1. Carrying out banking activities (banking operations) without registration or without a special permit (license) in cases where such a permit (license) is mandatory, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale, -
shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to four years, or by imprisonment for a term of up to four years with a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months or without it.
2. The same act:
a) committed by an organized group;
b) associated with the extraction of income on an especially large scale, -
c) has become invalid. — Federal Law of December 8, 2003 N 162-FZ
shall be punishable by forced labor for a term of up to five years, or by imprisonment for a term of up to seven years, with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years.
- Article 171.5. Illegal activity of providing consumer credits (loans)
- Article 172.1. Falsification of financial documents of accounting and reporting of a financial organization
Good intentions
The head of the company himself insisted: he did not hide the money in the interests of the enterprise, but used it to pay for work and services.
There was a crisis in the market, and he was forced to act in a similar way: while paying off the arrears on taxes, the plant would be left without working capital to pay wages to workers, pay energy suppliers, security services, purchase raw materials and fuel, which would have had more serious consequences.
At the same time, repaying current debts to a real counterparty is not a crime, he noted. This will not be a crime in a situation where formally a debt on taxes and fees has already arisen, but the demand for its payment has not yet been received or the period specified in the received demand has not yet expired. In other words, the leader insisted that his actions did not constitute a crime.
The essence of the illegal act
Banking activity itself is one of the types of entrepreneurial labor. The point is to carry out all kinds of operations related to finance. Moreover, the list of such is legally defined in paragraph 5 of Law No. 395-1 (on banking activities).
For example, these could be:
- attracting funds from citizens and legal entities into deposits (until the moment of demand and for a fixed period);
- opening accounts for individuals and organizations;
- cash services for entrepreneurs and ordinary citizens;
- placement of funds belonging to clients on its own behalf;
- making transfers of funds at the request of clients to their bank accounts;
- collection of payment documents and funds;
- purchase and sale of currency in any form - cash and non-cash and others.
The degree of legality of banking activities is determined by the presence of a special license to conduct credit and settlement operations. Any bank or other financial institution is required to have a similar permit obtained from the Central Bank.
And from here we can extract the meaning of the concept of “illegal banking activities”. This involves conducting activities under the guise of a credit or other institution that carries out all kinds of financial manipulations without registration with the tax authority or without an appropriate license.
Here it is necessary to add that any permit (license) issued by the Central Bank additionally includes a list of operations allowed to be performed in a specific financial institution. And if the founders do not comply with this list, violate the requirements and bypass the established restrictions in every possible way, then the activity will also be considered illegal.
Corpus delicti
It will be possible to bring to justice for illegal banking activities only if the corresponding signs of such an act are identified.
If any of the factors is absent, then the illegal actions can be classified under another article of the Criminal Code of the Russian Federation. The crime includes:
- An object. In case of illegal activity of a bank (or other organization), the object of the crime is the social relations arising as a result of the interaction of such an institution and its clients.
- The objective side is to carry out credit and settlement operations without state registration or in the absence of a license, if such a document is required.
- The subjective side requires the presence of intentional guilt. That is, a person, when committing an act, absolutely clearly understands that his actions are illegal and can lead to some dangerous consequences. However, even with such awareness, he commits a crime out of selfish interest, regarding possible harm to third parties as an unimportant fact, or even deliberately wanting to cause damage.
- Subject (criminal). This can be any person over 16 years of age. A prerequisite is a sane state recorded by the examination. In particular, the subject can be either the head of a financial organization or an individual employee.
For example, when conducting banking activities without special permission, in cases where a document must be received, only officials bear responsibility. In particular, heads of credit institutions, banks and other financial institutions.
It is worth supplementing the listed characteristics with two more points that distinguish illegal banking activities from other crimes.
Namely:
- causing significant damage to persons whose funds were used - organizations, ordinary citizens, the state;
- making a profit on a large scale, in other words, over 2 million 250 thousand rubles.
The indicated factors characterize the completion of the crime. Accordingly, if an act related to financial transactions does not have these characteristics, then it will not be interpreted as illegal banking activity.
It is worth clarifying that when qualifying a crime, only the amount of material damage caused to clients of a credit institution is taken into account. In this case, side effects, such as causing physical harm, are not taken into account.
For example, if, as a result of illegal financial activities, a person lost a large amount of money and suffered a heart attack due to anxiety, then this factor will not be considered as a contributing circumstance.
