1. Obtaining by an individual entrepreneur or the head of an organization of a loan or preferential terms of lending by providing a bank or other creditor with knowingly false information about the economic situation or financial condition of the individual entrepreneur or organization, if this act caused large-scale damage, is punishable by a fine of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a term of up to four hundred eighty hours, or by forced labor for a term of up to five years, or by arrest for a term of up to six months, or by imprisonment for a term of up to five years.
2. Illegal receipt of a state targeted loan, as well as its use other than for its intended purpose, if these acts caused major damage to citizens, organizations or the state, is 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 restriction of liberty for a term of one to three years, or by forced labor for a term of up to five years, or by imprisonment for the same term.
Commentary on Article 176 of the Criminal Code of the Russian Federation
1. The designation in Part 1 of the commented article of the subject of the crime by the term “credit” means that, based on civil law, the rule applies to all types of credit, including commodity and commercial (Articles 822 and 823 of the Civil Code). A person who provides a loan, including a bank loan, has the right to demand that the borrower provide information about the borrower’s reliability within the framework of the security for the fulfillment of obligations provided for by law (Chapter 23 of the Civil Code).
2. In accordance with Art. 819 of the Civil Code, under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount received and pay interest on it. The concept of a bank and a credit organization is contained in Art. 1 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities” <1>. These legal entities place the funds they have on their own behalf and at their own expense on the terms of repayment, payment, and urgency.
——————————— <1> NW RF. 1996. N 6. Art. 492.
3. Unlike fraud, the fraud referred to in Part 1 of the commented article does not concern any circumstances significant for the creditor, but only the economic situation or financial condition of the person requesting the loan. The concept of a person’s economic status is not disclosed in the legislation; in the context of the norm under discussion, it should be understood as a characteristic of the state of his property assets, with the exception, apparently, of cash, accounts payable and receivable. The concept of financial condition can be understood, in particular, by referring to Art. 70 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” <1>, which regulates the analysis of the financial condition of the debtor. At the same time, from the Rules for Conducting Financial Analysis by an Arbitration Manager, approved by Decree of the Government of the Russian Federation of June 25, 2003 N 367 <2>, adopted in pursuance of the requirements of this Law, it is clear that the specified characteristics of the property status of the debtor (a person receiving a loan by deceiving the creditor) are closely intertwined and it is hardly productive to distinguish them in practice.
——————————— <1> NW RF. 2002. N 43. Art. 4190; 2009. N 1. Art. 4. <2> NW RF. 2003. N 26. Art. 2664.
4. The actions provided for in Part 1 of the commented article can also include deception regarding the proper provision of obligations under the contract. For example, deception may consist in the borrower providing the lender with real estate that does not belong to him as collateral, forged protocols of intent to make a profitable transaction using loan funds, etc. In particular, deception regarding proper security for the fulfillment of obligations in the form of submitting a false guarantee to the lender contains signs of this crime, since deception regarding the readiness of a third party to fulfill his obligations for the borrower, if necessary, is a characteristic of the financial condition of the borrower himself, before whom the third party allegedly has corresponding property obligations, and the presence of a corresponding right of claim by the borrower demonstrates his financial condition as more reliable.
5. The characteristic under consideration cannot be interpreted too broadly. If, for example, among the documents necessary for making a decision on issuing a loan, the creditor is presented with the constituent agreement of the commercial organization requesting the loan, and among the founders a person authoritative in the field of business is fraudulently indicated (which should, in the opinion of the debtor, indicate greater reliability of the organization) , then such actions of Part 1 of the commented article are not covered. Likewise, oral assurances about the good, stable business situation and financial condition of the borrower are not considered as providing false information to the lender.
6. Preferential lending conditions are determined by the lender himself or, in some cases, by regulations. To impute this attribute, it is necessary to establish that the debtor received preferential lending conditions precisely as a result of misleading the creditor through the deception described in the law. Preferential terms mean, in particular, a reduction in the amount of fees for using credit funds. But such conditions may also consist of other things, for example, increasing the loan amount compared to normal conditions, or establishing a condition for prolonging the contract.
7. The crime is over from the moment of causing major damage. Such damage may be caused to the creditor in the event of failure to fulfill obligations under the loan agreement, i.e. in case of non-repayment of the loan, non-payment of interest. The damage may also be real if it is caused to a third party with whom the borrower entered into an agreement ensuring the fulfillment of obligations under the loan agreement. In the latter case, the following takes place: having deceived the lender in another way, the borrower presented an appropriate guarantee obligation from a third party (another bank), treating the failure to fulfill his obligations not as a desired, but as an acceptable consequence of his actions; at the same time, the failure to fulfill the obligations arising from the security agreement to a third party by the borrower was foreseen and tolerated, although it was not desired.
8. The subjective side is intentional: in relation to damage caused by non-repayment of a loan, intent can only be indirect (otherwise, i.e. with direct intent, the act is fraud), and in relation to failure to fulfill obligations in terms of interest on the loan - and direct.
Intention can also be direct in relation to the damage caused by failure to repay the loan within the period established in the agreement, when the borrower, in principle, intends to repay the loan. In this case, the person is aware of the falsity of the information provided to the lender regarding the above circumstances and the connection of the deception with the decision to grant a loan.
9. The subject of illegal receipt of a loan is an individual entrepreneur or the head of the borrowing organization. There are cases when a person who is legally the head of an organization, while committing illegal actions, only follows the instructions of the so-called actual head. If the legal director does not realize the illegality, and therefore the social danger, of his actions, then the executor, by virtue of Part 2 of Art. 33 of the Criminal Code there will be an actual leader.
10. There is currently no definition in legislation and regulations of what is meant by a state targeted loan. This gave grounds to assert that, based on the prohibition of analogy in criminal law, Part 2 of the commented article cannot be applied.
If interpreted according to its meaning, then the subject of the crime should be understood as a budget loan, which in Art. 6 BC is defined as funds provided by the budget to another budget of the budget system of the Russian Federation, a legal entity (with the exception of state (municipal) institutions), a foreign state, a foreign legal entity on a repayable and reimbursable basis. The concept of a budget loan, the procedure, and the grounds for its provision are defined in Art. 93.2 BC.
11. Receiving a budget loan is illegal in cases of deliberate violation by the recipient of the loan of the conditions established for receiving such a loan. The recipient of loan funds may not have the right to receive it provided for by law or by-law, or he may not initially intend to use the funds for their intended purpose.
12. Budget loan is always targeted. The concept of misuse of budget funds is given in Art. 289 BC, these include the direction and use of them for purposes that do not comply with the conditions for receiving the specified funds, defined by the approved budget, budget schedule, notification of budgetary appropriations, estimates of income and expenses, or other legal basis for their receipt.
13. The crime is completed from the moment of causing major damage, the amount of which must exceed, according to the note. to Art. 169 of the Criminal Code 1 million 500 thousand rubles.
14. The subjective side is the same as that of the crime provided for in Part 1 of the commented article.
15. The subject of the crime, based on the above range of subjects receiving a budget loan, is special. This could be, in particular, the head of a legal entity.
16. Criminal liability of officials of the recipient of budget funds for misuse of budget funds does not arise under Part 2 of the commented article, but under Art. 285.1 of the Criminal Code, but provided that the amount of illegally spent budget funds exceeds 1 million 500 thousand rubles.
Article 176. Illegal receipt of a loan
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- Criminal Code of the Russian Federation
- Article 176. Illegal receipt of a loan
1. Obtaining by an individual entrepreneur or the head of an organization of a loan or preferential terms of lending by providing a bank or other creditor with knowingly false information about the economic situation or financial condition of the individual entrepreneur or organization, if this act caused large-scale damage,
is punishable by a fine of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a term of up to four hundred eighty hours, or by forced labor for a term of up to five years, or by arrest for a term of up to six months, or by imprisonment for a term of up to five years.
2. Illegal receipt of a state targeted loan, as well as its use other than for its intended purpose, if these acts caused major damage to citizens, organizations or the state, -
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 restriction of freedom for a term of one to three years, or by forced labor for a term of up to five years, or imprisonment for the same period.
Commentary on Article 176
This article provides for criminal liability for the commission of two acts that differ from each other by objective and subjective characteristics.
An object
crime under Part 1 of Art. 176 of the Criminal Code of the Russian Federation - the established procedure for providing a loan to an individual entrepreneur or organization.
On the concept of a bank and a non-bank credit organization, see the commentary to Art. 172 of the Criminal Code of the Russian Federation.
The current legislation provides for various types of loans (bank (Article 819 of the Civil Code of the Russian Federation), commodity (Article 822 of the Civil Code of the Russian Federation), commercial (Article 823 of the Civil Code of the Russian Federation), tax (Article 65 of the Tax Code of the Russian Federation)).
The most common in judicial practice are cases where the perpetrators illegally receive a bank loan, which is understood as an obligation by virtue of which a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the loan agreement, and the borrower undertakes to return the amount of money received and pay interest on it.
Preferential lending conditions are more favorable than usual loan conditions. For example, benefits relate to the loan amount, interest rate, repayment period, and loan security.
The procedure for obtaining a loan is regulated in the relevant norms of the current legislation (for example, articles 819 - 821 of the Civil Code of the Russian Federation are devoted to obtaining a bank loan).
Objective side
crime under Part 1 of Art. 176 of the Criminal Code of the Russian Federation, is expressed in action - receiving a loan or its preferential terms, the consequence in the form of major damage, causation.
Receiving a loan means issuing it to the borrower. For example, a bank loan can be issued in cash or by non-cash transfer of funds to the borrower's current account.
The only illegal way to obtain a loan or its preferential terms is indicated in the disposition of Part 1 of Art. 176 of the Criminal Code of the Russian Federation - submission to a bank or other creditor of knowingly false information about the economic situation or financial condition of an individual entrepreneur or organization.
Information about the business situation or financial condition includes data that was submitted by an individual entrepreneur or organization to the lender to make a decision on issuing a loan. This information may be contained: in the constituent documents; protocols on the appointment of executive bodies or on the approval of major transactions; register of shareholders; civil and labor contracts; bank guarantees and guarantees; accounting and tax reporting; auditor's report; feasibility study for obtaining a loan; business plans, etc.
To constitute a crime, the information provided must be knowingly false, i.e. do not correspond to reality in full or in part.
The act is completed at the moment of causing major damage to the creditor. For example, after the expiration of a loan agreement or violation of interest payment deadlines. The corpus delicti is material.
In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation, major damage is understood as a monetary amount exceeding two hundred and fifty thousand rubles.
On the qualitative side, the damage is expressed in property losses of the creditor (for example, the loan amount is not returned) and lost profits (for example, interest for using the loan is not paid).
Causing non-property consequences to the creditor is not criminally punishable under Part 1 of Art. 176 of the Criminal Code of the Russian Federation (for example, undermining business reputation, violating normal operating conditions, laying off full-time employees).
Subjective side
crime under Part 1 of Art. 176 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent. The person realizes that by presenting false information to the creditor about his or her business or financial condition, he is thereby misleading him, foreseeing the possibility or inevitability of causing major damage to the creditor and desires this, or consciously allows these consequences or is indifferent to them.
Subject
crimes under Part 1 of Art. 176 of the Criminal Code of the Russian Federation is special, it is an individual entrepreneur or the head of an organization who has reached the age of sixteen.
Illegal receipt of a loan by an individual (common subject of the crime), if there are grounds for it, must be qualified under Art. 165 of the Criminal Code of the Russian Federation, which provides for liability for causing property damage by deception or abuse of trust.
Illegal receipt of a loan, involving bribery of a bank manager or other creditor who influenced the decision on the issue of granting a loan, is qualified in conjunction with Art. 204 of the Criminal Code of the Russian Federation.
An object
crime under Part 2 of Art. 176 of the Criminal Code of the Russian Federation, - the procedure for state targeted lending.
The Budget Code of the Russian Federation (BC RF) does not have a clear definition of a state targeted loan <1>. It seems that by state targeted loan in this article we mean exactly a budget loan, i.e. funds provided by the budget to another budget of the budget system of the Russian Federation, to a legal entity (with the exception of state (municipal) institutions), to a foreign state, to a foreign legal entity on a repayable and reimbursable basis (Article 6 of the Budget Code of the Russian Federation).
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<1> The Budget Code of the Russian Federation provides for the following forms of spending public funds: budget loan, targeted foreign loan, related loans from foreign governments, banks and firms, state or municipal loan, grant, subvention, subsidy, etc. (v. 6).
When the annual budget is approved, it specifies the goals, limits, conditions and procedure for providing budget loans. This procedure is regulated by the BC RF (Article 93.2 - 93.5).
Objective side
crime under Part 2 of Art. 176 of the Criminal Code of the Russian Federation, is expressed in the action - illegal receipt of a state targeted loan or its use for other purposes, the consequence in the form of causing major damage to citizens, organizations or the state, causation.
Illegal receipt of a government targeted loan is the receipt of a loan by a borrower in violation of established regulatory rules that determine the grounds for its receipt.
The use of a state targeted loan for other purposes is the disposal of the funds received for other purposes specified in the loan agreement. For example, a loan was received for the purchase of agricultural equipment, but it was spent on office renovations.
The act is completed at the moment of causing major damage to citizens, organizations or the state. The corpus delicti is material.
The quantitative and qualitative characteristics of major damage are similar to Part 1 of Art. 176 of the Criminal Code of the Russian Federation.
Subjective side
crime under Part 2 of Art. 176 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent. A person is aware of the illegal nature of receiving or using a government targeted loan, foresees the possibility or inevitability of causing major damage to citizens, organizations or the state and desires this, or consciously allows these consequences or is indifferent to them.
Subject
crimes under Part 2 of Art. 176 of the Criminal Code of the Russian Federation - a sane individual who has reached the age of sixteen years.
Motives and goals are not mandatory features of crimes provided for in Parts 1 and 2 of Art. 176 of the Criminal Code of the Russian Federation. The intent of the person is aimed at temporarily obtaining a loan with the intention of subsequently returning the borrowed funds. At the same time, as noted by N.A. Lopashenko, the purpose of non-repayment of the loan that arose before its receipt is completely excluded. If a person receives a loan intending to misappropriate it, then his actions are qualified as fraud (Article 159 of the Criminal Code of the Russian Federation) <1>.
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<1> Lopashenko N.A. Crimes in the economic sphere: author's commentary on the criminal law (Section VIII of the Criminal Code of the Russian Federation). M., 2006. P. 389.
If a person used an official document forged by himself to illegally obtain a loan, then his actions must be qualified according to the totality of crimes provided for in Part 1 of Art. 327 of the Criminal Code of the Russian Federation (or Art. 292 of the Criminal Code of the Russian Federation) and the corresponding part of Art. 176 of the Criminal Code of the Russian Federation <1>.
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<1> It is precisely this qualification model that was proposed by the Supreme Court of the Russian Federation in relation to the totality of crimes provided for in Art. Art. 327 and 159 of the Criminal Code of the Russian Federation. See: paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51 “On judicial practice in cases of fraud, misappropriation and embezzlement” // Bulletin of the Supreme Court of the Russian Federation. 2008. N 2.
In Art. 285.1 of the Criminal Code of the Russian Federation provides for liability for inappropriate spending of budget funds. It seems that the main difference between this crime and the use of a state targeted loan for purposes other than its intended purpose (Part 2 of Article 176 of the Criminal Code of the Russian Federation) is that the budget funds referred to in Art. 285.1 of the Criminal Code of the Russian Federation, are not a loan and are not provided on the terms of their repayment <1>.
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<1> Volzhenkin B.V. Crimes in the sphere of economic activity according to Russian criminal law. St. Petersburg, 2007. P. 351.
Administrative liability is provided for obtaining a loan or preferential lending terms by providing a bank or other creditor with knowingly false information about one’s business or financial status, which does not entail causing major damage (Article 14.11 of the Code of Administrative Offenses of the Russian Federation).
