Malicious evasion by the head of an organization or a citizen from repaying accounts payable on a large scale or from paying for securities after the relevant judicial act has entered into legal force is 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 compulsory labor for a term of up to four hundred eighty hours, or forced labor for a term of up to two years, or arrest for a term of up to six months, or imprisonment for a term of up to two years.
The law does not say what “malicious evasion” is.
This is an evaluative concept.
As a rule, the court recognizes evasion as malicious:
- if the debtor has funds, but does nothing to pay off the debt;
- if the head of the debtor company rudely refuses to comply with the demands of the bailiff;
- if the debtor sells or hides property, moves to another city and does not inform anyone about it.
note
The investigator can initiate a criminal case only if the amount of debt is more than 1,500,000 rubles. This requirement does not apply to evasion of payment for securities. Here the size of the debt does not matter.
Features of initiating a criminal case
Malicious evasion of debt payments is being investigated by police investigators.
As a rule, information about a crime comes to the police from the creditor company. But it happens that the judge who made the decision to collect the debt, or the bailiff who is tasked with executing this decision, signals the authorities.
To initiate a case, the investigator must study the court decision on debt collection. Then he will find out what enforcement measures the bailiff took.
The investigator will definitely talk with employees of the debtor company. He needs to establish whether the company had a real opportunity to pay the debt. If the debtor does not have money, the case will be refused.
Responsibility of minors for petty theft
Now let’s simulate a situation where a person under 16 commits a theft in an amount not exceeding 1000 rubles. and he gets caught, further actions can develop in different ways, they can kick him in one place and hand him over to his parents, they can simply scare him and kick him, but if, for example, this case was reported to the police, then the situation will develop according to a certain algorithm. If you are parents, you remember that the law has not been repealed; an employee of the private security company or the store security service does not have the right to conduct an inspection or search of a person suspected of committing an offense, he can only offer to turn out his pockets, show the bag, because according to the law on the police, to conduct an inspection or search only a police officer can do it; the person being searched must be of the same sex as the examiner; the search is also carried out in the presence of two witnesses under the protocol; if the person is a minor, then also in the presence of parents and guardians. Also, a store security officer does not have the right to take away personal belongings or documents from you; after arrest, he is first obliged to inform the parents of a minor child about the incident, then call the police to the place where the fact of theft will be established, if the suspect is found with the item of theft and this will be confirmed by video recording, then of course it will not be possible to get away with it, if during the inspection the police did not find the item of theft and there are no video recordings confirming the fact of the theft, then in this case all accusations will turn out to be false, this applies to both adults and minors. Also, educational conversations with minors can only be carried out in the presence of parents, guardians, teachers or psychologists; in the absence of these persons, such conversations are prohibited.
If a child is detained and a report is drawn up, he can then be registered with the juvenile department (most likely this will be the case), and if he is under 14 years of age, his parents, adoptive parents or guardians are responsible for his actions. If harm is caused by a child left without parental care and under the care of an organization for orphans and children left without parental care, then this organization will compensate for the harm. Based on the above, the damage caused by the child is fully compensated by his capable parents, guardians or organizations under whose guardianship he is, of course, so as not to be unfounded in accordance with Part 2 of Article 32.2 of the Code of Administrative Offenses, if a minor child does not have his own income and is unable to pay the fine, then an administrative fine is collected from his parents. If the damage was caused by a child aged 14 to 18 years, then he can compensate for the damage from theft on his own; if his funds were not enough, then the missing part, or the damage in full, is compensated by his parents, guardians or organizations for orphans or children left without care parents.
Features of the investigation
By initiating a criminal case, the investigator will find out exactly how the debtor evaded repayment of the debt, how many times the victim demanded to repay the debt. This is necessary to prove the maliciousness of the evasion.
The investigator will definitely establish the amount of damage. This is not difficult to do. The amount of debt is indicated in the court decision. If it is less than 1,500,000 rubles, it will not be possible to bring the debtor to criminal liability.
At the bank, the investigator will seize the credit file of the debtor company, at the tax office - its balance sheets for the latest reporting periods (depending on how long the company evaded repayment of the debt).
The suspect will be questioned by the investigator about what needs the loan was used for, why it has not yet been repaid, etc. Employees of the financial department and accounting department will be questioned as witnesses. The investigator must establish whether the company had a real opportunity to repay the debt.
The investigator may order examinations: handwriting examinations to determine who signed the papers, and forensic accounting examinations to find out whether the company has financial difficulties and whether it conducted business activities after the court decided to collect the debt.
What do the courts do?
Criminal cases under this article rarely reach court. If the debtor does not have money or has at least partially repaid the debt, the investigator will not initiate a criminal case.
But there are still convictions.
As a rule, the court imposes a penalty in the form of a fine. In addition, the debtor must pay the creditor the entire amount of the debt. EXAMPLE The debt of the publishing house "Periodika" to the publishing house "Molot" has been accumulating since the beginning of 2008. When the debt amounted to 3,300,000 rubles, the publishing houses signed an agreement to return it within five months. At the end of this period, the money was never received into Molot’s account. The publishing house filed a claim with the Arbitration Court against Periodicals to collect the debt. The claim was fully satisfied. However, even after this, the director of Periodicals, Vasiliev, continued to evade paying the debt. The Molot publishing house filed a complaint with the police. As a result, the criminal court found the director of Periodicals guilty of malicious evasion of repayment of accounts payable (Article 177 of the Criminal Code of the Russian Federation). And he was sentenced to a fine of 200,000 rubles. In addition, the court ordered the publishing house "Periodika" to pay the publishing house "Molot" the entire amount of the debt - 3,300,000 rubles.
Types of theft, regardless of the amount of damage
There are crimes that qualify as theft, and the amount of damage caused to the victim is not important for initiating a criminal case . Thus, for crimes such as robbery and robbery, the actual damage can be expressed in several rubles, and the perpetrator still bears criminal liability for the act. At the same time, in additional qualifying criteria for these acts, the size of the stolen property is taken into account.
In accordance with Art. 161 of the Criminal Code of the Russian Federation, robbery is the open theft of someone else's property. Unlike theft, an attacker steals something valuable in front of eyewitnesses or the victim himself. A classic example of robbery is the sudden snatching of a bag from a woman’s hands in a crowded place: such actions are qualified under Part 1 of Art. 161 of the Criminal Code of the Russian Federation, punishment can be up to 4 years in prison.
Robbery has an increased social danger compared to theft or fraud, since it is committed openly and boldly, contrary to the norms of morality and morality, in full view of society. Moreover, robbery can be committed with the use of violence that is not dangerous to life or health (a push, one or two blows with a hand or foot without the use of weapons or objects) or with the threat of such violence, which is absolutely excluded in case of secret theft. Taking into account all these characteristics, the legislator provided for the liability of the perpetrator of robbery without reference to any amount.
Example No. 11 . Previously repeatedly convicted Petrov A.K. in the dark I saw a student passing by wearing headphones. Petrov decided that the young man had an expensive phone and stopped him, demanded the gadget, threatening to beat him. Frightened, the student gave away the phone, the cost of which was only 900 rubles. Petrov was subsequently detained and his phone was confiscated. His actions were qualified under paragraph “g” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation as robbery committed with the threat of violence not dangerous to life and health, the court sentenced him to 3 years in prison.
The example shows: despite the low value of the stolen property, Petrov A.K. suffered criminal punishment to the fullest extent of the law. The crime provided for in Part 2 of Art. 161 of the Criminal Code of the Russian Federation is serious, and the maximum punishment for it can be in the form of isolation for 7 years.
The legislator separately distinguishes robbery with damage on a large and especially large scale. Thus, in case of open theft of property worth more than 250,000 rubles (clause “e” of Part 2 of Article 161 of the Criminal Code of the Russian Federation), the perpetrator will face a sentence of up to 7 years in prison, even if the robbery was committed without violence or the threat of violence. In case of open theft in the amount of more than 1,000,000 rubles, liability arises under paragraph “b” of Part 3 of Art. 161 of the Criminal Code of the Russian Federation, where punishment varies from 6 to 12 years in prison.
In practice, there are often situations where the theft began as secret and ended as open. Then the person’s actions are qualified as robbery.
Example No. 12 . Akulin A.A. repeatedly took food out of the supermarket without paying for it. Unnoticed by hiding small bottles of alcohol and snacks under his jacket, Akulin committed thefts for several months. But the last time Akulin was noticed was by a security guard who shouted at him. Without turning around, Akulin began to run out of the store with everything stolen, and the security guard began to chase him, shouting “Stop!” At the trial, it was proven that the theft at a certain moment became obvious to the sellers, cashiers and security guards, and Akulin could not help but understand this, since it was clear that he heard shouts, but continued to hold the stolen products and run away. He was found guilty of robbery, although the crime initially began as theft.
It is noteworthy that in such situations, judicial practice on the application of the provisions of Part 2 of Art. 14 of the Criminal Code of the Russian Federation. This provision speaks about the possibility of releasing the perpetrator from criminal liability if the harm caused by him is so small that it does not create a public danger. For example, if in a similar situation a product was taken out of a supermarket for a tiny amount - a few rubles.
Example No. 13 . Platonov K.L. I went into a hypermarket and, in front of everyone, took a package of cotton swabs from the shelf, the price of which was 12 rubles. The cashier tried to stop him, but Platonov walked past the cash register and did not pay for the goods. The police officers who were called discovered the robbery, and a criminal case was opened - as we remember, the damage in open theft does not matter. Platonov admitted his guilt, compensated for the damage, wrote a confession, and explained his behavior by the need for an urgent purchase and lack of funds. His actions were considered insignificant, in accordance with Part 2 of Art. 14 of the Criminal Code of the Russian Federation, Platonov was released from criminal liability.
Let us remind you once again that exemption from liability under Part 2 of Art. 14 of the Criminal Code of the Russian Federation is possible only in rare cases when other rights of the victim are not violated and when there is practically no public danger. For example, robbery committed with the use of violence cannot be considered insignificant.
To qualify the offense under Art. 162 of the Criminal Code of the Russian Federation (robbery), the price of the stolen property does not matter. It is impossible to recognize such a crime as minor.
Robbery is a sudden attack on the victim with the obligatory sign of “use of violence dangerous to life and health, or with the threat of use of such violence.” This is a very dangerous crime, provided for in Art. 162 of the Criminal Code of the Russian Federation, criminal liability for such crimes occurs regardless of the amount of theft. In practice, there are cases when the attacker, believing that the victim had money, beat him, but it turned out that there was no money. And in this case, the guilty person will be held accountable for robbery, without the amendment “attempt,” since this type of crime is over from the moment of the attack.
Example No. 14 . Having learned that the neighbor sold her car, R.P. Matrosov. decided to steal money from her in the amount of 100,000 rubles. Taking a bat in his hands, wearing a black mask so as not to be recognized, he attacked a woman in the entrance of the house, after which he forced her to go into his apartment, began to demand money and threaten to kill her. As it turned out, the victim had already deposited the proceeds from the sale of 100,000 rubles into the bank, and the criminal was forced to be content with a 500 ruble bill that ended up in her neighbor’s wallet. Despite the fact that the damage for this amount cannot be called significant, Matrosov was sentenced to a long prison term for committing robbery.
Crimes under Art. 162 of the Criminal Code of the Russian Federation are never considered insignificant, since they are associated with an encroachment not only on property, but also on the life and health of the owner of this property. For a crime not aggravated by qualified characteristics, a penalty of imprisonment of up to 8 years is provided.
According to Part 2 of Art. 162 of the Criminal Code of the Russian Federation for robbery committed on a large scale (over 250,000 rubles), the perpetrator faces imprisonment from 7 to 12 years. According to Part 3 of Art. 162 of the Criminal Code of the Russian Federation provides for liability for robbery committed on an especially large scale - that is, over one million rubles - here the punishment can be up to 15 years in prison.
There is another type of mercenary crime, for initiating a criminal case for which the amount of damage is not important: this is extortion in accordance with Art. 163 of the Criminal Code of the Russian Federation. The essence of the crime is the demand to transfer property, money under the threat of non-dissemination of information unpleasant to the victim or under the threat of destruction of property, use of violence, etc. The legislator does not provide for the amount at which criminal liability for this crime begins, but separately qualifies the act as causing large-scale damage over 250,000 rubles (part 2 of Article 163 of the Criminal Code of the Russian Federation - punishment up to 7 years in prison) and causing especially large-scale damage over 1,000,000 rubles (Part 3 of Article 163 of the Criminal Code of the Russian Federation - punishment of up to 15 years in prison).
