1. Concealment of property, property rights or property obligations, information about property, its size, location or other information about property, property rights or property obligations, transfer of property into the possession of other persons, alienation or destruction of property of a debtor - a legal entity, citizen, including an individual entrepreneur, as well as concealment, destruction, falsification of accounting and other accounting documents reflecting the economic activities of a legal entity or individual entrepreneur, if these actions were committed in the presence of signs of bankruptcy and caused large damage, except for the cases provided for in Article 172.1 of this Code , - shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by restriction of freedom for a term of up to two years, or by forced labor for a term of up to three years, or arrest for a term of up to six months, or imprisonment for a term of up to three years, with or without 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.
2. Unlawful satisfaction of property claims of individual creditors at the expense of the property of a debtor - a legal entity by the head of a legal entity or its founder (participant) or a citizen, including an individual entrepreneur, knowingly to the detriment of other creditors, if this action was committed in the presence of signs of bankruptcy and caused a large damage - is punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by restriction of liberty for a term of up to one year, or by forced labor for a term of up to one year, or by arrest for a term of up to four months, or imprisonment for a term of up to one year 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.
3. Illegal obstruction of the activities of an arbitration manager or temporary administration of a credit or other financial organization, including evasion or refusal to transfer to the arbitration manager or temporary administration of a credit or other financial organization documents necessary for the performance of their duties, or property belonging to a legal entity , including a credit or other financial organization, in cases where the functions of the head of a legal entity, including a credit or other financial organization, are assigned, respectively, to an arbitration manager, the head of the temporary administration of a credit or other financial organization, as well as in the event that in relation to a citizen, including an individual entrepreneur, a procedure applied in a bankruptcy case has been introduced, provided that these actions (inaction) caused large damage - is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or compulsory labor for a term of up to four hundred eighty hours, or correctional labor for a term of up to two years, or forced labor for a term of up to three years, or arrest for a term of up to six months, or imprisonment for a term of up to three years .
Article 195.3 of the Labor Code of the Russian Federation and its place in the code
Art. 195.3 of the Labor Code of the Russian Federation is one of 3 articles of the code devoted to professional standards, which begins the section of the current Labor Code of the Russian Federation, which addresses issues of qualifications and additional training of workers.
The concept of a professional standard was introduced into the Labor Code of the Russian Federation at the end of 2012 with the inclusion of Art. 195.1 (Clause 4 of Article 1 of the Law of the Russian Federation “On Amendments to the Labor Code...” dated December 3, 2012 No. 236-FZ).
Until July 1, 2016, this article remained the only one in the Labor Code of the Russian Federation (except for the mention of the possibility of using a professional standard to establish qualification requirements in Article 330.2), dedicated to the role of this document in determining qualification requirements for an employee and determining those responsible for its implementation in labor relations .
For information about what professional standard exists for an accountant, read the article “Professional standard for an accountant since 2016 (nuances)” .
From 07/01/2016 with the entry into force of the Russian Federation Law “On Amendments...” dated 05/02/2015 No. 122-FZ, the text of the Labor Code of the Russian Federation concerning professional standards underwent editorial changes and was supplemented with new articles.
And if the appearance of Art. 195.2 in the code was, in essence, the result of separating its text from Art. 195.1, then Art. 195.3, dedicated to the basic rules for the application of professional standards, has become the main innovation of the Labor Code of the Russian Federation on this issue.
Until July 1, 2016, responsibility for establishing the procedure for applying professional standards rested with the Government of the Russian Federation.
Rules for using professional standards
Text of Art. 195.3 of the Labor Code of the Russian Federation consists of 3 paragraphs. The rules for applying professional standards are set out in the first 2 of them. The last paragraph indicates the right of the regulatory body in the field of labor (the Ministry of Labor of the Russian Federation) to provide the necessary explanations on this issue.
The rules given in the article are divided into 2 groups depending on the obligation to apply them:
- mandatory;
- optional.
Mandatory application arises in relation to those provisions of the professional standard that meet the qualification requirements established at the level of:
- Labor Code of the Russian Federation or other laws;
- other regulatory acts of the Russian Federation.
Other provisions of professional standards are optional for application, but can be used by employers when developing qualification requirements for employees, depending on the functions they perform.
Answers to some of the questions that have arisen in connection with the application of professional standards are given by the Ministry of Labor of the Russian Federation in letter dated 04/04/2016 No. 14-0/10/B-2253. Regarding the rules of application, the following are of interest:
- On the purpose of professional standards. This document defines modern requirements for the profession (clause 1).
- Interaction of unified qualification reference books and professional standards. It is planned to gradually replace reference books with professional standards (clause 4), but for now the employer chooses which document requirements to follow (clause 5).
- The importance of indicating the employee’s position according to a reference book or professional standard. This is essential for positions that require benefits, compensation or restrictions (clause 6).
- A list of other regulatory acts of the Russian Federation, according to which the obligation to apply the professional standard arises. These are decrees and orders of the Government of the Russian Federation, orders of federal executive authorities (clause 8).
- Changing requirements for employees with the adoption of professional standards. If an employee does not meet the requirements of this document, he cannot be fired, but he can be additionally trained or subjected to certification (clauses 10, 11).
To learn how the content of professional standards is linked to the federal state educational standards for vocational education (FSES), read the article “Compliance with the requirements of the Federal State Educational Standard for accounting .
- Responsibility for failure to apply a mandatory standard. It will be administrative in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation (clause 12).
Penalties under article No. 14-0/10/B-2253 of the Code of Administrative Offenses of the Russian Federation specified in letter No. 14-0/10/B-2253 can be of 2 types:
- For a one-time violation of labor legislation (clause 1), which involves imposing a fine in the amount of: 1,000–5,000 rubles. for officials and individual entrepreneurs;
- 30,000–50,000 rub. for legal entities;
- 10,000–20,000 rub. for officials;
Committing a similar violation again will lead to a significant increase in the amount of the fine, the maximum value of which (for legal entities) can reach 200,000 rubles. (clause 5 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).
Commentary on Article 195 of the Criminal Code of the Russian Federation
1. Bankruptcy is understood as the inability of a debtor, recognized by an arbitration court, to fully satisfy the claims of creditors for monetary obligations and (or) to fulfill the obligation to make mandatory payments.
Signs of bankruptcy occur if the corresponding obligations and (or) obligations are not fulfilled by the debtor within three months from the date of their fulfillment. If the debtor is a citizen (individual entrepreneur), then the amount of his obligations must also exceed the value of his property. A debtor that is a credit institution is subject to a 14-day period of non-fulfillment of the relevant obligations and the conditions that the value of its property (assets) is insufficient to repay the relevant debt.
2. The subject of the crime is the property of the insolvent debtor.
3. The objective side of the crime (Part 1 of Article 195) includes an act (concealment, transfer, alienation or destruction of the debtor’s property, as well as concealment, destruction, falsification of accounting and other accounting documents) committed in the presence of signs of bankruptcy (see. paragraph 1 of the commentary), and the consequence of this act, expressed in causing major damage (over 1 million 500 thousand rubles). There must be a causal connection between the act and the consequence.
4. The subject of a crime is a person who, in fact or on the basis of a legal act, has the right to perform the appropriate actions:
- individual entrepreneur;
- head of the debtor organization;
- founder (participant) of a legal entity - debtor;
- a person who is part of the temporary administration, appointed by the court for the purpose of conducting various bankruptcy procedures;
- arbitration manager, as well as various management employees of the debtor organization.
5. The objective side of the crime under Part 2 of the commented article includes an act expressed in the unlawful satisfaction of the property claims of individual creditors at the expense of the debtor’s property, obviously to the detriment of other creditors, committed in the presence of signs of bankruptcy. This act consists of violating the rules and order of satisfaction of creditors' claims established by law.
6. The crime is considered completed from the moment of causing major damage.
7. The subject of the crime (Part 2 of Article 195) is special: the head of a legal entity, its founder (participant) or an individual entrepreneur.
8. The objective side of the crime under Part 3 of Art. 195 is characterized by obstruction of the activities of the arbitration manager or the temporary administration of a credit organization or other financial organization, committed in a certain situation of insolvency (when the functions of the manager are assigned to the arbitration manager or the head of the temporary administration). The consequences of the crime include causing major damage.
9. In relation to a credit organization or other financial organization (insurance organization, professional participant in the securities market, non-state pension fund, investment fund management companies, mutual funds or non-state pension funds), the scope of application of Part 3 of the commented article is broader. This is explained by the fact that the functions of a manager can be assigned to the head of the temporary administration of a credit or other financial organization even before the appearance of signs of bankruptcy.
10. The commented article does not indicate all possible types of actions (inactions) that form the objective side; any actions (inactions) should be recognized as a crime if they prevent the arbitration manager or the head of the temporary administration of a credit or other financial organization from fulfilling the duties assigned to them by law, which resulted in major damage. Evasion or refusal to transfer documents or property is mentioned in the law as a type of obstruction of the activities of an arbitration manager or head of a temporary administration.
11. The subjective side of the crime is characterized by an intentional form of guilt.
12. The subject of a crime under Part 3 of Art. 195 can be any sane person who has reached the age of 16 years.
Special procedure for applying professional standards
Having made changes to the Labor Code of the Russian Federation in relation to professional standards, Law No. 122-FZ established another rule concerning professional standards, but which was not reflected in the text of the code. He granted the Government of the Russian Federation the right to determine the specifics of the application of professional standards by the following organizations (Article 4):
- state extra-budgetary funds;
- state and municipal institutions and unitary enterprises;
- state corporations and companies;
- organizations with a government share of more than 50%.
In order to exercise this right, the Government of the Russian Federation adopted Resolution No. 584 dated June 27, 2016, which established for the above-mentioned organizations a period of gradual (from July 1, 2016 to January 1, 2020) implementation of professional standards, during which they will have to:
- create missing standards and refine existing ones (subparagraph “a”, paragraph 1 and paragraph 5);
- conduct additional training for employees (subparagraph “b”, paragraph 1);
- bring internal regulations related to the assessment of workers’ qualifications into conformity with the provisions of professional standards (subparagraph “d”, paragraph 1 and subparagraph “a”, paragraph 3).
Taking into account these reservations, the use of professional standards by these organizations became mandatory from July 1, 2016 (clause 4 of resolution No. 584).
To learn how the mandatory application of the professional standard will affect the preparation of an accountant’s job description, read the article “Job description of an accountant of a budgetary institution - sample 2015” .
Results
Art. 195.3 of the Labor Code of the Russian Federation is an innovation in the Labor Code of the Russian Federation.
It reflects the basic rules for applying professional standards. The mandatory use of these documents arises in relation to the provisions included in them, established by the laws of the Russian Federation (in particular, the Labor Code of the Russian Federation) and other regulations of the Russian Federation. A special procedure for applying professional standards has been established for state organizations and legal entities with a predominant share of state participation in them. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Commentary to Art. 195 Criminal Code
1. Subject of the crime (Part 1): a) the debtor’s property and information about it; b) property rights or property obligations and information about them; c) accounting and other accounting documents (for example, an act on the valuation of fixed assets).
2. A socially dangerous act is characterized by a number of alternative actions: a) concealment of property or information about it; b) concealment of property rights or property obligations or information about them; c) transfer of property into the possession of other persons, alienation or destruction of property; d) concealment, destruction, falsification of accounting and other accounting documents reflecting economic activity.
3. The circumstances of the commission of the crime - the presence of signs of bankruptcy, defined by law. The presence of signs of bankruptcy does not have to be confirmed by a final decision of the arbitration court declaring the debtor bankrupt. It is necessary that their actual existence at the time of the crime be established.
4. Criminal liability occurs only in the event of major damage (over 1.5 million rubles), with the exception of cases provided for in Art. 172.1 CC.
5. The subject of a crime can be: a citizen, including an individual entrepreneur, the head of an organization (he can commit a crime at the stage of observation and financial recovery, but at the stage of bankruptcy proceedings he no longer has such opportunities, since he is removed from the management of the legal entity) , founders of a legal entity, chairman and members of the board of directors (supervisory board), arbitration managers at any stage of the bankruptcy procedure, head and members of the temporary administration of a credit organization, etc.
6. Part 2 provides for liability for unlawful satisfaction of property claims of creditors at the expense of the debtor’s property to the detriment of other creditors.
Illegality means that actions are carried out in violation of the law, which provides for a certain priority and procedure for payments to creditors. The claims of creditors of each subsequent priority are satisfied after the claims of the creditors of the previous priority are satisfied. If there are insufficient funds to fully satisfy all the claims of creditors of the corresponding priority, they are satisfied in proportion to the amount of recognized claims of this priority. Therefore, a violation of the order or proportionality indicates the illegality of the actions taken.
7. For criminal liability to arise under Part 2, it is necessary that the entity acted in the presence of signs of bankruptcy, knowingly to the detriment of other creditors and caused large damage (over 1.5 million rubles).
8. Special subject (in part 2): head of a legal entity, founder (participant) of a credit organization, individual entrepreneur, arbitration manager, as well as a bankrupt citizen.
9. During external administration or bankruptcy proceedings, the head of the organization is removed from management and his powers are assigned to an external or bankruptcy administrator. In credit and other financial institutions, the powers of the executive bodies of the organization are suspended in the event of bankruptcy and the approval of a temporary administration. Obstructing the activities of an arbitration manager or temporary administration, for example, in the form of evasion or refusal to transfer to them documents or property necessary for the performance of the duties assigned to them, entails criminal liability (Part 3) in the event of causing large damage (over 1.5 million). rub.).
10. Subject - general; As a rule, these are managers of a legal entity of a credit or other financial organization removed from management, as well as a bankrupt citizen, including an individual entrepreneur.
