Article 197 of the Labor Code of the Russian Federation. The right of workers to training and additional professional education, to undergo an independent qualification assessment (current version)

ST 197 of the Criminal Code of the Russian Federation.

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.

Commentary to Art. 197 Criminal Code

1. Unlike the previous two crimes (Articles 195 and 196 of the Criminal Code), there are no signs of bankruptcy in reality.

2. A socially dangerous act lies in the fact that a manager, founder (participant), or individual entrepreneur, knowing about his financial solvency, nevertheless publicly declares himself bankrupt.

The publicity of this act will take place if a person, exercising the right granted to him by bankruptcy legislation, applies to the arbitration court with an application to declare him bankrupt and notifies his creditors about this. As a rule, such an act is committed with the aim of obtaining deferments or installment plans, discounts or debt forgiveness.

3. The crime is considered completed from the moment of causing major damage (over 1.5 million rubles), which consists of losses to creditors in the form of real damage or lost profits.

Signs of fictitious bankruptcy

What can signal bankruptcy of a counterparty? In case of fictitious bankruptcy, at the time of filing the application, the organization has the opportunity to repay the debt, but managers deliberately delay the procedure, carry out unfavorable transactions with property, and accumulate receivables.

The main signs of fictitious bankruptcy include:

1. Unexpected change of owners, frequent change of legal address, LLC participants.
2. The appearance of false information in the Unified State Register of Legal Entities. This is alarming, since a normally operating organization would remove false data from the register as soon as possible.
3. The emergence of lawsuits, according to which it can be assumed that the court decision will not be in favor of the defendant and this will lead to bankruptcy.

It is best to assess risks and exercise caution before signing an agreement with such a counterparty. To do this, study the data in the Unified State Register of Legal Entities, check the company’s legal affairs, and conduct a financial analysis of the counterparty.

If the agreement has already been concluded, and the counterparty has signs of insolvency and has a debt, immediately submit an application to be included in the register of creditors’ claims. To do everything right, contact a lawyer.

Second commentary to Art. 197 of the Criminal Code of the Russian Federation

1. The objective side is fictitious bankruptcy.

It is understood as 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. A person who declares himself insolvent must in fact be solvent.

When investigating a case, it is necessary to conduct an accounting or due diligence examination.

2. Composition - material.

3. The subjective side is direct intent.

4. The subject may be the director or founder (participant) of a legal entity or a citizen, including an individual entrepreneur.

Purposes of fictitious bankruptcy

Fictitious bankruptcy can be beneficial to a businessman for the following reasons:

1. Allows you to get rid of debts. This is the most common reason why a company declares bankruptcy. Debts to the tax authorities and creditors are growing, and the owner does not want to pay the obligations, although he has the resources to do so.
2. Get a reprieve. The bankruptcy procedure allows you to get more favorable conditions for repaying debts. Yes, restrictions are imposed on the company, but the business can continue to be conducted and the bailiffs do not block accounts. An entrepreneur who has entered bankruptcy receives favorable conditions for repaying debts, receives a deferment, and creditors receive their money with a delay or in smaller amounts.
3. Close the company. An entrepreneur decides to close the business along with its debts, for example, if he understands that the business will not be profitable for him in the future. In order not to pay creditors, the businessman declares himself insolvent and seeks liquidation of the company.

Another goal could be fraudulent activities when a businessman plans to accumulate loans and immediately declare bankruptcy.

Third commentary to Article 197 of the Criminal Code of the Russian Federation

1. In our opinion, this composition is special in relation to the composition of fraud provided for in Art. 159 of the Criminal Code.

The immediate object is the interests of the state in the sphere of activity of state bodies authorized to organize work with bankrupt enterprises. It coincides with the object specified in Art. 195 of the Criminal Code of the Russian Federation.

2. The objective side characterizes the material composition of the crime by its structure. The legislator indicates an act that should entail criminal consequences (major damage), and a causal connection must be established between them. The act is expressed in deception, i.e. knowingly false and public announcement of the debtor's insolvency. The legislator again clarified the figures of debtors: the director or founder (participant) of a legal entity or an individual entrepreneur. The act is completed from the moment of causing major damage, the amount of which must exceed 1 million 500 thousand rubles (note to Article 169 of the Criminal Code of the Russian Federation).

3. The subjective side is characterized by guilt in the form of direct intent. In our opinion, the legislator was in a hurry by excluding from the mandatory signs of the subjective side an indication of a special purpose - the desire of the culprit to mislead creditors in order to obtain a deferment of payments and debt or for its non-payment. If it is proven that the perpetrator acted for selfish purposes, additional qualification is required under the article of fraud.

4. The subject of the crime is an individual who has reached the age of 16, who is the director or founder (participant) of a legal entity or an individual entrepreneur.
‹ Article 196. Deliberate bankruptcyTop Article 198. Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums ›

Liability for fictitious bankruptcy

If an entrepreneur through his actions caused damage to creditors in excess of RUB 2,250,000, criminal liability arises under Article 197 of the Criminal Code. Punishment can be in the form of:

• fine;
• forced labor;
• imprisonment with or without fines.

The owner of the organization, manager, or individual entrepreneur may be held liable.

If the damage is a smaller amount, the offender bears administrative liability under Art. 14 of the Administrative Code in the form of a fine or disqualification.

There are often cases when a crime involves several articles at once and the debtor is also accused of fraud.

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.

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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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.

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.

Arbitrage practice

Deliberate and fictitious bankruptcy are found everywhere, and it is quite difficult to investigate such cases. There are many applications for illegal bankruptcy, but only a few are brought to justice.

Arbitration managers are engaged in identifying signs of fictitious bankruptcy. To do this, an analysis of the company's activities over the past 2 years is carried out.

Bankruptcy cases must be carefully monitored: monitor the activities of the debtor, monitor the work of the arbitration manager. If you did not hire the manager, you should monitor his actions especially carefully. There are often cases when the manager himself helps the director of a fictitiously bankrupt company.

Of course, in order to control the bankruptcy procedure and collect evidence, the help of an experienced lawyer is required. If you suspect that your counterparty is breaking the law and hiding his real financial situation, you can hold him accountable.

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.