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The initiation of a criminal case on the enforcement proceedings. The term of initiation of enforcement proceedings

Contract
01.12.2020

The debtor does not agree with the excitation executive proceedings

The recoverer does not agree with the refusal to initiate enforcement proceedings

1. The bailiff initiates enforcement proceedings on the basis of an executive document on the application of the recoverer, unless otherwise established by this Federal Law.

2. The application is signed by the charter or its representative. The representative is making a power of attorney or other document certifying its powers. The application may contain a petition to impose an arrest on the property of the debtor in order to ensure the execution of the requirements contained in the executive document property ProposalsAs well as about the establishment of restrictions on the debtor, provided for by this Federal Law. The recoverer may indicate a statement about the initiation of enforcement proceedings known to him by the debtor, as well as to make documents containing information about the debtor, its property situation and other information that may be imported to the timely and complete fulfillment of the requirements of the executive document.

2.1. Application for the initiation of enforcement proceedings on the basis of executive documentsspecified in parts 1, and 7 of Article 21 of this Federal Lawended up by the bailiff on the basis of the act of the absence of a property of the property for which the penalty may be drawn (if all the measures taken by the bailiff admissible to the law to find the debtor's property were unsuccessful) may be submitted no earlier than six months After the end of the execution day or the previously specified period in the presence of information about the change in the property of the debtor. The application for the initiation of enforcement proceedings on the basis of other executive documents ended with the bailiff on the basis of the act of the absence of a property of the debtor on which the penalty may be drawn (if all the measures taken by the bailiff admissible by law unsuccessful) can be submitted no earlier than two months after the end of the execution of the executive production or before the expiration of the specified period in the presence of information about the change in the property position of the debtor.

3. The executive document and application are submitted by the recoverer at the place of executive actions and the use of measures forced executiondetermined in accordance with Article 33 of this Federal Law.

4. If the recovery is unknown, in which unit bailiffs Executive proceedings should be initiated, he is entitled to send an executive document and an application to the territorial body of the Federal Bailiff Service (the main bailiff of the subject (the main bailiff of the subjects) Russian Federation) At the place of execution and the application of compulsory measures, determined in accordance with Article 33 of this Federal Law. The main bailiff of the subject (the main bailiff of the subjects) of the Russian Federation sends these documents to the appropriate division of bailiffs within five days from the date of their receipt, and if the Executive document is subject to immediate execution - on the day of their receipt.

(see text in the previous edition)

5. The bailiff initiates executive production without a declaration of a recoverer in the cases provided for by part 6 this article, as well as when the court, another body or official in accordance with the Federal Law, send the executive document by the bailiff.

(see text in the previous edition)

5.1. The request of the central authority on the search engine is sent by the central authority appointed in the Russian Federation to ensure the fulfillment of obligations under the International Treaty of the Russian Federation, in the structural division of the bailiff of the territorial bodies of the Federal Bailiff Service at the last famous place of residence or the place of residence of the person with whom A child may be, or on the location of the property of this person, either at the last famous place of the child's stay.

6. The basis for the initiation of enforcement proceedings is also the decision of the bailiff on the calculation and recovery of aril debts in the event of a termination of executive proceedings in accordance with paragraph 9 of Part 2 of Article 43 of this Federal Law, to recover the costs of Performing executive actions and executive fees imposed by the bailiff in the implementation of the executive document.

(see text in the previous edition)

7. The declare statement and the executive document are transferred to the bailiff of the executor within three days from the date of their receipt to the division of bailiffs.

7.1. Declarement statement and an executive document containing the requirement for the return of a child illegally displaced to the Russian Federation or held in the Russian Federation or on the implementation of access rights on the basis of such a child international Treaty The Russian Federation, or the request of the central authority on the search for the child is transferred to the bailiff of the contract no later than the day following their arrival in the division of bailiffs.

8. The bailiff within a three-day period from the date of receipt of the executive document, the executive document makes a decree on the initiation of enforcement proceedings or to refuse to initiate enforcement proceedings.

9. When refusing a recoverer to satisfy the application to impose an arrest on the property of the debtor or on the establishment of restrictions on the debtor, provided for by this Federal Law, the bailiff indicates a decree on the initiation of the executive production of the motive of such a refusal.

10. If the executive document is subject to immediate execution, then after admission to the division of bailiffs is immediately transferred to the bailiff, whose authority applies to the territory where execution should be made, and in the case of its absence, another bailiff. The decision on the initiation of enforcement proceedings is either a refusal to initiate enforcement proceedings, the bailiff must take over the course of the course of the execution of the executive document into the division of bailiffs.

11. If the executive document first entered the bailiff service, the bailiff in the decision on the initiation of enforcement proceedings establishes the term for voluntary execution by the debtor contained in the executive document of the requirements and warns the debtor about the compulsory execution these requirements After the expiration for voluntary execution, with the recovery of the executive fees and expenditures for the commission of the executive actions provided for in and this Federal Law.

12. The term for voluntary execution is five days from the date of receipt by the debtor of the decision on the initiation of enforcement proceedings or from the moment of delivering the notice to host information on the initiation of enforcement proceedings in the data bank sent by transferring a short text message on a network of mobile radiotelephone coupling, or other notifications or Decisions on the initiation of enforcement proceedings electronic document and sent to the addressee, including in his one personal Area On a single portal of state and municipal services, in accordance with Part 2.1 of Article 14 of this Federal Law, unless otherwise established by this Federal Law.

(see text in the previous edition)

(see text in the previous edition)

14. The bailiff does not establish a deadline for the voluntary execution of the executive document in cases of initiation of enforcement proceedings:

2) upon subsequent presentations of the executive document;

3) on the executive document on the confiscation of property;

4) on the executive document on serving compulsory works;

5) according to the executive document to be immediate execution;

6) on the executive document on the compulsory expulsion outside the Russian Federation foreign citizen or stateless persons;

7) upon request of the central authority on the search of the child;

8) on the executive document issued by the courts general jurisdiction and arbitration courts regarding a foreign state.

(see text in the previous edition)

14.1. The bailiff in the decision on the initiation of enforcement proceedings obliges the debtor to provide documents confirming the existence of the property from the debtor who belongs to it, income that cannot be paid for executive documents, including funds in accounts, in deposits or on storage in banks and other credit institutions, as well as property, which is the subject of pledge.

14.2. The bailiff in the decision on the initiation of enforcement proceedings warns the debtor on establishing the temporary restrictions provided for by this Federal Law, with default in the period established for voluntary execution good reasons The requirements contained in the executive document. Article 315 of the Criminal Code of the Russian Federation for non-performance judicial act, As well as prevent its execution.

Symbirtseva Tatiana,
Lawyer Analyst of the Law Company Jurclygia

Debt recovery within the framework of enforcement proceedings - quite frequent practices of specialists legal companies In the field of debt collection representing the interests of the recoverer. The success of this event depends on several factors, including from the right, targeted work of the bailiff, as well as its professional zeal and interest in resolving the problem. At the same time, the initiation of individual procedures in the execution of a judicial act comes from the recoverer in the framework of criminal law protection, for example, an appeal to the initiation of a criminal case, a preliminary investigation on which bailiffs are carried out in the form of an inquiry.

The most relevant issue in the practice of debt collection specialists is the problem of non-fulfillment by the debtor of the court decision. Such behavior of the debtor in the form of non-fulfillment or preventing the execution of a court decision that entered into legal force is subject to criminal responsibility under Art. 315 of the Criminal Code of the Russian Federation.

According to paragraph 4 of Part 3 of Art. 151 Code of Criminal Procedure of Criminal Code of Criminal Affairs of Crimes provided for in Art. 315 of the Criminal Code of the Russian Federation (the non-execution of the court sentence, the decision of the court or another judicial act), produces the Federal Bailiff Service. Inquiry B. Federal Service Bailiffs are currently undergoing the stage of formation.

On March 14, 2009, federal law No. 38-ФЗ was adopted on amending Article 40 and 151 of the Criminal Procedure Code of the Russian Federation. This federal law establishes that the federal bailiff service is an inquiry authority. Earlier, only a number of Officials of the FSSP of Russia (the main bailiff, his deputies, the main bailiff of the constituent entity of the Russian Federation, his deputies, senior bailiff) have such powers. These officials possessing, besides the procedural, fairly extensive responsibilities of the leaders, pinned the authority of the inquiry authority on bailiffs. In practice, this led to the fact that often criminal cases were investigated "in the load" to conduct enforcement proceedings, which could not not affect the quality of inquiry. The federal law adopted allows you to more clearly structure the inquiry authorities of the FSSP of Russia and introduce the position of the investigator.

In the federal bailiff service, the results of the first quarter of 2009 were summed up. At the specified period, the territorial bodies of the Federal State Unitary Enterprise of Russia under Article 315 of the Criminal Code of the Russian Federation "The failure to fulfill the court sentence, the decision of the court or other judicial act" 446 criminal cases were initiated (in comparison with 170 criminal cases initiated in 2008) (www.fssprus.ru). This is a relatively high indicator in relation to the same period last year, which indicates the increasing frequency of initiation of criminal cases under the article under consideration of the Criminal Code of the Russian Federation and the revitalization being "dead" legal norm.

However, in practice there is a number of problems in the implementation of this legal norm, the consideration of which is also dedicated to this article.

According to Article 315 of the Criminal Code of the Russian Federation, malicious non-fulfillment by the representative of the authorities, the civil servant serving the authority local governments, as well as employees of state or municipal Institutions, commercial or other organization of the court sentence, decisions of the court or other judicial act, and equal to the obstruction of their execution - are punished with a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of convicts for the period up to eighteen months or deprivation the right to occupy certain positions or to engage in certain activities for up to five years, or mandatory work For a period of one hundred and eighty to two hundred forty hours, or arrest for a period of three to six months, or imprisonment for up to two years.

Corpus delicti

In accordance with Part 1 of Art. 392 Code of Criminal Code The sentence, definition, the court decision is required for all authorities state power, local governments, public associations, officials, other individuals and legal entities and are subject to strict performance throughout the Russian Federation. Similar requirements are contained in Art. 13 Code of Civil Procedure of the Russian Federation, Art. 31.2 Administrative Code, Art. 16 APC RF.

Direct object Crimes - Normal Activities Activities court decisions (sentence, decisions or other judicial act).

Objective side The crime under consideration is expressed in malicious non-fulfillment of the sentence, a court or other judicial act or in suspension of their execution.

Wherein under default These procedural acts are understood as the inaction of those named in the article by the implementation of the court decision, i.e. Improvement of the actions necessary for bringing to the execution of those who have entered into force sentence, the decision of the court or other judicial act. Specific forms of non-performance may be different: the organization's administration does not exempt the convict on the position that he defeated rights occupy, or does not prohibit engage in certain activities, or does not fulfill a court decision on the restoration of illegally dismissed, or leaves without movement performance list On the recovery of monetary sums, etc. At the same time, the failure to appear in any actions of the perpetrator. For example, a subject in oral or writing informs the stakeholder about his refusal to make actions to implement the judicial act, or they are working directly indicating the absence of intentions to fulfill the court decision.

Example: The inquiry authorities were accused of maliciously non-performance of the decision of the Arbitration Court of the Vladimir Region, who bidding the municipal institution, whose head he was to free the non-residential premises, previously transferred to this organization under the lease agreement. The investigator was established that, contrary to the judicial act, which was at the municipal establishment of the obligation to exempt the disputed residential premises for the municipal establishment of the court to expect a dispute room, C. The municipal employees were not taken any measures to fulfill these requirements. So, in particular, it continued to function this institution, was not implemented to find a new place to accommodate a legal entity. In addition, by his letter addressed to the head of the organization-recoverer of C. reported that by the end of this year, the movement of his institution would not be carried out due to the absence of free in the municipal fund non-residential premisesnecessary for institutions of this category. For non-fulfillment of a court decision, the municipal institution was attracted twice to liability in the form of a fine in accordance with Art. 85 FZ "On Enforcement Proceedings", but the judicial act was never executed.

Thus, when deciding on the initiation of a criminal case under Art. 315 of the Criminal Code of the Russian Federation as one of the main evidence was used by the written notice of the debtor in the name of the recoverer about the reluctance to fulfill the decision of the Arbitration Court.

Pretending execution Court sentence, decisions of the court or other judicial act manifests itself in actions aimed at making it difficult or impossible to implement them, for example, countering the judiciary, which requires freeing the premises, etc. Forms of preventing may be different, including:

Guilty gives mandatory instructions, orders, etc., prohibiting the latter to fulfill the prescriptions contained in the judicial act;

Creates all sorts of interference in the activities of the bailiff, other authorized for the execution of judicial acts of persons;

Does not transmit documents, information, etc. necessary to fulfill the judicial act;

Disinformed persons authorized to fulfill a judicial act, about the actual location of the organization, about bank accounts, etc.;

Makes any other actions aimed at difficulty or make it impossible to fulfill the judicial act.

Responsibility under Art. 315 entails not any, but only malicious failure.

Legal concept of maliciousness in regulatory legal acts absent, there is also no official interpretation of this term in clarifications of the Plenum Supreme Court Russian Federation.

If we consider the judicial trading practice of the application of Art. 315 of the Criminal Code of the Russian Federation, then there are different approaches to the understanding of such a matter.

Consider some examples.

So, egIn a criminal case on charges of S., considered by the global judge of the Sudrodian district of the Vladimir region, the following was indicated: the accused S. replaced the position of Chairman of the agricultural cooperative "Golovino". By decision general Assembly Members of the cooperative was endowed with the right of operational guidance by the cooperative, including the right to dispose of property and cash of this organization.

By the decision of the Arbitration Court of the Vladimir Region with SPK "Golovino" in favor of the State Institution - Management Pension Fund The Russian Federation of the Russian Region of the Vladimir region was recovered by arrears on insurance premiums for compulsory pension insurance in the amount of 18,000 rubles.

Based on the executive list, the executive proceedings were initiated by the executive proactation, which C. was notified in writing. However B. set time The court decision was not fulfilled. Double bailiffs carried out in relation to the defendant written warnings of criminal liability for failure to fulfill the judicial act. At the same time, the debt was not repaid. S. reported in writing by the bailiff on the fact that the cooperative does not have the necessary funds to pay for the debt on pension insurance.

Considering the materials of the criminal case, the world judge indicated that during the initiation of enforcement proceedings through the cash desk, according to the cash books of the cooperative, more than 570000 rubles passed. Thus, the Chairman had the actual opportunity to make payments on insurance premiums in pursuance of a court decision. It is in the existence of this opportunity that the court watched in the inaction of S. Mostzness, provided for by Art. 315 of the Criminal Code of the Russian Federation. However, due to the fact that judicial trial The decision of the Arbitration Court of the Vladimir region has already been fulfilled by the cooperative and in the materials of the criminal case received a petition for the termination of the persecution of S., the court ceased to be proceedings in the case of Art. 76 of the Criminal Code of the Russian Federation, i.e. In connection with the reconciliation of the parties< Постановление о прекращении уголовного дела мирового судьи Судогодского района Владимирской области от 01.04.2005 N 1-74/05 по делу С.

On the presence of this feature may, in particular, testify to the failure to fulfill the court decision and after the warning of the court presented in writing.

If the person has taken certain measures to execute a court decision, then the failure to fulfill it is properly considered malicious.

Example: The Military Court of the Vladivostok garrison condemned D. under Art. 315 of the Criminal Code of the Russian Federation for the malicious non-fulfillment of the court decision to a fine in the amount of its monetary content for four months. The Military Court of the Pacific Fleet sentence left unchanged. According to the case of the case, the head of the CEC lieutenant colonel D. On the basis of the court decision that came into force was obliged to issue Officient Z. Certificate about the absence of the last residential area in the village of Artemovsky Primorsky Krai. D. court decision was to fulfill until March 18, 1997. From March 18 to April 7, 1997, D. Dvice issued in the name of Z. certificates, which did not correspond to the operative part of the court decision. Vladivostok Garrison Military Court on April 7, 1997 imposed on D. Penalty in the amount of five minimum wages and installed new term For his execution. The decisions of the courts are properly fulfilled on April 30, 1997. Having considered the case and discussed the arguments of the protest of the main military prosecutor, the military board abolished the sentence and determination of the court of cassation instance, and the criminal case stopped. In its definition, the board indicated that criminal liability under Art. 315 of the Criminal Code of the Russian Federation entails not any, but only the malicious failure to fulfill the court decision, and D. took certain measures to execute the court decision< Определение Военной коллегии Верховного Суда РФ от 31 марта 1998 г. // БВС РФ. 1999. N 5. С. 16, 17.

Another example This can serve as the inspection of the Division of the Division of the Bailiff Policy of the Vladimir Region at the request of the State Institution on the initiation of a criminal case under Art. 315 of the Criminal Code of the Russian Federation in relation to P. - director of the closed joint Stock Company. By the decision of the Arbitration Court, this society was awarded to the obligation to free land plot Public institution by demolishing the gas station within a month from the date of the judicial act entry into force.

After more than two months, the court decision was not executed, including in the order of enforcement proceedings, the recoverer requested to initiate a criminal case. Refusing to satisfy this application, the investigator indicated that in the actions of P. there is no maliciousness, since by the time of the inspection the gas station stopped functioning and the debtor began dismantling work, which according to the schedule will last more than three months.

Thus, it can be stated that the likeness is an estimated category and in each particular case an inquiry or court establishes its presence or absence. However, based on the analysis of criminal cases, you can define the following signs that characterize the failure to fulfill judicial acts as malicious:

The requirements set forth in the judicial act are not executed on time set directly in the court decision;

In fact, executive proceedings on the compulsory execution of the judicial act;

Bailiff has repeatedly ended with respect to the responsible person a written warning of criminal liability for the failure to fulfill the court decision;

The debtor did not take any measures sufficient to implement a judicial act;

The debtor had the actual opportunity to fulfill the court decision.

In the absence of a legislatively fixed determination of the sign of such a qualification, the qualifications are formed by the investigative and judicial practicewhich is based on the need for the mandatory presence of official warnings of the bailiff of the debtor about criminal liability. Accordingly, guilty persons having large debt, in every way evade the receipt of such warnings that in some cases, all the efforts of the bailiffs, aimed at repaying the measures of criminal law enforcement.

Therefore, we assume the established practice of a mandatory prevention of warnings as an element of the objective side of the crime is not quite true. Of course, the investigator should prove that the actions of the guilty person in the commission of these crimes were intentional. However, this is successfully established without preventing warnings, therefore the refusal of the investigator in initiating a criminal case due to the absence of secondary prevention of the bailiff, we consider illegal.

Subjective side Characterized by direct intent. The guilty is aware that he does not fulfill the sentence, the decision, another judicial act or prevents their execution, and wishes it. The crime motives may be different and the qualifications of the deed do not affect.

Subject of crime Special, with a list of persons who can be brought to criminal responsibility for malicious failure to fulfill the judicial act, named in Art. 315 of the Criminal Code of the Russian Federation exhaustively, in their number included:

Representatives of power (content this concept In criminal legislation in relation to art. 315 of the Criminal Code of the Russian Federation is not disclosed, but the interpretation of the authority of the authorities specified in paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 10.02.2000 N 6 " judicial practice on bribery and commercial bribery" < Бюллетень Верховного Суда РФ. 2000. N 4. С. 3.>;

State and municipal employees, including persons passing military and civil public service (The concept of state and municipal employees is disclosed in relevant legislation);

Employees of state or municipal institutions; - employees of commercial or other organizations (given the provisions Civil Code The Russian Federation providing for only two categories of legal entities, no commercial organizations should be attributed to other).

Including the criminal liability and bailiff under Art. 315 of the Criminal Code of the Russian Federation in connection with the inaction to conduct the necessary executive actions to implement the judicial act< Законность. 2000. N 1. С. 43.>

The most important condition for bringing a concrete subject to criminal liability for the failure to fulfill the judicial act is the presence of the necessary powers to perform actions to implement the requirements of the executive document. For example, if we are talking about non-payment of debt by a court decision, then an attracted person should have the right to order with cash in the relevant organization.

Thus, from among the subjects of the crime for non-fulfillment of judicial acts, only individuals are excluded that are awarded to fulfill certain actions. Since the Criminal Code of the Russian Federation, the category of an individual adopts from civil lawthen it should be assumed that individual entrepreneur - An individual without the formation of a legal entity is also excluded from the circle of liability subjects under Article 315 of the Criminal Code. Thus, in the Criminal Code of the Russian Federation there is a space, to replenish which is necessary to renovating the non-working norm of Art. 177 of the Criminal Code of the Russian Federation "Massage evasion of payable debt repayment", which is also like Art. 315 of the Criminal Code of the Russian Federation attributed to the context of the federal bailiff service, however, is the topic of a separate conversation.

A little should also be said about the practice of initiating a criminal case. Preliminary investigation According to Art. 150 Code of Criminal Code of Criminal Procedure, provided for by Article 315 of the Criminal Code of the Russian Federation, is carried out in the form of an inquiry to the Federal Bailiff Service. In each territorial body of the Federal State Unitary Enterprise of the Russian Federation, divisions are formed inquiry. The inquiry is made according to the rules of chapter 32 of the Code of Criminal Procedure, i.e. Within 30 days from the date of initiation of a criminal case, which can be extended by the prosecutor to 30 days. At the end of the inquiry, an indictment is drawn up and with the criminal case materials is sent to the prosecutor for approval, after which it is transferred to the court (with a positive decision of the prosecutor).

The question of the timing to which is registered in the CAP and is conducted on a verification of a crime report. In accordance with the order of the General Prosecutor's Office of the Russian Federation, the Ministry of Internal Affairs of Russia, the Ministry of Emergency Situations of Russia, the Ministry of Emergency Situations of Russia, the FSB of Russia, the Ministry of Economic Development of Russia, the Federal State Unitary Enterprise of Russia dated December 29, 2005 N 39/1070/1021/253/780/353/399, approved by typical position about some order Reception, registration and verification reports of crimes, the deadline for conducting an audit report on a crime must be governed by departmental instructions on acceptance, registration, verification of community reports and departmental control For this activity, which do not contradict the federal laws and the specified Regulation. Such a departmental document is the order of the Ministry of Justice of the Russian Federation of 02.05.2006 No. 139 "On approval of the Instruction on the Unified Organization of Reception, Registration and Check in FSSP reports of crimes."

The received reports of crimes are registered in the FSSP of Russia in the book of accounting of reports of crimes (hereinafter referred to as QU). Over time - civil servants of the duty units of the Federal Bailiff Service (on duty bailiffs to ensure installed order The activities of the courts (hereinafter - the bailiffs on the AUPDS)). Upon receipt of a crime report directly from the applicant and registration of the interpretation protocol, civil servants of the federal bailiff service, in whose official duties The reception of messages is obliged, must immediately issue a ticket notification to the applicant with an indication of the data on the person, and the date and time and time of its adoption

Reports of crimes entered by the Office (Secretariat) of the territorial body of the Federal Tax Service of Russia by mail, telegraph, apected, etc., are registered under the general rules for registering incoming correspondence.

It is prohibited to be taken into account in the documentation of the Office of the Office of the Office, written reports of crimes, which are presented in the division of the inquiry of the Federal Bailiff Service directly by the applicant (citizen or official).

The person who registered a message in the book of incoming correspondence immediately reports on the commission of a crime by the head of the Russian FSSP of Russia or the person who replaced it, which, depending on the information contained, gives a written indication of registration of a statement or communication in the CASP, and also decides on the procedure Its verification or transfer of a consequence in accordance with the requirements of criminal procedure legislation, and in criminal cases of private accusation - to court.

The transfer of such information to verify and execute without registration in the departments (groups) of the inquiry is strictly prohibited.

Thus, the registration period for a crime is uncertain and evaluated - it is immediately necessary to regard and as "within 24 hours", "next day", and "no later than the next day." And the situation of loss of such an application is also possible when it is sent by mail and is registered in the incoming correspondence of the office of the territorial body of the FSSP of Russia. In this connection, as a recommendation for use in practice, the following can be suggested: an application for the initiation of a criminal case, sent to the bailiff service, should be sent by postal correspondence with the notice of the presentation. After returning the notice of the sending of the letter to the sender, it is necessary to contact the attachment service and ask about the registration number of your application in the office and the CASP, since the course of the deadlines for the verification of a crime report begins from the moment of such registration.

Verification actions include the actions of an official associated with the departure of the accident, taking measures to ensure the safety of traces, film films and video recording, obtaining an explanation, requirements, instructions, requests within their powers in institutions, enterprises, organizations, regardless of the property form , officials and citizens and other verification actions.

Checking a crime report is carried out on time no later than 3 days from the date of receipt of the specified communication in the FSSP of Russia, but it can be extended by the prosecutor for up to 30 days.

At the end of the inspection, a decision is made or on the initiation of a criminal case, or to refuse to initiate a criminal case or on the transfer of intention.

The timing of verification of reports of crimes is calculated from the date of receipt of the first report on the crime, except for reports of crimes transmitted taking into account territoriality to another integrability body.

Since the initiation of the criminal case, the FSSP Investigator of the Russian Federation in its activities is guided by the provisions of the Criminal Procedure Code of the Russian Federation.

In conclusion, I would like to note the following: when conducting an inspection on the application for the initiation of a criminal case under Article 315 of the Criminal Code of the Russian Federation and the establishment of a qualifying feature of "maliciousness" should not be guided by the estimated category of gostrity, which the bailiffs use under the qualification of the crime under Art. 157 of the Criminal Code. We offer maliciousness on the all available and represented side of the recoverer of evidence, not expecting the tertiary prevention of the bailiff on the consequences of non-fulfillment of the relevant responsibilities for the execution of the court decision, since this practice has developed in relation to other legal relations (when verifying reports of crimes under Art. 157 of the Criminal Procedure RF).

In accordance with Part 2 of Art. 40 of the Code of Criminal Procedure of the Russian Federation, in particular, carry out inquiry on criminal cases for which production preliminary investigation optionally, and also perform urgent investigative actions In criminal cases, according to which the production of preliminary investigation is imperative.

One of the inquiry authorities are the FSSP authorities of Russia.

In accordance with paragraph 4 of Part 3 of Art. 151 Code of Criminal Procedure for Crimes provided for by Art. Art. 157, 177, part 1 Art. 294, Art. 297, part 1 Art. 311, Art. 312 and art. 315 of the Criminal Code of the Russian Federation, inquiry is carried out by the FSSP authorities.

Article 157 of the Criminal Code - malicious evasion from paying funds for the maintenance of children or disabled parents. Direct object of crimes provided for by Art. 157 of the Criminal Code of the Russian Federation are the interests that ensure the conditions for the detention of minor or disabled parents.

Crime provided for Art. 157 of the Criminal Code, expressed in a socially dangerous act in the form of both action and inaction. Under the avoidance of parents from payment to the decision of the court for the maintenance of children and the evasion of children from paying funds for the maintenance of parents should be understood:

Direct rejection of such payment;

Concealing guilty of his actual earnings;

A change of work or place of residence in order to avoid hold on the executive list;

Evasion with the same purpose from the device to work;

Other actions, testifying to evade payment of payment, as judicial practice is known: Changing their surname and other personal data, fake documents certifying the identity, collusion with an accounting officer, on which the deduction of alimony from earnings, presenting a fictitious claim for the recovery of alimony For children from another marriage to reduce recovery on the first executive leaf, etc.

Criminal liability under art. 157 of the Criminal Code comes if evasion was malicious. The malicious behavior of the face is always consciously and is aimed at some negative (bad, reprehensible, decent censure) result.

Symptoms on which it is possible to conclude about the presence of maliciousness are:

Duration of act;

Evasion of payment after official warning of criminal liability;

Re-committing the same crime;

A way to commit a crime.

The duration of evading the payment of alimony and evasion, despite the appropriate prevention, mean that these alimony or funds are not paid without good reasons for more than three months, despite the warning of the court bodies and the police on criminal liability under Art. 157 of the Criminal Code.

The prerequisite for criminal liability under the article under consideration is the transfer of two warnings under Art. 157 of the Criminal Code of the Russian Federation in relation to the person evading the payment of the court of alimony.

The person involved in criminal liability in the composition of the crime provided for in Part 1 of Art. 157 of the Criminal Code is characterized by a special feature that indicates a person who is:

Parent (father, mother) of a minor or disabled person, in whose benefit by the court decision is subject to the recovery of funds regardless of whether it has this person at the moment parental rights or devoid of them;

The adopter of these persons, regardless of whether the adoption was replaced at the moment.

The person involved in criminal liability provided for in Part 2 of Art. 157 of the Criminal Code of the Russian Federation is also characterized by a special feature, which indicates a person who is a able-bodied son or a daughter of that (s), in whose advantage of the court's decision of the court.

Article 177 of the Criminal Code of the Russian Federation is malicious evasion from paying payables. The composition of the crime provided for by Art. 177 of the Criminal Code, expressed by the socially dangerous act, which can be performed in the form of both action and inaction. The indicated sign actually indicates the failure to fulfill obligations to creditors and other persons upon expiration due to the contract or federal law.

The deed can manifest itself in two forms:

Malicious evasion from paying payables;

Malignant valuable papers.

In relation to the first form it should be noted that the law determines as a large amount of an amount exceeding 1 million 500 thousand rubles.

Article 177 of the Criminal Code of the Russian Federation provides for criminal liability for simply evasion from repaying payables on loans and other agreements property Character, and for malicious. This feature is the mandatory moment of this crime.

The person involved in criminal responsibility for this composition of the crime is characterized by a special feature pointing to a person who is a debtor (head of the organization or citizen, including an individual entrepreneur).

Article 312 of the Criminal Code of the Russian Federation is illegal actions against property subjected to inventory or arrest or subject to confiscation. This crime is expressed by a socially dangerous act, which consists of several alternatively indicated actions (inaction): wastings, alienation, concealment or illegal transfer of property, implementation banking operations With cash (deposits) - and applies to citizens and officials.

The crime provided for in Part 1 of Art. 312 of the Criminal Code of the Russian Federation, can also be expressed in the commission of banking operations with cash (deposits) to which arrest is imposed, and applies to persons who are employees. credit organizationThe terms of responsibilities of which include the implementation on behalf of the credit organization of banking operations with cash, which are in accounts.

Part 2 Art. 312 of the Criminal Code provides for criminal liability for the concealment or assignment of property to be confiscated by the court sentence, as well as for other evadections from the execution of a court sentence on the appointment of property confiscation.

The immediate sign of the object of this crime points to interests that ensure the obligation of a court sentence in terms of applying property confiscation.

The composition of the crime is expressed by the publicly dangerous act and provides for the following types of criminal property treatment, which is subject to confiscation by the court sentence: concealment, assignment, other evasion from the execution of a court sentence on confiscation that has entered into legal force.

Article 315 of the Criminal Code of the Russian Federation is the non-execution of the court sentence, a court decision or other judicial act. Failing a judicial act entails responsibility under Art. 315 of the Criminal Code of the Russian Federation. This rate is aimed at ensuring the implementation of judicial acts adopted in criminal civil Affairs And in the order of administrative proceedings.

Social dangerous Act In this case, it is characterized by the malicious non-performance of the sentence of the court, the court decision or other judicial act and (or) preventing their execution.

It applies to the representative of the government, a state or municipal employee, serving a state or municipal institution, a commercial or other organization.

ORDERS To initiate a criminal case, serve (Part 1 of Art. 140 of the Code of Criminal Procedure):

A crime statement;

Make-up turnout;

The message of the perfect or preparing crime received from other sources is made by a person who received this message, which a report is drawn up on the detection of signs of a crime (for example, a crime detected by the bailiff in the enforcement proceedings is issued by the report on the detection of crime signs ).

In addition to the reason for the initiation of a criminal case, it is also necessary to establish a criminal case - it is the presence of sufficient data indicating signs of a crime.

It should be borne in mind that the adopted message must be immediately registered in the accounting book perfect crimes (PSP).

As the criminal procedural law establishes, the applicant is issued a document on the adoption of a crime report indicating the data on the person, and its adoption, as well as the date and time of its adoption (part 4 of Article 144 of the Code of Criminal Procedure).

The refusal to receive a crime message may be appealed to the prosecutor or to court in the manner prescribed by Art. Art. 124 and 125 Code of Criminal Procedure.

The decision on the adopted report on the crime should be taken on time no later than three days from the date of receipt of this communication in the FSSP of Russia.

In accordance with Part 3 of Art. 144 Code of Criminal Procedure The head of the inquiry authority has the right to extend the deadline for verifying a crime report on a motivated petition of the investigator. If necessary, the production of documentary inspections, revisions, research of documents, the prosecutor at the request of the investigator is entitled to extend this period to 30 days with a mandatory indication of specific, actual circumstances that served as the basis for such an extension.

A preliminary investigation in the form of an inquiry is carried out in the manner prescribed by ch. 21, 22 and 24 - 29 Code of Criminal Procedure, with seizures provided for by ch. 32 Code of Criminal Procedure.

    Features of initiating criminal cases about malicious evasion from paying payables

    M.V. Shafranova

    Criminal case O. malicious evasion From the repayment of accounts payable is subject to excitation only if the investigator (inquiry authority) has a sufficient amount of information, which makes it possible to conclude with a high degree of categorical about the presence of actions in the objective reality, containing signs of the crime, provided for by Art. 177 of the Criminal Code.
    Based on Part 1 Art. 144 Code of Criminal Procedure The Investigator (inquiry authority) is obliged to accept and check the message about any perfect or preparing crime and within its competence established by the Code of Criminal Procedure of the Russian Federation, to make a decision on it no later than 3 days from the date of receipt of the message.
    Obodas to initiate a criminal case about malicious evasion from paying payables, as a rule, are:
    1) a lender statement about the crime of an individual or a representative of a legal entity;
    2) the report of the bailiff.
    For information on the signs of the crime under consideration, the bailiff is obtained directly from the materials of the executive proceedings. In accordance with Methodical recommendations on the organization of inquiry in territorial bodies Of the federal service of bailiffs from 10/21/2008 No. 12 / 04-14209-BB, in structural units FSSP of the Federal Tax Service of Russia on the subjects of the Federation is carried out inventory of executive proceedings initiated against debtors who evade the repayment of accounts payable.
    In the presence of a large amount of outstanding debt, as well as signs of maliciousness of evading debt repayment, the corresponding executive proceedings are subject to control, since careful documentation is necessary illegal action such debtors bailiffs performers. To this end, bailiffs are performers, according to Art. 64 of the Federal Law of 02.10.2007 N 229-FZ "On Enforcement Proceedings", there are calls for debtors, they receive explanations from them, request additional information from individuals, organizations and bodies, receive other information and references, etc. Depending on the results of this work, the question of the need to further control the enforcement proceedings, withdrawing it with control, indicating the reasons or to conduct a predetermined check in the detection of signs of a crime. A crime message must be registered in accordance with the requirements of the Instructions on the Unified Organization of Reception, Registration and Check in the Federal Bailiff Service Communication Services (approved by the order of the Ministry of Justice of Russia from 02.05.2006 N 139).
    After receipt and registration of the message about malicious evasion from repaying payables, the information contained in it must be verified for accuracy, supplemented and supported by the necessary actual data for the adoption of a legitimate and reasonable decision.
    During the verification of the message about malicious evasion of payable debt, the following circumstances must be established:
    - whether the Act of the Arbitration Court or the court of general jurisdiction has entered into force on the recovery of a specific creditor creditor or payment of securities;
    - does the fact of the failure to fulfill this judicial act now;
    - whether the amount of debt is large;
    - Are there signs of maliciousness of evading debt repayment.
    The disappointment of sufficient data indicating the listed features of the crime under consideration may entail the unreasonable initiation of a criminal case.
    In order to establish these circumstances, and consequently, for the adoption of a legitimate and reasonable decision on the results of the verification of a message about malicious evasion from repaying payables, the investigator must be requested, study and add to the case file:
    1) explanations of the lender;
    2) explanations of the bailiff;
    3) explanations of the debtor;
    4) A copy of the judicial act of the Arbitration Court or the court of general jurisdiction on the recovery of payables or about paying securities with a mark on the entry into force of this act into legal force. Since this circumstance is a mandatory sign of the objective of the crime under consideration, its establishment and reinforcement by copies necessary documents Be sure to check the message about malicious evasion of payable debt. In addition, the executive list and the decree on the initiation of enforcement proceedings are only a consequence of the relevant judicial act. So, N., obliged to solve the Petropavlovsk-Kamchatka City Court of 2007, jointly with P. and K. to pay in favor of D. on a bill of interest, taking into account interest, penalties and costs associated with the protest of bills in the default in the amount of 3,104,500 rub., shied away from the execution of the specified decision, having sufficient financial opportunities for debt payment ( real estate, cash on bank accounts in the amount of 6 703 128 rubles, share in authorized capital Bank in the amount of 4 160 000 rubles. and etc.).
    The bailiff was drawn by the bailiff wages and property N.
    Introducing funds in bank accounts, N. Efforts to repay the debt did not undertake, subjected to a compulsory drive to the bailiff-performer, was warned about criminal responsibility for malicious evasion from paying securities, twice was fine under Art. 17.14 Code of Administrative Offenses of the Russian Federation for non-fulfillment of the legitimate requirements of the bailiff (to fulfill a court decision and submit information about its property situation).
    According to the results of the inspection against N., a criminal case was initiated under Art. 177 of the Criminal Code, but the Deputy Prosecutor of Petropavlovsk-Kamchatsky, a decree was made to cancel the decision on the initiation of this criminal case as illegal and unreasonable, and one of the foundations of this ruling was the fact that in the criminal case materials there was no copy of the relevant court decision on his entry into force;
    5) a copy of the executive list;
    6) a copy of the decision on the initiation of enforcement proceedings;
    7) a copy of the contract, the failure to comply with the basis of the relevant judicial act, as well as copies additional contracts and applications to the main contract;
    8) copies of securities payable, or discharge from the corresponding computerized registers for the securities of the non-documentary form;
    9) copies of contracts for the provision of obligations (contract of deposit, guarantee, etc.), as well as a copy of the warranty inscription of the Avalist on a bill, check or an additional sheet (Алльльже) or a copy of Aval, which is a separate document;
    10) copies of the constituent documents of the debtor - a legal entity;
    11) Copies personnel documents about the appointment of the head (on the execution of the responsibilities of the head) and his official duties;
    12) Documents on state registration debtor and its registration in tax authorities, as well as information about his property position (answers to requests in tax inspection, technical inventory bureau, state authorities, Rosreegy, Pension Fund);
    13) copies of checks, receipts, payment orders and other documents confirming partial payments to debt repayment;
    14) a certificate compiled by the bailiff, which has enforcement proceedings, about the amount of debt at the time of the arrival of the crime report;
    15) If such a measure of forced execution was used, as an arrest, a copy of the decision on the imposition of arrest on the debtor's property, as well as a copy of the act of the absence of arrested property, if the facts of its alienation or concealment took place;
    16) copies of the documents submitted by the borrower at the time of consideration of the application for the provision of a loan, justifying the possibility of returning and in accordance with the terms of the concluded contracts, which is necessary to establish the presence or absence of signs of crime, stipulated by articles 159 and 176 of the Criminal Code.
    Depending on the specific circumstances of the case, the investigator can also be exterminated and other documents necessary for the adoption of a legitimate and reasonable decision on the results of the verification of a message about malicious evasion from paying off payables. As a rule, the bulk of the necessary documents has already been collected by the bailiff and is contained in the executive proceedings, however, if some of the necessary data were not received by the bailiff, these gaps should be eliminated by the investigator in the framework of the investigative inspection.
    When checking a message about malicious evasion of payables, the investigator (inquiry authority) is entitled to demand the production of documentary inspections, audits, documents research, subjects and involve to participate in these inspections, revisions, studies of specialists on the basis of Part 1 of Art. 144 Code of Criminal Procedure.
    Conducting documentary inspections, including audit, and audits, as a rule, it is necessary to establish violations of the rules of accounting and distortion of credentials if the debtor is entity or individual entrepreneur. When making a decision on initiating a criminal case, acts of such inspections and audits can be the main objects of judicial and economic expertise, if necessary, its appointment to establish specific facts that indicate the commission of action by the Debtor of Action, testifying to evade the repayment of payables.

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Base for excitation of production

The process of excitation of the enforcement proceedings is regulated by Art. 30 of the Law "On Enforcement Proceedings" of 02.10.2007 No. 229-FZ (hereinafter referred to as Law No. 229).

By general rule The basis for the excitation of production in the FSSP is the bailiff (in aggregate):

  1. Performance list, judicial order or other executive document (hereinafter also - ID). It is accepted if it meets all the requirements of Art. 13 of the Law 229-FZ and the period of its presentation has not expired.
  2. Statement of the charter (his representative) with a request to take an embodiment in FSSP.

The presentation in the FSSP of the Executive Document without a statement or with an unsigned statement is the basis for refusal to initiate production (paragraph 1 of Part 1 of Article 31 of Law No. 229).

At the same time, Law No. 229 provides cases where production can be excluded without a recovery statement (part 5 of article 30):

  1. Upon receipt of the ID from the authority issued it. For example, the court at the request of the recoverer can direct the ID to the bailiffs.
  2. When making certain decrees in the course of compulsory execution. It may be necessary to go, for example, about the decision on the recovery of the fulfillment - the will of the challenger on the initial production here is not required here, since the collection is charged into the federal budget revenue.

How long does the contracting is obliged to initiate production?

The law establishes primarily the transfer periods received by the FSSP, on the execution of a specific attracting:

  • 3 days - under the general rule;
  • on the day of receipt in the FSSP - if the document is subject to immediate execution (for example, an ID about ensuring a claim, according to Art. 142 Code of Civil Procedure of the Russian Federation).

The time of the deadlines in the executive production, calculated in the days, does not include non-working days (part 2 of article 15 of the Law 229-FZ).

As a general rule, the term of initiation of the executive production by the bailiff begins to be calculated from the moment the ID is received. Production is started at the end of 3 days from this moment.

In the case of the ID to be immediate execution, the attract must start production during the day. However, the period in this case is calculated not from the moment of receipt of the document specifically to it, but from the moment of admission to FSSP. Too long stay in the bailiff and the late excitation of production can be appealed by a recoverer as illegal inaction.

Do not know your rights?

Decision

Before initiating production, the attract must make a certain sequence of actions, namely to check whether there are no reason to fail in its excitation, according to Art. 31 of Law No. 229:

  • does the ID complies with the requirements of the law;
  • whether it is provided with a proper subject;
  • are the rules of territorial competence and so on.

According to the results of the verification, the appropriate decision is made. In any case, it must match general requirements Art. 14 of Law No. 229, however, in the decision on the initiation of production, the addition was additionally (part 11, 14.1, 14.2, 18, Article 30 of Law No. 229):

  • determines the term for voluntary execution (understand what it will help the article);
  • obliges the debtor to present documents with the information about his property;
  • warns about the possibility of imposing temporary restrictions on the debtor;
  • notifies about criminal liability under Art. 315 of the Criminal Code of the Russian Federation (with the exception of debtors - individuals and individual entrepreneurs).

The re-circulation of the recoverer in FSSP becomes possible after eliminating circumstances that served as the basis for refusing to initiate the IP.

How are the parties notify about the start of executive actions?

In accordance with the procedure for the initiation of enforcement proceedings, the bailiff sends a copy of the decision to all interested parties:

  • debtor;
  • to the recoverer;
  • court, another organ ( official person), from which the ID comes.

To report specified persons About the beginning of production is obliged to make maximum during the day following the day of the decision. If the production was denied, a copy of the relevant ruling is sent to the recoverer and a subject issued by the ID, in the same time.

The notice of the start of enforcement proceedings should be carried out in full compliance with ch. 4 of Law No. 229. In particular, the debtor is notified at the place of residence (location) specified in the ID.

It is important to remember that only the proper notification of it about the beginning of production makes the subsequent measures of compulsion. Not notified by a properly debtor is entitled to file a complaint in subordination or to court. Courts find such violations with significant and recognize the inaction of the baits illegal.

In completion, we summarize the above. So, production is excited by bailiffs only in the presence of ID and the statement of the recoverer. The statement is not necessary only if the executive document came from the authority, his issued. The duration of production excitation for the ID to be executed immediately - until the expiration of 1 day from the moment they are proceeded in FSSP; For the rest, the procedure will take a maximum of 6 days. The decision of the bailiff for the excitation of production or refusal in this means the termination of the considered stage of production, drawn up by the relevant decision. A copy of this document is obliged to send to interested parties during the day from the day fixed as the date of his submission.