logo
This is an empty menu. Please make sure your menu has items.
Business Duty Officer

The problem of qualification of fraud and non-fulfillment of obligations under the transaction was discussed at the SPBILF

The problem of qualification of fraud and non-fulfillment of obligations under the transaction was discussed at the SPBILF

Participants of the discussion noticed, that economic disputes often take on criminal overtones, which leads to unreasonable intrusion of law enforcement agencies into the activities of organizations

Following the discussion, the session participants proposed possible solutions to the identified problems.. In particular, a proposal was made to fix in the Code of Criminal Procedure of the Russian Federation the impossibility of initiating a criminal case on deliberate non-fulfillment of contractual obligations in the field of entrepreneurial activity before.
13 May at the XI St. Petersburg International Legal Forum was held a session "Non-fulfillment of the contract or fraud? The problem of qualification". Speakers noted, that despite the liberalization of criminal procedure and criminal law, fine-tuning is still required to create a safer environment for business.

The event was moderated by Vadim Zaripov, Head of the Analytical Service of Pepeliaev Group. He noted, that today there is an excessive criminalization of economic relations: a criminal case is initiated, if the contract is not executed or executed, but any conditions are violated, e.g. quality. Vadim Zaripov believes, what needs to be found out, how comparable is the real public danger of fraud and the negative consequences of the widespread practice of initiating criminal cases under Art.. 159 Criminal Code of the Russian Federation in case of non-fulfillment of contractual obligations in the course of business activities or corporate conflicts.

Head of the Department of Entrepreneurship, competition and financial law, Professor of the Department of Criminal Law of the Siberian Federal University Irina Shishko emphasized, that, as practice has shown, Recently, cases of initiating criminal cases on fraud of executors of state or municipal contracts have become more frequent.. She noted, that these persons are being held liable or for deception, or for damage, although a combination of these two signs is required for fraud. This position, according to Irina Shishko, clearly does not correspond to the tasks of improving the business climate and increasing entrepreneurial initiative, what is needed for economic growth.

Professor of the Department of Criminal Law, Criminology and Penitentiary Law of the St. Petersburg Law Institute (branch) University of the Prosecutor's Office of the Russian Federation Roman Sharapov noted, that law enforcement agencies refer criminal cases to court for fraud, related to intentional non-fulfillment of contractual obligations, creating a sufficiently high-quality evidence base. Therefore, according to the speaker, the root of the problem lies to a greater extent not in the substantive, and in the procedural aspect.

According to the head of the expert center for criminal law policy and the execution of judicial acts of the All-Russian public organization "Business Russia", ambassador “business officer” Ekaterina Avdeeva, at the moment there is a problem of unreliable statistics on the number of entrepreneurs prosecuted. Besides, she touched upon the problem of improper recording of all agreements, additional agreements, points, etc.. when making deals.

In turn, Maxim Arzamastsev, Associate Professor of the Criminal Law Department of the Law Faculty of St. Petersburg State University, explained, that the problem itself lies not in the number of sentences and not in the number of convicts, because by the time the businessman was convicted, usually, he no longer has a business. In this regard, unreasonable initiation of criminal cases in this area matters..

Commissioner for the Protection of the Rights of Entrepreneurs in the Sverdlovsk Region, Elena Artyukh, noted in her speech, that despite a rather serious liberalization of criminal procedural and substantive criminal legislation, fine tuning is still required to create a safer environment for business.

Head of the center of criminal, уголовно-процессуального законодательства и судебной практики Института законодательства и сравнительного правоведения при Правительстве РФ Станислав Нудель полагает, the first thing you need to do is answer the questions: what is the crime situation in this area, what is the potential of criminal law and criminal procedural norms to improve the criminogenic situation.

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, drew attention to, that in our country one of the most significant entrepreneurial risks is the risk of criminal liability, which has a very negative impact on the business climate. “In Russia there is a need to form a layer of entrepreneurs, which form the tax base, create jobs. In this regard, it is necessary to create conditions for, so that people, who plan to do business, were not afraid of unreasonable criminal prosecution”, – shared the opinion of the expert.

According to the commissioner for the protection of the rights of entrepreneurs in the Tver region Anton Stamplevsky, the problem is not so much the clarity of the norm itself, how much is that, How is law enforcement using it?.

In the second part of the discussion, the speakers expressed their proposals for a possible solution to the problems raised. So, Lecturer at the Department of Taxes and Tax Administration of the Financial University under the Government of the Russian Federation, Danil Levchenko, Managing Partner of Levchenko & Partners Law Agency, believes it is possible to establish in the Code of Criminal Procedure of the Russian Federation a direct ban on initiating criminal cases under Art.. 159 of the Criminal Code of the Russian Federation if there is a valid economic and legal transaction in B2B and B2G relations, until it is recognized by the court as invalid on the grounds of Art.. 178 and h. 2 Art. 179 Civil Code of the Russian Federation.

Anton Stamplevsky proposed to start the introduction of "electronic criminal case", as well as to ensure 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.

According to Natalia Ryabova, in the Code of Criminal Procedure of the Russian Federation it is necessary to provide for 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 of 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., the speaker believes.

In turn, Elena Artyukh shared a proposal to fix in the Code of Criminal Procedure the impossibility of initiating a criminal case on deliberate non-fulfillment of contractual obligations in the field of entrepreneurial activity until all civil law remedies and liability measures have been exhausted, and also in the event of retention of uncompensated damage to the victim after such exhaustion. In her opinion, it is also necessary to fix in the Code of Criminal Procedure the impossibility of initiating criminal cases in the contract procurement system in the absence of a statement from a public customer and until all measures of bringing to civil liability for deliberate failure to fulfill contractual obligations under the contract have been exhausted. Besides, Elena Artyukh spoke about the exclusion from the Criminal Code of the Russian Federation of special compositions of "entrepreneurial" fraud (h. 5-7th century. 159 CC RF), which provide for criminal liability for willful failure to fulfill contractual obligations.

Maxim Arzamastsev considers it important to introduce a rule into the legislation, according to which, in order to establish fraud, it is simultaneously necessary:

deception, reaching that level, under which, if truthful information was provided to the counterparty, the contract would not be concluded;
objective and inherently existing impossibility to fulfill the obligations assumed by the person (and awareness of this fact);
lack of economic grounds for obtaining economic benefits, i.e. For this person, the transaction had no independent meaning., but it was just a cover for the crime.
According to Ekaterina Avdeeva, need to explain to the law enforcement officer, what if the counterparty does not hide and does not hide his property, there are no signs of theft.

Roman Sharapov spoke about supplementing the Criminal Procedure Code of the Russian Federation with a norm, according to which it cannot serve as a basis for initiating criminal cases for hours. 5-7th century. 159 of the Criminal Code of the Russian Federation 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.

According to Irina Shishko, legislation needs clarification: 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, i.e. significantly higher than the average industry profitability.

 

Other news

Share this info. Choose a social media!

pro bono consultation