, in order to receive an impressive bonus, for a long time created the appearance of successful work and falsified reports (sentence No. 1-395/2016 of November 2, 2016).
What is important: it is necessary to distinguish between crimes such as abuse of power and commercial bribery. In the second case, the manager also receives unlawful financial benefits, but for this he performs specific actions within the scope of his official powers, in the interests of a third party (Part 5 of Article 204 of the Criminal Code).
Second commentary to Art. 201 of the Criminal Code of the Russian Federation
1. The immediate object is the normal management activity of a commercial or other organization that complies with Russian legislation and the statutory objectives of this organization. An additional object is the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law.
2. The objective side is characterized by actions or inactions consisting of the use of managerial powers contrary to, i.e. to the detriment of the legitimate interests of the organization.
3. A mandatory feature of the objective side is socially dangerous consequences in the form of causing significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state. The recognition of harm as significant is at the discretion of the court.
4. The subjective side is characterized by direct intent and the special purpose of extracting benefits and advantages for oneself or other persons (relatives, loved ones, business partners, etc.) or causing harm to other persons (out of hatred, revenge or other motives).
5. Subject - special: a person performing managerial functions in a commercial or other organization, i.e. functions of a sole executive body, member of the board of directors or other collegial executive body, as well as a person who permanently, temporarily or by special authority performs organizational, administrative or administrative duties in organizations that are not a state body, local government body, state or municipal institution , a state corporation, a state company, a state or municipal unitary enterprise, a joint stock company in which a controlling stake belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities (notes 1 to Article 201 and 1 to Article 285 of the Criminal Code). The content of organizational-administrative and administrative-economic functions (albeit in relation to officials) is disclosed in the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and abuse of official powers” (p. 4 and 5).
6. A qualified crime involves causing grave consequences (for example, causing major property damage, disorganizing the work of an enterprise, breaking a major contract, a large number of citizens injured as a result of the crime, undermining the business reputation of an economic entity, etc.).
Article for the general. How to avoid being jailed for abuse of power
Article 201 of the Criminal Code of the Russian Federation is often used as a mechanism for punishing a manager when a company’s financial difficulties arise, since only in rare cases do cases of fictitious or deliberate bankruptcy reach the courts. This crime is not difficult to investigate, so creditors (and, by the way, also business owners) with a verdict under Art. 201 of the Criminal Code of the Russian Federation in relation to the head of the company, it is easier to bring him to subsidiary liability or recover damages. There are also cases when, through criminal prosecution under this article, the founders try to punish the general director in such a specific way.
An analysis of judicial practice over the past couple of years shows that the head of a commercial organization should avoid the following seemingly trivial situations that create the risk of criminal prosecution under Art. 201 of the Criminal Code of the Russian Federation.
The conclusion of contracts with one way or another controlled intermediaries (regardless of the purpose) must be reasonably and objectively justified in the interests of the company’s activities. For example, the head of an enterprise was convicted under Art. 201 of the Criminal Code of the Russian Federation for the fact that, in order to optimize the timing of crediting funds under a large contract, he “drove” the money through subcontractors. From the director's point of view, this ensured that money was credited more evenly, and therefore the obligation to pay taxes. However, as the investigation established, such subcontractors were companies controlled by the director, in which he was the founder or the ultimate beneficiary. Therefore, you should be vigilant when entering into any transactions with controlled subcontractors, especially if they are not actually operating at the time such contracts are signed.
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The head of the organization must ensure timely payment of the company's obligations. Recently, courts have begun to come to such conclusions more and more often when considering cases under Art. 201 of the Criminal Code of the Russian Federation. In particular, if the company’s accounts do not have sufficient funds to fulfill all obligations in a timely manner, then payment must be made in the manner prescribed by law (salaries, taxes and fees in priority, payment for other transactions in the order in which payment is due). At the same time, the manager should strive to minimize or, ideally, completely avoid the formation of delays and penalties. Taking this into account, the general director needs to control the flow of funds to the company’s current accounts, as well as pay wages, taxes and bills of counterparties on time and as completely as possible.
Qualified under Art. 201 of the Criminal Code of the Russian Federation includes the sale of company assets when the general director does not receive appropriate approval of the transaction from the company’s management bodies, and also sells the asset at a significantly reduced cost. It should be understood that before selling assets (especially those related to fixed assets of production), it is necessary to obtain approval for the transaction (as a large one or with an interest), and in addition, have a justification for such a sale (an exact answer to the question why the sale of this asset does not harm the interests of society) and the conclusion of a professional appraiser on the value of the asset.
Of course, this is not a complete list of situations that create a risk for the CEO, so we can recommend that any manager, before committing a major transaction that may be ambiguously interpreted from the point of view of the company’s interests or may entail unjustified risks for the enterprise, thoroughly evaluate the criminal law risks.
Risk for entrepreneurs
Of course, these changes significantly increase the risks of entrepreneurs, directors and managers of unfounded and corrupt criminal cases.
Thus, after the cancellation of these notes, the initiation of a criminal case under Art. 201 of the Criminal Code of the Russian Federation, for example, against a former director of a company, neither the consent of the current director nor the consent of the founders is required, and it is also not mandatory to have an application from them to initiate a criminal case.
That is, a criminal case can be initiated solely on the initiative of law enforcement officers on the basis, for example, of a report on the discovery of signs of a crime or a statement from an unscrupulous competitor.
Initiation of criminal cases under Art. 201 of the Criminal Code of the Russian Federation in relation to managers of commercial enterprises was a fairly common occurrence before, but now law enforcement agencies are not limited in any way in their actions. If previously the presence of significant violations of the legitimate interests of the company was determined by the founders, business owners, etc., and the question of initiating a criminal case under Art. 201 of the Criminal Code of the Russian Federation was also resolved by them independently, but now law enforcement officers can, on their own initiative, intervene in such a conflict and “from the outside” assess whether significant harm has been caused to the interests of the company.
