Article 197 of the Labor Code of the Russian Federation. The right of workers to training and additional professional education, to undergo an independent qualification assessment

ST 197 of the Criminal Code of the Russian Federation.

Fictitious bankruptcy, that is, a deliberately false public announcement by the head or founder (participant) of a legal entity about the insolvency of this legal entity, as well as by a citizen, including an individual entrepreneur, about his insolvency, if this act caused major damage -

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 five years, or by imprisonment for a term of up to six 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.

Commentary to Art. 197 Criminal Code

1. Unlike the previous two crimes (Articles 195 and 196 of the Criminal Code), there are no signs of bankruptcy in reality.

2. A socially dangerous act lies in the fact that a manager, founder (participant), or individual entrepreneur, knowing about his financial solvency, nevertheless publicly declares himself bankrupt.

The publicity of this act will take place if a person, exercising the right granted to him by bankruptcy legislation, applies to the arbitration court with an application to declare him bankrupt and notifies his creditors about this. As a rule, such an act is committed with the aim of obtaining deferments or installment plans, discounts or debt forgiveness.

3. The crime is considered completed from the moment of causing major damage (over 1.5 million rubles), which consists of losses to creditors in the form of real damage or lost profits.

Legal advice

The bankruptcy was recognized as fictitious, but it was not such. The chief accountant made a mistake in the documents for the tax office. Can this be proven?

In this case, you will need to submit an application to the Arbitration Court to review the case in connection with the identified circumstances. After providing all the evidence of the absence of fictitiousness, the court will reconsider its decision.

The bankruptcy was declared intentional; who will bear criminal liability if the founders of the LLC were not aware of the violations? Chief accountant or director?

Director. It is he who is authorized to make management decisions regarding the conduct of business activities.

Second commentary to Art. 197 of the Criminal Code of the Russian Federation

1. The objective side is fictitious bankruptcy.

It is understood as a deliberately false public announcement by the head or founder (participant) of a legal entity about the insolvency of this legal entity, as well as by a citizen, including an individual entrepreneur, about his insolvency, if this act caused major damage. A person who declares himself insolvent must in fact be solvent.

When investigating a case, it is necessary to conduct an accounting or due diligence examination.

2. Composition - material.

3. The subjective side is direct intent.

4. The subject may be the director or founder (participant) of a legal entity or a citizen, including an individual entrepreneur.

Article 211. State regulatory requirements for labor protection

State regulatory requirements for labor protection, contained in federal laws and other regulatory legal acts of the Russian Federation and laws and other regulatory legal acts of the constituent entities of the Russian Federation, establish rules, procedures, criteria and standards aimed at preserving the life and health of workers in the process of work.

State regulatory requirements for labor protection are mandatory for legal entities and individuals to carry out any type of activity, including the design, construction (reconstruction) and operation of facilities, the design of machines, mechanisms and other equipment, the development of technological processes, the organization of production and labor.

The procedure for developing, approving and amending by-laws containing state regulatory requirements for labor protection, including labor safety standards, is established by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations.

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Third commentary to Article 197 of the Criminal Code of the Russian Federation

1. In our opinion, this composition is special in relation to the composition of fraud provided for in Art. 159 of the Criminal Code.

The immediate object is the interests of the state in the sphere of activity of state bodies authorized to organize work with bankrupt enterprises. It coincides with the object specified in Art. 195 of the Criminal Code of the Russian Federation.

2. The objective side characterizes the material composition of the crime by its structure. The legislator indicates an act that should entail criminal consequences (major damage), and a causal connection must be established between them. The act is expressed in deception, i.e. knowingly false and public announcement of the debtor's insolvency. The legislator again clarified the figures of debtors: the director or founder (participant) of a legal entity or an individual entrepreneur. The act is completed from the moment of causing major damage, the amount of which must exceed 1 million 500 thousand rubles (note to Article 169 of the Criminal Code of the Russian Federation).

3. The subjective side is characterized by guilt in the form of direct intent. In our opinion, the legislator was in a hurry by excluding from the mandatory signs of the subjective side an indication of a special purpose - the desire of the culprit to mislead creditors in order to obtain a deferment of payments and debt or for its non-payment. If it is proven that the perpetrator acted for selfish purposes, additional qualification is required under the article of fraud.

4. The subject of the crime is an individual who has reached the age of 16, who is the director or founder (participant) of a legal entity or an individual entrepreneur.
‹ Article 196. Deliberate bankruptcyTop Article 198. Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums ›

Intentional and fictitious bankruptcy

improper management of a legal entity, i.e. the use of powers to manage an organization contrary to its legitimate interests and (or) the legitimate interests of its creditor, which resulted in a decrease in the organization’s own capital and (or) the occurrence of losses (Article 14.21);

The reasons for the prevalence of such illegal actions are clear. Many businessmen find it tempting to have accumulated debts and immediately liquidate them without paying them off. As a rule, organizations do not even need to make significant efforts to satisfy the criteria for bankruptcy. A company meets the insolvency criteria if it, firstly, is overdue for more than three months in fulfilling its obligations. And, secondly, if the total amount of her debt exceeds 100,000 rubles. (Article 3, 6 of Law No. 127-FZ). An unscrupulous organization transfers all valuable assets to friendly companies. And after the bankruptcy case is terminated, the debts are canceled, and creditors will be able to claim only the small fraction of the previous values ​​remaining on the organization’s balance sheet.

Fictitious bankruptcy liability for fictitious bankruptcy

There is a law that provides for the possibility of filing a petition in court. Thanks to this, defrauded creditors can obtain permission to conduct an examination. This process can be organized by both government expert institutions and private organizations.

• are there any reasons to consider this enterprise falsely insolvent, if any, then who is involved in them;
• are there any signs that this default is considered intentional, if so, whose actions or, conversely, inaction, led to their formation;
• Is there a possibility of restoring the company's solvency?

How is the level of responsibility determined?

As with any crime, the severity of the consequences determines the severity of the consequences. In relation to deliberate bankruptcy, this is material damage caused to creditors and the enterprise. The higher it is, the more severe the punishment.

Major damage is considered to be losses caused by a crime in excess of one and a half million rubles. Especially large - from six million. The damage does not reach one and a half million? The court applies the following rules:

• individuals are fined a symbolic one to three thousand rubles;
• officials – for five to ten thousand “wooden”. In addition, they may be disqualified for periods of one to three years.

The Criminal Code of the Russian Federation (Article 196) allows:

• Fine. This may be only a fine or a fine in addition to the term of imprisonment. In the first case, it varies from 200,000 to half a million, in the second - up to 200,000 rubles.
• Require forced labor for up to five years. In practice, such a measure is rarely used.
• Isolate from society for up to six years, or, more simply, put behind bars. There is always an additional fine attached to landing.

In relation to fictitious bankruptcy, the punishment is the same as under Article 196 of the Criminal Code.

Bringing to bankruptcy by third parties

The essence of this phenomenon is more often described by the term “raider takeover.” Let's say a company has debts to a bank. The raiders, which include professional lawyers familiar with the intricacies of domestic legislation, buy out the company’s debts from the bank and demand their immediate repayment from its management, and on more enslaving terms than previous creditors. It is clear that if the company could not pay off at a lower interest rate, it is certainly not able to do so now. The manager files for bankruptcy himself, or the raiders do it. Their goal is to buy a company at an auction at a cheap price and dispose of its property and assets at their own discretion. Raider methods, despite the imperfection of modern legislation, are completely legal from a legal point of view. Unfortunately, the Criminal Code of the Russian Federation does not have a specific article for such bringing to bankruptcy.

Intentional bankruptcy - who is to blame?

The Criminal Code of the Russian Federation includes three criminal law prohibitions on committing illegal actions during bankruptcy proceedings, describing various types of criminal bankruptcy:
Article 195 of the Criminal Code of the Russian Federation - illegal actions during bankruptcy;

Article 196 of the Criminal Code of the Russian Federation – deliberate bankruptcy;

Article 197 of the Criminal Code of the Russian Federation – fictitious bankruptcy;

The subject of criminal bankruptcy provided for in Articles 196, 197 and 198 of the Criminal Code of the Russian Federation is an individual who has reached the age of 16 at the time of the commission of the crime.

Federal Law No. 476-FZ of December 29, 2014 on amendments and additions to the Criminal Code included in the subject composition of all these criminal acts from July 1, 2015 also an individual (citizen) as a perpetrator.

Statistics of intentional bankruptcies in the Russian Federation

The statistics of bankruptcy cases show that they extremely rarely end in verdicts under Article 196 of the Criminal Code. Thus, from 2013 to 2014, out of almost three thousand cases brought, the judge supported the accusers in only fourteen cases. In 2015, there were much fewer cases - only thirty-one. And only eight of them resulted in a conviction. But in general, for all the years of the existence of the bankruptcy law, statistics show only five percent of criminal bankruptcy cases that ended in the failure of bankrupt adventurers. Accordingly, they managed to win 95% of cases. Although, of course, among these ninety-five percent, there were also

If premeditation of bankruptcy is not proven

If the investigator was unable to prove the intentionality of the bankruptcy, and challenging the transactions did not produce the desired result, creditors have to come to terms with the lost money. However, there is an option.

Vicarious liability

We must not forget about the subsidiary liability that its founders and managers bear in the event of bankruptcy of an enterprise. The creditor has every right to file a claim to recover the debt not from the bankrupt company, but from its owners, regardless of whether the company was deliberately bankrupted or whether objective circumstances have arisen ().

The management, founders and owners of a bankrupt enterprise, and members of the company liquidation commission are responsible for the consequences of their management mistakes with personal property.

Cancellation of transactions of a bankrupt company

Transactions that can be challenged and annulled by a court decision in bankruptcy are divided into general (Article 166 of the Civil Code of the Russian Federation applies) and special (bankruptcy law):

Not only one-time contracts, but also long-term ones can be cancelled.

In bankruptcy, contracts are not disputed:

• Concluded based on the results of the won competition, as well as additional agreements on them. They can be challenged in civil lawsuits after the bankruptcy is completed.
• If the amount included in the contract is less than one percent of the value of all company assets, when it comes to long-term relationships between partners (rent, leasing, banking, housing and communal services, etc.).
• If the profit from a transaction far exceeds its costs.

The contract is disputed after the submission of a corresponding application from creditors or the financial manager. In form, this is an ordinary civil lawsuit. The applicant substantiates his claims and attaches copies of documents confirming his case.

Limitation period for challenging bankruptcy transactions

Let's look at two tables with limitation periods when challenging contracts concluded before or during bankruptcy:

According to general principles

For special reasons

Satisfaction of a claim to contest leads to the loss of the legal significance of the contract, the return of the alienated property or assets to the bankruptcy estate and the emergence of the right of the counterparty to demand the return of his money from the debtor.

Who investigates and decides a willful bankruptcy case?

Bankruptcy cases of legal entities, ordinary citizens and individual entrepreneurs are considered by arbitration courts serving the areas where the debtor company is located or where the citizen is registered. Arbitration courts do not have the right to consider such cases (clauses 1.3 of Article 33 of the Bankruptcy Law).

If during the bankruptcy procedure facts of deliberate failure to pay bills are established, the arbitration judge transfers them to the investigator of the district police department (). Since deliberate bankruptcy is a crime, you can report it to the prosecutor’s office or the police even before opening a bankruptcy case.

Investigators from agencies that have identified signs of a crime (for example, the tax police) also have the right to investigate cases of criminal bankruptcy. The decision in a criminal case of deliberate bankruptcy is made by the district court (and part 2). Territorial jurisdiction and jurisdiction are established at the place where the crime ended (; , ).

Deliberate bankruptcy

The investigator is interested in how the bankruptcy situation arose, that is, with the emergence of the debtor’s inability to satisfy the demands of his creditors, and whether deliberate bankruptcy arose. Moreover, the investigator must have confirmation of the legality of these requirements. The debtor may not recognize these requirements and insist on the “custom nature of the criminal case” in the interests of these alleged creditors acting unlawfully, to the detriment of other creditors. The inability to fulfill the obligation to make mandatory payments may be due to completely different reasons than what the investigator assumes. For example, there may be some force majeure circumstances that can be reported to the investigator. Therefore, temporary difficulties in the debtor’s activities cannot be regarded as deliberate bankruptcy. The persons who declared this could have made a mistake in good faith (or did it intentionally, but in this case it is no longer a mistake, but a deliberately false denunciation or deliberately false testimony, which must also be clarified by the investigator).

The debtor, for the purpose of deliberate bankruptcy, could establish in contracts obviously unfavorable conditions for their execution in terms of quality, volume, timing, location, etc. Instead of paying from his account, the debtor took out an unfavorable loan and paid for the agreement from his loan accounts, which he did not replenish in a timely manner, which entailed fines from the bank and termination of the loan agreement with a requirement for its early repayment.