ST 176 of the Criminal Code of the Russian Federation.
1. Obtaining by an individual entrepreneur or the head of an organization of 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 large-scale damage, is punishable by a fine of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a term of up to four hundred 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 by 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, is 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 liberty for a term of one to three years, or by forced labor for a term of up to five years, or by imprisonment for the same term.
Commentary to Art. 176 Criminal Code
1. The subject of the crime provided for in Part 1 of Art. 176 of the Criminal Code, - a loan or preferential lending conditions.
Credit is defined as the lending of money or goods on terms of repayment and, as a rule, with the payment of interest. The Civil Code of the Russian Federation distinguishes various types of credit (bank, commodity, commercial), although there is a point of view according to which commodity and commercial credit are not included in the subject of the crime in question.
2. Deliberately false information about the economic situation includes: incorrect information about founders, managers, business partners; fictitious letters of guarantee, guarantees; falsified contracts, feasibility study for obtaining a loan; warehouse and accounting data, etc.
Deliberately false information about the financial condition includes: information about the balance sheet of the enterprise, an auditor’s report on checking the annual balance sheet, a list of creditors and debtors, etc.
3. Major damage is an amount exceeding 1.5 million rubles, which consists of actual direct damage and lost profits (damage is primarily associated with non-repayment of funds issued to the borrower under a loan agreement, non-payment of interest or untimely repayment of the loan, etc. .d.).
4. In terms of the method of commission, the crime in question is similar to fraud. They are differentiated by the subjective side: in case of fraud, already at the moment of applying to the bank with forged documents, the person has the goal of not repaying the loan received; when obtaining a loan illegally, there is no such purpose.
5. According to Part 2 of Art. 176 of the Criminal Code, the subject of the crime is a state targeted loan. It can be provided to a legal entity on the basis of an agreement concluded taking into account the specifics established by the Budget Code of the Russian Federation and other regulatory legal acts, on the terms and within the limits of budgetary allocations that are provided for by the relevant laws (decisions) on the budget.
6. It will be illegal to receive a state targeted loan (budget loan) when the rules defining the grounds for receiving a loan are violated. They may consist of: providing deliberately false information about the economic or financial situation, violating the procedure for obtaining a loan (outside of competition), bribing an official on whom the decision on the issue of granting a loan depends.
7. The use of a state targeted loan for other purposes means that the loan was received legally, but the funds were spent for purposes other than those specified in the agreement.
8. The main difference between the crime in question and the act provided for in Art. 285.1 of the Criminal Code 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.
Article 176. Illegal receipt of a loan
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- Article 176. Illegal receipt of a loan
1. Obtaining by an individual entrepreneur or the head of an organization of 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 large-scale damage,
is punishable by a fine of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a term of up to four hundred 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 by 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 on Article 176
This article provides for criminal liability for the commission of two acts that differ from each other by objective and subjective characteristics.
An object
crime under 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).
Objective side
crime under 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).
Subjective side
crime under 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 or her business or financial condition, he is thereby misleading him, foreseeing the possibility or inevitability of causing major damage to the creditor and desires this, or consciously allows these consequences or is indifferent to them.
Subject
crimes 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.
An object
crime under 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).
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<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, grant, 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).
Objective side
crime under 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.
Subjective side
crime under 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.
Subject
crimes 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>.
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<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>.
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<1> 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 <1>.
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<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).
Second commentary to Art. 176 of the Criminal Code of the Russian Federation
1. The subjects under Part 1 are: credit and preferential lending conditions (except for loans provided to individual citizens, for example, for individual housing construction). Preferential lending conditions are more favorable, compared to general conditions, for obtaining a loan or repaying it (advantages in the interest rate for the loan or deferment of the start of loan repayment).
2. The objective side consists of obtaining a loan or preferential lending conditions by providing a bank or other creditor with knowingly false information about the economic situation or financial condition of an individual entrepreneur or organization.
3. A mandatory feature of the composition is a consequence in the form of major damage.
4. Subjective side - direct or indirect intent. If a person receives a loan by deceiving the creditor about his economic situation or financial condition, without intending to return it, but, on the contrary, intending to appropriate it, his actions are qualified under Art. 1591 of the Criminal Code, as fraud in the field of lending.
5. Subject is an individual entrepreneur, head of an organization.
6. The subject under Part 2 of Art. 176 of the Criminal Code stands for state targeted loan. This type of loan differs from others in that it simultaneously has two characteristics: 1) it is issued by the state and 2) it has a strictly intended purpose - for example, to replenish working capital.
7. The objective side is the illegal receipt of a targeted loan or its use for other than its intended purpose, which resulted in causing major damage to citizens, organizations or the state. Receiving a loan is illegal if a person did not have the right to receive it or violated the established procedure for obtaining such a loan.
8. The crime is over when major damage has been caused.
9. The subjective side is characterized by direct intent.
10. Subject - an individual entrepreneur, head of an organization and a private person.
