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20. ЭКОНОМИЧЕСКОЕ УГОЛОВНОЕ ПРАВО
20.1. CRIMINALIZATION OF ACTS INFRINGING THE ESTABLISHED ORDER FOR IMPLEMENTATION OF BUSINESS ACTIVITY UNDER MODERN
CONDITIONS
Aghayev Isfandiyar, Prof., Dr., Criminal law department Work place: Baku State University
Annotation: The general procedure and conditions for the State registration of legal entities and individual entrepreneurs are established by the Federal Law of August 8, 2001, No.129-FZ «On State Registration of Legal Entities and Individual Entrepreneurs». By this Law the State registration is defined as regulations of the authorized Federal executive body, carried out by the inclusion into public registers of information on the establishment, re-organization and liquidation of legal entities, on the acquisition of the status of an individual entrepreneur by individuals, as well as on the termination by individuals of activities as individual entrepreneurs and other information on legal entities and individual entrepreneurs. The presented article is devoted to new norms, providing criminal liability for infringement of an entrepreneurial activity.
Keywords: Falsification, legal entitiy, individual entrepreneur, false information, fictitious person, gamblings, financial documents, monetary resources, excise tax marks, special stamps, illegal timber.
КРИМИНАЛИЗАЦИЯ ДЕЯНИЙ, ПОСЯГАЮЩИХ НА УСТАНОВЛЕННЫЙ ПОРЯДОК ОСУЩЕСТВЛЕНИЯ ПРЕДПРИНИМАТЕЛЬСКОЙ ДЕЯТЕЛЬНОСТИ, В СОВРЕМЕННЫХ УСЛОВИЯХ
Агаев Исфандияр, Проф., Д-р, кафедра уголовного права Место работы: Бакинский Государственный Университет
Аннотация: Фальсификация, юридическое лицо, индивидуальный предприниматель, ложные сведения, подставное лицо, азартные игры, финансовые документы, денежные средства, акцизные марки, специальные марки, незаконно заготовленная древесина.
Ключевые слова: Общий порядок и условия государственной регистрации юридических лиц и индивидуальных предпринимателей установлен Федеральным законом от 8 августа 2001 г. № 129-ФЗ «О государственной регистрации юридических лиц и индивидуальных предпринимателей». Государственную регистрацию данный Закон определяет как акты уполномоченного федерального органа исполнительной власти, осуществляемые посредством внесения в государственные реестры сведений о создании, реорганизации и ликвидации юридических лиц, приобретении физическими лицами статуса индивидуального предпринимателя, прекращении физическими лицами деятельности в качестве индивидуальных предпринимателей, иных сведений о юридических лицах и индивидуальных предпринимателях. Представляемая статья посвящена новым нормам, предусматривающих уголовную ответственность за посягательства на предпринимательскую деятельность.
Falsification of the Unified State Register of Legal Entities, register of owners of securities or depository accounting system (art.1701 of the Criminal Code). This article establishes responsibility for two offenses that differ from each other by objective and subjective elements of the crime.
The object of the crime under p.1, art.1701 of the Criminal Code involves the established procedure for conducting the Unified State Register of Legal Entities and investors' rights. The object of the second crime (p.2, art.1701 of the Criminal Code) includes the established procedure for keeping record of rights to securities and the rights of investors.
Federal Law of August 8, 2001, No.129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" establishes the general procedure and conditions for State registration of legal entities (in their creation, re-organization and liquidation), as well as individuals as individual entrepreneurs.
Objective aspect of the crime under p.1, art.1701 of the Criminal Code is expressed in action, i.e. provision of documents containing deliberately false information to a body carrying out State registration of legal entities and individual entrepreneurs, or to an organization responsible for keeping record of rights to securities, for the purpose of inclusion into the Unified State Register of Legal Entities, the register of owners of securities, or into the depositary record-keeping system of unreliable information about:
- founders (stakeholders) of a legal entity;
- the amount and nominal value of their stakes in the charter capital of a legal entity;
- the registered owners of the registered securities;
- number, nominal value and category of the registered securities;
- encumbrance of a security or stake;
- the person, who manages the inherited security or stake;
- the head of the permanent executive body of a legal entity or another person entitled to act on behalf of a legal entity without a power of attorney.
Проблемы экономики и юридической практики
The provided documents should contain false data.
The offense shall be deemed to be completed at the time of submission of relevant documents to a body carrying out State registration of legal entities and individual entrepreneurs, or to the organizations responsible for keeping record of rights to securities1.
Subjective aspect of the first crime is characterized by direct intention. The other subjective feature of this crime is a purpose: inclusion of false information into the Unified State Register of Legal Entities, the register of securities holders, or depository accounting system. The act may also be aimed at the acquisition of the right to other people's property. The crime committer is an individual, who has reached the age of sixteen.
If the deed described in the disposition of p.l, art.1701 of the Criminal Code represents a method of fraud, and thereby the guilty person steals other people's property, the committed act shall be qualified under the relevant part of art.159 of the Criminal Code, and the additional imputation of art.1701 of the Criminal Code isn't required.
Objective aspect of the crime under p.2, art.1701 of the Criminal Code is expressed in the entry of deliberately unreliable information into the register of securities holders or into the depositary record-keeping system by means of illegal access to the register of securities owners or to the depositary record-keeping system.
Entry of false data is punishable under the considered norm only if it is carried out by unauthorized access to the register of securities holders or to depositary record-keeping system, i.e. when a person has no legal grounds for it. This feature of corpus delicti differentiates p.2, art.1701 of the Criminal Code from p.2, art.1852 of the Criminal Code.
Subjective aspect of the crime under p.2, art.1701 of the Criminal Code is characterized by direct intention. Crime committer is a sane person, who has reached the age of sixteen.
Qualifying signs include commitment of acts with use of violence or with threat of its use.
By the Federal Law of July 13, 2015, No.228-FZ, article 1702, entitled "Entering knowingly false information into surveying plan, technical plan or inspection certificate", is included into the Criminal Code of the Russian Federation. Objective aspect of this crime involves entering by a cadastral engineer knowingly false information into surveying plan, technical plan or inspection certificate, or forgery of documents, on the basis of which the surveying plan, technical plan or inspection certificate have been prepared. The infliction of a large-scale damage to individuals, organizations or the State is an obligatory feature of the considered crime. Qualified corpus delicti provides the same act which have caused an especially large-scale damage.
Unlawful establishment (creation, re-organisation) of a legal entity (art.1731 of the Criminal Code). The direct object of this crime is the established procedure for establishing a legal entity.
In accordance with art.48 of the Civil Code, a legal entity is an organization which owners, manages or operates a separate property and is responsible upon its obligations for this property, and on its own behalf can acquire and exercise proprietary and personal non-property rights, as well as may incur obligations, sue and be sued in court.
1 The commentary on the Criminal Code of the Russian Federation. Volume 1 (in Russian) // Under the editorship of professor Alexander Brillian-tov. Moscow, 2015, p.646.
Objective aspect of the considered corpus delicti is formed by actions expressed in the organization (creation or re-organization) of a legal entity through fictitious persons.
A legal entity is subject to State registration by the authorized State body in the order determined by the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs". According to paragraph 1 of the Decree of the Government of the Russian Federation of September 30, 2004, No.506 "On Approval of the Federal Tax Service" (as revised by the Decree of March 24, 2011), the State registration of legal entities and maintenance of the State register of legal entities are implemented by the Federal Tax Service.
Current legislation provides the following procedure for the registration of legal entities. State registration of a legal entity shall be carried out by the place of location of a permanent executive body specified by the founders in the statement on State registration, but in absence of such an executive body, it shall be performed by the location of other body or person authorized to act on behalf of a legal entity without a power of attorney.
In accordance with art.57 of the Civil Code, reorganization of a legal entity involves the merger, division, separation, transformation, which can be implemented by the decision of its founders (participants) or the body of a legal entity authorized by the constituent documents. In the law-provided cases, reorganization of a legal entity in the form of its division or separation from its structure of one or more legal entities shall be realized by the decision of authorized State bodies or by a court decision.
It should be noted that just the creation or reorganization of a legal entity shall be criminally punishable, and other actions (for example, changing the participants as a result of the alienation of shares on fictitious persons, etc.) don't constitute corpus delicti that should be considered as obvious gap in the criminal law.
The concept of fictitious persons is provided in the note to the considered article. So, fictitious persons include persons, who are the founders of (participants in) a legal entity or the managerial bodies of a legal entity, through whose misleading the legal entity was established (created, re-organised).
The subjective aspect involves direct intention. As the crime committer should be recognized a person, who has formed such a legal entity, i.e. has made a decision and issued the creation (reorganization) of a legal entity. Based on the provisions of the above-mentioned sectoral legislation, the applicants on the formation of such an entity may be fictitious persons themselves acting under the wrong belief. And misrepresentation of the fictitious persons can be carried out both by a guilty person and by third parties.
If a person in addition to the registration of a legal entity withdraws other people's property, or becomes entitled to it by deception of a fictitious person, then the deed should be qualified on cumulation with art.159 of the Criminal Code.
Unlawful use of documents for establishing (creating, reorganising) a legal entity (art.1732 of the Criminal Code). This article contains two independent corpus delictis. First crime assumes responsibility for the presentation of a document certifying an identity or the issuance of power of attorney, and second one involves responsibility for the acquisition of such a document or the use of illegally obtained personal data. Both crimes are united by the purposes: establishment (creation, re-organization) of a legal entity and the subsequent commitment of one or several crimes connected with financial operations or transactions in monetary funds or other property.
The object of the considered corpus delicti coincides with the object of the crime provided by art.1731 of the Criminal Code. Subject-matter is a document that proves identity or the power of attorney.
Main document certifying the identity of a citizen of the Russian Federation is the passport of a citizen of the Russian Federation. When losing the passport and until the registration of new passport, the citizen upon his/her request can get the temporary identity document issued by the territorial authority of the Federal Migration Service.
Other documents (diplomatic passport, service passport, identity certificate of a seaman) include the documents, which prove identity of the Russian citizens just to perform entry and departure from the Russian Federation, as well as confirm their identity outside of the Russian Federation. The use of this documents on the territory of the Russian Federation, particularly for establishment of a legal entity is impossible.
Such document as a military card cannot be considered the subject-matter of the regarded crime (as a document proving identity), because engage of the military personnel in business activity is directly prohibited by article 271 of the Federal Law of May 27, 1998, No.76-FZ "On the Status of the Military Personnel".
According to article 10 of the Federal Law of July 25, 2002, No.115-FZ "On Legal Status of Foreign Nationals in the Russian Federation", identity documents of foreign nationals in the Russian Federation include passports of the foreign citizens or other documents established by the Federal Law, or recognized as an identity document of a foreign national in accordance with the international treaties of the Russian Federation.
Objective aspect of the crime under p.1, art.1732 of the Criminal Code is expressed in action: presentation of a document certifying the identity or issuance of power of attorney with their subsequent use for the entry into the Unified State Register of Legal Entities of information about a fictitious person.
Submission of an identity document may be carried out both by transfer of the specified documents to the third parties for establishing a legal entity (for example, by preparation of constituent documents), and by presentation of these documents to the persons or bodies in the process of establishing a legal entity or by direct presentation of this document to an employee of the registering body while submitting the documents for State registration of a legal entity as an applicant.
Issuance of power of attorney with regard to the considered corpus delicti means the signing (and if necessary, stamping on behalf of a legal entity) of a power of attorney with the authority for representation of interests of the constituent in case of establishing a legal entity and (or) fulfilment of actions connected with its registration, as well as delivery (personally or through the third parties) of such a power of attorney to the attorney2.
The crime shall be considered to be completed from the moment of receiving an identity document, or a power of attorney by the addressee, but in case of their submission for proving an identity or authorities - from the moment of such a submission.
Disclosure of personal data or details of an identity document or power of attorney without their submission doesn't form corpus delicti under p.1, art.1732 of the Criminal Code.
2 The commentary on the Criminal Code of the Russian Federation. Volume 1 (in Russian) // Under the editorship of professor Alexander Brillian-tov. Moscow, 2015, p.671.
The subjective aspect involves direct intention and availability of two consecutive purposes: formation of a legal entity and its subsequent use for committing one or several crimes connected with financial transactions or transactions in money or other property.
Crime committer under p.1, art.1732 of the Criminal Code is general and can be any individual, who submits an identity document (both his/her own, and the one belonging to the third parties) or issues a power of attorney. If a power of attorney is issued by a legal entity, then a person, who has issued such a power of attorney in accordance with his/her authorities, shall be responsible for this act (for example, a general director as an individual executive body).
Part 2, article 1732 of the Criminal Code provides responsibility for acquisition of the document certifying an identity or for use of illegally obtained personal data committed with the same purpose. This norm in addition to an identity document, assumes carrying out actions with an alternative subject-matter - personal data obtained by illegal way.
In accordance with part 1, article 3 of the Federal Law of July 27, 2006, No.152-FZ "On Personal Data", personal data shall be defined as any information relating directly or indirectly to a definite individual.
In relation to the purposes of this article, only personal data included into the constituent documents, as well as into the documents submitted to the registering body in case of formation (creation, re-organization) of a legal entity has a penal significance. In particular, it involves a citizen's surname, name, patronymic name, date of birth, birthplace, address, subscriber number, details of identity document, TIN (Taxpayer Identification Number).
According to article 7 of the above-mentioned Federal Law, the basis for disclosure and distribution of personal data is a consent of their owner.
The crime is recognized to be completed:
- concerning an identity document - from the moment of its acquisition (receipt) by the addressee (regardless of the fact of its subsequent use);
- concerning personal data - from the moment of entering any of these data into the constituent documents or other documents submitted to the registering body.
Contents of the subjective aspect corresponds to the norm described in part 1 of the considered article.
Crime committer is general: a person, who purchased an identity document or uses the illegally obtained personal data.
Illegal organization and carrying out of gamblings (art.1712 of the Criminal Code). The object of this crime is the established order for organizing gamblings.
Legal basis for the State regulation of the organization and carrying out of gamblings in the territory of the Russian Federation and the limitations of such activities shall be realized in accordance with the Civil Code (Chapter 58), Federal Law of December 29, 2006, No.244-FZ "On State Regulation of Activities on Organizing and Carrying Out Gamblings". As it is noted in part 1, article 4 of the specified Federal Law, gambling is an agreement on winning based on the risk and concluded by two or more parties to such agreement among themselves or with the organizer of gambling according to the rules established by the organizer.
Gamblings traditionally include card games (except for sports), roulette, totalizator, betting (agreement on winning based on the risk, whose outcome depends on an event, occurrence or nonoccurrence of which is unknown), etc.
Проблемы экономики и юридической практики
The above-mentioned Federal Law establishes the following main limitations for gamblings:
- organizers of gamblings may only be legal entities registered in the territory of the Russian Federation;
- activities on organizing and conducting gamblings may only be carried out in gambling establishments that meet requirements of the current legislation;
- organization and carrying out of gamblings by using information and telecommunications networks, including the Internet, as well as communications equipments, including mobile communication, shall not be allowed;
- gaming establishments (except for bookmakers, betting shops) may be opened only in gambling zones in accordance with this Federal Law.
According to article 14 of the considered Federal Law, activities on organizing and conducting gamblings in bookmaker offices may be arranged outside the gaming zones. Bookmakers and betting offices (except for ones opened in the gambling zones) may be opened just on the basis of appropriate licenses. Bookmakers and betting offices located outside the gaming zones cannot carry out activities on organizing and conducting gamblings by using slot machines and game tables.
Disposition of p.1, art.1712 of the Criminal Code criminalizes only the organization and (or) carrying out of gamblings:
- with the use of games equipment outside the games zone;
- with the use of information and telecommunication networks, including the Internet, as well as means of equipment, including mobile communication;
- without a special permit for the performance of an activity on organizing and carrying out gamblings in the games zone.
Mandatory signs of this corpus delicti include method (games equipment) and place (outside the games zone) of committing the crime.
In accordance with subparagraph 7, paragraph 1, article 4 of the Federal Law "On State Regulation of Activities on Organizing and Carrying Out Gamblings", games zone is a part of the territory of the Russian Federation, which is intended to carry out activities for organizing and conducting gamblings, and whose boundaries are established in accordance with this Federal Law. The procedure for establishment and liquidation of game zones, as well as their names, boundaries and other parameters are established by the Government of the Russian Federation. Today the Government envisages the creation of four gambling zones located in the following constituent entities of the Russian Federation: Altai Territory, Primorsky Territory, Kaliningrad Region, Krasnodar Region. Currently, operating gaming area is only the one located in the Krasnodar Region called "Azov-City".
Gaming equipment includes devices or accessories used for gambling. The use of gaming equipment shall be defined as its application in the process of carrying out gambling. The acquisition, storage, transportation or sale of such an equipment doesn't constitute corpus delicti.
In case of using information and telecommunications networks, including the Internet, as well as the means of communication, including mobile communication, the criminal law doesn't indicate a place of committing the crime as a mandatory feature of corpus delicti, and consequently prohibits the use of information and telecommunication networks and means of communication for organizing and carrying out gamblings, including such activities in the games zones. This conclusion is fully consistent with the provisions of part 3, article 5 of the Federal Law "On State Regulation of Activities on Organizing and Carrying Out Gamblings".
In accordance with the requirements of part 3, article 3 of the specified Federal Law, the State regulation of the organization and
conduct of gamblings shall be carried out, in particular, by issuing permits for activities on organizing and conducting gambling in the games zones, out of which any gambling activities are prohibited. The only exception is the activities of bookmakers and betting shops (without using slot machines and game tables), which may be located outside the games zones.
The subjective aspect is characterized by intention, which may be both direct and indirect (for example, in relation to the amount of the expected or received income from such activities). The committer of the considered crimes is general. Just the persons, whose activities include organizing and carrying out of gambling, shall be responsibility for this crime. Participation in gambling activities in the absence of any signs of its organization and conduct shall not be recognized as a criminal offense.
The qualified corpus delicti involves the commitment of the considered acts by a group of persons upon prior conspiracy or their conjugation with gaining income on a large scale, which implies the amount of one million six hundred thousand rubles.
Based on the systemacy of Criminal law, the concept "income" applicable to the purposes of art.1712 of the Criminal Code must comply with the explanations of paragraph 12 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004, No.23 "On Judicial Practice in Cases of Illegal Entrepreneurship and Legalization (Laundering) of Money or Other Property Obtained through Crime", and income shall be understood as revenue from the sale of commodities (works, services) during the realization of such activities, without any deductions associated with its implementation.
The Federal Law of July 21, 2014, No.218-FZ included article 1721, entitled "Falsification of financial documents for accounting a financial organization", into the Criminal Code of the Russian Federation. This norm provides criminal liability for entering knowingly incomplete or false information on transactions, obligations, property or financial status of an organization into documents and (or) accounting registers of a credit organization, insurance company, professional participant of securities market, private pension fund, clearing organization, trade organizer, credit consumer cooperative, microfinance organization, joint-stock investment fund, and likewise confirmation of reliability of such information, submission of such information to the Central Bank of the Russian Federation, publication or disclosure of such information in the order established by the legislation of the Russian Federation. The purpose is an obligatory feature of the considered corpus delicti. It includes the concealment of the law-provided signs of bankruptcy, or of grounds for license annulment, as well as the appointment of interim administration.
By the Federal Law of March 30, 2016, No.78-FZ, article 1722, entitled "Organization of activities for attraction of monetary resources and (or) other property", is included into the Criminal Code of the Russian Federation. Objective aspect of this crime involves actions on organizing the activities for attraction of monetary resources and (or) other property of individuals and legal entities on a large scale (in the amount exceeding one million five hundred thousand rubles), wherein payment of yield and (or) provision of other benefits to the persons, whose monetary resources and (or) other property were attracted previously, are carried out at the expense of the attracted monetary resources and (or) other property of individuals and legal entities in the absence of investing and (or) other legitimate entrepreneurial and other activities involving the use of the attracted monetary resources and (or) other
property in the amount commensurate with the amount of the attracted monetary resources and (or) other property.
The act provided by second part of this article is conjugated with attraction of monetary resources and (or) other property of individuals and legal entities on an especially large scale (in the amount exceeding six million rubles).
Production, purchase, storage, transportation or sale of commodities and products without marking or drawing information provided by the legislation of the Russian Federation (art.1711 of the Criminal Code). Direct object of this crime involves interests connected with supervision of commodities and products subject to mark. The subject-matter is an unmarked commodity or product, which is subject to obligatory marking or drawing information provided by the legislation of the Russian Federation.
The effective legislation provides a list of commodities and products, whose production and sales without mandatory marking with excise tax marks and special stamps is prohibited. These include alcoholic beverages, tobacco and tobacco products.
Alcoholic beverages, tobacco and tobacco products making and selling in the territory of the Russian Federation (except for export deliveries) shall be marked by Federal special stamps, and the mentioned products importing to the Russian Federation shall be marked with excise tax marks.
Federal special stamp and excise tax mark are documents of public accountability certifying the legality of production and turnover of alcoholic beverages, tobacco and tobacco products in the territory of the Russian Federation and monitoring the payment of taxes. These stamps shall be acquired in the tax and customs authorities.
Alcoholic beverages, whose packaging doesn't allow marking by Federal special stamps and excise tax marks, shall be discharged from their marking by the procedure established by the Government of the Russian Federation, if full payment of excise tax duty is made.
In accordance with article 2 of the Federal Law of December 27, 2002, No.184-FZ "On Technical Regulation", marks of conformance means an indication intended for informing purchasers on conformity of the certified object with the requirements of voluntary certification or with a national standard. Certification is a form of conformity of objects with the technical regulations, standards, contract terms, which shall be carried out by the certifying body.
Article 23 of the specified Federal law indicates that the object of mandatory conformity may be only a product issued for circulation in the territory of the Russian Federation. Such a confirmation shall be carried out just in cases specified by appropriate technical regulations and exclusively for compliance with their requirements.
Objective aspect of the crime consists in the following illegal deeds in respect of unmarked commodities and products:
- production;
- purchase for the purpose of sale;
- storage with the aim of sale;
- transportation for the purpose of sale;
- sale.
Storage of unmarked commodities and products is a continuing
crime. Responsibility occurs from the beginning of storage, regardless of its duration.
The mandatory component of the objective aspect is the commitment of the above-mentioned actions on a large scale. According to the note to art.169 of the Criminal Code a large scale means the worth of unmarked commodities and products exceeding one million five hundred thousand rubles, and especially large scale involves the amount exceeding six million rubles.
The worth of unmarked commodities and products may be determined on the basis of relevant documents (for example, contracts, waybills, invoices, certificates of test purchases) testified by expertise.
In accordance with the Decree of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004, No.23 "On Judicial Practice in Cases of Illegal Entrepreneurship and Legalization of Funds (Money Laundering) or Other Property Obtained Through a Crime", if in the course of an illegal business activity the production, purchase, storage or transportation for the purpose of selling unmarked commodities and products subject to mandatory marking by excise tax marks, special marks, or marks of conformance take place on a large or especially large scales, then the perpetrator's actions shall be qualified by the cumulation of crimes under articles 171 and 1711 of the Criminal Code.
Subjective aspect of the crime includes direct intention. Crime committer is a sane individual, who has reached the age of sixteen, and may involve an individual entrepreneur, head of the organization or any other person.
Qualifying signs include commission of the crime either by a group of persons upon prior conspiracy, by an organized group, or on an especially large scale.
The illicit production and trafficking of unmarked commodities and products subject to mandatory marking by excise tax marks or special marks, which don't form a large scale, leads to administrative responsibility under article 1512 of the Russian Federation Code of Administrative Offences.
The Federal Law of July 21, 2014, No.277-FZ included article 1911, entitled "Acquisition, storage, transportation, processing for the purpose of sale or sale of knowingly illegal timber", into the Criminal Code of the Russian Federation. An obligatory feature of this act involves its commitment on a large scale, i.e. in the amount of fifty thousand rubles. Commitment of the same act by a group of persons upon prior conspiracy is a feature of the qualified corpus delicti (p.2, art.1911 of the Criminal Code), while its carrying out either on an especially large scale (in the amount of one hundred and fifty thousand rubles), by an organized group, or by a person abusing his/her official position is covered by especially qualified corpus delicti (p.3, art.1911 of the Criminal Code).
Список литературы:
1. The commentary on the Criminal Code of the Russian Federation. Volume 1 (in Russian) // Under the editorship of professor Alexander Brillian-tov. Moscow, 2015
