Analysis of the legislative innovation in Article 196 of the Criminal Code of the Russian Federation (deliberate bankruptcy) for compliance with the principle of justice.

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 Other publications by this author

The institution of insolvency (bankruptcy) in the civil law field was certainly founded with the good purpose of creating a mechanism that, through its regulation, would help citizens who find themselves in a difficult and irreparable financial situation to avoid final enslavement as a result of inability to pay their debts. However, unscrupulous subjects of market relations, hastening to use the civil law regulator for the selfish purposes of deceiving their creditors and maliciously removing property, thus gave rise to such a concept in criminal law doctrine as deliberate bankruptcy. The origins of deliberate bankruptcy go back far into the past, back to the days of Ancient Russia. And although the existence of the concept of intentional bankruptcy in the history of the Russian state was unstable, at the same time, with the adoption of a vector of state development aimed at a market economy, it became obvious that without criminal regulation of bringing to responsibility for the deliberate achievement of insolvency (bankruptcy) status by a subject of economic legal relations, the full and stable functioning of the market itself is impossible.

The legislator is constantly working to improve the mechanism of liability for intentional bankruptcy. On July 1, 2021, article 196 of the Criminal Code of the Russian Federation was completely revised, which now consists of two parts. In addition, the range of persons recognized as subjects of this crime has been expanded, and differentiated responsibilities have been introduced depending on who commits this type of crime. At the moment, the scientific world is painstakingly working to study the novel in order to identify gaps and shortcomings in the existing mechanism in order to further improve it. Among the main provisions currently under analysis are the criminological aspect of determining a new intentional bankruptcy in general ^[1], a new range of subjects of the crime provided for in art. 196 of the Criminal Code ^[2], as well as issues of causing damage in the framework of bankruptcy crimes, in particular ^[3].

As is known, the legislative regulation of criminal prosecution for an act initially arises against the background of changes in the civil status of certain subjects in connection with the abuse of the acquired right, and then undergoes preliminary formatting for subsequent harmonious implementation into the criminal law system. Criminalization of an act implies an assessment not only of violations of citizens' rights, but also bringing them into line with the fundamental principles of criminal law. Guided, among other things, by the principle of justice in the formulation of punishment, which states: "Justice is the constant and unchangeable will to give everyone what they deserve," the legislator differentiates criminal liability depending on the presence and diversity of privileged and qualifying features in the overall composition of the crime.

The new version of Article 196 of the Criminal Code of the Russian Federation provides for the division of the crime into two parts: the main and qualified elements. Based on the Explanatory Note to Draft Law No. 1099900-7 "On Amendments to Articles 195 and 196 of the Criminal Code of the Russian Federation", the ultimate goal of the changes being pursued was the possibility of bringing the true beneficiaries of the business to criminal responsibility in the absence of formal ties with the bankrupt enterprise. In addition, the legislator discussed the differentiation of criminal liability depending on the subject of the crime and the socially dangerous consequences caused by his actions. The special subject of the crime was excluded from the first part of the composition, while the object remained unchanged, resulting in the inability of a legal entity, as well as a citizen and an individual entrepreneur, to conduct further business. The second part provides for the same act if it is committed by a person using his official position, by a person controlling the debtor, as well as by the head of such person, by a group of persons by prior agreement and by an organized group. At the same time, in our opinion, in this interpretation, which provides for differentiation of responsibilities, there is a clear omission from the point of view of a systematic approach.

Turning to a detailed analysis of Article 196 of the Criminal Code of the Russian Federation, it seems advisable to divide the subjects of crime by the scope of criminal activity into the consequences that occur in relation to a legal entity and an individual, including an individual entrepreneur, since it is obvious that damage exceeding the level of a large one will differ depending on the subject in combination with qualifying features.

As for the consequences of bankruptcy of an individual entrepreneur or an individual, it is worth noting that the deliberate bankruptcy of such a subject is aimed in itself at a narrower circle of possible victims in accordance with its own importance in the plane of economic legal relations. The actions of the above-mentioned entities traditionally find their expression through the alienation of property that is clearly inconsistent with current financial circumstances. Along with such alienation may be the provision of borrowed funds in the absence of a security guarantee or the conscious assumption of financial obligations disproportionate to the possibilities ^[4].

As an illustrative example, we can cite the Verdict of the Privolzhsky District Court of Kazan dated May 23, 2022 in case No. 1-113/2022, according to which A.m.A. was found guilty of having been registered as an individual entrepreneur, and had received loans totaling about 64 for two years since 2012. 000 000 rubles. After that, in the period from June 02, 2016 to July 05, 2018, the perpetrators developed a plan to intentionally bankrupt themselves as an individual entrepreneur in the hope of avoiding the obligation to pay the principal payments due, as well as the accrued penalty for the entire period. Based on the developed plan, the perpetrator committed a number of imaginary purchase and sale transactions, as a result of which all the property was reissued to other persons who were unaware of the criminal intent of the perpetrator due to the existence of a trust relationship between them. The aggrieved parties in this case were banks, the deposit insurance agency, the heat supply company, as well as the Federal Tax Service of the Russian Federation. At the same time, it is interesting that civil lawsuits were left without consideration due to the vagueness and uncertainty of the requirements in connection with the bankruptcy procedure to satisfy creditors' claims, in which, at the time of the criminal case, some transactions had already been declared illegal and the restitution rule was applied.

Taking into account all the circumstances of the case, the court sentenced the perpetrator to two years in prison for committing a crime under Part 1 of Article 196 of the Criminal Code of the Russian Federation, however, the provision of Article 73 of the Criminal Code of the Russian Federation regulating the rules of probation was applied.

At the same time, based on the literal interpretation of Part 1 of Article 196 of the Criminal Code of the Russian Federation, equal criminal liability follows in the case of deliberate bankruptcy of a legal entity, which is an undoubted omission in observing the principle of fairness in criminal legislation, as well as a de facto conflict-of-laws aspect. Considering the deliberate bankruptcy of a legal entity, it may seem curious that such actions will definitely qualify under Part 2 of Article 196 of the Criminal Code of the Russian Federation, depending on the qualifying feature. This is evidenced by the goals set out in the Explanatory Note to the Federal Law on Amendments, including Article 196 of the Criminal Code of the Russian Federation, this is confirmed by judicial practice, scientists argue about this. The qualifying sign of the use of official position will obviously be applied to persons with a certain range of powers, with the help of which a causal relationship with the onset of socially dangerous consequences will be established. As D. A. Kuzminov correctly notes in this part, despite the possibility of carrying out actions outside the scope of his powers, such as, for example, the destruction of the debtor's property, such actions will not be isolated in the implementation of criminal intent aimed at achieving bankruptcy of the enterprise, which means that along with such actions, in addition, criminal intent It will be implemented through the use of official position, therefore, the conclusion that the whole set of actions of the subject of the crime will be qualified by a single feature: "a person using his official position" is obvious ^[5].

At the same time, it would be objective to note that this qualification concerns the sole actions of the perpetrator, in connection with which, it is proposed to pay attention to judicial practice, such as the Verdict of the Oktyabrsky District Court of Omsk dated February 01, 2023, which entered into force on April 12, 2023. Thus, according to the stated circumstances of the case, V. N. A., being the director of LLC, as well as the owner of 100% of the share of the authorized capital, who, in accordance with the company's Charter, has a number of powers for administrative, economic and organizational management of the enterprise, realized criminal intent aimed at the deliberate bankruptcy of LLC, both through his official powers, V. N. A., being the actual head of another enterprise, but having no de jure authority to do so, decided to obtain a loan and spend the funds received on the needs of this enterprise. At the same time, as a security measure, the liquid property of the enterprise, of which V. N. A. was the official head, was mortgaged. It is easy to understand that the head, acting in the interests of the Company, cannot decide to pledge property to secure the debt obligations of another Company, since this contradicts the fundamentals of the financial activity of the enterprise. However, together with a number of other actions aimed at alienating property within the framework of the bankrupt enterprise's business activities, the actions of the head were definitively qualified as intentional bankruptcy, that is, the commission of actions that knowingly entail the inability of the legal entity to fully satisfy creditors' claims for monetary obligations and fulfill the obligation to pay mandatory payments if these actions caused major damage committed using his official position, namely, under paragraph "a" of Part 2 of art. 196 of the Criminal Code of the Russian Federation.

The prospect of bringing persons to criminal responsibility for the deliberate bankruptcy of a legal entity will obviously fit into a motivated qualification of actions within the framework of Part 2 of Article 196 of the Criminal Code of the Russian Federation. This conclusion is logical and is confirmed by the opinions of other scientists ^[6]. At the same time, considering the possibility of involving an individual or an individual entrepreneur within the framework of clause "a" of Part 2 of Article 196 of the Criminal Code of the Russian Federation with the qualification of the subject's actions as "a person using his official position", it is worth noting the technical impossibility of applying this qualifying feature to an individual or individual entrepreneur due to their status within the framework of economic legal relations.. The subjects in question are not given official powers in carrying out economic activities.

At the same time, despite the lack of clear regulation of the concept of "using one's official position" in both legislation and law enforcement practice, it is obvious that when considering the application of this qualifying feature, it is worthwhile to proceed primarily from such fundamental aspects as the recognition of a subject as special, endowed with official powers and the fact of their use. In addition, it should be noted that by their nature, persons using their official position are divided into three groups and are reflected in the notes to Articles 201, 285 and 318 of the Criminal Code of the Russian Federation ^[7], the list of which is wide, but does not cover the status of an individual entrepreneur or an individual.

Based on the circumstances outlined, in our opinion, it would be advisable to clarify the criminal law regulation by further differentiating by the subject of the crime by removing from the main body of Article 196 of the Criminal Code of the Russian Federation indications of actions that knowingly entail the insolvency of a legal entity, defining it in the disposition of the second part. By implementing in this aspect the differentiation of responsibility with respect to the qualifying feature "using his official position", the legislator will bring the rule under study into line with the principle of fairness. Such a distribution of responsibility, based on the extent of the coming social consequences, will ensure a level-based attitude to the protection and observance of the rights of victims and perpetrators, which is based on the above-mentioned principle of criminal law.

Continuing the analysis of the legislative novelty, special attention should also be paid, along with the designated qualifying feature located in paragraph "a" of Part 2 of Article 196 of the Criminal Code of the Russian Federation, an indication of such subjects of crime as the person controlling the debtor, as well as the head of such person.

The need to introduce a kind of new form of committing a crime, which can be designated as "managed bankruptcy", was primarily due to the high level of latency of the crime with demonstrative observance of civil law norms during the procedure for recognizing the debtor as insolvent (bankrupt), as well as the legal impossibility of bringing the final beneficiaries to criminal responsibility ^[8].

The new interpretation of the disposition of art. 196 of the Criminal Code of the Russian Federation has traditionally been a blank form of presentation ^[9], in connection with which, it is proposed to seek an interpretation of the indicated definition from the civil law mechanism, namely Federal Law No. 127-FZ "On Insolvency (Bankruptcy)" dated October 26, 2002, according to Article 61.10 which the controlling person is determined based on the ability to influence the actions of the debtor (bankrupt), provided for in paragraph two of the said regulation. Without going into the detailed and unnecessary regulation of the procedure for recognizing a person as controlling a debtor within the framework of the civil law field in this study, the fact of the identity of the civil law concepts "controlling person of the debtor" and "head of the person controlling the debtor", introduced in the new edition, remains interesting, in our opinion. In this regard, it seems objective to shorten paragraph "a" of Part 2 of art. 196 of the Criminal Code of the Russian Federation, excluding from the list of subjects the head of the person controlling the debtor, since by virtue of the general conditions of criminal liability, located in art. 19 of the Criminal Code, in cooperation with the provisions of art. 61.10 of the Law on Insolvency (Bankruptcy), the head the person controlling the debtor is the person controlling the debtor who receives the ultimate benefit from the bankruptcy of the enterprise. A similar position can be traced in M. G. Zhilkin, who draws attention to the basics of the interaction of criminal and civil law norms through the bluntness of the presentation of criminal law norms that ensure the unity of the categorical apparatus governing entrepreneurial activity ^[10]. Thus, based on the analysis of paragraph "a" of Part 2 of Article 196 of the Criminal Code of the Russian Federation, the interpretation of the latter, in our opinion, is possible for further specification.

At the same time, analyzing the subtleties of bringing to criminal responsibility for the commission of deliberate bankruptcy of a legal entity, individual or individual entrepreneur, it is worth noting that a radical division of parts based on the subject of the crime is premature, due to the presence in Part 2 of art. 196 of the Criminal Code of the Russian Federation of such qualifying features as "commission of a crime by an organized group" and "a group of persons by prior agreement", the analysis of which is proposed to be addressed in the context of the possibility of bringing both entities to justice.

Despite the fact that the above-mentioned qualifying features themselves are not an innovation in criminal law, within the framework of deliberate bankruptcy, this feature has received a response in the scientific world, both from a critical point of view ^[11] and from the point of view of the objective need to include these features due to their naturalness in implementation, including deliberate bankruptcy ^[12].

If we are talking about the complex application of such qualifying features as "organized group" and "group of persons by prior agreement" within the framework of art. 196 of the Criminal Code of the Russian Federation, it is important to pay attention to the frequent reference to the norm governing the forms of complicity in a crime when qualifying actions for intentional bankruptcy in the previous edition. It is worth noting that this practice was generated primarily by the latent nature inherent in deliberate bankruptcy. The relevance of introducing these qualifying features directly into the composition of a crime was based on the basis of the rules for differentiating criminal liability, such as the mandatory typicality of the qualifying features included for a specific type of crime.

The importance of differentiating criminal liability through the use of qualifying features in the composition of a crime is based, as a general rule, on the various levels of public danger of the actions being committed ^[13]. If the answer to the question of the need to separate paragraph "b" of Part 2 of Article 196 of the Criminal Code of the Russian Federation into a separate part in the case of such actions against a legal entity is obvious, then by blocking deliberate bankruptcy under Part 1 of Article 196 of the Criminal Code, the legislator risks creating a new gap that unscrupulous business entities will take advantage of. In order to prevent the generation of a new round of criminality during the withdrawal of assets and the commission of other actions that entail the insolvency of a legal entity by involving individual entrepreneurs and individuals in a criminal scheme, who will also be subject to intentional bankruptcy, in our opinion, it is necessary to equally include the latter in the list of subjects of a particularly qualified corpus delicti providing for criminal liability for the commission of deliberate bankruptcy by a group of persons by prior agreement or as part of an organized group.

In our opinion, the participation of an individual and an individual entrepreneur in an agreed criminal scheme of deliberate bankruptcy with other participants in such a conspiracy is possible and will become widespread if the subject of the crime under Article 196 of the Criminal Code of the Russian Federation is differentiated into separate parts with different amounts of criminal liability. By making a step-by-step differentiation of criminal liability, Part 1 of Article 196 of the Criminal Code of the Russian Federation in the perspective of liberalizing economic criminal legislation, it is possible to classify crimes of moderate severity. Such a distribution of responsibility between the parts of the article under study will comply with the principle of fairness and the basis of differentiation of criminal liability, since, as previously noted, the consequences of the sole intentional bankruptcy of an individual or individual entrepreneur are clearly disproportionate to the damage caused as a result of the intentional bankruptcy of a legal entity, even in the case of sole realization by the head of the enterprise.

If we are talking about the deliberate bankruptcy of an individual or an individual entrepreneur, which is committed by several entities, such illegal behavior, as it seems, will have a clear financial benefit for all participants, since the consequences of bankruptcy of a citizen and an individual entrepreneur in the social aspect will have a more detrimental effect on these subjects of economic relations. Therefore, if there is a financial benefit from deliberate bankruptcy, the intention to commit it in a group of persons is a legitimate reason for obtaining such a benefit.

Summarizing the above, the provision of art. 196 of the Criminal Code of the Russian Federation is promising for further differentiation of criminal liability based on the principles of guilt and justice by dividing the staff into basic, qualified and specially qualified. Unfortunately, it should be recognized that when formulating the new corpus delicti in 2021, the legislator obviously made a mistake in differentiating criminal liability depending on the subjective side of the crime provided for in art. 196 of the Criminal Code of the Russian Federation, and this omission received a response in the scientific world. At the moment, there are a number of proposals to improve the interpretation of Article 196 of the Criminal Code of the Russian Federation, one of which provides for the removal of deliberate bankruptcy of an individual or individual entrepreneur into a separate crime with the introduction of a new Article in the Criminal Code of the Russian Federation, 196.1 ^[14].

At the same time, it seems that the implementation of differentiation of criminal liability is also possible within the framework of art. 196 of the Criminal Code of the Russian Federation. Based on this, the proposal to set out Article 196 of the Criminal Code of the Russian Federation in the following wording seems promising:

"1. Deliberate bankruptcy, that is, the commission of actions (inaction) that knowingly entail the inability of a citizen, including an individual entrepreneur, to fully satisfy creditors' claims for monetary obligations and (or) fulfill the obligation to pay mandatory payments, if these actions (inaction) have caused major damage, the amount of punishment must be specified in accordance with the classification of this composition as crimes of moderate severity;

2. The same act, which knowingly entails the incapacity of a legal entity, committed by a person using his official position or by a person controlling the debtor, is punishable in accordance with the classification of this crime as grave.;

3. An act provided for in parts one and two of this Article, committed by a group of persons by prior agreement or by an organized group, shall be punishable in accordance with the classification of this crime as particularly grave."

Naturally, this proposal should and will be subject to further adjustments and improvements, however, in our opinion, the fundamental proposal of differentiation of criminal liability in parts looks promising for further consolidation in the legal provision under study.