Resolution of the Plenum of the Supreme Arbitration Court, as a commentary to Art. 201 of the Criminal Code of the Russian Federation
Which of us, representing the interests of clients affected by the actions of legal entities, represented by their management, has not faced the dilemma of appealing to an arbitration court, or a court of general jurisdiction in civil proceedings, or, immediately, to law enforcement agencies with a demand to initiate a criminal case? , and bringing the perpetrator to criminal liability. The first way, taking into account the peculiarities of the domestic judicial and judicial-executive systems, although it is aimed at directly achieving the result - full compensation for losses, is not at all a fact that it will allow this result to be achieved.
One of the most common reasons for the inability to achieve the set goal is the failure to enforce a court decision that has entered into legal force due to the lack of sufficient assets of the given legal entity.
Filing an application to declare such a legal entity bankrupt is often perceived by the management of this legal entity as a gift of fate - taking into account the specifics of the appointment of an arbitration manager established by the Federal Law “On Insolvency (Bankruptcy)”, it makes it possible to satisfy the creditor’s claims with a relatively small amount of property claims , completely foggy.
In addition, the creation of artificially inflated accounts payable on the part of persons interested in bankruptcy is not such a difficult task...
You don’t need to look to dadeko for an example - let’s say, a chain of stores under a single brand “Global USA” worked exactly according to this scheme: the store took the goods “for sale”, and, after sale, money was given to entrepreneurs who had the temerity to “take the bait” on a big brand , they might not have arrived. Never.
It seems that the most effective scheme for resolving the issue of collecting losses is to transfer responsibility from a legal entity to individuals who make sole management and financial and economic decisions - general directors, presidents, etc., etc.
Agree - the prospect of criminal prosecution with all the ensuing negative consequences attracts few people. But even here there are pitfalls that are worth remembering.
Thus, the most typical mistake made by those who request the initiation of a criminal case for causing harm due to failure to fulfill obligations is the requirement to bring the perpetrators to criminal liability under Art. 159 of the Criminal Code of the Russian Federation (Fraud).
For all that, the concept of fraud can be interpreted by law enforcement agencies, for obvious reasons, very broadly, we must not forget that, for the same reasons, they (law enforcement agencies) may not see the elements of fraud where it is clearly present.
If we abstract from the subjective reasons for the problems in using Art. 159 of the Criminal Code of the Russian Federation, as a tool of influence on an unscrupulous counterparty, the objective reason for such problems is the lack of understanding that fraud is nothing more than one of the forms of theft, differing from other forms only in the method.
Therefore, before declaring that fraud has been committed against a certain person, it is worth remembering that: “theft is an unlawful gratuitous seizure and (or) conversion of someone else’s property in favor of the culprit or other persons, committed for mercenary purposes, causing damage to the owner or to another owner of this property" (clause 1 of Resolution No. 29 of December 27, 2002 of the Plenum of the Armed Forces of the Russian Federation "On Judicial Practice in Cases of Theft, Robbery, Robbery."
Well, what if the very fact of “illegal, gratuitous seizure for mercenary purposes” has not been proven? Therefore, there is no fact of theft, but no... - further - it is known...
And this is where Article 201 of the Criminal Code of the Russian Federation (Abuse of Power) comes to our aid. According to the disposition of this article, the subjects of the crime are persons performing managerial functions in a commercial or other organization.
These, according to paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 N 19 “On judicial practice in cases of abuse of power and exceeding official powers,” include “persons performing the functions of a sole executive body, a member of the board of directors or other collegial executive body, as well as persons who permanently, temporarily or by special authority perform organizational, administrative or administrative functions in these organizations (for example, director, general director, member of the board of a joint stock company, chairman of a production or consumer cooperative, head of a public association , religious organization).” It is clear that the crime provided for in Art. 201 of the Criminal Code of the Russian Federation, can only be committed intentionally.
But what kind of actions that caused significant harm or entailed serious consequences can be considered intentional.
And here, in addition to the mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 N 19, the subtitle Resolution No. 62 of July 30, 2013 of the Supreme Arbitration Court of the Russian Federation “On some issues of compensation for losses by persons included in the bodies of a legal entity” comes to our aid. faces." According to this resolution, these actions can be both unfair and unreasonable.
I believe that dishonest actions are of greatest interest to us, since they contain intent, which, in particular, is confirmed by the list of such actions: “The dishonesty of the director’s actions (inaction) is considered proven, in particular, when the director:
1) acted in the presence of a conflict between his personal interests (the interests of the director’s affiliates) and the interests of the legal entity, including if the director had an actual interest in the legal entity completing a transaction, except in cases where information about the conflict of interest was disclosed in advance and the actions of the director were approved in accordance with the procedure established by law;
2) hid information about the transaction he completed from the participants of the legal entity (in particular, if information about such a transaction, in violation of the law, charter or internal documents of the legal entity, was not included in the reporting of the legal entity) or provided the participants of the legal entity with false information regarding the relevant transaction ;
3) made a transaction without the approval of the relevant bodies of the legal entity required by law or the charter;
4) after termination of his powers, withholds and avoids transferring to the legal entity documents relating to circumstances that entailed adverse consequences for the legal entity;
5) knew or should have known that his actions (inaction) at the time of their commission were not in the interests of the legal entity, for example, he made a transaction (voted for its approval) on conditions that were obviously unfavorable for the legal entity or with a person who was obviously unable to fulfill the obligation (“a shell company”, etc.).
A transaction on unfavorable terms means a transaction, the price and (or) other conditions of which differ significantly for the worse for the legal entity from the price and (or) other conditions under which similar transactions are made in comparable circumstances (for example, if the provision received under the transaction by a legal entity, two or more times lower than the cost of the provision made by the legal entity in favor of the counterparty).
The unprofitability of a transaction is determined at the time of its completion; if the unprofitability of the transaction was discovered subsequently due to a violation of the obligations arising from it, then the director is liable for the corresponding losses if it is proven that the transaction was initially concluded with the purpose of non-fulfillment or improper execution.
The director is exempt from liability if he proves that the transaction he concluded, although unprofitable in itself, was part of interrelated transactions united by a common economic goal, as a result of which the legal entity was expected to receive benefits. He is also released from liability if he proves that the unfavorable deal was concluded to prevent even greater damage to the interests of the legal entity.
When determining the interests of a legal entity, one should, in particular, take into account that the main purpose of the activity of a commercial organization is to make a profit (clause 1 of Article 50 of the Civil Code of the Russian Federation); it is also necessary to take into account the relevant provisions of the constituent documents and decisions of the bodies of the legal entity (for example, on determining the priority areas of its activities, on the approval of strategies and business plans, etc.).
A director cannot be recognized as acting in the interests of a legal entity if he acted in the interests of one or more of its participants, but to the detriment of the legal entity.”
The question of proving the bad faith of those mentioned, from my point of view, looks preferable in the form of a court decision that has entered into legal force.
Of course, this path requires more time and material costs, but, on the other hand, we receive evidence, which, within the framework of criminal proceedings, is considered as a prejudicial circumstance (Article 90 of the Code of Criminal Procedure of the Russian Federation).
That is, the use of a comprehensive method of compensation for harm seems to be more effective than using only a civil or criminal method of resolving this issue.
And, here, his further fate depends on the causer of harm - if reason prevails at the stage of pre-investigation check - he still has a chance not to spoil his biography, but if a criminal case has already been initiated, with all the multivariate development of events, their ending differs only in the degree of severity consequences...
Everything about criminal cases
Go to the articles of the Criminal Code in this area
Plenum of the Supreme Court of April 28, 1994 No. 2
“On judicial practice in cases of production or sale of counterfeit money or securities” (ed. 02/06/2007)
TABLE OF CONTENTS
| Intent — clause 2 Plenum No. 2 counterfeiting is possible only with direct intent Low quality fake — clause 3 Plenum No. 2, a gross forgery is not Manufacturing — clause 4 Plenum No. 2 manufacturing is a completed crime regardless of the fact of sale Sales — clause 5 Plenum No. 2 what is the sale of counterfeit banknotes Outdated money — clause 6 Plenum No. 2 selling old money is a scam Paying with fakes — clause 7 Plenum No. 2 theft by paying with counterfeits is part |
1) Draw the attention of the courts to the fact that the production for the purpose of sale or sale of counterfeit money or securities acquires an increased public danger in the conditions of the emergence of a market economy, undermining the stability of the domestic currency and complicating the regulation of money circulation.
2) The production for the purpose of sale or sale of counterfeit money, government securities or other securities in the currency of the Russian Federation or foreign currency or securities in foreign currency can only be carried out with direct
intent, the absence of a marketing purpose in production excludes criminal liability.
3) The crime consists of both partial counterfeiting of banknotes or securities (alteration of the denomination of a genuine banknote, counterfeiting the number, series of a bond and other details of money and securities), and the production of completely counterfeit money and securities.
When deciding whether or not a person’s actions contain corpus delicti under Article 186 of the Criminal Code
, it is necessary to establish whether banknotes, coins or securities are counterfeit and whether they have significant similarity in shape, size, color and other basic details with genuine banknotes or securities in circulation.
In cases where the obvious discrepancy between a counterfeit banknote and a genuine one, which excludes its participation in money circulation, as well as other circumstances of the case, indicate the intent of the perpetrator to grossly deceive a limited number of people, such actions can be qualified as fraud
.
Crude fake
| - a gross fake, this is not counterfeiting, but fraud. — the counterfeit must be of high quality, that is, counterfeit bills must have a significant resemblance to the real ones ( clause 3 Plenum No. 2). |
4) The production of counterfeit banknotes or securities is a completed crime if at least one banknote or security is manufactured for the purpose of subsequent sale, regardless of whether the sale of the counterfeit was successful.
5) The sale of counterfeit money or securities consists of using them as a means of payment when paying for goods and services, exchanging, donating, lending, selling, etc. The acquisition of knowingly counterfeit money or securities for the purpose of their subsequent sale as genuine should be qualified under Article 30 of the Criminal Code
and
186 CC
.
Criminal liability for the sale of counterfeit money, securities and foreign currency is subject not only to persons involved in their production or sale, but also to persons who, due to a combination of circumstances, become the owners of counterfeit money or securities, who are aware of this and nevertheless use them as genuine.
Mindfulness
| - responsibility for selling counterfeit money is possible only if there is awareness: - if you pay in a store with a counterfeit banknote, not knowing that it is counterfeit, then you cannot be charged under 186 of the Criminal Code , criminal liability occurs only with conscious sale. — it is the awareness of selling counterfeit money that is indicated as a mandatory criterion in paragraph 5 Plenum No. 2. - if a person did not realize the fact of counterfeiting, then he is not subject to liability ( Part 1 28 of the Criminal Code ). |
6) The production for the purpose of sale and sale of banknotes and securities withdrawn from circulation (old coins, Soviet money abolished by monetary reforms, etc.) and having only collection value do not constitute a crime under Article 186 of the Criminal Code
, and should, if there are grounds for this, qualify as
fraud
.
7) Illegal acquisition by a person of someone else’s property as a result of transactions carried out with counterfeit money or securities is covered by Article 186 of the Criminal Code
and does not require additional qualifications under the relevant articles providing for liability for theft.
Since a cash lottery ticket is not a security, its counterfeit for the purpose of selling or illegally obtaining winnings qualifies as preparation
to fraud. In the case of selling a counterfeit lottery ticket or receiving a winning from it, what the perpetrator did should be classified as fraud.
Return to articles of the Criminal Code in this area
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Legislative framework of the Russian Federation
In view of changes in criminal legislation, the Plenum of the Supreme Court of the Russian Federation decides to state the resolution of the Plenum of the Supreme Court of the Russian Federation dated April 28, 1994 No. 2 “On judicial practice in cases of the manufacture or sale of counterfeit money and securities” in the following wording:
“In connection with the issues that arise for the courts when applying legislation providing for liability for the manufacture or sale of counterfeit money or securities, the Plenum of the Supreme Court of the Russian Federation decides:
1. Draw the attention of the courts to the fact that the production for the purpose of sale or sale of counterfeit money or securities acquires an increased social danger in the conditions of the emergence of a market economy, undermining the stability of the domestic currency and complicating the regulation of money circulation.
2. The production for the purpose of sale or sale of counterfeit money, government securities or other securities in the currency of the Russian Federation or foreign currency or securities in foreign currency can only be carried out with direct intent; Failure to produce a product for sale excludes criminal liability.
3. The crime consists of both partial counterfeiting of banknotes or securities (alteration of the denomination of a genuine banknote, falsification of the number, series of a bond and other details of money and securities), and the production of completely counterfeit money and securities.
When deciding the presence or absence of a crime in a person’s actions under Art. 186 of the Criminal Code of the Russian Federation, it is necessary to establish whether banknotes, coins or securities are counterfeit and whether they have significant similarities in shape, size, color and other basic details with genuine banknotes or securities in circulation.
In cases where the obvious discrepancy between a counterfeit banknote and a genuine one, which excludes its participation in money circulation, as well as other circumstances of the case, indicate that the perpetrator’s intent is aimed at grossly deceiving a limited number of people, such actions can be qualified as fraud.
4. The production of counterfeit banknotes or securities is a completed crime if at least one banknote or security is manufactured for the purpose of subsequent sale, regardless of whether the sale of the counterfeit was successful.
5. The sale of counterfeit money or securities consists of using them as a means of payment when paying for goods and services, exchanging, donating, lending, selling, etc.
The acquisition of obviously counterfeit money or securities for the purpose of their subsequent sale as genuine should be qualified under Art. and 186 of the Criminal Code of the Russian Federation. Criminal liability for the sale of counterfeit money, securities and foreign currency is subject not only to persons involved in their production or sale, but also to persons who, due to a combination of circumstances, become the owners of counterfeit money or securities, are aware of this, and nevertheless use them as genuine .
6. The production for the purpose of sale and sale of banknotes and securities withdrawn from circulation (old coins, Soviet money abolished by monetary reforms, etc.) and having only collection value do not constitute a crime under Art. 186 of the Criminal Code of the Russian Federation, and should, if there are grounds for this, be qualified as fraud.
7. The illegal acquisition by a person of someone else’s property as a result of transactions carried out with counterfeit money or securities is covered by Art. 186 of the Criminal Code of the Russian Federation and does not require additional qualifications under the relevant articles providing for liability for theft.
8. Since a money lottery ticket is not a security, counterfeiting it for the purpose of selling or illegally obtaining winnings qualifies as preparation for fraud.
In the case of selling a counterfeit lottery ticket or receiving a winning from it, what the perpetrator did should be classified as fraud.”
Chairman of
the Supreme Court of the Russian Federation V. LEBEDEV
Secretary of the Plenum
Judge of the Supreme Court of the Russian Federation V. DEMIDOV \r\n
