Plenum on Article 177 of the Criminal Code of the Russian Federation. Malicious evasion from repayment of accounts payable. Main elements of the crime

Malicious evasion of repayment of accounts payable considered today one of the most actual problems in the field of banking. The reason for this situation is the instability economic ties, specificity of mentality and other factors. The law establishes criminal liability for malicious evasion of repayment of accounts payable. Meanwhile, in practice statutory measures are being applied very inefficiently. Responsibility for this act is Art. 177 of the Criminal Code of the Russian Federation. With comments the norm can be found below.

Corpus delicti

Responsibility for non-fulfillment of financial obligations is established Art. 177 of the Criminal Code of the Russian Federation. AT new edition the norm retained a description of the general corpus delicti. It is formal. The actions of the subject must relate to debts admitted on a large scale. It should be recalled that they consider an amount greater than 250 thousand rubles. When determining the amount of debt, you need to focus on court order which confirms it.

objective part

According to Art. 177 of the Criminal Code of the Russian Federation, it is expressed in action. For convenience, experts allow equating it with the concealment of property, on which the court has the right to impose a penalty. Meanwhile, a number of experts believe that evasion can also be expressed in inaction. However, opponents of this position point out that this approach does not take into account the possibility of enforcement judgment. As part of its activities, the FSSP is endowed with sufficiently broad powers to overcome evasion expressed in inaction.

Concealment of property

It can be physical or legal. The latter is expressed in the form of imaginary transactions. Under them understand the contract, drawn up "for appearance". Participants in such transactions do not intend to create the corresponding consequences. Physical concealment is expressed in the fact that property (usually movable) is hidden so that the bailiffs and the creditor cannot know its location.

Qualification specifics

Measures of responsibility established by Art. 177 of the Criminal Code of the Russian Federation, refer to actions taken after the obligation has arisen. The composition does not cover the receipt of funds. Special attention should be paid to cases of legal concealment of property that take place before the sentence. According to Art. 177 of the Criminal Code of the Russian Federation the actions of the subject can be recognized as a crime, since he, in fact, owning, disposing, using the property, has nothing to do with it "de jure" and creates obstacles to the enforcement of the decision. In this case, a situation arises similar to continuing acts associated with failure to fulfill duties.

maliciousness

This concept is evaluative and can be established according to different criteria. Thus, the analogy with Art. 157. This provision provides for liability for non-payment of alimony. At the same time, maliciousness is defined as failure to fulfill an imputed duty, if possible, after receiving 2 warnings from the bailiff. Meanwhile, the last circumstance may be absent. In this case, malice will take place. This situation may be due to the presence of an agreement (conspiracy) between the obligated subject and the bailiff.

Subjective part

It is worth saying that the signs that form it cause much less difficulties than objective criteria. When qualifying the actions of a citizen under Art. 177 of the Criminal Code of the Russian Federation, the presence of intent is mandatory. Its direct form lends itself quite easily to proof in case of legal concealment. This is due to the fact that the execution of imaginary transactions clearly indicates the awareness of the danger of behavioral acts and the desire to commit them. It is worth noting here that the frequently used technique, consisting in the periodic repayment of small amounts, does not help if a large amount of evasion is set (more than 250 thousand rubles).

Subject of the crime

They can be the head of the organization or an individual. At the same time, in order to be held liable under Art. 177 of the Criminal Code of the Russian Federation, it is necessary to establish the actual, and not the nominal director. The procedure for applying punishment to managers is developed in detail for tax crimes. In cases where the actual director leaves the organization and creates a new enterprise, then extracts income that he does not direct to pay off the debt of the original company, he can be held liable under Article 177.

Complicity and attempt

These forms of committing an act are rarely considered in the framework of qualification. However, according to a number of experts, it is often possible to distribute roles in case of evasion. The subjects who sign fictitious agreements, according to which property is allegedly transferred to them, can act as accomplices. Accordingly, when investigating an act, it is necessary to pay attention to the behavior of not only the direct perpetrator, but also accomplices. In addition, the likelihood of an attempted crime under the article under consideration should be taken into account. Suppose a debtor who does not want the amount to be deducted from his earnings to pay off the obligation, agrees with his manager on a "salary in an envelope." For example, for a month it is 100 thousand rubles. Suppose this fact comes to light in 2 months. The amount of outstanding debt will not yet be large for the application of Art. 177. However, the actions in this case were not completed due to circumstances beyond the control of the offender. In such situations, the behavior of the subject can be qualified as an attempt.

Conclusion

Art. 177 of the Criminal Code of the Russian Federation can be applied in practice much more effectively than it is happening now. Public and scientific advisory support is needed to remove obstacles. In addition, there are quite a few myths about the use of the article. For example, there is a fairly common misconception that it is possible to be held liable according to the norm only if there is a debt on a loan. This opinion arose in connection with the literal interpretation of the provisions. Meanwhile, the norm covers all types of debts other than receivables. An exception is tax arrears, the liability for which is established by other norms of the Criminal Code.

The verdict of the Anapa District Court of the Krasnodar Territory under Article 177 of the Criminal Code of the Russian Federation “malicious evasion of a citizen from paying off accounts payable on a large scale after entering into legal effect relevant judicial act».

P R I G O V O R

Name Russian Federation

Judge of the Anapa District Court of the Krasnodar Territory N.A.N.,

with the secretary - K.E.A.,

with the participation of: the public prosecutor - the deputy of the Anapa interdistrict prosecutor of the Krasnodar Territory P.A.Yu.,

defendant – Kh.G.A.,

- lawyer B.I.N., who submitted certificate 000 and order 000 dated 09/04/2017,

victim - M.K.A.

examined in open court session criminal case against:

H.G.A.,<данные изъяты>, previously not convicted, in respect of which a measure of procedural coercion was chosen - an obligation to appear, who received a copy of the indictment on August 16, 2017, accused of committing crimes under Art. Art. 177, 177 of the Criminal Code of the Russian Federation,

INST A N O V&L:

H.G.A. committed a malicious evasion of a citizen from the repayment of accounts payable on a large scale after the entry into force of the relevant judicial act; malicious evasion of a citizen from the repayment of accounts payable on a large scale after the entry into force of the relevant judicial act.

The crimes were committed by the defendant under the following circumstances:

Enforcement proceedings 000, initiated on October 29, 2009, are being executed in the Anapa city department of the UFSSP for the Krasnodar Territory, on the basis of writ of execution 000 issued on October 22, 2009 by the Anapa District Court of the Krasnodar Territory for civil case No. 2-942/09 dated 05.10.2009 on the recovery from Kh.G.A. in favor of M.K.A. on account of the return of unjust enrichment - 4,700,000 rubles, interest for the illegal use of other people's funds - 554,338 rubles, and a total of 5,254,338 rubles.

Kh.G.A., residing at the address: Krasnodar Territory, city - Anapa, (...), at the place of commission executive action, being notified of the initiation of enforcement proceedings against him for the recovery of the amount of the debt in favor of M.K.A. evaded execution of the judgment. On November 24, 2016, within the framework of enforcement proceedings, the bailiff of the Anapa city department of the Federal Bailiff Service for the Krasnodar Territory issued a warning about criminal liability provided for by Art. 177 of the Criminal Code of the Russian Federation, which was awarded to Kh.G.A. under personal signature. It was established that on March 25, 2017, Kh.G.A. received income in the form of cash on receipt ZH.V.S. in the amount of 100,000 rubles, after which, realizing and realizing the unlawful nature of his behavior, acting deliberately, he spent the indicated cash for their personal needs, evading repayment of accounts payable in favor of the recoverer M.K.A. in the amount of 5 254 338 rubles, which, according to the notes to Art. 170.2 of the Criminal Code of the Russian Federation refers to a large amount.

Enforcement proceedings 000, initiated on 10/20/2009, on the basis of a writ of execution 000 issued on 09/30/2009 by the Leninsky District Court of Krasnodar, Krasnodar Territory in civil case No. 2-2857 / 09 of 08/24 .2009 for recovery from H.G.A. in favor of KB the amount of debt in the amount of 11,212,282.22 rubles.

Kh.G.A., residing at the address: Krasnodar Territory, the city of Anapa, (...), at the place of execution of enforcement actions, being notified of the initiation of enforcement proceedings against him to recover the amount of debt in favor of the CB, evaded execution of a court decision. On February 15, 2017, as part of enforcement proceedings, the bailiff of the Anapa city department of the UFSSP for the Krasnodar Territory issued a warning about criminal liability under Art. 177 of the Criminal Code of the Russian Federation, which was awarded to Kh.G.A. under a personal signature. It was established that on March 25, 2017, Kh.G.A. received income in the form of cash on receipt ZH.V.S. in the amount of 100,000 rubles, after which, realizing and realizing the unlawful nature of his behavior, acting deliberately, he spent the indicated funds for his personal needs, evading repayment of accounts payable in favor of the creditor of the CB in the amount of 11,212,282.22 rubles, which, according to the notes to Art. 170.2 of the Criminal Code of the Russian Federation refers to a large amount.

At the hearing the defendant H.T.A. fully admitted his guilt in the crimes he was accused of and before the start of the trial, in the presence of a defense lawyer - a criminal lawyer, he filed a petition for the application of a special procedure for making a court decision in this criminal case, provided for by Art. 314 of the Code of Criminal Procedure of the Russian Federation, supporting the petition he made earlier on preliminary investigation when familiarizing with the materials of the criminal case.

Defenders of the defendant - a criminal lawyer explained that the petition for a sentence in a special order of a court decision, without a trial, the defendant H.G.A. declared voluntarily, after a consultation with a lawyer. The consequences of satisfying the stated petition and the limits of appealing the sentence to the defendant are explained and understandable.

The representative of the victim KB - D.A.D. according to submitted at the hearing statement, petitioned for consideration of the case in his absence, did not object to the consideration of the case in a special manner.

victim M.K.A. at the hearing did not object to the consideration of the criminal case in a special manner.

Public Prosecutor - Deputy Anapa Interdistrict Prosecutor of the Krasnodar Territory P.A.Yu. agreed with the defendant's petition, explaining that the defendant's guilt in the alleged crimes has been fully proven and his petition for the application of a special procedure for the trial in a criminal case does not contradict the requirements of the criminal procedural legislation of the Russian Federation.

The petition of the defendant H.T.A. upheld by the court, and trial in this criminal case, it was initiated according to a special procedure for the adoption of a court decision, since the petition was filed in a criminal case on crimes, the maximum punishment for which does not exceed 10 years in prison. defendant H.G.A. agreed with the accusation and the amount of evidence collected in the criminal case, fully admitted his guilt in the criminal acts incriminated to him, petitioned for a verdict without a trial, being aware of the nature and consequences of the stated petition, which is voluntary and declared after consultation with a criminal defense lawyer affairs.

The accusation brought against the defendant is justified and confirmed by the case materials. There are no grounds for terminating the criminal case.

The Court considers established and proved the guilt of the defendant H.GA. in the commission of criminal acts incriminated to him and believes that his actions must be qualified under Art. 177 of the Criminal Code of the Russian Federation (on the episode of evading the repayment of accounts payable in favor of M.K.A.), as a malicious evasion of a citizen from the repayment of accounts payable on a large scale after the entry into force of the relevant judicial act; under Art. 177 of the Criminal Code of the Russian Federation (on the episode of evading the repayment of accounts payable in favor of the CB), as a malicious evasion of a citizen from repaying accounts payable on a large scale after the entry into force of the relevant judicial act, and therefore leaves the qualification of the actions of the defendant during the preliminary investigation unchanged and issues a guilty verdict.

When resolving issues relating to the criminality of the act, as well as its punishability and other criminal - legal consequences, the court, based on the requirements of Part 3 of Art. 1 of the Code of Criminal Procedure of the Russian Federation, takes into account the provisions of the Constitution of the Russian Federation, the current criminal and criminal procedure legislation of the Russian Federation, takes into account the requirements of the Decrees of the Plenum Supreme Court of the Russian Federation No. 5 dated October 10, 2003 "On the application by the courts general jurisdiction generally accepted principles and norms international law and international treaties Russian Federation”, the provisions of the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by the provisions of the Protocols, and believes that violations of the norms of the criminal procedure law in relation to Kh. G.A. body of inquiry was not admitted.

In determining the type and amount of punishment defendant HGA, guided by the principles of justice and humanism, in accordance with the provisions of Article. Art. 6, 43, 60 of the Criminal Code of the Russian Federation, the court takes into account the nature and degree public danger crimes committed by him, belonging to the category small gravity, data on the identity of the defendant, his age, the attitude of the defendant, who admitted his guilt, to the deed, the presence of mitigating and the absence of aggravating circumstances, the impact of punishment on the correction of the defendant and his living conditions.

Mitigating H.G.A. circumstances, in accordance with Art. 61 of the Criminal Code of the Russian Federation, the court recognizes the surrender on both incriminated episodes illegal actions, reflected in the protocols of explanations dated 07/06/2017, received before the initiation of criminal cases, confession of guilt, repentance for the deed, the presence of dependent two young children (v. 1 pp. 36 - 37, 38 - 39).

Aggravated H.G.A. circumstances under Art. 63 of the Criminal Code of the Russian Federation, the court did not establish.

defendant H.G.A. characterized by:

at the place of residence positively (v. 1 case sheet 109);

is not registered with a narcologist and a psychiatrist (vol. 1 case file 111);

we have not been judged before (v. 1 l.d. 112, 113 - 114, 115.1 - 115.13).

Based on Art. 56 part 1 of the Criminal Code of the Russian Federation, a punishment in the form of deprivation of liberty may be imposed on a convicted person who has committed a crime of minor gravity for the first time, only if there are aggravating circumstances provided for in Article 63 of this Code, with the exception of the crimes provided for in part one of Article 228, part one of Article 231 and Article 233 of this Code, or only if the relevant article of the Special Part of this Code provides for deprivation of liberty as the only type of punishment.

The court, having discussed all the circumstances affecting the imposition of a just punishment, taking into account the characteristics of the perpetrator, the severity and social danger of the crimes committed in the field economic activity, taking into account the provisions of Art. 56 h. 1 of the Criminal Code, considers it necessary to appoint Kh.GA. punishment in the form compulsory works on both incriminated episodes of unlawful acts under Art. 177 of the Criminal Code of the Russian Federation, in the absence of grounds for the application of Art. 64 of the Criminal Code of the Russian Federation.

The final punishment of H.G.A. in the form of compulsory work, the court appoints according to the rules of Art. 69 part 2 of the Criminal Code of the Russian Federation, according to the totality of crimes, by partial addition of punishments, taking into account the nature and severity of the acts committed by him and the data characterizing the defendant.

Given the nature, severity, committed H.G.A. crimes, the court finds no reason to change their category, in accordance with Art. 15 h. 6 of the Criminal Code of the Russian Federation.

When sentencing H.G.A. for the crimes committed, the court takes into account the provisions of Art. Art. 62 hours, part 1, 5 of the Criminal Code of the Russian Federation.

A measure of procedural coercion - an obligation to appear in relation to H.G.A. for the appeal period, the court considers it necessary to leave unchanged.

Material evidence in a criminal case: copies of documents from materials enforcement proceedings, on the basis of Art. 81 h. 3 p. 5 of the Code of Criminal Procedure of the Russian Federation, after the entry into force of the sentence are subject to storage in a criminal case.

Based on the above, guided by art. 316 Code of Criminal Procedure of the Russian Federation,

P I G O V O R I L:

Recognize H.G.A. guilty of committing crimes under Art. 177 of the Criminal Code of the Russian Federation (on the episode of evasion of repayment of accounts payable in favor of M.K.A.), art. 177 of the Criminal Code of the Russian Federation (on the episode of evasion of repayment of accounts payable in favor of the CB) and sentence him to:

under Art. 177 of the Criminal Code of the Russian Federation (on the episode of evasion of repayment of accounts payable in favor of M.K.A.) - 200 (two hundred) hours of compulsory work;

under Art. 177 of the Criminal Code of the Russian Federation (on the episode of evasion of repayment of accounts payable in favor of the CB) - 200 (two hundred) hours of compulsory work.

Based on Art. 69 h. 2 of the Criminal Code, by partial addition of punishments for the totality of crimes, finally appoint Kh.GA. to serve the sentence of 250 (two hundred and fifty) hours of compulsory work.

A measure of procedural coercion - an obligation to appear in relation to H.G.A. until the entry into force of the verdict, the court shall leave it unchanged.

Material evidence in a criminal case: copies of documents from the materials of enforcement proceedings, on the basis of Art. 81 h. 3 p. 5 of the Code of Criminal Procedure of the Russian Federation, after the entry into force of the sentence, they are subject to storage in a criminal case

The verdict under article 177 of the Criminal Code of the Russian Federation (Malicious evasion of repayment of accounts payable) can be appealed to appeal to Krasnodar regional court within 10 days from the date of its decision through the Anapa district court Krasnodar Territory, and convicts held in custody, in the same period from the date of delivery of a copy of the sentence to him, in compliance with the requirements of Art. 317 Code of Criminal Procedure of the Russian Federation.

Malicious evasion of repayment of accounts payable

Commentary on Article 177 of the Criminal Code of the Russian Federation:

1. The main direct object of the crime - public relations in the monetary sphere. Relations in the field of justice are an additional object. The subject of the crime is a large amount of accounts payable (according to the note to Article 169 of the Criminal Code, an amount exceeding 250 thousand rubles is recognized as a large amount) or securities. The concept of a security is given in Art. 142 of the Criminal Code (this is a document certifying in compliance with the established form and required details property rights, the exercise or transfer of which is possible only upon its presentation). Securities include: government bond, bond, promissory note, check, deposit and savings certificates, a bank savings book to bearer, a bill of lading, a share, privatization securities and other documents that are classified as securities by securities laws or in the manner prescribed by them (Article 143 of the Civil Code of the Russian Federation).

2. The corpus delicti is formal. It is considered completed when the act specified in the law is committed.

3. objective side characterized by inaction in the following forms: malicious evasion of the head of an organization or a citizen from paying off accounts payable on a large scale; malicious evasion of the head of an organization or a citizen from paying for securities.
Malicious evasion of repayment of accounts payable should be understood as an open refusal to fulfill their obligations arising from the terms of the loan agreement regarding the return of the loan amount or interest on it. The refusal is considered malicious if it continues after the second written warning.

4. The legislator names as a basis for bringing a person to criminal liability under Art. 177 of the Criminal Code of the Russian Federation, evasion of repayment only of accounts payable. At the same time, there is every reason to believe that we should also talk about the malicious evasion of the head of an organization or a citizen from returning money or material assets under a loan agreement or a budget loan.

5. In order to bring a person to criminal responsibility under this article, it is necessary that malicious evasion takes place after the relevant judicial act has entered into force. This may be the decision of an arbitration or civil court.
Accounts payable on a large scale in accordance with the note to Art. 169 of the Criminal Code of the Russian Federation recognizes the debt of a citizen in an amount exceeding 250 thousand rubles.

6. The subjective side of the crime is characterized by guilt in the form of direct intent. The perpetrator is aware that he maliciously evades the repayment of accounts payable on a large scale or the payment of securities after the entry into force of the relevant judicial act, and wishes to commit such actions. Motive and purpose do not matter for qualification, but may be taken into account when sentencing.

7. The subject of the crime is a citizen, sane, who has reached the age of 16, or the head of an organization.
The act provided for by this article is a special rule in relation to Art. 315 of the Criminal Code. Therefore, qualification on the totality of these crimes is not required.

Most Russians have taken out a loan at least once in their lives or are paying it off to date.

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Often people have to get into several loans, resort to the services of the so-called "fast" money. Some even stop making payments for lack of funds. Not everyone knows that a prison or correctional labor can be threatened for non-payment.

The article will analyze in detail the issue of debt evasion, legal nuances and judicial practice.

According to the letter of the law

First of all, it is worth understanding who is responsible for the debt. Criminal liability is borne by capable persons - it can be both an individual and a manager legal entity. The article also includes persons engaged in individual entrepreneurship.

The object of the crime is relations within society in the sphere of civil circulation. The debtor pays off the creditor with his own property, satisfying the requirements and securing the receipt of the property.

Criminal prosecution is imposed against a citizen or head of an organization in the following cases:

Accounts payable in excess of 1.5 million rubles.
Facts have been proven that the offender maliciously evades payment obligations.
There is a court decision confirming that an amount in an especially large amount or from non-payment of securities is recovered from a citizen or manager.

Concept definition

According to Art. 177 of the Criminal Code of Russia, a citizen is criminally liable in case of malicious evasion of payments on accounts payable, loans, non-payments on various securities.

By this action in relation to the creditor is meant the deliberate evasion of contributions, while having financial opportunity to pay off debt.

Malicious debt has no definition in Russian legislation, however, in judicial practice Malicious debt is usually defined according to the following criteria:

The person changed his place of residence or place of work in order to create obstacles to the recovery of funds, without notifying the bailiff.
He interfered with any actions to execute the court decision.
Avoiding a summons to court without providing good reasons, ignoring invitations to call a bailiff.
Provision of illegal actions against the creditor.
The use of relatives or acquaintances as persons to whom movable and immovable property is transferred in order to hide the present financial situation from the judiciary.
Deliberately concealing the signing of others loan agreements from those involved in the investigation.
Concealment of funds in accounts that allow you to repay or partially pay the debt to the creditor.
Concealment of "black" incomes that are not recorded through official sources.
Making transactions with property, as a result of which, the income received from the sale was hidden or squandered at the discretion of the debtor.
The introduction of the bailiff into a deliberately false position, reporting incorrect information about the state of property, namely, damage to property, destruction as a result of natural disasters.
Providing knowingly false information about income.
False information about the theft of property.

Legal concealment is determined by making fictitious transactions. To prove the sham of the transaction, no special appeal to the court is required - the evidence provided in the framework of a criminal case on payment evasion is sufficient. In practice, most often, in order to hide funds, legal organizations resort to transactions for the sale and purchase of donations. One side is an official, and the other is relatives or acquaintances.

Criminal proceedings

The application is submitted in the traditional way through the creditor, referring to 177 Art. Criminal Code of the Russian Federation. The report is usually drawn up by a bailiff. After that, the inquiry service conducts appropriate checks.
If the inquiry service establishes the fact of malicious evasion by the debtor with subsequent non-payment to the creditor, the following actions are performed:
Notification of a person about the commencement of a criminal case against him.
Issuance of an invitation to appear before the bailiff who is conducting the case at the date and time set by him.
Request reliable information about the income and property of the debtor. The information is collected from several institutions. The Federal Migration Service provides passport data and the presence of a foreigner. The FIU presents a current account, deductions to various funds, including pension funds, about the place of work. The Federal Tax Service provides information on whether the debtor has any shares, whether he is the founder of a legal entity, as well as information about the taxpayer's TIN, an extract from the state register.
Find out which carriers cellular communication is used by a citizen, and ask operators for information about registering phone numbers on the debtor's passport.
Verification of information regarding the debtor for the presence of property in banks, credit institutions. Accounts and deposits of the debtor are checked. Requesting statements after a court decision on the movement of cash flows through accounts.
Request to the cadastral service in order to identify real estate and unfinished construction projects.
A request to the traffic police addressed to the persistent violator about registered vehicles.
Revealing reliable information about employment status suspect person. Request to the labor exchange for registration for unemployment or refusal to find a job. Find out information about the debtor receiving unemployment benefits.
Ensure execution of foreclosure on the identified funds and property of the debtor.
If the fact of non-registration of the debtor is revealed, give him a referral to the local employment center in order to register and find a job.
Send a warning to the debtor about imminent criminal prosecution in case of non-payment of the debt.
In case of non-execution of the court decision, find out the reasons for non-payment from responsible person on business.
Put the property of the debtor on the wanted list if the bodies of inquiry do not find it.
Put the debtor on the wanted list in case of hiding from permanent residence without notice of the move.
Request clarification from the debtor about the reasons for non-payment of the court decision. The explanation contains exact information about the sources of funds, their size, why a person avoids the execution of a court decision, and other information.
If a person or representative of a legal organization various actions, including unlawful, trying to put obstacles in the course of the proceedings, a protocol of violation must be drawn up. It falls under the category of administration.

A responsibility

Article 177 of the Criminal Code of the Russian Federation details penalties and payments in respect of violators. Penalties are provided for both individuals and organizations. Securities are also included in the categories for which accounts payable can be collected.

So, what penalties can be applied to a person who evades payments:

in case of evasion from proper payments for up to 1.5 years, the citizen is charged income in the form of a salary;
forced labor may be imposed for up to 24 months;
arrest for a period of 6 months;
prison up to two years;
an administrative fine in accordance with the Code of Administrative Offenses, depending on the details of the criminal case, up to two hundred thousand rubles.

Arbitrage practice

In modern realities, it seems very difficult for a bailiff to perform all of the above actions to initiate a criminal case. The mere non-appearance of the evader excludes the possibility of obtaining reasons for non-payment and delivery of a warning about imminent criminal liability.

AT Russian courts According to statistics, article 177 of the Criminal Code of the Russian Federation is used very rarely. The article belongs to the category of low gravity of the crime. As a rule, the proceedings end at the stage of reconciliation of the parties or an acquittal is issued due to the impossibility of proving maliciousness as part of the crime.

Thus, in judicial practice there are cases when a citizen registers property in the name of a person without certain place residence with the help of third-party legal organizations.

It is often impossible to prove maliciousness due to the fact that property is difficult to find if it is issued to third parties. Sometimes debtors, knowing the negative outcome of the trial, hide the property in advance. Thus, a situation is created when the debtor in fact uses the possessions, but legally has nothing to do with them. In this case, the case goes into the category of continuing crimes, along with an escape, evasion from military service and the like.

In some situations, the debtor decides to bribe the bailiff, to give a bribe. As a result, if the bailiff makes concessions, then the debtor does not receive notifications from him to come to the institution to clarify the circumstances and issue a warning. In this case, the crime also becomes ongoing.

There are several most common outcomes in litigation in the case of evasion of accounts payable:

The culprit is sentenced to a fine in the prescribed amount.
The study of the case is carried out in a special order without examining the evidence on it.
Most often, the non-payer is justified due to the impossibility of proving maliciousness.

Malicious evasion eventually takes on more and more sophisticated forms. So, for the purpose of legal concealment, fictitious marriage contracts, agreements on the payment of alimony are concluded, where sums of money goes to one partner, and the other pays the debts. At the same time, partners in fact continue their married life together.

Concealment of property by an individual occurs in practice somewhat less frequently due to difficulties, and not all types of property can be concealed.

Most often, they try to deceive creditors and bailiffs by hiding the location of the property.

In practice, there are cases when the debtor negotiated with the employer so that his "white" salary began to be issued unofficially. The fact of concealment was discovered only after 2 months. The amount of concealment did not exceed 250 thousand rubles. Thus, there is no corpus delicti, but an attempted crime is on the face.

According to statistics, there are several sentences under this article per year, which is about 10% from all such sentences handed down in Russia during this period.

Misconceptions about Article 177 of the Criminal Code of the Russian Federation

"The correct application of the article means several sentences." Many sentences against a criminal are issued, mainly in cases where he has the means to pay. Accordingly, most often, in judicial practice, debt repayment occurs at the stage of litigation.
“It is enough to only partially pay off payments and criminal liability will be removed from official". If the offender hides property worth more than 250 thousand rubles, the criminal liability is not removed.
“Accounts payable relates exclusively to loans.” Accounts payable implies all types, except for the right to claim for the payment of specific amounts. Also an exception is tax debt. Evasion of payments for deliveries or compensation for harm caused is also listed under 177 articles.

Grounds for terminating litigation

If more than two years have passed since the commission of the crime, the person, natural or legal, is exempt from criminal prosecution.

Upon reconciliation of the parties, the proceedings shall be terminated in accordance with the established procedure.

If the guilty person compensated the damage caused to the creditor, it is possible to close the criminal case in accordance with Article 76 of the Criminal Code of the Russian Federation. In this case, the debtor also undertakes to transfer to federal budget cash in the amount of 5 times the amount of damage caused to the creditor.

Individual Bankruptcy Law

This law will help many Russian citizens get rid of debts to creditors. The law is effective from October 2020 after signing by the President. According to this law, if the debts do not exceed 500 thousand rubles. Individual at the same time, it must be insolvent and not pay debts on the loan for more than three months. The amount that remains on hand after paying off the debt is less than the living wage.

Debt evasion is perhaps one of the most serious problems in banking, and the solution of this problem does not lose its relevance. The author proposes to analyze the norms of Art. 177 of the Criminal Code of the Russian Federation "Malicious evasion of repayment of accounts payable" and eliminate certain misconceptions regarding the application of its norms.
The article provides a description of the main elements of the corpus delicti and an analysis of the problems of law enforcement.
Debt evasion is currently quite common in Russia. There are many reasons for this situation: the unstable and problematic nature of economic relations, features of mentality, etc. Improving the effectiveness of the application of Art. 177 of the Criminal Code of the Russian Federation "Malicious evasion of repayment of accounts payable".
Now this norm is used extremely rarely1 and is often called “dead”, but there are opportunities for its “reanimation”. Improving the application of Art. 177 of the Criminal Code of the Russian Federation became most relevant after February 2008, when the inquiry under this article was transferred to the Federal Bailiff Service.
For a better understanding of the problem, we propose to consider and debunk the myths surrounding Art. 177 of the Criminal Code of the Russian Federation and interfering with its application.
Possibilities of criminal prosecution for malicious evasion of repayment of accounts payable Let's start with the myths, ie. common misconceptions about the possibility of criminal prosecution for malicious evasion of repayment of accounts payable. As communication with victims and law enforcers shows, the following myths are currently common.
1. There are no opportunities for the effective application of Art. 177 of the Criminal Code of the Russian Federation.
We consider this statement a myth, if only because a similar Art. 157 of the Criminal Code of the Russian Federation “Malicious evasion of paying funds for the maintenance of children or disabled parents” is used in some years 200 (!!!) times more often. Practice also shows that individual courts even within one year, several sentences are passed under the article in question, which is more than 10% of the total number of such sentences in Russia.
2. Article 177 of the Criminal Code of the Russian Federation refers only to debts on loans (accounts payable - that means, on loans, loans).
This misconception arose due to a literal understanding of the text and, in some cases, an inattentive attitude to this composition on the part of the authors of textbooks and commentaries. The article mentions accounts payable, which covers all types of debt and differs from accounts receivable, i.e. the right to demand the payment of certain amounts. Accordingly, any debt is accounts payable (except for tax and other debts referred to in other articles of the Criminal Code). Evasion of debt under a supply contract, compensation for damages, etc. may also qualify under Art. 177 of the Criminal Code of the Russian Federation.
3. From criminal liability under Art. 177 of the Criminal Code of the Russian Federation is easy to get rid of (partial payment of the debt is enough, etc.).
Such representations are connected with analogies with Art. 159 of the Criminal Code of the Russian Federation “Fraud”, in which the absence of intent to steal is sometimes indicated by partial payment of a loan received or repayment of a debt. Malicious evasion is not theft and similar actions they will not help an unscrupulous debtor in any way if he hides property from collection for more than 250 thousand rubles - even if he pays significant amounts.
4. With the correct application of Art. 177 of the Criminal Code of the Russian Federation there will be a lot of sentences.
This is also a delusion, because. this composition is most often applicable in cases where the debtor has the opportunity to pay the debt, but he does not do this for subjective reasons. In the event that the threat of criminal liability is already real, very often there is a repayment of debt and exemption from criminal liability in connection with reconciliation with the victim (Article 76 of the Criminal Code of the Russian Federation). It can be noted that the features of taking into account the successful movement of criminal cases lead to the fact that reconciliation most often occurs at the stage judicial review and not inquisition.
The main elements of the crime Without dwelling in detail on the object of the crime, tk. it has no great practical value, let us turn to the characteristics of the objective side.
Article 177 of the Criminal Code of the Russian Federation establishes criminal liability for malicious evasion of debt repayment on a large scale after the entry into force of a court decision. The composition is formal, i.e. enough actions of malicious evasion. These actions must be associated with a large amount of debt, i.e. more than 250 thousand rubles. In determining the amount of debt, it is necessary to focus on the judicial act by which it is confirmed. At the same time, the amounts owed under various judicial acts can be summed up if the subject and the victim are the same. A judicial act is most often a decision of a court of general jurisdiction or arbitration court, but the debt can be confirmed by other judicial acts, for example, a court order.
The objective side, from our point of view, is expressed in the form of action - evasion. At the same time, for ease of use, evasion can be considered identical to the concealment of property, which can be levied by a court decision. There is a point of view that evasion may be in the form of inaction, but we believe that this approach does not take into account the possibility enforcement decisions of the courts, in which Federal Service bailiffs have broad powers sufficient to overcome evasion in the form of simple inaction.
Considering possible evasion in the form of inaction, we kind of justify the possible inefficient work of bailiffs who do not take all the necessary measures to collect the debt.
Concealment of property (cash, real estate, etc.) to evade debt repayment is of two types:
legal;
physical.

Legal concealment is expressed in the execution of imaginary transactions, i.e. done for show only, with no intention of creating appropriate legal consequences(Article 170 of the Civil Code of the Russian Federation). At the same time, apply to the court within the framework of civil process it is not required to recognize the transaction as fictitious, there is enough evidence collected in the framework of the criminal process. Legal concealment is most often manifested in the conclusion of contracts of sale, donation, etc. The parties to the contracts are the debtor and any persons - relatives, acquaintances, etc.
In our practice, there was a case when individual entrepreneur(IP) evaded debt repayment by concluding a fictitious contract with a person without a fixed place of residence, for whom a law firm organized the acquisition of IP status, then using this person's data for illegal purposes. A frequent case of legal evasion is the receipt of wages that are not reflected in official reporting (note that the so-called "black" wages can be summed up over a certain period so that there is an amount necessary for criminal prosecution).
The types of legal cover-ups are constantly evolving, such as marriage contracts or alimony agreements where all assets go to one spouse and all debts to the other, although the actual marital relationship continues after divorce.
Physical concealment is manifested in the fact that any property (most often movable) is hidden in such a way that the creditor and bailiffs do not know about its whereabouts. Physical concealment is less common than legal concealment as it is more complex and not suitable for all types of property.
We emphasize that if a person is unable to repay a debt that is more than 250 thousand rubles, criminal liability under Art. 177 of the Criminal Code of the Russian Federation, from our point of view, is impossible, since it would be a kind of objective imputation. Article 177 of the Criminal Code of the Russian Federation refers to actions after the occurrence of a debt and does not cover actions to receive funds.
Separately, we will dwell on cases where actions to legally conceal property are carried out before a court decision is made or its entry into force.
Naturally, an unscrupulous debtor, realizing that the court decision will not be in his favor, often does not wait for it to be issued, but hides the property in advance. We believe that after the entry into force of a judicial act in such cases, it is still possible to qualify under Art. 177 of the Criminal Code of the Russian Federation, since the debtor, actually owning, using and disposing of the property, “de jure” has nothing to do with it and makes it impossible to enforce the court decision. In these cases, a situation is obtained that is similar to ongoing crimes that are associated with dereliction of duty (for example, escape, evasion of military service, etc.).
The sign of malignity requires special attention, which, according to practitioners, often makes it difficult to qualify under Art. 177 of the Criminal Code of the Russian Federation.
We believe that malignity as an evaluative concept can be defined in various ways. For example, an analogy with Art. 157 of the Criminal Code of the Russian Federation "Malicious evasion of the payment of funds for the maintenance of children or disabled parents." In the practice of bringing to criminal responsibility for evading the payment of alimony, maliciousness is defined as failure to fulfill the obligation to pay, if possible, after two warnings from the bailiff.
However, the maliciousness of evading the repayment of accounts payable can also be spoken of in cases where there were no two warnings from the bailiff. In practice, a situation may arise when the debtor colludes with the bailiff and, accordingly, there are no necessary warnings.
Quite a few examples can be given when the evaluative concept of "malice" is applicable.
The main problems of law enforcement legal acts. For example, malicious non-payment of a fine in accordance with the Criminal Code of the Russian Federation is considered to be the absence of payment on the last day of the deadline for fulfilling this obligation for disrespectful reasons. In general, it is advisable to associate maliciousness with the commission by the debtor of special actions to hide his property (concluding agreements, bribing bailiffs, etc.).
Subjective signs of a crime under Art. 177 of the Criminal Code of the Russian Federation, cause less controversy than objective ones. There must be a direct intent to evade repayment of debt. We emphasize that direct intent is quite easily proved in case of legal concealment of property, since execution of imaginary transactions (signing of contracts, acts, etc.) clearly indicates the awareness of the social danger of their actions and the desire to commit them. At the same time, a technique often used to conceal fraud, when the debt is gradually paid off and this is considered evidence of the absence of intent to commit a crime, does not help in this case if property worth more than 250 thousand rubles is hidden.
The subject of the crime under Art. 177 of the Criminal Code of the Russian Federation can be both the head of a legal entity and a citizen. We especially note that for qualification under Art. 177 of the Criminal Code of the Russian Federation, it is necessary to remember the possibility of bringing to responsibility the actual, and not the nominal head of the organization. In detail the prosecution of de facto principals is elaborated for tax crimes2. Accordingly, in cases where the actual head of the debtor organization abandons it and creates new organization, where he becomes the actual leader and extracts income that he does not send to pay off the debt of the original organization, you can raise the question of criminal liability under Art. 177 of the Criminal Code of the Russian Federation.
Unfortunately, in publications under Art. 177 of the Criminal Code of the Russian Federation rarely considers the possibility of complicity in this crime and an attempt on it. From our point of view, very often, when evading debt repayment, there is a distribution of roles: persons who sign fictitious contracts, according to which they allegedly receive property, etc., become accomplices. Accordingly, when investigating debt evasion, attention should be paid to the qualifications of the actions not only of the contractor, but also of other accomplices.
It is important to pay attention to the possibility of an attempt under Art. 177 of the Criminal Code of the Russian Federation. Imagine a situation where a debtor who does not want money to be withheld from his salary to pay off the debt, agrees with the employer that wage(in the amount of, for example, 100 thousand rubles per month) will be paid unofficially. Suppose that this fact is revealed after 2 months and it turns out that the amount of evasion required for qualification under Art. 177 of the Criminal Code of the Russian Federation, not yet, but actions aimed at evading on a large scale have not been completed for reasons beyond the control of the person. We believe that in such cases the actions of the perpetrator can be qualified as an attempt.
Thus, Art. 177 of the Criminal Code of the Russian Federation "Malicious evasion of repayment of accounts payable" can be applied more efficiently than at present. Improvement law enforcement practice should contribute to scientific advisory and public support.
1 In 2006, only 15 sentences were handed down in such cases.
2 Clause 7 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of applying criminal legislation on liability for tax crimes by courts”.