“Criminal tools in bankruptcy: instructions for use” — article of managing partner Inna Vavilova for Legal Insight
Unfortunately, creditors often ask the same question: is it possible to bring the debtor to criminal liability? Often this is the only one way to get the real beneficiary of the business to pay off the debts. Is it easy to apply this tool of pressure in practice, and what are the features of the application of so-called bankrupt articles?
Disadvantages of regulation
The professional community believes that the legislation provides for an insufficient number of types of criminal composition suitable for the situation of bankruptcy. Allegedly, even when the case is initiated, the lack of understanding of business development and the movement of financial flows, as well as private law, greatly complicates the work of law enforcement agencies on the available options. We can only agree with this partly. In fact, there are enough varieties of bankrupt (near-bankruptcy) composition in the Criminal code of the Russian Federation. First of all, these are articles 195 and 196 of the criminal code, establishing liability for wrongful acts in bankruptcy, as well as for intentional and fictitious bankruptcy.
Many variants of economic composition aimed at preventing the illegal withdrawal and concealment of assets are also practically significant (art. 145.1, 159, 159.1, 160, 174, 176, 177, 199, 199.1, 199.2 201, 303, 330 criminal code). In particular, we are talking about fraud, including in the field of credit; about abuse of power; misappropriation or embezzlement; arbitrariness; legalization (laundering) of funds or other property acquired by other persons by criminal ways; illegal receipt of credit; malicious evasion of repayment of accounts payable; falsification of evidence and results of operational investigative activities; full or partial non-payment of wages; evasion of taxes and (or) fees from the organization; concealment of funds of the organization, due to which the collection of taxes and (or) fees; failure to fulfill the obligations of the tax agent to transfer taxes in large amounts.
Nevertheless, the use of criminal tools in bankruptcy acquires many nuances. The provisions of article 195 and 196 of the criminal code (illegal actions in bankruptcy and deliberate bankruptcy) is formulated so that, overlap with conventional economic composition: fraud, abuse of authority, misappropriation, embezzlement, etc. However additionally, article 195 of the criminal code requires the so-called bankruptcy situation as aggravating circumstance of the whole. In other words, the wrongful acts must be committed when there are appropriate signs of insolvency.