Malicious evasion by the head of an organization or a citizen from repaying accounts payable on a large scale or from paying for securities after the relevant judicial act has entered into legal force is 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 compulsory labor for a term of up to four hundred eighty hours, or forced labor for a term of up to two years, or arrest for a term of up to six months, or imprisonment for a term of up to two years.
The law does not say what “malicious evasion” is.
This is an evaluative concept.
As a rule, the court recognizes evasion as malicious:
- if the debtor has funds, but does nothing to pay off the debt;
- if the head of the debtor company rudely refuses to comply with the demands of the bailiff;
- if the debtor sells or hides property, moves to another city and does not inform anyone about it.
note
The investigator can initiate a criminal case only if the amount of debt is more than 1,500,000 rubles. This requirement does not apply to evasion of payment for securities. Here the size of the debt does not matter.
Features of initiating a criminal case
Malicious evasion of debt payments is being investigated by police investigators.
As a rule, information about a crime comes to the police from the creditor company. But it happens that the judge who made the decision to collect the debt, or the bailiff who is tasked with executing this decision, signals the authorities.
To initiate a case, the investigator must study the court decision on debt collection. Then he will find out what enforcement measures the bailiff took.
The investigator will definitely talk with employees of the debtor company. He needs to establish whether the company had a real opportunity to pay the debt. If the debtor does not have money, the case will be refused.
Property liability
This is a type of civil liability. It applies to a wide range of relations between individuals and legal entities. In the case of financial relations, we can talk about loans backed by collateral (for example, a car serves as collateral).
In this case, creditors will foreclose on him. In addition to the seizure of the pledged property, the debtor’s existing bank accounts may also be seized.
If the dispute was resolved in court, and arbitration (magistrate court or court of general jurisdiction) satisfied the creditors’ demands, but the debtor is not going to fulfill them “right away”, then the court will send a writ of execution (or court order) to the authorities of the Federal Bailiff Service. .
And the bailiffs, in turn, will be able to do the following:
- withhold funds from the debtor’s income (up to 50%, and in some cases up to 70%);
- officially withdraw the cash available to the debtor in the house (or place of work);
- withdraw money from a bank account;
- sell existing property or valuables;
- initiate debt collection using the property pledged under the loan agreement (both movable and immovable).
Features of the investigation
By initiating a criminal case, the investigator will find out exactly how the debtor evaded repayment of the debt, how many times the victim demanded to repay the debt. This is necessary to prove the maliciousness of the evasion.
The investigator will definitely establish the amount of damage. This is not difficult to do. The amount of debt is indicated in the court decision. If it is less than 1,500,000 rubles, it will not be possible to bring the debtor to criminal liability.
At the bank, the investigator will seize the credit file of the debtor company, at the tax office - its balance sheets for the latest reporting periods (depending on how long the company evaded repayment of the debt).
The suspect will be questioned by the investigator about what needs the loan was used for, why it has not yet been repaid, etc. Employees of the financial department and accounting department will be questioned as witnesses. The investigator must establish whether the company had a real opportunity to repay the debt.
The investigator may order examinations: handwriting examinations to determine who signed the papers, and forensic accounting examinations to find out whether the company has financial difficulties and whether it conducted business activities after the court decided to collect the debt.
How to avoid punishment
What should the borrower do? Depending on what type of liability the debtor is subject to, he has several options for behavior.
First of all, do not avoid communicating with the creditor
In case of financial or property sanctions, you need to contact the bank and look for compromise solutions. In this case, the bank will invite you to discuss the problem and find a compromise.
The result may be a revision of the terms of the loan, for example, a reduction in the monthly payment by increasing the loan term. This is called a restructuring program. Or an offer to go on a “credit holiday” - not to pay the principal amount for several months. It is important to remember that it is more important for a bank in Russia to receive at least some money from a client than to put him in prison for non-payment of a consumer loan.
However, you should not expect the lender to write off the loan completely. You can only count on this if you go through the personal bankruptcy procedure. And in order to better understand the procedure for your actions, and feel more confident in dealing with the bank, it is best to enlist the legal help of professionals.
You can also agree on a deferment when trying to take away property. If the borrower is caught in an administrative violation, but does not agree with the court decision and the fine imposed on him, the decision can be challenged.
Don't run away from the bailiffs
But understand - it is difficult to resist the decisions of the bailiffs in your case. Especially when the decision has already been made by the court. And until a court decision is made, no one has the right to describe, much less seize, your property.
If the case has already reached court, then it is worth considering options for concluding a settlement agreement. But to do this, you will again have to find a common language with creditors.
What do the courts do?
Criminal cases under this article rarely reach court. If the debtor does not have money or has at least partially repaid the debt, the investigator will not initiate a criminal case.
But there are still convictions.
As a rule, the court imposes a penalty in the form of a fine. In addition, the debtor must pay the creditor the entire amount of the debt. EXAMPLE The debt of the publishing house "Periodika" to the publishing house "Molot" has been accumulating since the beginning of 2008. When the debt amounted to 3,300,000 rubles, the publishing houses signed an agreement to return it within five months. At the end of this period, the money was never received into Molot’s account. The publishing house filed a claim with the Arbitration Court against Periodicals to collect the debt. The claim was fully satisfied. However, even after this, the director of Periodicals, Vasiliev, continued to evade paying the debt. The Molot publishing house filed a complaint with the police. As a result, the criminal court found the director of Periodicals guilty of malicious evasion of repayment of accounts payable (Article 177 of the Criminal Code of the Russian Federation). And he was sentenced to a fine of 200,000 rubles. In addition, the court ordered the publishing house "Periodika" to pay the publishing house "Molot" the entire amount of the debt - 3,300,000 rubles.
Financial responsibility
First, let's look at what financial sanctions a lender can resort to. These include:
- accrual of fines for the amount of late payment;
- inclusion of a condition for increasing the lending rate (most often, by law, this can be applied to loans with a floating rate, for example, on credit cards or loans tied to generally accepted Russian rates, for example, MosPrime - but now such loans are rare);
- requirement to repay the loan balance in one lump sum.
Financial sanctions are the most common form of influence by which credit institutions try to encourage the borrower to comply with the terms of the agreement.
The ability to fine an unscrupulous debtor is regulated by Federal Law No. 353-FZ “On consumer credit (loan)”.
Penalties are assessed on the amount of the missed payment and usually amount to a small fraction of a percentage (in most banks from 0.01 to 0.1% of the monthly payment). However, it should be remembered that in this case these hundredths or tenths of a percent are accrued for each day of delay.
The delay begins to count from the first day after the failed payment.
However, in any case, the legislation stipulates that the total amount of fines assessed cannot exceed:
- 20% per annum if interest is accrued on the loan amount during the period of delay;
- 0.1% of the amount of overdue debt, if such interest is not accrued.
Moreover, in both cases, penalties are calculated only on the amount of the overdue amount, and not on the entire outstanding loan amount.
If the delay is caused by random reasons or short-term problems, for example, the debtor forgot about the payment date, or he had a one-time shortage of funds, then there should not be any big problems. The client will pay the amount, taking into account the overdue amount, the money will be credited to the account, and after that the bank will first write off the accrued fine, then the interest on the loan, and only then the remaining amount of the contribution.
This procedure is stated directly in the loan agreement, so any borrower must read the agreement carefully.
In most cases, in the first weeks the bank only reminds the client that they are in arrears on the loan. This is done through messages or calls to a mobile phone, or by sending emails.
In some cases, letters may also be paper. Typically this “reminder period” lasts two months. If the delay is prolonged, then the security service of the credit institution takes over the matter. Conversations become tougher, and the pressure on the evader is greater.
If the client avoids payments for more than three months (sometimes for six months), or categorically refuses to make contact, then it is quite possible that the bank will sell the problem debt to collectors. Or he will file a lawsuit against the negligent borrower: first, an application for the issuance of a court order. And then, if the debtor cancels this order, there will be a full-fledged lawsuit.
Risk of losing parental rights
Due to malicious failure to pay child support, parents may be deprived of parental rights to a child or children in court. Moreover, they will still have to pay child support. Deprivation of parental rights does not relieve them of the obligation to support children until they reach adulthood.
But at the same time, the parent loses the right to alimony from the child in old age, the right to inherit for him, the right to participate in his upbringing, and to be his legal representative. A child can be freely adopted by another person, and even change his name, surname and patronymic.
ATTENTION! Since the criminal article against willful defaulters is used quite rarely, and the state is very concerned about the observance of the rights of minor children, in 2016 a new article No. 5.35.1 was added to the Code of Administrative Offences. It includes fairly strict penalties for non-payers:
- Fine 20 thousand rubles
- Compulsory work, up to 150 hours
- Administrative arrest for 10-15 days
And according to Federal Law No. 229 (Article No. 67.1), for alimony debt of more than 10 thousand rubles. can:
- Deprive the right to travel outside the country until the debt is fully repaid
- Suspend your driver's license indefinitely (until the debt is eliminated)
It is also important to understand that administrative penalties associated with alimony debts in modern Russia are constantly becoming tougher and taking on new forms. So the above is just the beginning.
How to bring a persistent defaulter to justice
In order for a persistent non-payer of alimony to be subject to criminal punishment, it is important to comply with certain conditions:
- Alimony must be ordered by the court
- The maliciousness of their non-payment (i.e. deliberate and long-term failure to comply with the court decision) must be proven
Therefore, the alimony recipient must take the following actions:
- Submit an application to the court, forcefully collect alimony, receive a verdict and writ of execution, submit the writ of execution to the FSSP
- For six months, observe the enforcement proceedings, make sure that alimony is still not paid, and the bailiff warned the defaulter that criminal liability may arise
- If this is the case, initiate criminal proceedings
As a private (albeit interested) person, the alimony recipient himself does not have the right to do this. It is the right of the FSSP to initiate criminal cases against alimony debtors/defaulters.
However, the recipient (more precisely, the “non-recipient”) of alimony can write an application to the FSSP bailiff who is responsible for enforcement proceedings to bring the defendant under a criminal article.
Evasion of repayment of accounts payable
The term itself in the title of the article means that the borrower makes no effort to repay the borrowed money. Even if he does not have the financial ability to do this due to circumstances beyond his control (illness, loss of income, etc.), the borrower must inform the bank about this and together with him look for options to resolve the issue. Otherwise, his behavior can be considered as attempts at evasion.
Before the court deals with a problem loan, there are several stages through which an unscrupulous borrower who has violated Art. 307 of the Civil Code of the Russian Federation:
- Before the payment deadline approaches, the lender tries to contact the borrower to remind them about the debt and ask if there are any problems. This is the best time to contact the bank and try to negotiate.
- After the payment is overdue, the bank looks for the debtor using contacts known to him: telephone numbers (including work or relatives), postal address, etc. From the moment of delay, fines accumulate, credit history deteriorates (it will be more difficult to take out a loan). The bank's trust in the client decreases, the client ends up on the list of unreliable ones. It is now more difficult to reach an agreement with the bank.
- Realizing that it is cheaper to transfer the debt to collectors, the bank sends them to the creditor. There are two options: the debt can be sold to a collection agency or they can act as representatives of the bank. The issue of the loan will have to be resolved with the person who owns it.
- Sometimes credit organizations do not involve collectors, but immediately send the claim to court (the proceedings will be civil, not criminal). The court will likely side with the plaintiff, and if the borrower refuses to comply with the judgment, he may be charged with evasion, which is a criminal offense.
This system may change in the near future if the Ministry of Justice and the FSSP lobby for the law “On activities for the return of overdue debts of individuals.” Now such debts are collected in accordance with Federal Law No. 230. This law is aimed at protecting citizens from debt collectors and regulates the activities of microfinance organizations.
The new concept provides that the creditor will be able to go to court 30 days after the borrower has received an offer to repay the debt. The bank can do this the next day after the delay.
The maximum punishment under Art. 177 of the Criminal Code of the Russian Federation - two years in prison.
If the debtor tries to come to an agreement with the creditor and takes measures to repay the debt, he will not commit actions qualified by Art. 17.14 according to the Code of Administrative Offenses (interfering with enforcement proceedings), this will benefit him.
Do you go to jail for not paying child support?
This topic worries many “offended” mothers receiving alimony. They can be understood - after all, it is not only offensive, but also incredibly difficult to “raise” a child, or even several, alone. And at the same time know that their father is deliberately avoiding helping his own children.
Question:
For ten years after the divorce, the ex-husband did not give the child any money at all. He either did not work, then worked unofficially, then left “to earn money,” or went to the hospital for a long time. I tried to collect alimony in court, took a writ of execution, but the bailiffs threw up their hands - it was impossible to get payments from him! Can he at least be put in jail? Or will this unscrupulous and, I believe, criminal behavior remain unpunished?
Answer:
Yes, imprisonment for long-term non-payment of alimony and large debts is provided for in Article No. 157 of the Criminal Code of the Russian Federation. This crime is not considered serious, and the prison term for it is short. It must be said that this measure of restraint is used relatively rarely by the courts; more often, for systematic failure to pay, they are sentenced to correctional or compulsory labor for the same period. However, it is believed that the threat of criminal prosecution itself is a fairly effective method of influencing “negligent fathers.” As well as the fact that sometimes malicious defaulters do end up in prison.
