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Business Duty Officer

“Business Duty Officer” took part in several sessions of the SPBILF-2023

“Business Duty Officer” took part in several sessions of the SPBILF-2023

Since July 11 by 13 May Head of the Expert Center for Criminal Law Policy and Enforcement of Judicial Acts "Business Russia", ambassador “business officer” Екатерина Авдеева принимала участие в нескольких сессиях в рамках XI St. Petersburg International Legal Forum.

Expert Center of "Business Russia" and the Investigative Committee discussed the problems of criminal liability

In the session “Criminal liability of legal entities: Problems and Prospects” was also attended by Alexander Bastrykin, Chairman of the Investigative Committee of the Russian Federation, Vladimir Pligin, co-chairman of the Association of Lawyers of Russia, Head of Analytical Service, Pepeliaev Group, Vadim Zaripov, Member of the Expert Center for Criminal Law Policy and Enforcement of Judicial Acts of Business Russia, Director of the Chinese-Russian Center for Comparative Law, Henan University Pan Dongmei. The meeting was moderated by Sergey Olennikov, Head of the Department of Criminal Law of the Law Faculty of St. Petersburg State University.

Ekaterina Avdeeva supported the trend to give preference to financial, rather than criminal punishment against entrepreneurs. According to her, this is relevant in the execution of government contracts. In particular, Art. 76.1 The Criminal Code of the Russian Federation provides for the possibility of exemption from criminal liability in the event of compensation for the amount of the fine in the double amount in relation to the damage. She also noted, that entrepreneurs express excessive wishes for decriminalization until then, until they face the reality of economic crime in the position of the victim.

Having analyzed the experience of foreign countries on the implementation of the liability of legal entities in the legislation, Ekaterina Avdeeva expressed the need to approach the discussion of the issue systematically through a balanced approach and include it in the consideration of criminal law policy, engaging the business community, law enforcement, science community, judiciary.

Of course, the traditional view is in conflict with the introduction of liability in connection with the position of individual guilt of an individual, because, in essence,. 48 Civil Code of the Russian Federation, a legal entity actually functions due to the actions of individuals, which means, understand their meaning and consequences.

Besides, there is a risk of exploitation of criminal liability for illegal purposes. Since the prerequisites for criminal prosecution are often corporate conflicts, they may lead to attempts to use the new institution as a mechanism to eliminate competitors. It is important to emphasize, that the property of a legal entity may de facto belong to another entity, which legally performs significant actions. Therefore, the question arises of the need to assess the de facto holding structure, which is also relevant for the institution of bankruptcy.

In addition to this, the head of the expert center emphasized, that often law enforcement officers are forced to promptly initiate criminal cases and hold persons accountable, in order to avoid the loss of the opportunity through further illegal actions to provide the injured party with compensation for damage, which is especially important in the execution of government contracts. Herewith, agreeing with the position of scientists and Alexander Bastrykin, Ekaterina Avdeeva noted, that often in corporations decisions are often made by more than one person, but by a group of persons in accordance with corporate regulations. Therefore, the “appointment of a guilty person” gives rise to claims against the law enforcement system., although they are conditioned by the tasks before them.

Criminal law policy in an era of change

Participants of the session “Criminal legal policy in an era of change: challenges and how to counter them” discussed the main aspects of criminal law policy, to reform which, according to Ekaterina Avdeeva, need to be approached comprehensively, based on the balance of private and public interests, and also taking into account the long-term prospects for such changes.

To date, we can state a tremendous improvement in terms of tax compositions. This was facilitated by a threefold increase in the threshold values ​​for determining the amount of damage in 2020 year, as well as changing the procedure for initiating criminal cases in 2022 year - based on the materials of the tax audit in connection with the fact, that the tax authority sees arrears. An important role was played by the adoption of the law, which was announced personally to Russian President Vladimir Putin at the Business Russia forum in 2022 year and supported by him, which demonstrates the active participation of the state in protecting the rights of business entities. Thanks to this bill, the legislative grounds for refusing to initiate criminal proceedings in the case of, if the tax arrears are paid in full before such a procedural decision is made, as well as the statute of limitations for qualified tax compositions has changed and now they are 6 years in connection with, that the maximum sentence of imprisonment was reduced by 1 year. Together, these measures improve the business climate, providing a large number of opportunities for entrepreneurs.

Ekaterina Avdeeva noted, that today the issue of the timing of the tax audit is becoming relevant, so that in case of detection of arrears, law enforcement officers have time to investigate and send to court, and the court to pass judgment, so that the statute of limitations does not lead to indulgences for entrepreneurs.

It should be noted, that there are also excessive proposals regarding liberalization. In particular, We are talking about the bill of the party "New People", aimed at further raising the thresholds for tax compositions to 35 million. rub. as major damage and up to 100 million. rub. as a major. It will lead to, one side, to reduce the preventive function of criminal law in terms of tax structures, and hence lower budget revenues., on the other hand, the law enforcement officer can change the methodology for calculating the debt or even use other formulations, which can ultimately have a negative impact on entrepreneurs. The problem of determining large and especially large damage under the relevant parts of the articles of the Criminal Code of the Russian Federation is most important for the thresholds for amounts under Art.. 159 CC RF. The current damage threshold in 250 thousands. rub. absolutely does not correlate with the current economic realities and the level of inflation.

The expert noted the situation, which develops in connection with the disproportion under Art.. 198 Criminal Code of the Russian Federation and Art.. 199 CC RF. According to current regulation, amount thresholds differ depending on the form of doing business by an individual entrepreneur or a legal entity, and, as a consequence, different levels of responsibility. This disproportion is seen especially sharply in the scandalous examples of Russian bloggers.. Here it is important to consider, that the law is on the side of business, who is ready, before it's too late, demonstrate awareness of errors and submit an amended declaration or, if information has already been received from the tax authority with a requirement to pay arrears, make payment immediately. Even after the initiation of a criminal case, one can expect its termination or release from criminal punishment in connection with Art.. 28.1 Criminal Procedure Code of the Russian Federation and Art. 76.1 Criminal Code of the Russian Federation depending on the stage, on which the full payment of the tax arrears occurs. Thanks to the amendments to the Criminal Procedure Code of the Russian Federation that entered into force in March 2023 years in case of payment of tax arrears before a decision is made to initiate a criminal case, a decision is made to refuse to initiate a criminal case.

“Today, the search for a solution to the problem of choosing a preventive measure against entrepreneurs occurs through finding a universal formula for a clause on the commission of crimes in the field of entrepreneurial or other economic activity.. However, it is important to proceed not only from the procedural aspects, but also qualifying, since the allocation of special compositions will allow the inclusion of these compositions without additional reservation ", – said Ekaterina Avdeeva. The scientific community tends to single out only on the subject of criminal encroachment, but nevertheless, in this case it may be appropriate to ensure the protection of the rights of business entities, as well as the possibility of imposing financial sanctions on first-time offenders, as in the case of VAT refunds and execution of government contracts (although this is debatable, according to Ekaterina Avdeeva).

The business community is ready to develop the probation institute

The relevance of probation due to new challenges, facing society under the influence of internal and external factors. One side, this will allow to decide to significantly improve the criminogenic situation. On the other hand, probation, in particular, employment of persons, sentenced to forced labor, can be the best solution to the problem of attracting additional human capital and forming the country's personnel reserve. This was stated by Ekaterina Avdeeva, Head of the Expert Center for Criminal Law Policy and Enforcement of Judicial Acts of Business Russia, at the session “The Essence of Probation: prerequisites for reducing recidivism”.

«Obviously, what a face, who has served a prison sentence, extremely difficult to get a job, he has strong criminal ties, which in aggregate does not lead to the prevention of subsequent crimes (what is the most important task of criminal punishment), and to further criminalization", - the expert is sure.

As an institution, providing socialization of persons, who have served a prison sentence, probation can be phased and go through the stage of employment of persons, sentenced to forced labor. Such a mechanism is supported at the legislative level., since the term for parole in this case does not increase proportionally, and can be counted and taken into account as a correction and compensation for damage. “Entrepreneurs will have the opportunity to satisfy the demand for representatives of working specialties, motivated to properly perform their duties, which will allow them in the future to count on parole and the opportunity to keep their jobs after serving their sentences as a full-time employee”, – said Ekaterina Avdeeva.

At the same time, one should take into account, that there are certain stop factors, making it difficult to apply a mechanism that is sufficiently effective in the long term. Entrepreneurs are not sufficiently informed about the probation algorithm itself. According to the results of a survey conducted by Delovaya Rossiya in 85 subjects of the Russian Federation, are required as additional clarifications from the relevant departments and federal executive authorities, and practical advice from the business community, discussion of specific cases of implementing the initiative in practice. This will increase the loyalty and interest of the business., will eliminate concerns about potential financial and legal risks and will allow transforming the project agreed at the level of the country's leadership into a real mechanism for economic and personnel policy.

In case, if the entrepreneur needs to ensure the residence of such persons, then it is necessary to provide for certain compensatory mechanisms on the part of the state, as this is a useful and beneficial process in terms of the decriminalization of society, the involvement of former criminal elements in labor relations and the provision of such persons with housing. It is also important to provide additional filters and regulations., allowing access to subsidies and subsidies from the state only to real business, involved in the development of the probation institute, minimizing the risks of abuse by individuals, which will create only the appearance of employment of persons, who have served a sentence of imprisonment or sentenced to forced labor.

"It is important to note, that probation is impossible without the involvement of the business community, which is entrusted with important tasks of explaining and popularizing the mechanism, as well as its effective implementation. Today, the interest of Russian regions is obvious, in particular, Republic of Mordovia and Karelia, in the development of the probation institute. We are ready for a constructive dialogue, carrying out additional explanatory work within the framework of the expert center and expanding the institution of probation in Russian medium-sized businesses”, – concluded Ekaterina Avdeeva.

Satisfying business interests, should be based on the needs of the law

13 May, on the final day of the forum, Ekaterina Avdeeva took part in the session “Non-fulfillment of a contract or fraud? The problem of qualification".

In her speech, she emphasized three facets of the problem. Firstly, she drew attention to the need to ensure that crimes were properly recorded, committed by entrepreneurs. The second important factor is the lack of a legal culture to fix agreements on paper in the hope of getting more in terms of unresolved issues and, on the other hand, a short period for conducting a pre-investigation check on economic composition, characteristic of an entrepreneur. “When it comes to economic compositions, often require lengthy, costly reviews, the absence of which poses a threat to business and leads either to a tendency to refuse to initiate criminal proceedings, or premature arousal", - said Ekaterina Avdeeva. Finally, the existence of an agreement and the absence of actions with the accelerated liquidation of the company and the concealment of persons is a marker for the need to first apply to the arbitration court.

“When resolving the issues of qualifying fraudulent actions and non-performance of a contract, it is important to take into account the real facts of economic crime, from which economic security and the development of the economy as a whole suffer. Satisfying business interests, should proceed from the needs of the law ", – concluded Ekaterina Avdeeva.

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