New edition of Art. 176 of the Criminal Code of the Russian Federation
1. Obtaining by an individual entrepreneur or the head of an organization a loan or preferential terms of lending by providing a bank or other creditor with knowingly false information about the economic situation or financial condition of the individual entrepreneur or organization, if this act caused major damage, -
shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred and eighty hours, or by forced labor for a term of up to five years, or by arrest for a term of up to six months, or imprisonment for a term of up to five years.
2. Illegal receipt of a state targeted loan, as well as its use other than for its intended purpose, if these acts caused major damage to citizens, organizations or the state, -
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 restriction of freedom for a term of one to three years, or by forced labor for a term of up to five years, or imprisonment for the same period.
Commentary to Art. 176 of the Criminal Code of the Russian Federation
1. Crime under Part 1 of Art. 176, is that individual entrepreneurs, commercial and non-profit organizations of any organizational and legal form receive a loan from any credit organization or achieve preferential lending conditions (in terms of terms, interest rate, etc.) due to the fact that they have introduced a lender misleadingly by providing him with false information about his economic situation or financial condition, depicting them in a more favorable light for himself, from the point of view of the guarantee and security of repayment on time of the loan received.
Deliberately false information about the economic situation is recognized as: incorrect information about the founders, managers, shareholders, main partners, connections, cooperation with other companies; fictitious letters of guarantee, guarantees, property provided as collateral that cannot be foreclosed on, that does not correspond to the declared value, that is not the property of the pledgor, etc.; a feasibility study that incorrectly indicates the main areas of use of borrowed funds, specific business transactions, falsified contracts, payment and other documents about the business transaction for which the loan is directed; fake contracts and other documents that incorrectly indicate the borrower’s ability to sell its products, its competitiveness, market position, etc.; warehouse and accounting data, etc.
Deliberately false information about financial status includes falsified: accounting documents on registration with the tax office; documents in which the financial condition is shown in a better position, certificates of accounts receivable and payable, loans received from other banks, extracts from settlement and current accounts, etc.
2. A prerequisite for criminal liability is the infliction of major damage by these actions to a bank or other creditor. It is necessary to establish that false information provided to the lender influenced his decision to grant a loan or on preferential lending conditions and that if such information about the security of loan repayment had not been received to him, the decision to lend to this borrower would not have been made, or the loan was issued in a smaller amount, on less favorable terms, with additional guarantees of return, etc. Damage is primarily associated with non-return of funds issued to the borrower under a loan agreement, non-payment of interest or untimely repayment of the loan, which causes the lender both real damage and damage in the form of lost profits. To recognize the damage as major, it is necessary that its value exceed 1.5 million rubles. (see note to Article 169 of the Criminal Code).
3. The crime is committed intentionally. In this case, intent, most often indirect, must also be established in relation to the resulting consequences in the form of major damage.
4. Subject of the crime under Part 1 of Art. 176 special: an individual entrepreneur who performs the actions specified in the law when receiving a loan, as well as the head of a commercial or non-profit organization authorized to conclude loan agreements. The remaining management employees and other persons who in one way or another participated in the illegal receipt of a loan are accomplices in the crime.
5. The crime in question must be distinguished from fraud by obtaining funds from a credit institution, allegedly on credit. Fraud (Article 159 of the Criminal Code) is a method of stealing someone else’s property by deception or abuse of trust, when the intent of the criminal is aimed at the unlawful and gratuitous seizure and circulation of someone else’s property for the benefit of the offender or other persons for selfish purposes. In practice, there are numerous cases of theft under the guise of obtaining a bank loan, when a fictitious commercial organization is created, which, after receiving the loan, ceases to exist, and its leaders go into hiding.
When obtaining a loan illegally (Article 176), the criminal’s intent is aimed at temporarily obtaining a loan with the intention of subsequently, albeit untimely, returning the funds taken on credit.
6. The norm contained in Part 1 of Art. 176, is special in relation to the general rule of Art. 165 of the Criminal Code. Because of this, illegal receipt of a loan is qualified only under Part 1 of Art. 176, and not in conjunction with Art. 165 of the Criminal Code.
7. Part 2 art. 176 provides for two other crimes related to credit relations: a) illegal receipt of a state targeted loan, which caused major damage to citizens, organizations, and the state; b) illegal use of a state targeted loan, causing major damage to citizens, organizations, and the state. In these cases, the state acts as a creditor, placing its funds to implement various investment programs.
It will be illegal to receive a state targeted loan when the rules defining the substantive and legal grounds for receiving such a loan are violated, as well as when government bodies deciding on the issue of granting a loan are misled about the grounds for such a decision.
The use of a state targeted loan for other purposes will be the disposal of the funds received in conflict with the goals that were intended and reflected in the decision to grant the loan. Only a state of extreme necessity can justify the use of a state targeted loan for purposes other than its intended purpose (Article 39 of the Criminal Code).
8. Responsibility for the illegal receipt of a state targeted loan lies with persons whose competence includes approving applications for a loan, and for its misuse - those who decided to dispose of the received loan funds.
Crimes are committed intentionally, usually with indirect intent. The motives for crimes can be any and are taken into account when assigning punishment.
9. In art. 285.1 of the Criminal Code provides for liability for misuse of budget funds (see comments to this article). The main difference between this crime and the use of a state targeted loan for other purposes (Part 2 of Article 176) is that the budget funds referred to in Art. 285.1 of the Criminal Code are not a loan and are not provided on the terms of their repayment.
Acquittal under Art. 176 Part 2 of the Criminal Code of the Russian Federation left unchanged
Judge Batmanova I.A. No. 22-2974/11
CASSATION DETERMINATION
Samara July 19, 2011
Judicial panel for criminal cases of the Samara Regional Court, composed of the presiding officer: Posokhova S.V.,
judges: Gorbul N.A., Artyushkina T.I.,
under secretary E.V. Gorbushkova,
examined in open court the cassation presentation of the state prosecutor - deputy prosecutor of the Chelno-Vershinsky district of the Samara region Pavlov A.E., the cassation appeal of the representative of the victim - <data taken> FULL NAME1 against the verdict of the Isaklinsky district court of the Samara region dated 05.05.2011, by which
Abramova G.G., DD.MM.YYYY year of birth, native of <address>, resident; <address>, citizen of the Russian Federation, married, <data taken>, no previous convictions,
acquitted of committing a crime under Part 2 of Art. 176 of the Criminal Code of the Russian Federation due to the lack of corpus delicti in her actions.
Having heard the report of judge Posokhova S.V., the opinion of prosecutors Pavlov A.E., Stepanov V.A., who supported the arguments of the cassation presentation and asked to cancel the acquittal, the arguments of the representative of the victim FULL NAME1, who supported the arguments of the cassation appeal and cassation presentation, acquitted Abramov G. G. and lawyer L.V. Zotov, who objected to the arguments of the cassation submission and complaint, judicial panel
INSTALLED:
Preliminary investigation authorities Abramova G.G. was accused of committing fraud, i.e. theft of someone else's property by deception by a group of persons in prior conspiracy with FULL NAME2, on an especially large scale.
During the judicial debate, the state prosecutor abandoned the charge under Art. 176 part 2 of the Criminal Code of the Russian Federation, accusing her of using a state targeted loan for a purpose other than its intended purpose, causing major damage to the state.
The court dismissed the criminal case against FULL NAME2 due to the state prosecutor's refusal of the charge and acquitted Abramova G.G. on the charge brought due to the lack of corpus delicti in her actions.
In the cassation submission, the state prosecutor asks to overturn the verdict and send the case for a new trial, arguing that the court's conclusions about the absence of a crime do not correspond to the actual circumstances of the case.
The state prosecutor believes that the court did not take into account the testimony of the representative of the victim, witness FULL NAME3, who conducted the inspection, the testimony of the defendants about the misuse of budget funds, and made the incorrect conclusion that the budget investment loan is not a state targeted loan. According to the author of the submission, early repayment of the loan does not affect the presence of elements of a crime under Art. 176 part 2 of the Criminal Code of the Russian Federation.
In the cassation appeal, the representative of the victim - <data taken> FULL NAME1, disagreeing with the verdict and considering it illegal and unfounded, asks to cancel it and send the case for a new trial. She believes that the court did not evaluate the testimony of FULL NAME3 that she did not see the piglets during the inspection, CJSC "<data taken>" did not apply for the provision of a land plot for the construction of a mini-feed shop, the testimony of the Abramovs is contradictory and unreliable, credit was returned after the initiation of a criminal case, the court’s conclusion that the budget loan is not a state targeted loan is invalid.
In objections to the cassation presentation of the state prosecutor and the cassation appeal of the representative of the victim, Abramova G.G. was acquitted. question, leave them without satisfaction, and the verdict remains unchanged.
Having checked the case materials, discussed the arguments of the cassation presentation and the cassation appeal, the judicial panel finds the court's conclusions correct, based on the evidence examined at the court hearing and presented in the verdict.
In accordance with the provisions of Article 73 of the Code of Criminal Procedure of the Russian Federation, during criminal proceedings, the guilt of a person in committing a crime, the form of his guilt and motives are subject to proof.
Based on Art. 14 of the Code of Criminal Procedure of the Russian Federation, the accused is not obliged to prove his innocence. The burden of proving the charge and refuting the arguments put forward in the defense of the accused lies with the prosecution.
All doubts about the guilt of the accused, which cannot be eliminated in accordance with the Criminal Procedure Legislation of the Russian Federation, are interpreted in favor of the accused.
In accordance with clause 3, part 2, art. 302 of the Code of Criminal Procedure of the Russian Federation, in cases where there is no corpus delicti in the defendant’s actions, an acquittal is rendered.
The panel of judges believes that the requirements of the above laws were fully complied with by the court of first instance.
As can be seen from the case materials, the preliminary investigation authorities Abramova G.G. was charged with the fact that she, being the general director of CJSC "<data taken>" in the period from DD.MM.YYYY to DD.MM.YYYY, based on the results of the competition received DD.MM.YYYY from <data taken> budget loan for organizing pork production in the amount of 2,902,393 rubles with a repayment period of up to DD.MM.YYYY. According to the business plan, these funds should have been spent on the construction of a mini-feed mill and the purchase of replacement young stock, but were not spent for their intended purpose.
In support of the guilt of Abramova G.G. in committing the incriminated act, the prosecution referred to the testimony of the representative of the victim, FULL NAME1, testimony of witnesses, FULL NAME3, FULL NAME11, FULL NAME12, FULL NAME13, FULL NAME14, FULL NAME15, as well as the protocol of the inspection of the “construction” site (vol. 4 case sheets 35-44), protocol seizure of an extract from the personal account on the flow of funds transferred by <data taken> CJSC “<data taken>” (vol. 1, pp. 134-136), an act of verifying the use of the loan from the KRU Ministry of Financial Management for the Samara Region (vol. .2 pp. 2-23), agreement No. dated DD.MM.YYYY on the provision of a budget loan (vol. 1 pp. 25-27), contract agreement for the construction of a mini-pig farm (vol. 2 pp. 103) act of acceptance of work performed and a certificate of the cost of work (vol. 2, pp. 113-120), conclusion of a construction and technical examination (vol. 4, pp. 116-130), acts of acceptance and transfer of simple bank documents bills (vol. 2 pp. 121-127, 139-149).
Based on this evidence, the state prosecutor came to the conclusion that Abramova G.G. used a state targeted loan for other than its intended purpose, causing large damage to the state through her actions.
The objective side of the crime provided for in Part 2 of Article 176 of the Criminal Code of the Russian Federation is characterized by the act and its consequences. Accordingly, the corpus delicti is material.
The act provided for in Part 2 of Article 176 of the Criminal Code of the Russian Federation is defined as the use of a state targeted loan for other than its intended purpose, i.e. essentially represents the expenditure of a state budget loan not in accordance with its intended purpose, or the inappropriate expenditure of a state budget loan. A mandatory feature characterizing the named element of this crime is a consequence, namely the infliction of major damage to citizens, organizations or the state. Consequently, this crime is completed from the moment the consequences occur.
In this case, the criminal case was initiated in DD.MM.YYYY, while the loan repayment period was set to DD.MM.YYYY. As can be seen from the case materials, CJSC “<data taken>” repaid the entire loan in DD.MM.YYYY, i.e. before the loan repayment deadline.
Thus, no material damage to the state was caused by the actions of CJSC “<data taken>”. This circumstance is not denied by the victim’s representative.
The victim’s reference to the fact that the loan was repaid in connection with the initiation of a criminal case is untenable, since according to the information on payments (vol. 3 case sheet 265-266) provided by the head of the repayable financing department FULL NAME16, CJSC “<data seized>" from DD.MM.YYYY to DD.MM.YYYY made payment of interest on the loan, and DD.MM.YYYY repaid the loan in full.
In addition, from the evidence presented to the court by the prosecution and defense, it follows that 900,000 rubles from the funds received by Abramov G.G. transferred to personal account FULL NAME17
Interrogated as a witness, FULL NAME17, explained that under the purchase agreement from DD.MM.YYYY (vol. 3, pp. 199-200) with the Abramovs, he supplied 462 piglets, 15 sows, 5 boars in the year DD.MM.YYYY, 53 tons of grain fodder.
Witnesses FULL NAME2, FULL NAME19, FULL NAME20, FULL NAME21 confirmed that during the period DD.MM.YYYY to DD.MM.YYYY CJSC "<data taken>" was engaged in raising piglets. In addition, from the testimony of these witnesses, as well as witnesses FULL NAME22, FULL NAME23, FULL NAME24, FULL NAME14, the case materials, it follows that at <address> CJSC “<data taken>” was constructing a mini-pig complex.
According to the business plan referred to by the prosecution, CJSC “<data taken>” intended to spend funds on the purchase of replacement young stock and the construction of a mini-feed shop, while the investigative authorities referred to the conclusion of a construction and technical examination dated 22.12 in support of guilt. .2010 that the constructed facility at <address> does not correspond to a mini-pig complex.
Thus, the prosecution’s allegations that the funds were not used for their intended purpose do not correspond to the circumstances established in court.
The court assessed all the evidence presented by the prosecution, checked the arguments of the acquitted party, and then came to a reasonable conclusion that Abramova G.G. is guilty. is not supported by the totality of evidence available in the case, since not only evidence of misuse of funds, but also evidence of causing major damage to someone, as a mandatory element of a crime, was not provided.
In such circumstances, taking into account the provisions of Art. Art. 14, 302 of the Code of Criminal Procedure of the Russian Federation, the conclusions of the court contained in the verdict on the acquittal of Abramova G.G. in the commission of an act provided for in 176 Part 2 of the Criminal Code of the Russian Federation, due to the absence of corpus delicti in her actions, the judicial panel recognizes as legal and justified.
The allegations of the complaint and submissions about the incorrectness of the court’s conclusions that the information provided by Abramova G.G. the loan is not a state targeted loan, cannot be taken into account, since they do not correspond to the text of the verdict, and in addition, this circumstance did not affect the essence of the court’s decision.
There were no violations of the criminal procedural law when pronouncing the sentence.
In connection with the above, all the arguments of the cassation presentation and the cassation appeal of the victim about the unfounded acquittal of Abramova G.G. The panel of judges finds it untenable.
Based on Part 1 of Art. 306 Code of Criminal Procedure of the Russian Federation.
Based on the above, guided by art. 377, paragraph 1, part 1, art. 378, Art. 388 Code of Criminal Procedure of the Russian Federation, judicial board
DEFINED:
The verdict of the Isaklinsky District Court of the Samara Region dated 05/05/2011 against Abramova G.G. clarify by indicating in the operative part that her right to rehabilitation is recognized as acquitted.
Otherwise, the verdict is left unchanged, and the cassation submission of state prosecutor A.E. Pavlov and the cassation appeal of the representative of the victim FULL NAME1 - without satisfaction.
Presiding
Judges
The copy is correct: the judge -
