Features of criminal prosecution for intentional bankruptcy and for a combination of crimes with related compounds

Staroselets Ol'ga Sergeevna Postgraduate student; Institute of Economics and Law; Petrozavodsk State University 33 Lenin Street, office 333, Petrozavodsk, Republic of Karelia, 185910, Russia olgasergeevna1349@gmail.com

Currently, maintaining the economic stability of the population is the most acute and in-demand problem that needs to be solved promptly. Despite the fact that an extremely serious danger to business entities is carried by a group of crimes regulating responsibility for criminal bankruptcy, this article proposes to limit attention specifically to intentional bankruptcy, the commission of which has a high latency and, as a result, entails more harmful consequences for participants in economic turnover.

The latency of intentional bankruptcy, as a rule, entails a number of difficulties that arise in the process of bringing perpetrators to criminal responsibility. In particular, when qualifying the actions of the perpetrator under Article 196 of the Criminal Code of the Russian Federation, along with the designated composition, it is not uncommon to refer to a whole galaxy of related crimes, which are preferred due to their more frequent use in the practice of bringing to criminal responsibility for an act that entailed similar consequences. In addition, for the above reason, cases of imputation of related compositions in conjunction with Article 196 of the Criminal Code of the Russian Federation are not uncommon in judicial practice in order to guarantee criminal liability in case of insolvency of the evidence base presented as part of the accusation of intentional bankruptcy. Such crimes, which are invariably present in the practice of bringing for intentional bankruptcy, are: fraud, embezzlement and embezzlement, abuse of authority, as well as forgery of documents.

Such scientists as M. G. Zhilkin, L. V. Inogamova-Hegai, A.V. Krylova, N. A. Lopashenko, A. N. Lyaskalo, Yu. V. Morozova, D. S. Tokarev, P. S. Yani, etc. were engaged in the problems of competition, the totality and correlation of the above crimes. At the same time, it should be noted that in the light of the novel introduced, which expanded the criminal law structure of Article 196 of the Criminal Code of the Russian Federation, the relevance of the study of the above-mentioned issues invariably accompanies the law enforcement officer to this day. In this regard, this article proposes to reveal the main aspects that distinguish the elements of crimes provided for in Articles 196, 159, 160, 201, 327 of the Criminal Code of the Russian Federation by a comparative method, as well as reinforcing the conclusions formed by judicial practice.

So, the main problem for the law enforcement officer lies primarily in the process of identifying the objective side of the committed act. As noted in the scientific literature, due to the existing experience in determining the composition of a crime, some of the acts are classified according to the signs of crimes related to intentional bankruptcy, and this is primarily due to the simplicity and clarity of similar compositions due to their more frequent use ^{[1, pp. 178-181]}.Relevant in the light of the existing problems is the opinion of A. N. Lyaskalo, who also draws attention to the prescription of the problem and the lack of uniformity in law enforcement practice in qualifying the actions of the perpetrator, which entailed such a consequence as insolvency (bankruptcy). ^{[2, pp. 49-53]} The analysis of the criminal law norms under consideration allows not only to differentiate the compositions, but also to identify aspects of the application of the totality of crimes committed.

With the ratio of fraud and intentional bankruptcy, the competition of compounds traditionally arises when performing actions to withdraw assets from an enterprise through abuse of trust or deception, however, to determine the correct qualification, it is worth referring not only to the consequences that led to insolvency (bankruptcy), but also to the goal achieved by the subject of the crime in conjunction with the temporary aspect accompanying the implementation process intent.

A good example in this case is the Verdict of the Oktyabrsky District Court of Omsk dated October 08, 2020 in case No. 1-17/2020, according to which T. A. A. was found guilty of committing crimes under Part 4 of Article 159; Article 196 of the Criminal Code of the Russian Federation under the following circumstances. T. A. A., being the head of a group of companies He took advantage of the reputation of a conscientious borrower and received approval from banks to open credit lines in the amount of a total of more than 600,000,000 rubles for controlled enterprises in which he was the actual head. As an interim measure, the perpetrators were provided with working capital, namely, goods from other enterprises belonging to the group of companies. This product was subsequently illegally withdrawn from collateral through its sale, and the pledging companies themselves were hastily liquidated. After that, in order to further withdraw financial assets received under credit lines, the perpetrator acquired intent to intentionally bankrupt the borrower's enterprise. Realizing his criminal intent, the perpetrator concluded a number of transactions devoid of economic justification, and thus withdrew liquid property, bringing the debtor company into bankruptcy.

As can be seen from the example considered, the actions of the perpetrator form a set of crimes, since they are interconnected in a time interval, but contain different goals achieved by the perpetrator. As follows from the circumstances of the case under consideration, the perpetrator initially acquired the intention to seize funds through abuse of trust within the framework of open credit lines. The existence of this intent, aimed at theft by deception, is confirmed by the circumstances of the deposit by other enterprises, the subsequent sale of collateral and the direct liquidation of pledging enterprises. Thus, the culprit cut off the possibility of forcibly returning funds received under credit lines. After completing the actions for non-repayment of funds, the perpetrator had an intention to intentionally bankrupt the borrower's enterprise, the purpose of which was already to withdraw all the property of the enterprise with its subsequent appropriation. In this case, the differentiation of the compositions in the time interval is determined, along with the above circumstances, also by a different circle of victims. The intent aimed at seizing property through abuse of trust covered actions exclusively against banks, whereas the interests of the Federal Tax Service of the Russian Federation and other creditors were violated in the implementation of deliberate bankruptcy. Thus, the range of victims within the framework of the committed crime under Article 196 of the Criminal Code of the Russian Federation turns out to be wider than in fraudulent actions.

Considering the competition and the ratio of the elements of crimes provided for in Articles 159, 196 of the Criminal Code of the Russian Federation, the conclusion is obvious that it is necessary to assess the financial condition of the debtor before the implementation of criminal intent in conjunction with the differentiation of such in the time interval of the commission of crimes, which is also reflected in the scientific literature. ^{[3, c. 138-140]}

At the same time, it should be noted that in the case where the perpetrator's intent to intentionally bankrupt covers fraudulent actions, then these are directly part of the intentional bankruptcy. In this case, the actions of the perpetrator as a whole must be qualified exclusively under Article 196 of the Criminal Code of the Russian Federation, since fraud itself does not exist outside the implementation of the plan to achieve the insolvency of the enterprise, but is a way of committing a crime provided for in Article 196 of the Criminal Code of the Russian Federation.

Following the example of the above circumstances, touching upon the problem of the correlation of criminal law norms provided for in Articles 196 and Articles 160, 327 of the Criminal Code of the Russian Federation, I would also like to note that, following the example of the ratio of fraud and intentional bankruptcy, all actions of the perpetrator, which ultimately led to the insolvency of the enterprise, should be evaluated from the point of view of differentiation of intent and its differentiation in the temporal aspect based on the moment of the goal's emergence. Along with this, it is worth paying attention to the fact that, affecting the legal relations that arose on the basis of the debtor's achievement of insolvency (bankruptcy), first of all, when assessing the actions of the perpetrator for premeditation, it is necessary to refer to civil legislation regulating the order of economic activity of the subject of economic legal relations. The stumbling block in assessing the actions of the culprit initially becomes the issue of recognizing transactions as deliberately unprofitable, contrary to the existing commercial risk necessary for conducting successful business activities. In this case, the question of whether there is an intention in the actions of the guilty person to achieve bankruptcy of the enterprise and the place of the socially dangerous consequences associated with the object in the specific composition of the crime must first be resolved. After that, it will be possible to qualify actions under Article 196 of the Criminal Code of the Russian Federation either in conjunction with related compounds, or to determine through the direct object of a variant of competing criminal law norms.

Continuing the conversation about the assessment of related compositions for the correct qualification of the actions of the perpetrator, as another very interesting aspect of competition and correlation, we can highlight the issue of proper qualification when committing abuse of authority by the perpetrator along with deliberate bankruptcy. For a long period of time, both in theoretical understanding and in practical application, there was a problem of the ratio of Articles 196 and 201 of the Criminal Code of the Russian Federation. In judicial practice, due to the lack of explanations from the Plenum of the Supreme Court of the Russian Federation, these compositions were considered in various planes, such as: as a competition, an ideal aggregate, the ratio of general and special norms. In the vast majority of cases, the view of the law enforcement officer in the person of the court, as it was rightly noted above, stopped at the analysis of the direct object of deliberate bankruptcy and abuse of authority in assessing the range of victims declared by the preliminary investigation authorities in the framework of the case submitted to the court.

The scientific environment, in turn, also did not differ in unity of opinion and, for example, a number of scientists wrote in their writings about the ideal aggregate based on the immediate object, since deliberate bankruptcy provides for harm only to business creditors, whereas the corpus delicti provided for in Article 201 of the Criminal Code of the Russian Federation is aimed at protecting the interests of society. ^{[4, pp. 241-244]} Contrary to this view, there was a position on the ratio of a special and general norm due to the coverage of a more narrowly targeted object of crime provided for in Article 196 of the Criminal Code of the Russian Federation than within the framework of Article 201 of the Criminal Code of the Russian Federation. ^[5] In addition to all the above, it was also suggested that the process of deliberate bankruptcy implies the use of authority to withdraw assets of the enterprise. ^[6]

An interesting opinion on the ratio of the above-mentioned compositions is also expressed by A. A. Korennaya, who identifies the damage caused by intentional bankruptcy as double, in other words, de facto there is one damage within the framework of criminal liability for a set of crimes provided for in Articles 196, Part 2 of Article 201 of the Criminal Code of the Russian Federation. ^{[7, p. 49]} A. K. Subachev complements this opinion, paying attention to the identity of material damage in both types of crimes and the coincidence of socially dangerous consequences. ^{[8, pp. 63-72]} So, in his opinion, considering bringing an enterprise into bankruptcy as a grave consequence within the framework of abuse of authority, it is necessary to pay attention to the priority of the immediate object of the crime, which reflects the interests of the service in the organization, whereas this object is within the framework of criminal liability for committing a crime under Article 196 The Criminal Code of the Russian Federation, will act as an additional one. This is the key to solving the competition of the compounds in question. The proposed distribution of the immediate object is also reflected in the opinion expressed on the definition of intentional bankruptcy in a special norm in relation to the general one – abuse of authority. ^{[9, pp. 109-110]}

When assessing the priority of the immediate object and its place in the composition of the crime, it would be objective to note that without a certain range of powers to conduct business activities of a legal entity, its deliberate bankruptcy is impossible. In addition, as part of the implementation of criminal intent aimed at the bankruptcy of an enterprise, the use of powers a priori involves extracting benefits by acting contrary to the interests of the enterprise. Therefore, it would be advisable to talk about a kind of abuse of authority within the framework of the corpus delicti provided for in Article 196 of the Criminal Code of the Russian Federation. Thus, the conclusion becomes obvious about the unconditional priority of the norm providing for liability for intentional bankruptcy before abuse of authority. ^{[10, p. 24]} Especially in the light of the introduced novel providing for a qualified corpus delicti provided for in paragraph "a" of Part 2 of Article 196 of the Criminal Code of the Russian Federation, namely intentional bankruptcy using one's official position the qualification of actions under Article 201 of the Criminal Code of the Russian Federation recedes into the background due to a clearer differentiation between the main direct object and the additional one.

As for further work on improving the legal provision providing for liability for the commission of intentional bankruptcy, in our opinion, at the moment there is no urgent need to introduce qualified compositions providing for a set of related crimes considered earlier by the example of the introduction of a qualifying feature such as "use of one's official position". In this case, we may be talking about a Resolution of the Plenum of the Supreme Court of the Russian Federation, which would contain explanations on the procedure for the ratio and application of related formulations, on cases of choosing a specific norm in a competitive environment. Such clarifications would facilitate the work of the law enforcement officer in terms of the correct qualification of the actions of the person involved.