What is it and how to prove business fraud?

In practice, there are many cases when a banal failure to fulfill a contract is regarded by law enforcement agencies as fraud in business activities. Since July 2016, the punishment for such a crime has become more severe. For causing damage in a significant amount, and this is only 10 thousand rubles, you can get 5 years in prison. If the value of the “appropriated” property is more than 12 million rubles, you can go to jail for 10 years.

The so-called “entrepreneurial” article 159.4 of the Criminal Code of the Russian Federation (fraud in the field of entrepreneurial activity) was repealed in 2016. But she immediately returned to the Criminal Code in a new form. Intentional failure to fulfill an agreement concluded between entrepreneurs (legal entities) is now regulated by parts 5–7 of Article 159 of the Criminal Code of the Russian Federation.

This means that if the deadline for fulfilling obligations has arrived, and one of the participants has not fulfilled them, then the “offended” party can apply not only to the court with a civil claim, but also to the police with a statement to initiate a criminal case.

○ What is business fraud?

The definition of fraud is given in Art. 159 of the Criminal Code of the Russian Federation.

Fraud is the theft of someone else's property or the acquisition of rights to someone else's property through deception or breach of trust. (Clause 1 of Article 159 of the Criminal Code of the Russian Federation).

This definition applies to all types of fraud, including those committed in the business sphere.

A prerequisite for the application of this law is the failure of a person to fulfill his obligations under the agreement, as a result of which damage was caused to the other party to the transaction. Consequently, in order to bring charges for fraud in the business sphere, it is necessary to prove that the criminal did not intend to fulfill his obligations already at the stage of concluding the contract.

How to prove fraud legally

We have already written about the need to prove intentional failure to fulfill an obligation under a contract. Now we’ll tell you in more detail exactly how to do this.

At the same time, we should not forget that the final assessment of each evidence will be given by the court; the injured party to the contract can only collect the evidence base.

How to proceed to collect the evidence base:

• Initially, it is necessary to check the entire history of the organization. Is it engaged in economic activities, does it have the necessary valid licenses to carry out activities, does the organization have debts or loans, is the property pledged;
• financial records should also be reviewed if possible. How did the early legal entity fulfill obligations under contracts with other counterparties, did it use fictitious statutory documents when concluding the contract, was there money in the organization’s accounts on the day the contract was concluded;
• involve as witnesses people who can prove the fact of the entrepreneur’s dishonesty.

How to protect yourself

It is impossible to know for sure about the actions of the party after the conclusion of the contract. But you can reduce the risks. Advice: in order not to become an injured party when concluding a contract, it is necessary to check the counterparty before concluding it on at least one of the points listed in the section “How to prove fraud under the law.”

If you have questions after such a check, you should think about the integrity of such an entrepreneur. If you do enter into an agreement with a certain organization, we also advise you to carefully read each clause of the agreement and evaluate it from the point of view of risk.

If a situation arises in which you find yourself the injured party, you should immediately contact the following authorities:

• prosecutor's office;
• police, if you do not have evidence of fraud on the part of the entrepreneur;
• district court, if there is evidence of bad faith of the parties to the contract.

○ Legislative regulation.

Adoption of Federal Law No. 207 of November 29, 2012 “On Amendments...”. No. 207-FZ led to the separation in Art. 159 of the Criminal Code of the Russian Federation, a separate paragraph on fraud in the field of business activity (Article 159.4).

Subsequently, it was recognized as contrary to the Constitution of the Russian Federation and was canceled by Resolution of the Constitutional Court of the Russian Federation of December 11, 2014 No. 32-P.

Currently, crimes committed in this area are regulated by clauses 5-7 of Art. 159 of the Criminal Code of the Russian Federation, which were introduced by Federal Law dated July 3, 2016 No. 323-FZ.

Rules of Art. 159.4 of the Criminal Code of the Russian Federation continues to apply for fraudulent actions committed before June 12, 2015.

The Supreme Court is preparing new clarifications on crimes in the sphere of entrepreneurship

The next, ninth meeting of the Zamyatnin Club was held yesterday in the traditional place, in the Smirnov House, but without the traditional chairman Viktor Momotov.

However, the Chairman of the Judicial Collegium for Criminal Cases of the RF Armed Forces, Vladimir Davydov, handled the role of presiding officer very well, and the discussion, as expected, moved into the criminal plane.

He started with statistics. Last year, the courts considered criminal cases against 1,700 entrepreneurs, which is 700 less than the year before. For every fourth of them, proceedings were terminated for various reasons. And only in 189 cases did the consideration end in imprisonment. Despite the fact that the percentage of such an outcome is much lower than the average (15% versus 28%), Vladimir Davydov emphasized that this figure is still considerable, the practice of bringing criminal liability for civil legal relations has not been eliminated, and this is really a problem. He especially noted the frequent conflicts in the application of similar rules prohibiting deliberate failure to fulfill contractual obligations and deception of the counterparty (parts 5–7 of Article 159 of the Criminal Code of the Russian Federation and Article 179 of the Civil Code of the Russian Federation).

One of the leitmotifs of the further speech of the Chairman of the Criminal Collegium of the Supreme Court was the application of Art. 210 of the Criminal Code of the Russian Federation, with which both courts and investigative authorities are experiencing difficulties. The stated statistics eloquently confirm this: the percentage of acquittals in such cases is unusually high (30% of the accused were acquitted by the courts, and for another 10% the cases were dismissed on exonerating grounds. It is not clear, however, whether the Gaiser case, which ended in a mass acquittal, is taken into account in the statistics provided 210 this year; if so, it could have a big impact on these numbers). At the same time, law enforcement officers deftly cope with proving the organizational structure of the criminal community in the economic sphere, simply replacing it with the organizational structure of business. This, according to Vladimir Davydov, is a vicious practice, and the situation can be corrected by amending Art. 210 of the Criminal Code of the Russian Federation. True, the bill introduced in September of this year to the State Duma and reflecting the idea of ​​business ombudsman Boris Titov to exclude the application of Art. 210 of the Criminal Code for almost all crimes in the economic sphere, the Supreme Court is not ready to support, since in practice there are cases when a criminal community actively uses the organizational structure of a legal entity. However, on behalf of the President, an alternative bill was developed, which is now being prepared for submission to the State Duma. It proposes to exclude the application of Art. 210 of the Criminal Code to directors and employees who carry out economic and other activities that are not related to anti-social activities, and it is also stated that in the absence of proof of intent, the organizational structure of a legal entity (probably also a holding) cannot itself act as evidence of the existence of a structure criminal organization.

Another striking problem that the presiding officer focused on is the detention of entrepreneurs at the pre-trial stage. The statistics are eloquent here: 137 entrepreneurs received a preventive measure last year. True, the number of refusals in her election is also impressive (76 applications were rejected), but still the given figures look frightening, taking into account the restrictions provided for by the Code of Criminal Procedure. Changes in Part 1.1 of Art. can correct the practice. 108 of the Code of Criminal Procedure, if it states that if there are charges under Art. 210 of the Criminal Code of the Russian Federation, the preventive measure in the form of detention is not applied. Vladimir Davydov did not rule out that the Supreme Court may come up with such an initiative after appropriate discussion.

However, the speaker did not see a systemic problem in the application of a special procedure for legal proceedings in criminal cases against entrepreneurs. This suggests that the Supreme Court supports the relevant norms of the Code of Criminal Procedure, and intends to resolve issues arising with their application through interpretation. The next clarifications in this area are about to be released: at the club meeting, the imminent appearance of changes to the Resolution of the 2016 Plenum was announced, as well as clarifications on incriminating entrepreneurs with charges of liability for crimes committed by a group of persons by prior conspiracy.

The club participants still received criticism from the legislator from the lips of the Deputy Chairman of the Supreme Court. Although cautiously, Vladimir Davydov complained that when adopting rules on tax amnesty, it was worth taking a more careful approach to the issues of banning the use of special declarations in criminal proceedings. Timely amendments to the Code of Criminal Procedure could prevent a well-known legal conflict (if anyone is not aware, we discussed it in the November issue), and the Supreme Court would not have to urgently prepare clarifications to calm the frightened business community.

The problem with preventive measures, according to the speaker, can be solved by introducing the figure of an investigating judge into the process, which the Supreme Court has repeatedly advocated. This can make up for the weakened prosecutorial supervision at the pre-trial stage, and at the same time relieve judges, who today are forced to deal with judicial control over the preliminary investigation along with the consideration of criminal cases. In addition, this will make judicial control under Art. 125 of the Code of Criminal Procedure, which, according to the Deputy Chairman of the Supreme Court, today is rather formal in nature, given the extremely low percentage of satisfaction of complaints, as well as the fact that judges are now deprived of the opportunity at this stage to check the validity of suspicion or accusation. This approach is supported by the positive experience of Kazakhstan (where investigative judges appeared), as well as the fact that the number of complaints at the pre-trial stage already significantly exceeds the number of criminal cases under consideration (more than 2 million, so we can talk about an independent large field of activity). True, nothing was said about the prospects for the appearance of a bill on investigative judges, which gives reason to believe that they (the prospects), unlike the bill prepared on the instructions of the President under Art. 210, still vague.

Following Vladimir Davydov, the problem of circumventing the legislative ban on imprisonment for entrepreneurs by “pulling up” additional charges under Art. 210 of the Criminal Code of the Russian Federation was also diagnosed by Moscow State University professor Pavel Yani (and it must be said that he noted this problem a year ago in his interview with the magazine “Zakon”). In this regard, I thought that it does not matter whether this article remains in the indictment and whether a guilty verdict is pronounced on it: the effect that frightens businessmen will be achieved regardless of this. Perhaps the most striking example of this this year was the Calvey case. The main person involved in it barely managed to be transferred to house arrest, while the rest remained in custody.

Another problem that Professor Yani noted is the courts’ misunderstanding of the essence of entrepreneurial activity: he cited practice in which the courts expressed the position that illegal activities cannot be considered entrepreneurial. What was said had a discouraging effect on me personally: after all, in this case, any corpus delicti a priori excludes the entrepreneurial component. However, judging by the reaction (lack of surprise) of Vladimir Davydov, the Supreme Court is probably aware of this problem, and one can hope that this kind of “excesses on the ground” will not go far.

Scientists are also causing discord in the practice of using entrepreneurial compounds: Pavel Yani gave an example of how a well-known civil scientist in his works tries to substantiate the transactional nature of fraud (the speaker refused to specify the identity of this researcher, but insiders will probably immediately guess that we are talking about Konstantin Sklovsky). Fraud, of course, is not a transaction at all, but a classic example of a tort, the master of criminal law convinced the audience.

The speaker proposed an interesting criterion for separating crimes in the field of business activity from other offenses. To resolve possible discrepancies, Pavel Yani proposed to investigate the share of entrepreneurship in the illegal economic activities of the accused. For example, if a businessman deceives a large number of shareholders throughout Russia by collecting money and not intending to build anything, but at the same time he actually built “three barracks” for sale, there is no reason to consider his business as entrepreneurial. Vladimir Davydov, however, was skeptical about the use of this test, noting that in any case this cannot be the only criterion for this kind of distinction.

The third and final speaker was Mikhail Lobov, Head of the Department of Policy and Cooperation in the Field of Human Rights of the Council of Europe. Mikhail drew attention to the fact that the ECHR is inundated with complaints from Russia concerning what the applicants consider to be illegal detention (Clause 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). The reason for the frequent upholding of such complaints lies in the fact that the courts do not comply with the three-step test, well known in the practice of the ECtHR, which assumes that detention is possible only if there is a risk of (1) recidivism, (2) impact on justice on the part of the alleged offender and ( 3) evading justice. In this case, detention must be exceptional. The court must pay attention to each of these criteria in the reasoning part, as well as to why it did not choose another, more lenient measure of restraint, but often this does not happen. Lack of proper motivation often leads to the satisfaction of such complaints.

I was surprised why, given the well-known practice of the ECHR, courts continue to systematically make such mistakes. To this, Vladimir Davydov explained that there is still no effect of “stepping on the same rake” in judicial practice, and the Supreme Court has already paid attention to these criteria, more than once, which was confirmed by Mikhail Lobov. The practice in question took place back in the 2000s, and the ECtHR cannot promptly diagnose the problem due to the long time frame for considering complaints. At the same time, mistakes on the part of the ECHR cannot be ruled out; as an example, the chairman of the criminal panel of the Supreme Court cited a case in which, after the decision of the ECHR, it was necessary to release a dangerous criminal after 3 months of detention. Mikhail Lobov, for his part, acknowledged the problem of the length of time it takes to consider complaints and noted that the Supreme Court is in a constructive dialogue with the ECHR on controversial issues of detention.

Concluding the meeting, club secretary Elena Povorova summed up a certain conclusion, noting that certain issues touched upon by Mikhail Lobov may in the future become the subject of a separate discussion in the club. The next club meeting will take place in February.

This was my first time at an event of this kind, and I personally liked it: given the lack of information about the preparation of decisions of the Plenum of the Supreme Court, this information bridge made for the media was very useful. Moreover, it is in such live discussions that the faces of the judges of the highest court are revealed. Vladimir Davydov made a favorable impression on me: strong-willed facial features and a strong handshake reveal him to be a man of principle.

○ Types and methods of fraud in business activities.

Despite the fact that the main sign of fraud in the business sphere is failure to fulfill one’s obligations under an agreement, there are certain types of crimes that are classified according to the provisions of Article 159 of the Criminal Code of the Russian Federation.

✔ Excess of authority or deliberate overestimation of the company’s capabilities by the head of the organization.

Commitment by an official of actions that clearly go beyond the scope of his powers and entail a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. (Clause 1 of Article 286 of the Criminal Code of the Russian Federation).

The charter of any enterprise specifies the rights and obligations of each participant in labor relations, including the manager. This is usually a limit on the maximum amount of trades that he can carry out on his own.

The conclusion of an agreement for an amount exceeding the established limit is used by managers to subsequently invalidate the transaction.

✔ Conclusion of agreements that contradict the laws of the Russian Federation.

A transaction made for a purpose that is obviously contrary to the foundations of law and order or morality is void:

• If there is intent on the part of both parties to such a transaction - in the case of execution of the transaction by both parties - everything received by them under the transaction is recovered from the income of the Russian Federation, and in the case of execution of the transaction by one party, from the other side everything received by it and everything due from it is recovered from the income of the Russian Federation to the first party in compensation for what was received.
• If there is intent on the part of only one of the parties to such a transaction, everything received by it under the transaction must be returned to the other party, and what the latter received or what was due to it in compensation for what was performed shall be recovered as the income of the Russian Federation. (Article 169 of the Civil Code of the Russian Federation).

When drawing up an agreement, in most cases, the parties themselves determine the terms of the transaction. In this case, the rights and obligations of the participants are established with the clause “unless otherwise provided by the agreement.”

If we are talking about legislative norms, then they must also be given in the text of the document. You can protect yourself from entering into transactions that are contrary to the law by carefully reading the information contained in it. Lack of references to laws, as well as obvious deviations from civil norms, are a sign of fraud.

✔ Attribution of merits not fulfilled or not received by the company.

This fact manifests itself in the requirement to pay for goods or services that were not transferred/provided to the counterparty. In this case, the scammer may use fake invoices and receipts.

✔ Providing loans with hidden fees.

This type of fraud involves the inclusion in the contract of payment for services not provided. They are usually written in small print, which is most often simply not noticed.

✔ Fraud when applying for a loan for an organization.

This type of crime is a type of abuse of power by a manager. For example, a loan is issued secured by the organization’s property, which is not repaid on time. When the bank makes a claim against the company, it turns out that the manager did not have to pledge the company’s property, and therefore the contract is invalid.

Criminal liability for failure to fulfill a contract

Fraud is a form of theft and involves two ways of committing the crime: by deception and by breach of trust. The main feature that makes it possible to distinguish it from ordinary non-fulfillment of the terms of the agreement is the intentionality of the actions of the accused. In essence, this concept is equated to the presence of intent, as a form of guilt in criminal law.

Thus, in order to accuse an entrepreneur or an official of a commercial organization of committing fraud when concluding a contract, it is necessary to prove the presence of such signs as:

• method of committing the crime (deception, abuse);
• presence of theft (misappropriation of money, property);
• culpable failure to fulfill contractual obligations;
• premeditated intent for selfish purposes.

Note that we can talk about theft (misappropriation, embezzlement) only in the case when one of the parties loses its property (money), that is, the right to it passes to the participant who has not fulfilled the obligation. If the company suffers losses but remains the owner of its property, there is no corpus delicti.

Obviously, if the contract was signed by a person who does not have the authority to do so, or if forged documents were presented, fraud is not difficult to prove. But in many cases the situation is not so clear-cut. For example, the Supreme Court points out that “a person’s deliberate lack of real opportunity to fulfill an obligation” may indicate criminal intent.

However, an entrepreneur can never be completely sure that he will fulfill his obligations. His activities are, by definition, risky. And the situation when he sells a product that is not there, counting on the fact that by the agreed date he will have it, is more the norm than the exception.

In such cases, the task of the lawyer for economic crimes is to prove that the conditions were not fulfilled by the client due to the occurrence of objective circumstances that he could not influence. If they were not created by his actions aimed at terminating his obligations, there are no grounds for a charge of fraud.

There is no clear line between the fact of non-fulfillment of obligations and fraud. To prove intent, courts consider such circumstances as the presence of money in accounts on the day of payment, or the signing of an agreement in the absence of the necessary license to carry out work. There are many controversial issues here that can be used for defense. So, for example, in the latter case, the participant’s behavior directly indicates only that he is violating licensing legislation. This offense is punishable by administrative liability.

○ What should an entrepreneur do who has fallen into a fraudulent scheme due to the fault of a counterparty?

If fraud is detected, you need to write a complaint to the counterparty demanding to fulfill its obligations. This is a pre-trial measure that serves as evidence that you tried to resolve the case amicably.

Next, you need to submit an application to the authorized bodies.

✔ Drawing up an application.

The application is drawn up in free form indicating:

• Recipient details.
• Applicant details.
• The circumstances of the case, indicating all significant actions and events.
• requirements: prosecution, compensation for damage, inspection of activities, etc.
• Evidence base.
• List of attached documents.
• The fact of familiarization with the responsibility for giving knowingly false testimony (Article 306 of the Criminal Code of the Russian Federation).
• Dates and signatures.

To make statements, share the link on social networks of your choice:

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✔ Contacting authorized bodies.

The victim can contact:

• Police on the fact of committing illegal actions.
• The prosecutor's office to initiate a review of the fraudster's statutory and financial documents.
• Court to obtain compensation for damage caused.

Business fraud

February 26, 2022 6:48 pm

During the next FPA webinar, lawyers were told about errors encountered in forensic investigative practice in cases of fraud

On February 26, the next webinar of the FPA of the Russian Federation was held to improve the qualifications of lawyers, during which a professor from the Department of Criminal Law of the Moscow State Law University named after O.E. gave a lecture on the topic “Fraud in Business.” Kutafina, Doctor of Law Ivan Klepitsky.

At the beginning of his speech, the lecturer said that businessmen are often held accountable for violations that they did not commit. This is due both to an incorrect interpretation of the law and to established law enforcement practice, which, according to the speaker, is also not correct.

Despite the fact that the concept of fraud is clearly defined in the law and implies the theft of someone else’s property or the acquisition of the right to it through deception or abuse of trust, errors occur in forensic investigative practice, explained Ivan Klepitsky.

As an illustration, he gave the most interesting examples. In one of them, a citizen established a joint-stock company (built a factory that produced high-tech goods). Subsequently, as a result of the recession, demand for the product fell. There was not enough working capital to pay salaries and current expenses, so the founder took out a loan. However, demand did not increase and they had to take out another loan. When the loan repayment period expired, the bank went to court to initiate bankruptcy proceedings for the plant. At the same time, a criminal case was opened against the founder for fraud, and he himself was taken into custody.

In this situation, the speaker noted, there was no damage - a mandatory sign of theft of property - as well as deception, since the founder of the plant was not hiding, and the value of the enterprise's assets significantly exceeded the amount of debt to the bank. In addition, the founder could find an investor and pay off the debt, but was deprived of the opportunity to do this while in a pre-trial detention center. According to the professor, the logic of the accusation was that since the borrower did not repay the loan, it means he caused damage.

In another example, an entrepreneur was constructing a road and invoiced the purchase of gravel according to the specifications of a factory affiliated with the local government. A clause on gravel was also included in the design documentation. The entrepreneur received the money, but did not buy gravel, but produced it using his own crusher. Local authorities, having learned about this, filed a claim in the arbitration court.

The entrepreneur won the case, since the examination did not reveal any claims regarding the quality of the work he performed. Then local authorities charged him with theft of funds not paid for the purchase of gravel. According to Ivan Klepitsky, this is a humane approach, since in practice, courts often charge the person accused of theft with the entire amount received from the account.

At the same time, the speaker noted, in the situation under consideration there is no damage, since the obligation was fulfilled properly, but there is fraud, but its circumstances are not so significant. The position of the prosecution in this case was as follows: since the obligation was properly fulfilled, the rule on fraud in business activities cannot be imputed, therefore the accused was simply charged with fraud.

Ivan Klepitsky explained that, despite the absence of signs of a crime, an acquittal in this case was impossible. The defense managed to prove the failure to fulfill contractual obligations, thanks to which the case was dismissed due to statute of limitations, but the money was still recovered from the entrepreneur through civil proceedings.

The lecturer also gave examples from practice when realtors were prosecuted for misuse of maternity capital. So, in one example, the buyer, with the help of a realtor, used maternity capital and purchased a house in the village, but did not register anyone there. The court qualified this as fraud, since in fact the citizen cashed out the money without improving her living conditions. The prosecution found other persons who also cashed out maternity capital with the help of this realtor, and charged the latter with the entire amount of the cashed certificates as theft committed by him.

In the second case, when purchasing an apartment, the buyer wanted to pay part of its cost using maternity capital. The realtor found an apartment and agreed on a price, but the seller needed the entire amount at once. Since, according to the law, money under the certificate is transferred after state registration of the right to real estate, and not to the buyer, but to the seller or lender, they decided this: the buyer paid the seller the full cost of the housing, and entered into a fictitious loan agreement with the realtor, according to which he received the money after registering the transfer of ownership and returned them, minus his commission, to the buyer. As a result, the realtor was accused of stealing state money by deception by concluding a fictitious contract.

The lecturer noted that in the cases under consideration there was no corpus delicti, and the procedure established in the resolution of the Government of the Russian Federation is so formal that maternity capital, in fact, cannot be used even for its intended purpose - to improve living conditions.

Ivan Klepitsky also gave examples related to limiting theft, fraud and embezzlement, etc. In one of them, the director of a mining and processing plant sold a batch of raw materials to an intermediary for 13 million rubles, and he, in turn, sold it to the mining and processing plant for 15 million rubles. The intermediary and the director divided the profits equally. Subsequently, the director confessed and was convicted of stealing a batch of raw materials worth 15 million rubles.

This qualification of the act, according to the speaker, contradicts common sense. In this case, there was indeed damage, but in the amount of not 15 million rubles, but 2 million rubles, since the property was not lost, but sold. Accordingly, there was a loss of profit from the sale of goods.

In this regard, Ivan Klepitsky drew attention to the legal position set out in the Resolution of the Supreme Court of the Russian Federation of November 30, 2017 No. 48, that when establishing the amount stolen as a result of fraud, misappropriation or embezzlement, the courts should keep in mind that theft property with the simultaneous replacement of it with a less valuable one is qualified as theft in the amount of the value of the seized property.

However, as the lecturer believes, for this, first of all, it is necessary that theft has taken place, and in the case under consideration there are no signs of it.

The speaker gave examples where fraud is charged in the case of stock market speculation. Thus, the shareholder deposited the securities he owned into the account of the brokerage office and issued a power of attorney to carry out transactions with them. As a result, he lost his securities, and the broker was accused of fraud and taken into custody.

At the same time, he noted: the indictment indicated that the victim, when contacting a brokerage office, expressed a desire to enter into an agreement for the provision of services on the stock market in order to receive a small profit from the placement of securities belonging to him, but did not intend to sell them, and signed a power of attorney according to inattention. The court supported his arguments. At the same time, Ivan Klepitsky emphasized, the placement of securities on the stock exchange is precisely their sale.

According to the speaker, the reasons for incorrect law enforcement practices have historical roots (the concept of theft of socialist property and responsibility for this act were introduced in 1932), and are also due to legislative gaps and a corruption component.

Concluding the lecture, Ivan Klepitsky noted that lawyers and jurists are responsible for eradicating such disgrace as bringing to justice people who have not committed illegal acts or entered into a profitable deal, so they need to fight both to protect the interests of the client and to bring reasonable limits of incorrectly established law enforcement practice.

The webinar will be repeated on Saturday, March 2.

Tatiana Kuznetsova

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○ Advice from a lawyer:

✔ As an individual entrepreneur, Ivanov V.A. entered into an agreement with individual entrepreneur V.N. Alexandrov. for the supply of equipment for a workshop for the restoration of art objects. In the agreement, Ivanov prescribed the grounds within which he could not fulfill his part of the deal after receiving the deposit. What should Petrov do in such a situation if Ivanov refused to fulfill the agreement?

In this case, there is an intent to fail to fulfill one’s obligations. Therefore, Petrov needs to contact the police or prosecutor’s office with a statement of fraud.

Stupidity, illiteracy and haste in adopting a criminal law by State Duma deputies sometimes allows fraudsters to reduce their punishment or avoid responsibility altogether. A clear example of this is the adoption of Article 159.1 of the Criminal Code of the Russian Federation “Fraud in the field of lending.”

Let's take the following situation as an example: a fraudster - the general director and his subordinate, by a group of people, through obtaining a loan, by providing false information to the bank, stole a sum of money in the amount of 1,000,000 to 1,500,000 rubles. According to Part 2 of Article 159.1 of the Criminal Code of the Russian Federation, the punishment should be up to 4 years of imprisonment in a penal colony.

But if the director of the company uses his subordinate “in the dark” and does not inform about criminal plans, then, according to the positions of the Plenum of the Supreme Court of the Russian Federation, the director’s actions will be qualified as “ordinary” fraud under Part 4 of Article 159 of the Criminal Code of the Russian Federation, punishment under which is much stricter - up to 10 years in a general regime colony.

Thus, our Russian deputies passed a law that punishes a group crime under Part 2 of Article 159.1 of the Criminal Code of the Russian Federation more than twice as lenient as a single crime under Part 4 of Article 159 of the Criminal Code of the Russian Federation. Let us note that both crimes were committed under similar factual circumstances, leaving a large field for the defense of the accused.

Hence, a professional lawyer can advise fraudsters to always steal money from the bank in a group of people using accomplices, for example, women, whom the court always punishes more leniently.

Moreover, a professional fraudster, organizer, general director will need to record evidence of collusion with the performer, so that the latter does not then shift all the blame onto the organizer. Since this technique, when exposing a crime, will make it possible to reclassify Part 4 of Article 159 of the Criminal Code of the Russian Federation to Part 2 of Article 159.1 of the Criminal Code of the Russian Federation and more than halve the possible punishment.

Moreover, evidence of conspiracy can help the organizer persuade the performer to take all the blame on himself so that there is no group of people. Then the act will be qualified in general under Part 1 of Article 159.1 of the Criminal Code of the Russian Federation with a maximum punishment of no more than four months of arrest, i.e. in most cases, without actual imprisonment, and the professional organizer generally remains “in the shadows,” at large and without a criminal record.

Qualification under Part 1 of Article 159.1 of the Criminal Code of the Russian Federation brings two more advantages to professional fraudsters with credit funds:

1. On this charge they are not taken into custody or sent to a pre-trial detention center;
2. Since this is a crime of minor gravity, operational investigative measures cannot be used in its investigation, for example, such as: wiretapping, viewing mail correspondence, monitoring computer information, an operational experiment or operational investigation that violates the rights to the inviolability of the home. If these operational investigations were nevertheless carried out, then the lawyer may recognize the evidence received as inadmissible and generally collapse the criminal case.

This is how illiterate artists, athletes, cosmonauts, singers and former officials in the State Duma pass laws! The goals are humane, the implementation is mediocre! Banks are suffering, and we are with you, as these crimes increase the cost of loans to respectable citizens.

But remember that the conclusions and recommendations of this article are 100% only suitable if the amount of the stolen is from one to one and a half million rubles; in other cases, seek advice from professional criminal lawyers.

I provide every second Principal/Client with services to terminate simple criminal cases free of charge, with payment based on the result after the termination of the criminal case! I work all over Russia, attract local lawyers, whose work I control and am responsible for the quality of legal assistance! I can also conduct a case remotely: I advise, teach how to behave in court over the phone, prepare draft documents for filing in court and terminating a criminal case.