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SPBILF experts suggested, How to distinguish between non-performance of a contract and fraud

SPBILF experts suggested, How to distinguish between non-performance of a contract and fraud

What legislative changes and clarifications of the Plenum of the Supreme Court of the Russian Federation are required to distinguish between cases of non-fulfillment of contractual obligations and fraud - such issues were discussed by experts in Petersburg International Legal Forum on Saturday.

The discussion was held at the SPBILF session “Non-fulfillment of a contract or fraud? The problem of qualification". According to the moderator, Vadim Zaripov, Head of Analytical Service at Pepeliaev Group Law Firm, the work of the session was held in a progressive and more stressful format than usual.

First, each of the experts 5 minutes indicated the key problem in his opinion, further, in the format of a kind of consultation, they all made their proposals to change the situation. Then, in a specially created Telegram channel "Non-fulfillment of the contract or fraud", a vote was held for each of the proposals.

"All this will be used. We will process, we will present to the organizing committee of the forum, submit to the Ministry of Justice, in which, as you know, a working group was created to improve criminal legislation, maybe even reform, how will it go", – said at the end of the session Zaripov.

Expert suggestions

Professor of the Department of Criminal Law, Criminology and Penitentiary Law of the St. Petersburg Law Institute (branch) of the University of the Prosecutor's Office of the Russian Federation, Roman Sharapov proposed to supplement the Code of Criminal Procedure of the Russian Federation with a rule stating that, which cannot serve as a basis for initiating criminal cases under article 159 (fraud) parts 5-7 the very fact of non-fulfillment of contractual obligations in the field of entrepreneurial activity in the absence of sufficient data, indicating the intentional nature of such non-performance.

Lecturer at the Department of Taxes and Tax Administration, Financial University under the Government of the Russian Federation Danil Levchenko proposed to establish in the Criminal Procedure Code of the Russian Federation a direct ban on initiating criminal cases under article 159 of the Criminal Code of the Russian Federation, if there is a valid economic and legal transaction in the relations of a business with another business and a business with the state, until then, until it is recognized by the court as invalid on the grounds of Article 178 (transaction invalidity, committed under the influence of a fundamental mistake) and parts 2 articles 179 (deal, committed under the influence of deceit, may be declared invalid by the court on the claim of the victim) Civil Code of the Russian Federation.

Head of the Department of Entrepreneurship, competition and financial law, Professor of the Department of Criminal Law of the Siberian Federal University Irina Shishko considers it necessary to clarify, what if the state contract is executed in full and with proper quality, but the price of the contract is much higher than the market value, then it is possible to recognize the receipt by the contractor of payment under the contract as fraud only if it is established that he is colluding with the customer in order to establish an unreasonably high price of the contract, significantly higher than the average industry profitability.

Besides, Shishko offered to clarify, that the receipt of payment on the basis of the acceptance certificate signed by the parties for the work performed before their actual performance cannot be recognized as fraud, if the work stipulated by the state contract subsequently (but until this fact is revealed by law enforcement agencies) were carried out in full with proper quality assurance. The expert believes, that there is no "direct" positive damage inherent in fraud.

Head of the Expert Center for Criminal Law Policy and Enforcement of Judicial Acts of the All-Russian Public Organization "Business Russia", ambassador “business officer” Ekaterina Avdeeva suggested explaining to the law enforcement officer, what if the counterparty does not hide and does not hide his property, no signs of theft.

Natalya Ryabova, Deputy Head of the Expert and Legal Center of the Commissioner for the Protection of the Rights of Entrepreneurs under the President of the Russian Federation, proposed to provide for in the Code of Criminal Procedure of the Russian Federation the suspension of a pre-investigation check or preliminary investigation until the resolution of an economic dispute with the establishment of signs of bad faith by one of the parties. The decision in such a case should have a prejudicial value in the absence of evidence of falsification of the evidence presented in court..

Maxim Arzamastsev, Associate Professor of the Department of Criminal Law of the Law Faculty of St. Petersburg State University, considers it necessary to introduce the so-called rule of three "O", according to which, in order to establish fraud, it is simultaneously necessary:

– deception, reaching the level, when, if truthful information was provided to the counterparty, the contract would not have been concluded;

– objective and inherently existing impossibility to fulfill the obligations assumed by the person and his awareness of this fact;

– lack of economic grounds for obtaining economic benefits, that is, for this person, the transaction had no independent meaning, but it was just a cover for the crime.

Commissioner for the Protection of the Rights of Entrepreneurs in the Sverdlovsk Region, Elena Artyukh, proposed to enshrine in the Code of Criminal Procedure of the Russian Federation, that a criminal case on deliberate non-fulfillment of contractual obligations in the field of entrepreneurial activity cannot be initiated until all civil law remedies and liability measures have been exhausted, as well as in case of persisting unrecoverable damage. And also to fix in the Code of Criminal Procedure the impossibility of initiating criminal cases in the contract procurement system without a statement from a public customer.

Besides, Artyukh proposed to exclude from the Criminal Code of the Russian Federation special compositions of "entrepreneurial" fraud (parts 5-7 articles 159 CC RF), which provide for criminal liability for willful failure to fulfill contractual obligations.

Commissioner for the Protection of the Rights of Entrepreneurs in the Tver Region Anton Stamplevsky proposed to organize the production of an electronic criminal case, and also ensure the equality of the parties in the appointment of an examination by granting the right to get acquainted with the materials, sent to the expert, and by introducing mandatory motivation when declining questions from the defense side to the expert.

 

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