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.
- Article 175. Acquisition or sale of property known to be obtained by criminal means
- Article 177. Malicious evasion of repayment of accounts payable
Commentary to Art. 176 of the Criminal Code of the Russian Federation
This article provides for criminal liability for the commission of two acts that differ from each other by objective and subjective characteristics.
The object of the crime provided for in Part 1 of Art. 176 of the Criminal Code of the Russian Federation - the established procedure for providing a loan to an individual entrepreneur or organization.
On the concept of a bank and a non-bank credit organization, see the commentary to Art. 172 of the Criminal Code of the Russian Federation.
The current legislation provides for various types of loans (bank (Article 819 of the Civil Code of the Russian Federation), commodity (Article 822 of the Civil Code of the Russian Federation), commercial (Article 823 of the Civil Code of the Russian Federation), tax (Article 65 of the Tax Code of the Russian Federation)).
The most common in judicial practice are cases where the perpetrators illegally receive a bank loan, which is understood as an obligation by virtue of which a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the loan agreement, and the borrower undertakes to return the amount of money received and pay interest on it.
Preferential lending conditions are more favorable than usual loan conditions. For example, benefits relate to the loan amount, interest rate, repayment period, and loan security.
The procedure for obtaining a loan is regulated in the relevant norms of the current legislation (for example, articles 819 - 821 of the Civil Code of the Russian Federation are devoted to obtaining a bank loan).
The objective side of the crime provided for in Part 1 of Art. 176 of the Criminal Code of the Russian Federation, is expressed in action - receiving a loan or its preferential terms, the consequence in the form of major damage, causation.
Receiving a loan means issuing it to the borrower. For example, a bank loan can be issued in cash or by non-cash transfer of funds to the borrower's current account.
The only illegal way to obtain a loan or its preferential terms is indicated in the disposition of Part 1 of Art. 176 of the Criminal Code of the Russian Federation - submission to a bank or other creditor of knowingly false information about the economic situation or financial condition of an individual entrepreneur or organization.
Information about the business situation or financial condition includes data that was submitted by an individual entrepreneur or organization to the lender to make a decision on issuing a loan. This information may be contained: in the constituent documents; protocols on the appointment of executive bodies or on the approval of major transactions; register of shareholders; civil and labor contracts; bank guarantees and guarantees; accounting and tax reporting; auditor's report; feasibility study for obtaining a loan; business plans, etc.
To constitute a crime, the information provided must be knowingly false, i.e. do not correspond to reality in full or in part.
The act is completed at the moment of causing major damage to the creditor. For example, after the expiration of a loan agreement or violation of interest payment deadlines. The corpus delicti is material.
In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation, major damage is understood as a monetary amount exceeding two hundred and fifty thousand rubles.
On the qualitative side, the damage is expressed in property losses of the creditor (for example, the loan amount is not returned) and lost profits (for example, interest for using the loan is not paid).
Causing non-property consequences to the creditor is not criminally punishable under Part 1 of Art. 176 of the Criminal Code of the Russian Federation (for example, undermining business reputation, violating normal operating conditions, laying off full-time employees).
The subjective side of the crime provided for in Part 1 of Art. 176 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent. The person realizes that by presenting false information to the creditor about his business or financial condition, he thereby misleads him, foresees the possibility or inevitability of causing major damage to the creditor and desires this, or consciously allows these consequences or is indifferent to them.
The subject of the crime under Part 1 of Art. 176 of the Criminal Code of the Russian Federation is special, it is an individual entrepreneur or the head of an organization who has reached the age of sixteen.
Illegal receipt of a loan by an individual (common subject of the crime), if there are grounds for it, must be qualified under Art. 165 of the Criminal Code of the Russian Federation, which provides for liability for causing property damage by deception or abuse of trust.
Illegal receipt of a loan, involving bribery of a bank manager or other creditor who influenced the decision on the issue of granting a loan, is qualified in conjunction with Art. 204 of the Criminal Code of the Russian Federation.
The object of the crime provided for in Part 2 of Art. 176 of the Criminal Code of the Russian Federation, - the procedure for state targeted lending.
The Budget Code of the Russian Federation (BC RF) does not have a clear definition of a state targeted loan. It seems that by state targeted loan in this article we mean exactly a budget loan, i.e. funds provided by the budget to another budget of the budget system of the Russian Federation, to a legal entity (with the exception of state (municipal) institutions), to a foreign state, to a foreign legal entity on a repayable and reimbursable basis (Article 6 of the Budget Code of the Russian Federation).
———————————
The Budget Code of the Russian Federation provides for the following forms of spending public funds: budget loan, targeted foreign loan, related loans from foreign governments, banks and firms, state or municipal loan, subsidy, subvention, subsidy, etc. (v. 6).
When the annual budget is approved, it specifies the goals, limits, conditions and procedure for providing budget loans. This procedure is regulated by the BC RF (Article 93.2 - 93.5).
The objective side of the crime provided for in Part 2 of Art. 176 of the Criminal Code of the Russian Federation, is expressed in the action - illegal receipt of a state targeted loan or its use for other purposes, the consequence in the form of causing major damage to citizens, organizations or the state, causation.
Illegal receipt of a government targeted loan is the receipt of a loan by a borrower in violation of established regulatory rules that determine the grounds for its receipt.
The use of a state targeted loan for other purposes is the disposal of the funds received for other purposes specified in the loan agreement. For example, a loan was received for the purchase of agricultural equipment, but it was spent on office renovations.
The act is completed at the moment of causing major damage to citizens, organizations or the state. The corpus delicti is material.
The quantitative and qualitative characteristics of major damage are similar to Part 1 of Art. 176 of the Criminal Code of the Russian Federation.
The subjective side of the crime provided for in Part 2 of Art. 176 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent. A person is aware of the illegal nature of receiving or using a government targeted loan, foresees the possibility or inevitability of causing major damage to citizens, organizations or the state and desires this, or consciously allows these consequences or is indifferent to them.
The subject of the crime under Part 2 of Art. 176 of the Criminal Code of the Russian Federation - a sane individual who has reached the age of sixteen years.
Motives and goals are not mandatory features of crimes provided for in Parts 1 and 2 of Art. 176 of the Criminal Code of the Russian Federation. The intent of the person is aimed at temporarily obtaining a loan with the intention of subsequently returning the borrowed funds. At the same time, as noted by N.A. Lopashenko, the purpose of non-repayment of the loan that arose before its receipt is completely excluded. If a person receives a loan intending to misappropriate it, then his actions are qualified as fraud (Article 159 of the Criminal Code of the Russian Federation).
———————————
Lopashenko N.A. Crimes in the economic sphere: author's commentary on the criminal law (Section VIII of the Criminal Code of the Russian Federation). M., 2006. P. 389.
If a person used an official document forged by himself to illegally obtain a loan, then his actions must be qualified according to the totality of crimes provided for in Part 1 of Art. 327 of the Criminal Code of the Russian Federation (or Art. 292 of the Criminal Code of the Russian Federation) and the corresponding part of Art. 176 of the Criminal Code of the Russian Federation.
———————————
It is precisely this qualification model that was proposed by the Supreme Court of the Russian Federation in relation to the totality of crimes provided for in Art. Art. 327 and 159 of the Criminal Code of the Russian Federation. See: paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51 “On judicial practice in cases of fraud, misappropriation and embezzlement” // Bulletin of the Supreme Court of the Russian Federation. 2008. N 2.
In Art. 285.1 of the Criminal Code of the Russian Federation provides for liability for inappropriate spending of budget funds. It seems that the main difference between this crime and the use of a state targeted loan for purposes other than its intended purpose (Part 2 of Article 176 of the Criminal Code of the Russian Federation) is that the budget funds referred to in Art. 285.1 of the Criminal Code of the Russian Federation are not a loan and are not provided on the terms of their repayment.
———————————
Volzhenkin B.V. Crimes in the sphere of economic activity according to Russian criminal law. St. Petersburg, 2007. P. 351.
Administrative liability is provided for obtaining a loan or preferential lending terms by providing a bank or other creditor with knowingly false information about one’s business or financial status, which does not entail causing major damage (Article 14.11 of the Code of Administrative Offenses of the Russian Federation).
Commentary on Article 176 of the Criminal Code of the Russian Federation
This article provides for criminal liability for the commission of two acts that differ from each other by objective and subjective characteristics.
The object of the crime provided for in Part 1 of Art. 176 of the Criminal Code of the Russian Federation - the established procedure for providing a loan to an individual entrepreneur or organization.
On the concept of a bank and a non-bank credit organization, see the commentary to Art. 172 of the Criminal Code of the Russian Federation.
The current legislation provides for various types of loans (bank (Article 819 of the Civil Code of the Russian Federation), commodity (Article 822 of the Civil Code of the Russian Federation), commercial (Article 823 of the Civil Code of the Russian Federation), tax (Article 65 of the Tax Code of the Russian Federation)).
The most common in judicial practice are cases where the perpetrators illegally receive a bank loan, which is understood as an obligation by virtue of which a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the loan agreement, and the borrower undertakes to return the amount of money received and pay interest on it.
Preferential lending conditions are more favorable than usual loan conditions. For example, benefits relate to the loan amount, interest rate, repayment period, and loan security.
The procedure for obtaining a loan is regulated in the relevant norms of the current legislation (for example, articles 819 - 821 of the Civil Code of the Russian Federation are devoted to obtaining a bank loan).
The objective side of the crime provided for in Part 1 of Art. 176 of the Criminal Code of the Russian Federation, is expressed in action - receiving a loan or its preferential terms, the consequence in the form of major damage, causation.
Receiving a loan means issuing it to the borrower. For example, a bank loan can be issued in cash or by non-cash transfer of funds to the borrower's current account.
The only illegal way to obtain a loan or its preferential terms is indicated in the disposition of Part 1 of Art. 176 of the Criminal Code of the Russian Federation - submission to a bank or other creditor of knowingly false information about the economic situation or financial condition of an individual entrepreneur or organization.
Information about the business situation or financial condition includes data that was submitted by an individual entrepreneur or organization to the lender to make a decision on issuing a loan. This information may be contained: in the constituent documents; protocols on the appointment of executive bodies or on the approval of major transactions; register of shareholders; civil and labor contracts; bank guarantees and guarantees; accounting and tax reporting; auditor's report; feasibility study for obtaining a loan; business plans, etc.
To constitute a crime, the information provided must be knowingly false, i.e. do not correspond to reality in full or in part.
The act is completed at the moment of causing major damage to the creditor. For example, after the expiration of a loan agreement or violation of interest payment deadlines. The corpus delicti is material.
In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation, major damage is understood as a monetary amount exceeding two hundred and fifty thousand rubles.
On the qualitative side, the damage is expressed in property losses of the creditor (for example, the loan amount is not returned) and lost profits (for example, interest for using the loan is not paid).
Causing non-property consequences to the creditor is not criminally punishable under Part 1 of Art. 176 of the Criminal Code of the Russian Federation (for example, undermining business reputation, violating normal operating conditions, laying off full-time employees).
The subjective side of the crime provided for in Part 1 of Art. 176 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent. The person realizes that by presenting false information to the creditor about his business or financial condition, he thereby misleads him, foresees the possibility or inevitability of causing major damage to the creditor and desires this, or consciously allows these consequences or is indifferent to them.
The subject of the crime under Part 1 of Art. 176 of the Criminal Code of the Russian Federation is special, it is an individual entrepreneur or the head of an organization who has reached the age of sixteen.
Illegal receipt of a loan by an individual (common subject of the crime), if there are grounds for it, must be qualified under Art. 165 of the Criminal Code of the Russian Federation, which provides for liability for causing property damage by deception or abuse of trust.
Illegal receipt of a loan, involving bribery of a bank manager or other creditor who influenced the decision on the issue of granting a loan, is qualified in conjunction with Art. 204 of the Criminal Code of the Russian Federation.
The object of the crime provided for in Part 2 of Art. 176 of the Criminal Code of the Russian Federation, - the procedure for state targeted lending.
The Budget Code of the Russian Federation (BC RF) does not have a clear definition of a state targeted loan <1>. It seems that by state targeted loan in this article we mean exactly a budget loan, i.e. funds provided by the budget to another budget of the budget system of the Russian Federation, to a legal entity (with the exception of state (municipal) institutions), to a foreign state, to a foreign legal entity on a repayable and reimbursable basis (Article 6 of the Budget Code of the Russian Federation).
——————————— <1> The Budget Code of the Russian Federation provides for the following forms of spending public funds: budget loan, targeted foreign loan, related loans from foreign governments, banks and firms, state or municipal loan, subsidy, subvention, subsidy, etc. (v. 6).
When the annual budget is approved, it specifies the goals, limits, conditions and procedure for providing budget loans. This procedure is regulated by the BC RF (Article 93.2 - 93.5).
The objective side of the crime provided for in Part 2 of Art. 176 of the Criminal Code of the Russian Federation, is expressed in the action - illegal receipt of a state targeted loan or its use for other purposes, the consequence in the form of causing major damage to citizens, organizations or the state, causation.
Illegal receipt of a government targeted loan is the receipt of a loan by a borrower in violation of established regulatory rules that determine the grounds for its receipt.
The use of a state targeted loan for other purposes is the disposal of the funds received for other purposes specified in the loan agreement. For example, a loan was received for the purchase of agricultural equipment, but it was spent on office renovations.
The act is completed at the moment of causing major damage to citizens, organizations or the state. The corpus delicti is material.
The quantitative and qualitative characteristics of major damage are similar to Part 1 of Art. 176 of the Criminal Code of the Russian Federation.
The subjective side of the crime provided for in Part 2 of Art. 176 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent. A person is aware of the illegal nature of receiving or using a government targeted loan, foresees the possibility or inevitability of causing major damage to citizens, organizations or the state and desires this, or consciously allows these consequences or is indifferent to them.
The subject of the crime under Part 2 of Art. 176 of the Criminal Code of the Russian Federation - a sane individual who has reached the age of sixteen years.
Motives and goals are not mandatory features of crimes provided for in Parts 1 and 2 of Art. 176 of the Criminal Code of the Russian Federation. The intent of the person is aimed at temporarily obtaining a loan with the intention of subsequently returning the borrowed funds. At the same time, as noted by N.A. Lopashenko, the purpose of non-repayment of the loan that arose before its receipt is completely excluded. If a person receives a loan intending to misappropriate it, then his actions are qualified as fraud (Article 159 of the Criminal Code of the Russian Federation) <1>.
——————————— <1> Lopashenko N.A. Crimes in the economic sphere: author's commentary on the criminal law (Section VIII of the Criminal Code of the Russian Federation). M., 2006. P. 389.
If a person used an official document forged by himself to illegally obtain a loan, then his actions must be qualified according to the totality of crimes provided for in Part 1 of Art. 327 of the Criminal Code of the Russian Federation (or Art. 292 of the Criminal Code of the Russian Federation) and the corresponding part of Art. 176 of the Criminal Code of the Russian Federation <1>.
——————————— <1> This is exactly the qualification model that was proposed by the Supreme Court of the Russian Federation in relation to the totality of crimes provided for in Art. Art. 327 and 159 of the Criminal Code of the Russian Federation. See: paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51 “On judicial practice in cases of fraud, misappropriation and embezzlement” // Bulletin of the Supreme Court of the Russian Federation. 2008. N 2.
In Art. 285.1 of the Criminal Code of the Russian Federation provides for liability for inappropriate spending of budget funds. It seems that the main difference between this crime and the use of a state targeted loan for purposes other than its intended purpose (Part 2 of Article 176 of the Criminal Code of the Russian Federation) is that the budget funds referred to in Art. 285.1 of the Criminal Code of the Russian Federation, are not a loan and are not provided on the terms of their repayment <1>.
——————————— <1> Volzhenkin B.V. Crimes in the sphere of economic activity according to Russian criminal law. St. Petersburg, 2007. P. 351.
Administrative liability is provided for obtaining a loan or preferential lending terms by providing a bank or other creditor with knowingly false information about one’s business or financial status, which does not entail causing major damage (Article 14.11 of the Code of Administrative Offenses of the Russian Federation).
