Posted on the site 11/19/2008
Evasion from repayment of debt is perhaps one of the most serious problems in banking activities, and the solution of this task does not lose its relevance. The author proposes to analyze the norms of Art. 177 of the Criminal Code of the Russian Federation "malicious evasion from paying payables" and eliminate individual errors regarding the application of its norms. The article presents the characteristics of the main elements of the composition of the crime and the analysis of the problems of law enforcement.
Evasion from debt repayment is currently quite common in Russia. The reasons for this situation are a lot: there is no problematic nature economic relations, features of mentality, etc. Correction of the situation may contribute to improving the effectiveness of the application of Art. 177 of the Criminal Code of the Russian Federation "malicious evasion from payable payables".
Now this norm is applied extremely rarely 1 and is often called "dead", but there is opportunities for its "resuscitation". Improving the application of Art. 177 of the Criminal Code became the most relevant after February 2008, when the inquiry on this article was transferred to the Federal Service bailiffs.
For a better understanding of the problem, we propose to consider and debunk myths surrounding Art. 177 of the Criminal Code of the Russian Federation and preventing it.
The possibilities of criminal prosecution for malicious evasion of payable payable
Let's start with myths, i.e. Common delusions regarding the possibility of criminal prosecution for malicious evasion from paying payables. As chatting with victims and law enforcers shows, the following myths are currently distributed.
1. There are no possibilities for effective application Art. 177 of the Criminal Code.
We consider this statement myth, because similar art. 157 of the Criminal Code of the Russian Federation "Mild evasion from paying funds for the maintenance of children or disabled parents" is applied in some years in 200 (!!!) times more often. Practice also shows that in individual courts, even within one year several sentences are made under the article under consideration, which is more than 10% of the total number of such sentences in Russia.
2. Article 177 of the Criminal Code of the Russian Federation is only about debt on loans (payables - it means on loans, loans).
This delusion arose due to a literal understanding of the text and in some cases the inattentive attitude towards this composition from the authors of textbooks and comments. The article mentions payables, which covers all types of debt and differs from receivables, i.e. Rights of payment requirements for certain amounts. Accordingly, payables are any debt (except for tax and other, which is stated in other articles of the Criminal Code). Evasion from paying debt under the supply contract, compensation for harm caused, etc. Also can qualify under Art. 177 of the Criminal Code.
3. OT criminal responsibility under art. 177 of the Criminal Code easily get rid of (fairly partial payment of debt, etc.).
Such ideas are associated with the analogies of the art. 159 of the Criminal Code of the Russian Federation "Fraud", in which the absence of intent on theft sometimes indicates partial payment of the loan received or debt repayment. Glorious deviation is not theft and similar actions will not help the unscrupulous debtor if it hides from the recovery of property more than 250 thousand rubles, - let him pay significant amounts.
4. With the proper application of Art. 177 of the Criminal Code will be a lot of sentences.
This is also a delusion, because This composition is most often applied in cases where the debtor has the opportunity to pay for the debt, but it does not do this on subjective reasons. In case the threat of criminal liability is already real, the debt and exemption from criminal liability due to reconciliation with the victim (Article 76 of the Criminal Code of the Russian Federation) is very real. It may be noted that the features of the successful movement of criminal cases lead to the fact that reconciliation is most often happening at the stage of judicial review, and not inquiry.
Basic elements of the composition of the crime
Without stopping in detail at the object of the crime, because It does not have a great practical value, turn to the characteristic of the objective side.
Article 177 of the Criminal Code establishes criminal liability for malicious evasion of debt repayment in a large amount after the entry into force of the court decision. The composition is formal, i.e. Enough actions for malicious evasion. These actions should be associated with debt in large amounts, i.e. more than 250 thousand rubles. In determining the amount of debt, it is necessary to focus on the judicial act with which it is confirmed. At the same time, the amount of debt in different judicial acts may be summed if the subject and the victims are the same. The judicial act is most often the decision of the Court of General Jurisdiction or the Arbitration Court, but the debt may be confirmed by other judicial acts, for example, by judicial order.
The objective side, from our point of view, is expressed in the form of action - evasion. At the same time, for ease of use, it can be considered to evade the identical concealment of property to which the recovery of the court can be addressed. There is a point of view that evasion may be in the form of inaction, but we believe that this approach does not take into account the possibility of enforcing court decisions, within which Federal Service Bailiffs have broad powers sufficient to overcome evasion in the form of simple inaction.
Considering possible deviation in the form of inactivity, we, as it were, we justify the possible inefficient work of performers, who do not take all the necessary measures to recover the debt.
Hiding property (cash, real estate, etc.) to evade the debt repayment, there are two types:
- legal;
- physical.
Legal concealment is expressed in the design of imaginary transactions, i.e. Perfect only for the species, without intent to create relevant legal consequences (Art. 170 of the Civil Code of the Russian Federation). At the same time contact the court within civil process It is not necessary to recognize the transaction with imaginary evidence collected within the criminal process. Legal concealment is most often manifested in the conclusion of contracts of sale, donation, etc. Parties to contracts are the debtor and any persons - relatives, familiar, etc.
In our practice there was a case when an individual entrepreneur (SP) shied out of debt repayment through the conclusion of a fictitious contract with a person without a certain place of residence, for which the Receipt of IP status organized one law Firm, then used the data of this person in oppositional purposes. Frequent case of legal evasion is getting wageswhich is not reflected in the official reporting (we note that the so-called "black" salary can be summed up for a certain period so that the size required to be criminally responsible).
Varieties of legal concealment are constantly developing, so, options appeared with the conclusion of marriage contracts or agreements on the payment of alimony, for which all assets go to one spouse, and all debts are different, although the actual marriage relations continue after the divorce.
Physical concealing is manifested in the fact that any property (most often movable) hides in such a way that the lender and bailiffs do not know about its location. Physical concealment is less common than legal, as it is more complicated and is not suitable for all types of property.
We emphasize that in the absence of an opportunity to repay the debt, which is more than 250 thousand rubles, criminal liability under Art. 177 of the Criminal Code, from our point of view, is impossible, as it will be a kind of objective impression. Article 177 of the Criminal Code of the Russian Federation refers to the actions after the occurrence of debt and does not cover actions to receive funds.
Separately, we will discover in cases where the actions on legal protection of property are committed prior to the decision of the court or its entry into force.
Naturally, the unscrupulous debtor, realizing that the court decision would not be in favor of his favor, it is often not waiting for his imposition, but hides the property in advance. We believe that after the entry of the judicial act into legal force in such cases, qualifications are still possible under Art. 177 of the Criminal Code, since the debtor, in fact, owning, taking advantage of the property, de-Yura does not have a relation to him and creates the impossibility of forced execution of the court decision. In these cases, a situation is obtained similar to the last crimes who are associated with the failure of duties (for example, escape, evasion from military service, etc.).
Special attention requires a sign of glory, which, according to practitioners, often makes it difficult to qualify under Art. 177 of the Criminal Code.
We believe that maliciousness as an estimated concept can be determined in various ways. For example, an analogy is possible from Art. 157 of the Criminal Code of the Russian Federation "Massage evasion from paying funds for the maintenance of children or disabled parents." In the practice of attracting criminal liability for evading the payment of alimony, maliciousness is defined as non-fulfillment of the obligation to pay if there is a possibility after two warnings of the bailiff.
However, the glory of evasion from repayment of payables can be said in those cases where there were no baille warnings. In practice, there may be a situation where the debtor is in collusion with the bailiff and, accordingly, the necessary warnings are absent.
You can clarify quite a lot of examples when applies the estimated concept of "maliciousness".
The main problems of law enforcement
On the estimated nature of this feature testifies to various understanding of glory in different regulatory acts. For example, a malicious non-payment of a fine in accordance with the Criminal Code of the Russian Federation is considered the lack of disrespectful reasons for the last day of the term for the fulfillment of this duty. In general, it is advisable to associate a maliciousness with the execution of special actions to conceal its property (conclusion of contracts, bribing of baits, etc.).
Subjective signs of the composition of the crime provided for by Art. 177 of the Criminal Code, cause fewer disputes than objective. Be sure to have direct intent on evading debt repayment. We emphasize that direct intent is quite easy to prove with legal concealment of property, because Registration of imaginary transactions (signing contracts, acts, etc.) explicitly indicates the awareness of the public danger of their actions and the desire to make them. At the same time, a receipt frequently used to conceal fraud, when the debt is gradually paid and this is considered proof of the lack of intent on committing a crime, in this case does not help if the property is hidden in the amount of more than 250 thousand rubles.
The subject of the crime under Art. 177 of the Criminal Code can be as a manager legal entityand a citizen. We specifically note that for qualification under Art. 177 of the Criminal Code of the Russian Federation must be remembered for the possibility of attracting the actual, not nominal leader of the organization. Details of attraction to the responsibility of actual managers are developed for tax crimes 2. Accordingly, in cases where the actual head of the debtor's organization throws it and creates new Organizationwhere it becomes an actual supervisor and retrieves income that does not send on the repayment of the arrears of the initial organization, it is possible to raise a question of criminal liability under Art. 177 of the Criminal Code.
Unfortunately, in publications under Art. 177 of the Criminal Code rarely considers the possibility of complicity in this crime and the attempt on it. From our point of view, very often, when evasion of debt repayment, there is a distribution of roles: the accomplices are faces that sign the fictitious contracts, according to which the property allegedly receives, etc. Accordingly, when investigating evading debt repayment, it is necessary to pay attention to the qualifications of actions not only by the Contractor, but also other accomplices.
It is important to pay attention to the possibility of attempting under Art. 177 of the Criminal Code. Imagine the situation that the debtor who does not want from his wage to hold funds to pay off debt, negotiate with the employer that the wage (in the amount of, for example, 100 thousand rubles per month) will be paid unofficially. Suppose that this fact is revealed after 2 months and it turns out that the size of the evasion required to qualify under Art. 177 of the Criminal Code of the Russian Federation, not yet, but actions aimed at evasion in a major amount were not communicated to the rest of the reasons depending on the face. We believe that in such cases the actions of the perpetrator can be qualified as an attempt.
Thus, art. 177 of the Criminal Code of the Russian Federation "malicious evasion from payable debt" can be used more efficiently than at present. Improving law enforcement practice should be promoted by scientific and consulting and public support.
1 In 2006, only 15 sentences were issued on such affairs.
2 Paragraph 7 of the Resolution of the Plenum Supreme Court RF dated December 28, 2006 No. 64 "On the practice of applying criminal law on liability for tax crimes".
D.Yu. Zhdanukhin Collection Center, cEO, K.Yu.N.
Malicious evasion of the head of the organization or citizen from repaying payables in large amounts or from paying securities after the entry into force of the relevant judicial act -
shall be punished with a fine in the amount of up to two hundred thousand rubles or in the amount of salary or other income convictedered for the period up to eighteen months, or mandatory work for up to four hundred eighty hours, or forced work for up to two years, or arrest for up to six months, or imprisonment for up to two years.
Note has lost strength. - Federal Law of 08.12.2003 N 162-FZ.
Comments to Art. 177 of the Criminal Code of the Russian Federation
1. The normal functioning of market relations is possible only with the undisputed fulfillment by their participants assumed obligations. Payables may arise due to non-fulfillment by the borrower of its obligations under the loan agreement (Art. 819 of the Civil Code of the Russian Federation) and other treaties (supplies, contract, lease, etc.). Failure to comply with these obligations leads primarily civil law consequences (ch. 25 of the Civil Code of the Russian Federation). Crimino-forming signs of evading payables are the major amount of such debt and the maliciousness of evasion after entering into force judicial decision.
2. On the concept of securities, see Art. 142 of the Civil Code of the Russian Federation.
3. The crime is performed by inaction. The debtor evade the repayment of his debt to his debt or shifts in one way or another from paying the security charged to him, which he had to do after the judicial act entered into legal force, which recognized the availability of payables or obligations under valuable paper and obliging a debtor Pay off debt or pay securities.
4. The maliciousness of evasion means primarily the intelligence of the commented act if the subject has the opportunity to pay off debt or pay for a valuable paper. At the same time, the reasons and duration of non-fulfillment of the debtor entrusted to it, repeatedly ignoring them the requirements of the judiciary, creating obstacles to them to ensure the possibility of debt collection, including concealment of its property, the facts of illegal impact on the lender, the change of legal or actual Addresses, etc.
Malicious evasion from paying off payable or payment of securities is a crime. It begins after the entry into force of the judicial act, which has confirmed the validity of the claim of creditors, and is obvious after this evasion from repayment of debt, and lasts until the guilty continues to shy or not be attracted to criminal responsibility.
The method of evasion (open evasion, by deception or abuse of trust, etc.) does not matter to qualify if it has not been associated with other crimes (for example, fake documents). Glorious deviation takes place in cases where the borrower is deliberately stretches for a long time the repayment of payables.
5. The subject of the crime may be the head of commercial and non-profit organization any form of ownership, obligated to pay off payables or pay securities, as well as persons acting by managers, as well as a citizen who is a debtor, while not necessarily involved business activities.
6. Accounts payable must be large, i.e. exceeding 1.5 million rubles. (Note to Art. 169 of the Criminal Code).
The law says nothing about the cost of securities to be paid. It seems that however, that the definition of a large amount of payables is related to cases of malicious evasion from paying securities.
The verdict of the Anapian District Court of the Krasnodar Territory under Article 177 of the Criminal Code of the Russian Federation "The malicious evasion of a citizen from repaying payables in a major amount after the entry into force of the relevant judicial act."
PR and G O V O R
Name Russian Federation
Judge Anapian District Court of Krasnodar Territory N.A.n.,
when secretary - K.E.A.,
with the participation: the State Prosecutor - Deputy Anapian Interdistrict Prosecutor of the Krasnodar Territory P.A.,
defendant - H.G.A.,
- lawyer B.I.N., who submitted a certificate to 000 and order 000 dated 09/04/2017,
the victim - M.K.A.
considered in open court a criminal case against:
H.G.A.,<данные изъяты>previously not tried in respect of which the measure is elected procedure coercion - The obligation to the appearance that received a copy of the indictment of 16.08.2017, accused of committing crimes provided for by Art. Art. 177, 177 of the Criminal Code of the Russian Federation,
S T A N O V I L:
H.G.A. committed a malicious evasion of a citizen from repaying payables in a major amount after entry into force of the relevant judicial act; The malicious deviation of a citizen from repaying payables in a major amount after the entry into force of the relevant judicial act.
Crimes are committed by defendants under the following circumstances:
On the execution in the Anapian city department of the UFSSP in the Krasnodar Territory there is an executive production 000, initiated on October 29, 2009, on the basis of executive Sheet 000 issued on 10/22/2009 by the Anapian District Court of the Krasnodar Territory in Civil case No. 2-942 / 09 of 05.10.2009 for recovery from H.G.A. In favor of M.K.A. At the expense of the return of unjust enrichment of 4,700,000 rubles., interest for illegal use of other people's money 554,338 rubles, and only 5,524,338 rubles.
H.G.A., living at the address: Krasnodar Territory, G. - K. Anapa, (...), at the place of execution of executive actions, being notified of the initiation of enforcement proceedings on the recovery of the amount of debt in favor of M.K. BUT. Embed from the execution of the court decision. 11/24/2016, within the framework of the enforcement proceedings, the bailiff of the Anapian city department of the UFSSP on the Krasnodar Territory made a warning of criminal liability provided for by Art. 177 of the Criminal Code, which was presented by H.G.A. For a personal signature. It has been established that on March 25, 2017, H.G.A. Received income in the form of funds on receipt Z.V.S. in the amount of 100,000 rubles, after which understanding and realizing the unlawful nature of his behavior, acting intentionally, spent the indicated funds for his personal needs, shown from the repayment of payables in favor of the recoverer M.K.A. in the amount of 5,254,338 rubles, which, according to notice to Art. 170.2 of the Criminal Code refers to large size.
On the execution in the Anapian city department of the UFSSP in the Krasnodar Territory, the executive production of 000, initiated 20.10.2009, on the basis of the executive list 000 issued by September 30, 2009, by the Leninsky District Court of Krasnodar Krasnodar Territory in Civil case No. 2-2857 / 09 from 24.08 .2009 for recovery from H.G.A. In favor of the CB of debt sum of 11 212,282, 22 rubles.
H.G.A., living at the address: Krasnodar Territory, G. - K. Anapa, (...), at the place of execution of executive actions, being notified about the initiation of enforcement proceedings on the recovery of the amount of debt in favor of the KB, evaded execution of court decision. 02/15/2017 within the framework of the enforcement proceedings, the bailiff of the Anapian city department of the UFSSP in the Krasnodar Territory was made a warning of criminal liability provided for by Art. 177 of the Criminal Code, which was presented by H.G.A. For a personal signature. It has been established that on March 25, 2017, H.G.A. Received income in the form of funds on receipt Z.V.S. in the amount of 100,000 rubles, after which understanding and realizing the unlawful nature of his behavior, acting deliberately, spent the indicated cash on his personal needs, shown from the repayment of payables in favor of the recoverer of the KB in the amount of 11 212,282, 22 rubles, which, according to notes Art. 170.2 of the Criminal Code refers to large size.
At the court hearing the defendant H.G.A. His guilt in the commission of crimes incriminated to him completely and before judicial trial, in the presence of a defender - criminal lawyer stated a petition for the application of a special procedure for taking a court decision on this criminal case provided for by Art. 314 Code of Criminal Procedure, supporting the petition declared earlier on preliminary investigation When familiarizing with the materials of the criminal case.
Defenders of the defendant - a criminal lawyer explained that the petition for the resolution of the sentence in a special procedure for making a court decision, without a court proceedings, the defendant H.G.A. He stated voluntarily, after a consultation with a lawyer. The consequences of satisfying the claimed petition and the limits of the sentence appeal are explained and understandable.
Representative of the victim KB - D.A.D. According to the statement submitted at the court hearing, it applied for the consideration of the case in his absence, did not object to the consideration of the case in a special order.
The victim M.K.A. At the court hearing did not objected to the consideration of the criminal case in a special order.
The state prosecutor - Deputy Anapian Interdistrict Prosecutor of the Krasnodar Territory P.A. He agreed with the stated defendant, explaining that the wines of the defendant in the incriminated crimes were proved in full and its petition for the application, when considering the criminal case, a special order of trial does not contradict the requirements of the Criminal Procedure Legislation of the Russian Federation.
The petition of the defendant H.G.A. The court is satisfied, and the trial of the present criminal case has begun on special order The adoption of a court decision, since the petition was announced in a criminal case of crimes, the maximum punishment for which does not exceed 10 years in prison. Departed H.G.A. agreed with the prosecution, and the volume of evidence collected in the criminal case, fully recognized his guilt into the criminal acts incriminated to him, was requested about the decision of the sentence without a court proceedings, aware of the nature and consequences of the stated petition, which is voluntary and declared after consultation with a criminal lawyer Affairs.
The accusation charged by the defendant is reasonably and confirmed by the case materials. There are no grounds for termination of the criminal case.
The court considers the defendant of H.G.A. as established and proven In the commission of criminal acts incriminated to him and believes that its actions must be qualified under Art. 177 of the Criminal Code of the Russian Federation (on the episode of evasion from paying off payables in favor of M.K.A.), as a malicious evasion of a citizen from repaying payables in a major amount after the entry into force of the relevant judicial act; under art. 177 of the Criminal Code of the Russian Federation (on the episode of evasion to pay off payables in favor of KB), as a malicious evasion of a citizen from repaying payables in a major amount after the entry into force of the relevant judicial act, which remains a qualification of the actions of the defendant under the preliminary investigation unchanged And makes a conviction.
In resolving issues related to the crime of Acts, as well as its punishability and other criminal laws, the court, based on the requirements of Part 3 of Art. 1 Code of Criminal Procedure of the Russian Federation, takes into account the provisions of the Constitution of the Russian Federation, the current criminal and criminal procedure legislation of the Russian Federation, takes into account the requirements of the Relatives of the Plenum of the Supreme Court of the Russian Federation No. 5 of October 10, 2003 "On the application by the courts of general jurisdiction of generally accepted principles and norms international law and international treaties Of the Russian Federation, "the provisions of the Universal Declaration of Human Rights, the Convention on the Protection of Human Rights and Fundamental Freedoms, as amended by the provisions of the Protocols, and believes that violations of the norms of the criminal procedure law against H. G.A. The inquiry authority was not allowed.
When determining the type and size of the sentence, the defendant H.G.A., guided by the principles of justice and humanism, in accordance with the provisions of Art. Art. 6, 43, 60 of the Criminal Code of the Russian Federation, the Court takes into account the nature and degree of public danger of the crimes committed to the category of small gravity, the identity of the defendant, its age, the attitude of the defendant, which recognized his guilt, to the deed, the presence of mitigating and the absence of aggravating circumstances , the effect of punishment to correct the defendant and the conditions of his life.
Softening punishment H.G.A. circumstances, in accordance with Art. 61 of the Criminal Code of the Russian Federation, the court recognizes the turnouts on both incriminated episodes of unlawful actions, reflected in the protocols of explanations of 06.07.2017, obtained before the initiation of criminal cases, recognizing their fault, repentance in the deed, the presence of two young children (t. 1 ld.36 - 37, 38 - 39).
Aggravating the punishment of H.G.A. Circumstances provided for by Art. 63 of the Criminal Code of the Russian Federation, the court does not establish.
Departed H.G.A. Characterized:
at the place of residence positively (t. 1 ld.109);
in the accounting of a narcologist and psychiatrist, it does not consist (t. 1 ld.111);
previously, do not judge (t. 1 ld.112, 113 - 114, 115.1 - 115.13).
Based on Art. 56 h. 1 of the Criminal Code of the Russian Federation Punishment in the form of imprisonment may be appointed convicted person who first committed a crime of small severity, only in the presence of aggravating circumstances provided for in Article 63 of this Code, with the exception of crimes provided for by the first part of Article 228, part of the first article 231 and article 233 of this Code, or only if the corresponding article of the special part of this Code, imprisonment is provided for as the only type of punishment.
The court, discussed all the circumstances affecting the appointment of equitable punishment, given the challenges of the perpetrators, the severity and public danger of crimes in the field of economic activity, given the provisions of Art. 56 h. 1 of the Criminal Code of the Russian Federation, considers it necessary to appoint X.G.A. Punishment in the form of mandatory work on both incriminated episodes of unlawful actions provided for by Art. 177 of the Criminal Code, in the absence of grounds for the application of Art. 64 of the Criminal Code of the Russian Federation.
Final punishment H.G.A. In the form of mandatory work, the court appoints according to the rules of Art. 69 h. 2 of the Criminal Code of the Russian Federation, for the combination of crimes, by partial addition of punishments, taking into account the nature and severity of the acts committed by their acts and data characterizing the defendant.
Taking into account the nature, the severity committed by H.G.A. Crimes, the court does not find grounds for changing their category, in accordance with Art. 15 h. 6 of the Criminal Code.
When appointing punishment, H.G.A. per perfect crimesThe court takes into account the provisions of Art. Art. 62 h. 1, 5 of the Criminal Code of the Russian Federation.
The measure of procedural coercion is the obligation to the appearance towards H.G.A. At the appeal period, the court considers it necessary to leave unchanged.
Real proof of the criminal case: copies of documents from the materials of the executive proceedings, on the basis of Art. 81 h. 3 of paragraph 5 of the Code of Criminal Procedure of the Russian Federation, after the sentence entry into force to be stored under criminal case.
Based on the above, guided by art. 316 Code of Criminal Procedure,
PR and G about in about r and l:
Recognize H.G.A. guilty of committing crimes provided for by Art. 177 of the Criminal Code of the Russian Federation (on the episode of evading the repayment of payables in favor of M.K.A.), Art. 177 of the Criminal Code of the Russian Federation (on the episode of evading the repayment of payables in favor of the CB) and appoint him a punishment:
under art. 177 of the Criminal Code of the Russian Federation (according to the episode of evading the repayment of accounts payable in favor of M.K.A.) - 200 (two hundred) hours of mandatory work;
under art. 177 of the Criminal Code of the Russian Federation (according to the episode of evading the repayment of payables in favor of KB) - 200 (two hundred) hours of mandatory work.
Based on Art. 69 h. 2 of the Criminal Code of the Russian Federation, by partial addition of sentences for the totality of crimes, finally appoint H.G.A. To depart the sentence of 250 (two hundred and fifty) hours of mandatory work.
The measure of procedural coercion is the obligation to the appearance towards H.G.A. Before the court joined the court to legally leave unchanged.
Real proof of the criminal case: copies of documents from the materials of the executive proceedings, on the basis of Art. 81 h. 3 of paragraph 5 of the Code of Criminal Procedure of the Russian Federation, after the sentence entry into force to be stored under criminal case
The verdict under Article 177 of the Criminal Code of the Russian Federation (malicious evasion of payable debt) can be appealed on appeal to Krasnodar regional Court Within 10 days from the date of its resolution through the Anapa district court of the Krasnodar Territory, and the convicts contained in custody, in the same period from the date of the presentation of a copy of the sentence, in compliance with the requirements of Art. 317 Code of Criminal Procedure.
Malicious evasion of the head of the organization or citizen from repaying payables in large amounts or from paying securities after the entry into force of the relevant judicial act -
shall be punished with a fine in the amount of up to two hundred thousand rubles or in the amount of salary or other income convictedered for the period up to eighteen months, or mandatory work for up to four hundred eighty hours, or forced work for up to two years, or arrest for up to six months, or imprisonment for up to two years.
Note has lost its strength from December 11, 2003 - the Federal Law of December 8, 2003 N 162-FZ.
Commentary on Article 177 of the Criminal Code of the Russian Federation
1. The objective side of the crime is characterized by inaction, which lies in malicious evasion from repaying payables or payment of securities.
2. The maliciousness of evasion will take place in the presence of the following mandatory signs:
1) the presence of a judicial act that has entered into force confirming the validity of the creditor's claims;
2) the real possibility of the debtor repay payables;
3) The behavior of the debtor, indicating the reluctance to fulfill its obligations to the lender (repeatedly ignoring the requirements of the bailiff; creation of obstacles to ensuring the possibility of recovery of debt, inventory and property implementation, etc.).
For such behavior, the subject must first be administrative responsibility under Art. Art. 17.8 or 17.14 Administrative Code. Only with the entire set of conditions indicating violation of the legislation on enforcement proceedings, the bailiff may apply for the attraction of the debtor to criminal responsibility under Art. 177.
Another commentary on Article 177 of the Criminal Code of the Russian Federation
1. The main direct object of the crime - public relations in credit and monetary spheres. An additional object is the relationship in the field of justice. The subject of the crime is payable debt in large amounts (according to a note to Art. 169 of the Criminal Code of the Criminal Procedure, the amount exceeds 250 thousand rubles) or securities. The concept of securities is given in Art. 142 of the Criminal Code (this is a document certifying the compliance with the established form and mandatory requisites Property rights, implementation or transfer of which are possible only upon presentation). Securities include: state bond, bond, bill, check, deposit and savings certificates, bearer banking book, cavaria, action, privatization securities and other documents that are related to securities and in accordance with the procedure established by Paper (Art. 143 of the Civil Code of the Russian Federation).
2. The composition of the crime is formal. It is considered to be completed when making the act specified in the law.
3. The objective side is characterized by inaction in the following forms: malicious evasion of the head of the organization or citizen from paying off payable debt in large amounts; malicious evasion of the head of the organization or citizen from paying securities.
Under malicious evasion of payable payable should be an open refusal to fulfill its obligations arising from the terms of the loan agreement relating to the return of the loan amount or percentage on it. The refusal is recognized as malicious if it continues after the second written warning.
4. The legislator calls as a basis to attract a person to criminal liability under Art. 177 of the Criminal Code of the Russian Federation evasion from repayment of only payables. At the same time, there is every reason to believe that it is also necessary to follow the malicious evasion of the head of the organization or a citizen from returning funds or material values \u200b\u200bunder a loan or budget loan agreement.
5. To attract a person to criminal liability under this article, it is necessary that malicious evasion takes place after the entry into force of the relevant judicial act. It may be the decision of the arbitration or civil court.
Accountable debt in large amounts in accordance with the note to Art. 169 of the Criminal Code of the Russian Federation recognizes the debt of a citizen in an amount exceeding 250 thousand rubles.
6. Subjective side Crimes are characterized by wine in the form of direct intent. The guilty is aware that it maliciously evades the repayment of payables in a large amount or from paying securities after the entry into force of the relevant judicial act, and wishes such actions. The motive and purpose do not matter to qualify, but can be taken into account when prescribing punishment.
7. The subject of the crime is a citizen who has reached the age of 16, or the head of the organization.
The act provided for in this article is a special norm in relation to Art. 315 CC. Therefore, qualifications for the totality of these crimes are not required.
The management of the organization of inquiries and administrative practices was developed to identify and investigate the crimes provided for by Art. 177 of the Criminal Code of the Russian Federation (malicious evasion of payable payable), taking into account the experience in the territorial bodies of the FSSP of Russia.
It is necessary to organize the study by employees of the management apparatus and structural units territorial organs, ensure proper control over their use in practical activity.
2. Sentences of ships in in electronic format by 73 liters.
| A.O. Parfenchikov |
Guidelines
to identify and investigate crimes provided for by Art. 177 Criminal Code of the Russian Federation (malicious evasion from payable payable)
(approved by the Federal Bailiff Service)
1. Criminal and legal characteristics of crimes provided for by Art. 177 of the Criminal Code of the Russian Federation
Object of crime
The direct object of the specified crime is public relations in the monetary sphere. Additional objects are the economic interests of creditors and attitudes in the field of justice. According to CC. 1 and 2 tbsp. 6 of the Federal Constitutional Law No. 1-FKZ "On Judicial System of the Russian Federation" of December 31, 1996, which entered into force the resolution of federal courts, world judges and courts of the constituent entities of the Russian Federation is subject to strict execution throughout the Russian Federation, non-fulfillment of the court order, And equal to another manifestation of disrespect for the court entrusted with the responsibility provided for by the Federal Law.
The subject of criminal encroachment is not returned to the lender or not received by the lender.
Objective side
The concept of payable debt follows from the norms of civil law about the circumstances.
According to Art. 307 of the Civil Code of the Russian Federation due to obligations one person (debtor) is obliged to make a certain effect in favor of another person (creditor), somehow: transfer property, to work, pay money, etc., or refrain from a certain action, and the lender has The right to demand the fulfillment of his duty from the debtor.
Thus, payables in the text of this article represents any kind of unfulfilled debtor's obligation to the creditor (Article 309 of the Civil Code of the Russian Federation), including monetary obligations (Art. 317 of the Civil Code of the Russian Federation).
The debt of the guarantor in front of the lender is also payables.
So, h. 2 art. The 363 Civil Code of the Russian Federation established that the guarantor responds to the creditor in the same amount as the debtor, including the payment of interest, reimbursement of legal costs to recover the debt and other losses of the creditor, caused by the non-fulfillment or improper fulfillment of the debtor's commitment, unless otherwise provided by the contract of guarantee. From this we can conclude that if the contractual contract is not provided for limiting the responsibility of the guarantor if the debtor is not fulfilling or improper fulfillment, its responsibility does not differ from the responsibility of the borrower.
Standards Federal Law Of October 2, 2007 No. 229-FZ "On Enforcement Proceedings" did not establish any restrictions on bringing to responsibility for violation of the legislation of the Russian Federation on the executional production of debtors who are guarantors under loan agreements.
Thus, within the framework of Art. 177 of the Criminal Code of the Russian Federation to payables refers: a bank loan, debt on calculations with suppliers and contractors, debt under loan agreements, as well as other debt formed from contractual relations.
The objective side of Art. 177 of the Criminal Code includes:
1. Action or inaction for non-fulfillment of the obligation arising from contracts to pay off payable debt in large amounts (over 250 thousand rubles) or pay securities;
2. Glority evasion;
3. Recognition of duties on repayment of payables in large amounts or pay the securities to the lawsuit entered into legal force.
As follows from the disposition of the article under consideration, the composition of the crime is constructed on a formal basis, that is, in its objective side, the offensive hazardous consequences not provided .
Crime provided for Art. 177 of the Criminal Code of the Russian Federation can be committed both in the form of action and inaction.
If the crime under consideration is committed in the form of action, then the ways of evasion can be: submission of the bailiff of unreliable information about its sources of income and property position, concealment of income and property, the change of residence, work, personal data, departure abroad with the concealment of its place staying, making transactions on the alienation of property, transfer to its third parties, etc.
If evasion from repaying payables is committed by fake by the debtor of the official document, then the act should be qualified as a totality of Art. 177 and part 1 Art. 327 CC. The use of a deliberately subsequent official document by the Forge holder itself is covered by Part 1 of Art. 327 of the Criminal Code of the Russian Federation and additional qualifications under Part 3 of Art. 327 of the Criminal Code does not require. Malicious evasion from paying payables, committed using a fake official document made by another person, is fully covered by the composition of the crime provided for by Art. 177 of the Criminal Code of the Russian Federation, and also does not require additional qualifications under Part 3 of Art. 327 of the Criminal Code.
If malicious evasion of payable debt is performed by inaction, then the failure to appear as methods, for example, a failure to appear on the challenges of the bailiff, the failure to correct the correction of the unfavorable financial situation and others.
The debt of the borrower on various agreements, with the total achievement of the amount exceeding 250 thousand rubles, even when combining the executive proceedings in one consolidated, the grounds for bringing it to criminal liability does not give, since the objective of the crime includes the failure to fulfill a specific judgment on the recovery of payable Debt, the size of which is determined by the court.
If the suspect is maliciously evade the repayment of payables in a large scale against several decisions, then each specific episode of criminal activity is subject to independent qualifications under Art. 177 of the Criminal Code.
Securities can act as a crime, if the loan was issued or ensured by the pledge of securities.
According to Art. 142 of the Civil Code of the Russian Federation with valuable paper is a document certifying the compliance with the established form and obligatory details of property rights, the implementation or transfer of which is possible only when it has been present.
To securities civil law Recalls the state bond, bond, bill, check, deposit and savings certificates, bearer banking banking book, billboards, share, privatization securities and other documents that are related to securities in accordance with securities.
Rights certified by the security may belong:
Bearer (securities for bearer);
Named in valuable face (personal valuable paper);
Called in the valuable papers, which can carry out these rights itself or appoint another (order) authorized person (Order of the Securities).
Payment of securities should be provided for by the court decision.
The procedure for the provision of loans is regulated by a number of regulatory acts, such as the provision of the Central Bank of Russia of July 14, 2005 No. 273-P "On the procedure for providing banks by bank credit organizations provided by the deposit of bills, the rights of credit agreements or guarantees of credit institutions."
The concept of large amounts of payable debt is specified by the legislator in the note to Art. 169 of the Criminal Code (in an amount exceeding 250 thousand rubles).
The amount of payable debt is determined by the court.
In addition to the principal debt of penalties, interests for the use of other people's cash due to their illegal retention may be included in the settlement of the Credit Court in addition to the court decision, fines due to their illegal deductions. In order to investigate the criminal case, payable debt is no longer calculated by the investment, except when the debtor has been made payments to the repayment of debt to the initiation of a criminal case.
The law does not contain special instructions on the value of securities to be paid. However, based on the fact that in the valuable paper fixed property lawThe person or organization that issued a valuable paper becomes a debtor in relation to the security holder (creditor). Failure to comply with the obligations upon payment of valuable paper leads to the formation of the same payables as for other agreements.
In practice, it should be guided by the rule of qualification, in accordance with which the content of the norm should be perceived in unity (complex). Therefore, the size characterizing the subject of the crime, as well as alternatively provided in the norms of articles of the Criminal Code of the Russian Federation, should be comparable to public danger. Therefore, it should be processed from the fact that the value of the value of securities must correspond to the size of payables, that is, to exceed two hundred and fifty thousand rubles.
In practical activities, often a sign of malicious evasion from paying off payable debt in large amounts is interpreted as the presence of a mandatory amount of evasion, that is, not only the size of the accounts itself, but also to proof the availability of monuctile funds for repayment of debt in the amount of at least 250 thousand rubles.
However, in the note to Art. 169 of the Criminal Code of the Russian Federation it is indicated that "in the articles of this chapter ... a large size, large damage, income or debt in large amounts recognized the cost, damage, income or arrears in the amount exceeding two hundred fifty thousand rubles." According to the semantic design of this note, the size is established precisely damage, debt. So, in relation to the norm of Art. 169 of the Criminal Code of the Russian Federation (the prevention of legal entrepreneurial activity or other activities). Large damage can be caused by the state, personality, other organizations. It is calculated by general rules Definitions of damage and is recognized by the court as a major in accordance with the note on this article, if it makes an amount exceeding 250 thousand rubles.
However, for an objective opportunity to pay off payables or pay for a valuable paper from the debtor should be available or is at the disposal of monetary or other means allowing the debtor to fulfill the duty to pay off debt. The fact that the debtor was at the disposal were certain funds, it may indicate their transactions to alienation or the acquisition of property.
Inability to fulfill obligations due to the lack of necessary material tools, it is impossible to qualify as a crime due to a number of international law.
Thus, the real opportunity to pay the debt is necessary, however, in the criminal legislation of the indication that the investigator should identify the financial means of the suspect in the amount of at least 250 thousand rubles, no.
Thus, lending agreements provide for a monthly payment of equal parts, as well as the possibility of debt restructuring, and therefore, when it is conclosed with the entire required amount to repay a loan from the borrower, as a rule, no. This does not interfere with the conscientious borrower subsequently in the presence of earnings and (or) property to pay the debt in stages during the time period established by the contract.
Article 177 of the Criminal Code of the Russian Federation does not disclose the content of the concept of malicious evasion from repaying payables, it is evaluated. The seemingly evidence testifies, first of all, the commission of a deliberate act if the subject has the opportunity to pay off the debt or pay for a valuable paper. It should take into account the reasons and the duration of non-fulfillment of the debtor entrusted to it, creating them obstacles to debt debt.
The maliciousness of evasion can be expressed in the following actions (inaction) of the debtor:
Having available or on a bank account, cash, allowing to pay off payables completely or partially, was deliberately not paid (not listed) to their creditor;
Deliberately hid from the bailiff, the fact of discovering a new current account in a credit institution;
Having in personal (share) property property and items (with the exception of the list defined by Art. 446 of the Code of Civil Procedure of the Russian Federation), made a transaction on the alienation of this property, and the funds received for it did not transfer the lender to repay the debt, hid or used for other purposes self-discretion;
Having additional sources of income, hid them either represented the bailiff of obviously false information about their income, property;
Engaged in business activities, made credit operations (issued loan agreements and received money on them, was calculated with other lenders, he acted as a lender, inferior to the right of the demand for debts, i.e. concluded contracts of cessia, etc.);
Transmitted movable property to storing relatives or acquaintances;
I was misled by the bailiff for the damage, theft or destroying of property due to the natural disaster, fire, accident;
For disrespectful reasons, it was not on the challenges of the bailiff, which enters the compulsory execution of a judicial act on the recovery of payables, prevented the commission of executive actions;
Rendered an illegal impact on the lender;
In order to create obstacles to ensuring the possibility of recovering payables, without becoming a bunch of bailiff, changed the place of residence or place of work.
The availability of sufficient money from the debtor, which he spends on personal needs, and not to repay the debt, may indicate the payment data to them:
Railway and air tickets;
Tourist and sanatorium-resort services;
Cellular services;
Immovable and movable property insurance;
Contracts for the provision of other services (for example, subscriptions for visiting sports and other clubs, studying foreign languages, etc.).
Thus, a number of objective and subjective circumstances accompanying the commitment of the crime under consideration after the jurisdiction of the judicial act in legal force are evidenced. The question of the number of warnings about criminal liability and duration of evasion, as evidence of maliciousness, should be solved in each particular case, depending on the circumstances of the case in conjunction with other evidence.
If the crime under consideration is made by inaction, then the place of its commission should be considered the place where the debtor was supposed to fulfill the obligation, but by means of action - the place where they were actively involved in evasion, such as the transaction on the alienation of property or its concealment, etc.
Malicious evasion of payable debt refers to the category of crimes. It begins after the entry into force of the judicial act confirming the legality of the claims of the creditor, and explicitly (obvious) after this evasion from repaying payables or from paying securities. The crime lasts until the debtor fulfills its obligations or will not be attracted to criminal liability under Art. 177 of the Criminal Code.
The deadlines for the limitations of the crime under consideration are calculated from the moment of initiating a criminal case.
It should also be borne in mind that the recognition of the obligation to repay payables in a large amount or to pay securities should be confirmed by the court decision that entered into legal force. In cases of non-compliance with this requirement of the law, it is possible to terminate criminal prosecution.
Subject of crime
The subject of the crime provided for by Art. 177 of the Criminal Code, are managers (director, boss, manager, etc.), as well as a person who acts as a head of a commercial or non-commercial organization of any form of ownership, as well as a citizen who has reached a 16-year-old age, which is a debtor, while not necessarily dealing with entrepreneurial activities.
In cases where malicious evasion from paying accounts payable is made by a representative of the government serving state or municipal Institutions, a commercial or other organization, competition arises between the norms of Art. 177 and 315 of the Criminal Code. Article 177 of the Criminal Code is special in relation to Art. 315 of the Criminal Code of the Russian Federation, so it should be borne in mind that in competition of these norms, common and special, in accordance with Part 3 of Art. 17 of the Criminal Code of the Russian Federation criminal liability comes on special norm. Normably about malicious evasion from paying off payables. But if a representative of the authorities, an employee of a state or municipal institution, a commercial or other organization, will mallerting to pay off payables that have not achieved large size, the responsibility comes in general norm.
Subjective side
The crime is performed with direct intent. The face is aware that it shies away from paying off payables, i.e. Makes the actions necessary for this (or inactive) and wishes them to commit, if he has a real opportunity to repay it.
In the actions of a person who is not able to fulfill obligations due to the lack of a real opportunity (disease, disability, pregnancy and care for young children, etc.), there is no intent to commit this crime, in connection with which it is criminal liable Craw can not be.
2. The procedure for documenting the unlawful actions of the perpetrators in the commission of crimes provided for by Art. 177 of the Criminal Code of the Russian Federation
By the reasons for checking in accordance with Art. 144-145 Code of Criminal Procedure, as a rule, serve:
The report of the bailiff on the detection of crime signs;
Law enforcement officer report (controls to combat economic crimes Ministry of Internal Affairs, customs authorities, etc.) on the detection of signs of a crime. As a rule, these are materials allocated from criminal cases;
Reports of a crime received from regulatory bodies (for example, audit firms, auditory bodies);
Creditor statement (organization or an individual);
Communication message common in the media.
The list of documents that must be exterminated by the borrower, the debtor, as well as the judicial bailiff for the decision on the presence of a crime, as a rule, includes:
The constituent documents of the debtor (decision to create an organization), the charter (with all registered changes);
A copy of the order (order) on the appointment of the head of the organization;
Credit agreement;
Contracts guaranteeing a loan refund: a collateral agreement, a guarantee agreement, receipt and others;
Documents provided by the borrower at the time of consideration of a loan application that substantiate the possibility of returning on time and in accordance with the terms of the concluded contracts (the balance sheet of the enterprise, the work plan of the enterprise, warehouse books, certificates of state registration of ownership of residential (non-residential) premises, passport technical means and other documents);
The decision of the Arbitration Court or the court of general jurisdiction on the recognition of the person by the debtor on the claim of the lender. The decision should be entered into legal force and an executive list was issued on it;
Certified copy of the execution sheet;
Certified copy of the decision on the initiation of enforcement proceedings;
Information about the property status of the debtor (answers to requests in tax inspection, technical inventory bureau, traffic police, Rosreegy, Pension Fund etc.);
A certified copy of the Act of the Opisi and the arrest of the debtor's property (if the arrest was imposed on property);
Certified copies of documents on the involvement of the debtor to administrative responsibility (decrees, protocols);
Preventing a debtor about criminal liability under Art. 177 of the Criminal Code of the Russian Federation;
Explanations of the debtor about the reasons of the loan;
Explanation of the bailiff;
Explanations of the lender.
Depending on the specific circumstances, acts in the investigator can also be exterminated by other documents necessary to resolve the crime report.
3. Features of the investigation of crimes envisaged by Art. 177 of the Criminal Code of the Russian Federation
As practice has shown, the main investigative actions made in connection with the need to obtain an evidentiary cities in criminal cases of malicious evasion from paying off payable, are: interrogations of a suspect, victim, witness, recess, search, inspection of items (documents), the production of forensic examination.
Inspection of the scene
In accordance with Part 2 of Art. 176 Code of Criminal Procedure In view of the scene of the incident in cases that do not endure deposits can be made before the initiation of a criminal case. For crimes provided for by Art. 177 of the Criminal Code of the Russian Federation, this investigative action is made in order to immediately withdraw from the scene of the documents, other items related to the verification of the crime report, to confirm and consolidate the data investigator received.
With this in mind, it is necessary to note that when inspection of the scene and drawing up the protocol, it should not only be recorded by the signs of seized objects and documents, but also lead to detailed description Premises, storage facilities, area. It will be distinctive feature What was carried out precisely the inspection of the scene, and not the secession of documents that can be made only after the initiation of a criminal case.
Search, recess
Search, the seizure is made in order to withdraw objects, documents and values \u200b\u200bthat may be significance for a criminal case. Based on the tactics of investigating crimes in the field of economics, searches and recess, it is advisable to plan and produce at the initial stage of the investigation, in order to exclude the possibility of destroying suspects, documents that have an important evidentiary importance.
In the production of data investigative actions It is necessary to take into account the norm of Part 2 of Art. 182 of the Code of Criminal Procedure of the Russian Federation on the need to take a judicial decision on excavation and withdrawal by conducting a search for subjects and documents containing information on deposits and accounts in banks and other credit institutions.
Unlike the search, the basis of the production of which is the presence of sufficient data to believe that in any place or from a person may be subject to objects and documents that may be significance for a criminal case, the recess is made when it is just known, What subjects and documents are subject to withdrawal, as well as where they are.
Inspection of items (documents)
After the production of removing accounting documentation The debtor either of its withdrawal during the search, as well as the draft records found in the process of its holding, it is necessary to conduct an inspection of these documents, preferably with the participation of a specialist economist or an accountant.
As a result of the inspection, the investigator should have clear ideas about the accuracy of which accounting documents is questioned, or which of them contain contradictions, etc., which causes the setting of tasks for the subsequent interrogation of the expert or the appointment of expertise. Also during the inspection with the participation of a specialist, the suitability of draft records is determined and the sufficiency of the available documents for the production of expertise is determined and the selection of materials will subsequently become its objects.
The purpose of the inspection is to establish a physical evidence in a criminal case (Art. 81 of the Code of Criminal Procedure).
Appointment and production of economic expertise
In addition to the participation of a specialist economist or an accountant in carrying out investigative actions, the results of economic expertise play an important role for a successful investigation of the criminal case. Depending on the direction of research and issued issues, economic experts are commonly divided into accounting and financial and economic.
The purpose of the examination is to obtain a fairly complete and objective information on the financial and economic activities of the debtor during periods of non-payment of payables to establish the maliciousness of evasion: the establishment of sufficient funds to repay debt during non-payment periods, identifying the facts of concealment and alienation of property, reducing its book value, Sumy received profits, illegal transfer of funds from the debtor's account.
With the help of financial and economic expertise, it is possible to define the financial condition and solvency of the debtor, disproportions in income and expenses, which influenced the value of the balance sheet profit and the provision of working capital, as well as the establishment of negative deviations on individual deposit and cash expenditure.
Using the judicial accounting examination, it is possible to establish the nature and mechanism of distorting credentials and the degrees of their impact on high-quality and quantitative indicators of economic activity, identity definition or distinction of draft data with data accounting According to their semantic and structural content, as well as the recreation of distorted or missing credentials.
Conducting judicial and economic experts due to the large volume and complexity of the material under study occupies a rather long period of time and, as a rule, requires employment of several expert economists (accountants), in addition, and high loads should be noted expert institutions. Therefore, a number of questions can be resolved and without the appointment of forensic expertise, for example, as part of the inspection of documents with the participation of a specialist and its subsequent interrogation.
The investigator should first determine the range of issues, the finding of which is necessary to establish the truth in the case, based on the existing economic information, and then decide which of these it is possible to receive a response without conducting an examination by conducting other investigative actions.
In addition, the investigator even during the verification of a message about malicious evasion to pay off payables, it is necessary to resolve the issue of documentary inspections, including audit and audits in order to establish violations of accounting rules and distortion of credentials. Subsequently, acts of such inspections and audits can be the main objects of forensic expertise.
When appointing financial and economic expertise in the process of investigating malicious evasion to pay off payables for expert permission, the following questions may be delivered:
1. Are there intent indefinitions or overestimations on specific income and cash flows of the organization ( individual entrepreneur). If so, they affected the value of the balance profit and the indicators associated with it. What exactly and how?
2. Are there in the represented financial documents of the distortion of reporting data on the profits of the organization (individual entrepreneur)?
3. What is the amount of the income of the organization (individual entrepreneur) for a specific period (for example, for the period of the fee of the payments to the repayment of debt)?
4. What amount was on the settlement accounts and in the debtor's office in a specific period (for example, at the time of the entry into force of the judicial act on the recovery of debt or about paying securities)?
5. What amount of funds was in the circulation of the organization (individual entrepreneur) in a specific time interval?
6. What is the amount of recoveors of the organization for a certain period of time?
7. It is true of the cost of production (works, services) of the organization of costs. If not, did this not affect the inconsistency of the organization's profits (individual entrepreneur)?
8. Is the falsification of the financial calculations of the income and consumption plan (for example, settlements of production costs, the formation of special funds for the repair of fixed assets, modernization, etc.)?
9. Does the specific financial operations of the enterprise on the distraction of funds from the economic turnover?
Prior consultation with the expert is necessary for the correct formulation of issues.
To resolve this circle of questions, the expert must provide orders (memorial orders), statements and other registers, the main book or the book of registration of economic operations, the balance of the enterprise and the application to it, including the report on financial results and their use. In cases where it is not possible to submit accounting registers, for example, due to their concealment or destruction by the debtor and the need for their searches, the expert can be directed properly selected and grouped during the inspection with the participation of the primary documents (overhead, parietal and expenditure checks Orders, payment orders, invoices, etc.).
When appropriating the judicial accounting examination in the process of investigating malicious evasion from repaying payables on expert permission, the following questions may be delivered:
1. With which accounting operations, the amount of profit obtained during a certain period of time was underestimated (for example, from the moment of entry into force of the judicial act on the recovery of payables)?
2. How were the specific items of expenses and what the mechanism of distorting data of accounts were overestimated when drawing up balance?
3. Does not be seen in the records on a specific account of signs of irregularity or partial reflection of operations to sell products to a specific amount, if so, how did this affect the company's balance sheet?
4. How were the specific items of expenses and what is the mechanism of distortion of these accounts?
5. Are there any changes in the documents in the accounts that created the possibility of eliminating receivables?
6. Are there any data in draft records identical to the content of official accounting data. If so, then what group of credentials. What group of credentials see discrepancies with draft records and how much?
7. What is the possible content of specific indicators that are missing in account documents, or what is the real meaning of distorted indicators?
8. For what operations and what amount did the unjustified write-off of values \u200b\u200bbe carried out?
9. What amounts of cash in accordance with the available draft notes did not enrolle in the cash register or on the current account?
For the forensic accounting examination, the expert should be directed, first of all, the main book, the balance of the enterprise, draft records (subject to their suitability for conducting an expert study), as well as other registers and primary documents. In addition, the expert may also need and other materials of the criminal case may also be needed: protocols of inspections of documents, interrogation protocols, bank statements, other service documentation of the organization, etc.
It should also be noted that because for accounting and organizing financial and economic activities of a legal entity (individual entrepreneur) is currently inevitable to use achievements information technologies: electronic computers and softwareCrimelessly significant economic information may be contained not only on paper, but also on magnetic and electronic media: CD or DVD discs, USB flash drives and flash cards, hard drives of personal computers, laptops, external hard drives, memory of pocket personal computers etc.
So, according to paragraph 7 of Art. 9 and paragraph 1 of Art. 10 of the Federal Law No. 129-FZ "On Accounting" dated November 21, 1996 Primary and summary documents, as well as accounting registers, can be drawn up both on paper and magnetic media. The use of all sorts of accounting programs for maintaining automated accounting, for example, "1C: Accounting", "Parus", "Info-Accountant", "Buchept", "Folio Buchumber", "Order", "Folio Source documents"And other software products. These facilities before appointment of expertise are subject to inspection, both with the participation of a specialist economist (accountant) and, if necessary, a specialist in the field of information technology, for example, if the files are password protected, have a hidden nature to make access to information and etc..
In criminal cases of crimes provided for by Art. 177 of the Criminal Code, it is possible to appoint and conduct other expertise. For example, handwritten, in cases where the guilty face denies the authenticity of his signature on the payment document, etc.
Interrogation of the suspect
The main issues to be found out when interrogation of the suspect is:
From what period the questioned occupies one or another position;
Based on which documents carried out (carried out) its activities and what was or included in the circle of his duties;
It is in his duty signing contracts, including credit. If the position occupied was nominal, then who actually performed his duties, and who can confirm this information;
How much and in which organization (in which individual) a loan was taken and to what period should be repaid. Have a prolongation of a loan agreement had a place;
Who was a counterparty for concluded agreements, which obligations on it were not carried out by the guilty party, what is the amount of debt;
For what purpose was a loan, as from what funds planned to repay a loan, which documents can be in confirmation;
What documents and when they were presented to the credit institution to substantiate their financial consistency, data on official personwho adopted documents;
Is there in the property movable and immovable property and place of its location;
Does not suffer from mental illness, whether it is working better, whether there are good reasons for violation of the terms of the loan agreement, if so, what documents it can submit to confirmation;
Whether the lender was associated with the suspect or representatives of the lender on the payment of debt, before they were decided to appeal to court with a claim. If so, how and with what periodicity also addressed to what agreement as a result came;
Does he know about the court decision, he took part in court sessions personally either through your representative;
Whether he appealed the decision of the court to the higher courts and what are the results, motives and arguments of appeal;
Did the bailiff of the bailiff applied to him. If so, whether the questioned in connection with these measures aimed at repaying payables. If not, then why;
Whether the tourist and spa vouchers acquired, whether fitness clubs visited, other clubs, saunas, paid cellular services, for which funds currently exist, their source and amount;
Whether loans took in other credit institutions, from other individuals, if so, when and how much. What are the reasons for which loans took, from which funds planned to pay them, in which volume they are currently paid. How this data it can confirm documented;
Did the borrower performed in the role of the borrower, what is the source of these funds, whether the debt was redeemed, whether the assignment of the right of claim, if so, when and for what reasons. How this data it can confirm documented. If there is information in the case of the case that the accused appealed in the organization or to individualswho owe him a certain amount of money, with a request to list this debt on his administrative letters to third parties (his creditors), find out: when and to whom he was addressed to the suspect with the specified request, who was and signed by administrative letters (the latter subsequently subject to withdrawal For compliance with the criminal case materials), what amount as a result was listed on creditors' accounts and to what extent it ruined the debt (fully or partially). Whether he made any more transactions on the alienation of property;
Whether a suspected opportunity has to pay off payables in full or partially. What documents he can provide in confirmation of his words;
What measures does the correction of an unfavorable financial situation, how can it be confirmed;
Whether to repay any debt to anyone, how can it confirm this (for example, to provide a power of attorney);
In the presence of data that in order to evade the repayment of payables, the suspect provided unreliable accounting data, it is necessary to interrogate it on this fact with a mandatory presentation during the interrogation of these documents.
If in the process of interrogation, the circumstances in need of concretization are found, the task of the investment is in competent formulation of issues. In some cases, it is advisable to invite a specialist or expert to interrogate. The arguments of the suspect must be checked.
Interrogation of the victim
The victim can be recognized as a physical and legal entity. According to Part 9 of Art. 42 Code of Criminal Procedure If the victim of the legal entity is recognized by its right to implement a representative. Before the beginning of the interrogation, along with the identity documents, a representative of a legal entity should have documents testifying that it is authorized to protect the interests of his organization (for example, a copy of the Protocol of the Constituent Assembly and the decision of the shareholders on the appointment, the Charter, if the interests A legal entity represents its general director, a power of attorney, if any other person who is entrusted to represent the interests of the organization during pre-trial and judicial proceedings in a criminal case).
The main issues subject to clarification when interrogation of the victim are:
Accurate details and lender address;
When exactly the borrower received a loan and how much;
Under what percentages a loan was issued and for what time it should be repaid;
What is currently the total amount of debt;
During the loan agreement, there were any contracts that guarantee the return of the loan, if so, what exactly (contract deposit, guarantee agreement, other contracts);
Whether the loan is insured if yes, then in which insurance organization, the reasons for the failure of the Insurer from the production of payments;
Whether the rights and obligations of the parties were stipulated in the contract in case of the impossibility of repaying the loan in set time and the possibility of its extension under certain conditions;
Whether the claiming procedure for the consideration of disputes enshrined in the contract was originally observed;
What is the purpose of obtaining a loan;
What documents containing a written substantiation of the possibility of timely repayment of debt were represented by a borrower when issuing a loan agreement;
When precisely and under what circumstances were subsequently met with the debtor. Whether there were any materials in connection with these, in which his explanations would be fixed on the reasons for the impossibility of timely repayment of accounts payable;
Whether the debtor was sent registered letters with a warning about the possibility of bringing him to criminal liability. If so, when both the address (receipts need to be requested and attached to the materials of the criminal case);
He addressed Lie credit organisation To debtor guarantors (if any). Are the lender attempted to recover borrowed property or money from the guarantor in judicial order and what are the results of legal proceedings;
If the obligation was secured by a deposit, then what he was expressed, what is its size and location. Levator attempts were taken to appeal to the debtor's mortgaged property, the location of the property at present, if the contract specified in the contract is not in place, whether the corresponding act was compiled (it must be requested and attached to the case file);
Whether the victim has any information, including documentary, about the property status of the debtor is currently;
Whether the debtor provided in connection with the nomination of the requirements for the repayment of payables of any pressure on the lender, if so, then what it was expressed.
During the interrogation, other issues related to the circumstances of the case may occur.
Interrogation of a witness
If the loan was taken to the bank, then a particular importance in the investigation of the crimes of this category has interrogation as witnesses of employees of legal and credit departments, due to the fact that they carry out legal support of credit relations and monitor the financial condition of the borrower. When interrogation of these persons, the following questions are subject to find out:
Who exactly established the financial condition of the borrower for its creditworthiness and who made a decision on the issuance of the loan;
How the borrower is inspected, its mechanism;
What information were represented by the borrower to substantiate their solvency, how can it confirm this;
What is the credit history of the borrower, the duration of the relationship between the lender and the debtor, were the loan contracts previously between them and they were executed by the debtor;
Are there any information about the non-fulfilled debt credit obligations to other credit institutions;
If the debtor has not previously performed contractual obligations, then the conclusion of a new treaty was determined;
Are there any information about the financial status of the debtor currently, which is the source of their receipt.
Under the interrogation of the bailiff, it is necessary to find out:
When and who executed enforcement proceedings;
Was a debtor on challenges of the bailiff;
Warned a debtor about criminal liability under Art. 177 of the Criminal Code of the Russian Federation;
Whether the search was announced;
What work was carried out on the compulsory execution of the judicial act and the establishment of the property of the debtor;
What information about the property status of the debtor was established on the executive proceedings;
What circumstances the debtor explains evasion from repaying the existing debt;
If the decision of the Arbitration Court, the court of general jurisdiction was not executed, then for what reason;
If the court decision is partially executed, then in which part of its part and in what time frames the debtor pledged to repay the debt in full;
Whether the property of the debtor was arrested, if so, what exactly.
In addition, important testimony of criminal proceedings such witnesses as relatives and familiar debtors, as well as police officers (for example, a district police inspector, security officers to combat economic crimes, who are familiar with his personality) can be given.
Features of the procedure for overlaying arrest on securities
When investigating a criminal case under Art. 177 of the Criminal Code of the Russian Federation in order to ensure compensation for harm caused by the crime may be necessary to impose arrest on securities.
Arrest on securities can be imposed by the bailiff in accordance with Art. 82 of the Federal Law of 02.10.2007 No. 229-FZ "On Enforcement Proceedings", as well as the investigator under an initiated criminal case, which is regulated by Art. 116 Code of Criminal Procedure.
The concept and types of securities were considered earlier.
Arrest on documentary securities is imposed on their location. The documentary form of emission securities is such a form at which the owner is established on the basis of a properly issued certificate of security or, in the event of a certificate deposit, on the basis of a depositor's record in the depositary.
Arrest on non-documentary securities is imposed on the place of accounting for the rights of owners of these papers (Issuer, Depositary or other specialized organization, which has an appropriate permission). Non-documentary securities (emission, transition of rights, etc.) are recorded with the means of electronic computers, and the person who has fulfilled the right, is obliged to give him a document at the request of the owner, indicating the fixed right.
The investigator can request information about the fixed right of securities (both documentary and non-documentary). The source of obtaining the necessary information is professional participants in the securities market, issuers.
The information that should be reflected in the protocol on the imposition of arrest is indicated in part 3 of Art. 116 Code of Criminal Procedure.
It should be noted that in the certificates of securities or in securities on the bearer, not all of the specified information may be contained. On securities on the bearer may not be any documents confirming the ownership of them, since civil law The ownership is designed by the fact of ownership of valuable paper. Additional information relating to bill, check, warehouse certificate and securities for bearer should be obtained from individuals issued by these papers.
The overlaying of arrest on the securities belonging to the debtor means a ban for the debtor to dispose of them (selling, to provide third parties as to ensure its own evidence or obligations, and also transfer such securities to account for the rights to another depositary or registry holder). When establishing other restrictions, including income, they must be listed in the decree on the imposition of arrest.
Information on operations produced with securitiesIt should be reflected in the criminal case materials with the introduction of the necessary documents.
Acquaintance with the materials of the criminal case, drawing up an indictment
In their way legal meaning The indictment is equivalent to the decision to attract a person as an accused, since from the moment the indictment of the accusatory act is a suspect in a criminal case acquires the status of the accused. In the formulation of the charge under Art. 177 of the Criminal Code of the Russian Federation should pay attention to the mandatory indication of the time and place of the crime.
In accordance with Art. 223 Code of Criminal Procedure The judicial investigation begins with the statement of the prosecuted charges, therefore, when drawing up an indictment, it is necessary to avoid vague wording and not overload the text with insignificant details.
In accordance with Part 2 of Art. 225 Code of Criminal Procedure of the Russian Federation accused, his defender must be familiar with the materials of the criminal case. The victim or his representative for his (their) petition in the same procedure seemed to familiarize themselves with the case file and the indictment.
The case materials before presenting them to the accused and his defender should be linked, numbered, should be compiled by their inventory. A list of persons to be challenged to court is attached to the indictment, and certificate of dignity of inquiry, selected extensive extension, material evidence, civil lawsuit, measures taken to ensure civil law, procedural costs, and in the presence of the accused dependents - about the measures taken to ensure their rights.
At the end of the acquaintance of the accused and his defender, the victim and his representative with the materials of the case, the investigator is a protocol with the materials of the criminal case (Art. 218 of the Code of Criminal Procedure). At the same time, the accused is clarified by his right to declare a petition for the consideration of the case by the court with the participation of jury, on the decision of the sentence without conducting a trial with the consent of the accused with the accusation charged it.
Management of the organization of inquiry and administrative practice
____________________* (1) See: The sentence of the Presnensky District Court of Moscow of April 23, 2009 in relation to Pierzbin A.N.
* (2) See: Verdict of the Kirovsky District Court of Kursk dated March 23, 2009 against Mamaykina AG, the verdict of the Alapaevsky City Court of the Sverdlovsk Region dated December 30, 2009 against Lukashevich T.G.
* (3) See: Information Letter of the General Prosecutor's Office of the Russian Federation of 01.11.2008 No. 69-21-2008 "On the practice of the application of Article 177 of the Criminal Code of the Russian Federation".
* (4) See: Sentence of the Primorye-Akhtar District Court of the Krasnodar Territory dated December 15, 2009 against Moroz V.Yu., the verdict of the Ingodinsky District Court of the Cheats of 10.11.2009 against Dolgova S.L.
* (5) See: Determination of the Supreme Court of the Russian Federation No. 2-098-31 in the case of Bolshakova. Overview of the judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2009 // Bulletin of the Supreme Court of the Russian Federation. 1999. No. 10. P. 9; Resolution of the Presidium of the Supreme Court of the Russian Federation of 13.06.2007 No. 655-P06 // Bulletin of the Supreme Court of the Russian Federation. 2008. No. 4; Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2007 No. 51 "On judicial practice on fraud, assignment and estrus".
Apparently, a typo is made in the text of the previous paragraph. Instead of "for the first quarter of 2009" mean "in the first quarter of 1999"
* (6) See: The verdict of the Sukhinsky District Court of the Kaluga Region dated September 28, 2009 in relation to Aldo T. E.
* (7) See: The verdict of the Kashirsky City Court of the Moscow Region dated 04/15/2009 against Gurova D.I., the sentence of the Bezhitsky District Court of Bryansk dated July 01, 2009 in relation to Zorina V.S.
* (8) See: The verdict of the Ingodinsky District Court of Cheats dated 10.11.2009 against Dolgova S.L.
* (9) See: Information Letter of the General Prosecutor's Office of the Russian Federation of 01.11.2008 No. 69-21-2008 "On the practice of the application of Article 177 of the Criminal Code of the Russian Federation".
* (10) See: Educational and Practical Commentary on the Criminal Code of the Russian Federation / Ed. A.E. Zhalinsky. M., 2005.
* (11) See: Information Letter of the General Prosecutor's Office of the Russian Federation of 01.11.2008 No. 69-21-2008 "On the practice of the application of Article 177 of the Criminal Code of the Russian Federation".
* (12) See: Articles 8, 11 of the International Covenant on Civil and Political Rights of 1966, Art. 1 Protocol No. 4 of the Convention on Forced and Mandatory Labor 1930
* (13) See: The verdict of the Malmizhsky District Court of the Kirov region dated December 30, 2009 against Kuzmina S.S.
* (14) See: The verdict of the Sayanogorsk city court of the Republic of Khakassia from 09/02/2010 against Menshikova R.I.
* (15) See: Verdict of the Most Messenger District Court Perm region dated 21.08.2009 in relation to Idrisova R.K.
* (16) See: The verdict of the Armavir City Court of the Krasnodar Territory dated July 7, 2009 against Lutar F.V.
* (17) See: The verdict of the Primorye-Akhtar District Court of the Krasnodar Territory dated December 15, 2009 against Moroz V.Yu.
* (18) See: The verdict of the Sorochinsky District Court of the Orenburg Region dated 21.05.2009 in relation to Stukalova T.V.
* (19) See: The verdict of the Megion City Court of the Khanty-Mansiysk autonomous District - Ugra from 13.08.2009 against Makarova A.A.
* (20) See: The verdict of the Alapaevsky City Court of the Sverdlovsk Region dated December 30, 2009 against Lukashevich T.G.
* (21) See: Information Letter of the General Prosecutor's Office of the Russian Federation of 01.11.2008 No. 69-21-2008 "On the practice of the application of Article 177 of the Criminal Code of the Russian Federation."
* (22) See: Information Letter of the General Prosecutor's Office of the Russian Federation of 01.10.2008 No. 69-21-08 "On the practice of the application of Article 177 of the Criminal Code of the Russian Federation".
* (23) See: Criminal law Russia. Part special / ed. L.L. Kruglikova. 2nd ed., Pererab. and add. M.: Volkers Clever, 2004. P. 291.
* (24) See: Definition Constitutional Court Of the Russian Federation dated January 19, 2005 No. 10th.
* (25) See: Modern Opportunities Forensic Examination / Ed. SOUTH. Korukhova, M., 2000. P. 200.
* (26) See: Kolkutin V.V., Zosimov S.M., Pleshovalov L.V. and etc. Forensic examinations. M.: Yurlitinform, 2006. P. 185
Letter of the Federal Bailiff Service "On Methodological Recommendations for the Detection and Investigation of Crimes, provided for in Art. 177 of the Criminal Code of the Russian Federation"