Fraud in business activities. Features of fraud in business activities

Article 159.4 of the Criminal Code of the Russian Federation refers to crimes in the economic sphere and provides for criminal liability for committing fraud involving deliberate failure to fulfill obligations in the field of business activity.

Article 159.4 of the Criminal Code of the Russian Federation was put into effect by Federal Law No. 207-FZ of November 29, 2012 “On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation.”

By Resolution of the Constitutional Court of the Russian Federation No. 32-P dated December 11, 2014, Article 159.4 of the Criminal Code was recognized as partially inconsistent with the Constitution of the Russian Federation. Based on Federal Law No. 325-FZ of July 3, 2016 “On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation, Article 159. 4 of the Criminal Code of the Russian Federation “Fraud in Business Activity”no longer valid.

Currently, criminal liability for committing fraud in the field of business is provided , put into effect by Federal Law No. 323-FZ of July 3, 2016. These provisions of the criminal law provide for liability for fraud associated with deliberate failure to fulfill contractual obligations in the field of business activity.

Article 159.4 of the Criminal Code in accordance with Part 1 of Article 9 of the Criminal Code of the Russian Federation “The operation of the criminal law in time” is valid to the extent that does not contradict the law, in relation to crimes committed before 06/12/2015.

Article 159.4 of the Criminal Code: provisions of law

Article 159.4 of the Criminal Code “Fraud in business activities”

1. Fraud associated with deliberate failure to fulfill contractual obligations in the field of business activity,

. shall be punishable by a fine in the amount of up to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a term of up to two hundred and forty hours, or by restriction of freedom for a term of up to one year, or by forced labor for a term of up to one year. , or imprisonment for the same period.

2. The same act, committed on a large scale,

Punishable by a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, or by forced labor for a term of up to three years, or by imprisonment for the same term with or without restriction of freedom for a term of up to one year. .

3. The same act, committed on an especially large scale,

shall be punishable by a fine in the amount of up to one million five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, or by forced labor for a term of up to five years, or by imprisonment for the same term with restriction of freedom for a term of up to two years, or without one.

Note.

Article 159.4 of the Criminal Code of the Russian Federation recognizes the value of stolen property as large -1,500,000 (One million five hundred thousand) rubles, especially large size -6 000 000 (Six million rubles).

Commentary on Article 159.4 of the Criminal Code

Fraud in the field of entrepreneurial activity, provided for in Article 159.4 of the Criminal Code of the Russian Federation, is a qualified type of fraud, the commission of which is possible exclusively in the field of entrepreneurial activity.

The disposition of Article 159.4 is of a blanket nature , because its application must be preceded by the fact of establishing and analyzing a specific regulatory framework regulating the economic and legal relations of the parties in the process of carrying out business activities.

Paragraph 1 of Article 2 of the Civil Code of the Russian Federation establishes that entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.

The object of the crime in Article 159.4 of the Criminal Code completely coincides with the generic object of theft - these are social relations in the sphere of social security of the population. Qualified fraud in business is always the theft of someone else's property or the acquisition of rights to someone else's property through deception or abuse of trust.

The objective side of Article 159 of the Criminal Code is strictly limited by the legislator - this is the deliberate failure to fulfill contractual obligations.

Specified crimeconsidered completed from the moment the guilty person receives goods or money, as well as acquires the legal right to dispose of these goods or money.

Subject of the crime in Article 159 - any capable person who has reached the age of 16.

Subjective side fraud in the field of business activity - direct, specific intent. The presence of intent aimed at fraud in the field of business activity is evidenced, in particular, by the fact that the person who entered into contractual relations does not have a real opportunity to fulfill them, concealing his economic and financial status from his counterparties.

Entrepreneurship, in its essence, is an activity aimed at generating income from personal or borrowed funds through the performance of any legal transactions in the market of works, goods and services by an officially registered person. Market subjects, for the most part, are legal entities, any relationships between each other and with citizens require documentary confirmation in the form of an agreement.

A situation is possible when a businessman who signed an agreement does not fulfill its terms and thereby causes damage in direct or commodity terms to his partner or consumer. In such situations, the issue can be considered under the prism of the Criminal Code and interpreted as in business activities.

Features of the crime

In order for a businessman to be recognized as a fraudster in the context of running his business, which will be an entrepreneur regardless of what he earns, trades in the market, produces and sells brooms or provides spa services, he must enter into an agreement and not keep the promises made. It is under such a set of conditions that a criminal case can be formed against him.

And only establishing the absence of intent in the process of signing an official document with a counterparty can protect against retaliation established by Article 159.4 of the Criminal Code of the Russian Federation.

Like any other type of appropriation of someone else's property through lies or taking advantage of someone else's location, business fraud is sensitive to the formulation of the crime.

The following video contains legal advice on the qualification of the crime of fraud in a business environment:

Corpus delicti

1. It is criminal retribution for fraud in the field of business activity and specifically under Article 159.4 of the Criminal Code of the Russian Federation that should occur if a number of factors are present:
2. The relationship between the attacker and the victim is formalized in the form of an agreement in the established form.
3. At the time of concluding the contractual relationship, the unscrupulous entrepreneur did not plan to fulfill his obligations, and this fact can be formally justified by evidence depending on the specifics of the contract.

For example, an entrepreneur enters into an agreement for the supply of goods on the terms of full advance payment, but is unable to deliver it due to lack of availability or on the terms of a supply subcontract. That is, the businessman knows that he does not have the resources to fulfill his promises and accepts the money, indicating his malicious intent and unwillingness to fulfill the terms of the agreement. However, if he can prove that he spent the funds received on the purchase of the required range of products, but was unable to deliver due to the fault of third parties, then liability will move from criminal to the sphere of civil law.

And if it was drawn up to conclude precisely this transaction and was fictitious, that is, it did not carry out other commercial activities, but only imitated it, then the punishment will be more severe, since the circumstances will be considered in the context of Article 159 of the Criminal Code of the Russian Federation.

Types and methods

• Intentional excess by a manager of permissible capabilities, which consists in signing documents that he is not authorized to endorse or when the conditions of the internal company environment do not allow this to be done, because the obligations cannot be implemented.
• Drawing up an agreement containing in the text features that exempt the entrepreneur from performing duties on pseudo-legal grounds.
• Attribution of work or services not actually performed, or goods and components not actually supplied.
• Fraud in obtaining a loan from a financial institution without valid collateral or at an unreasonably low interest rate.
• Providing loans with hidden fees that significantly worsen official conditions.

Investigation methodology

Procedural actions in case of fraud begin with declaring the fact of the crime itself, which is really important in relation to business activities. After all, in it, an incorrect interpretation of what happened or the intentions of a businessman can become the reason not for resolving the conflict in a civil manner, but for a very real prison sentence.

Therefore, the first thing that is checked is the existence of a contract in relation to which there was a failure to fulfill obligations, its legal competence and the presence of significant clarifications that can relieve liability for failure to fulfill promises not due to force majeure factors, but for completely ordinary reasons. The presence of such clarifications in the text is proof of the malicious intent of the entrepreneur, who did not want to fulfill the contract and prudently protected himself.

If the contract is in order and does not have any signs of criminal intent, it is necessary to check other essential conditions necessary for the entrepreneur to fulfill his obligations, among which the following are important:

• registration of a license if it is mandatory for the execution of the contract;
• the availability of monetary resources or a source of financing when drawing up a contract for the supply of goods that have not been paid for and the goods have been sold out;
• the presence of a delivery channel or the product itself, which was paid in advance but not delivered, etc.

If such circumstances are recorded, the presence of malicious intent and the fact of fraud are evident.

Unfortunately, our legislation is not ideal, especially with regard to fraudulent activities in business. This is what the following video is about:

How to prove business fraud?

Confirmation of the crime in such cases consists of a thorough audit of financial and permitting documents characterizing the activities of the entrepreneur. It is the unreasonableness of the financial obligations assumed, which is reflected in the accounting registers or agreements with other partners and creditors, that will be evidence of malicious actions on the part of the manager or authorized officials of the business structure or enterprise.

Due to their knowledge of the affairs of the company, executives who sign documents and get acquainted with the accounting and financial statements cannot but know about the possibility and legality of concluding a particular transaction. That is, if they knew about the circumstances that would make the transaction or the results of the contract invalid, but agreed to sign the documents, they are guilty of fraud.

How to make an application?

Any victim of the unlawful actions of an attacker, as a result of deception when concluding an agreement with an entrepreneur, can obtain protection of their rights from human rights and law enforcement agencies by writing the appropriate letter, guided by the following considerations:

1. If fraud has been committed, the fact is obvious and the victim has suffered actual damage, he should contact the police, choosing the department at the place where the crime was committed or the closest to his place of residence.
2. If, to confirm the fact of fraudulent manipulations, it is necessary to conduct an audit of the activities of the entrepreneur, it is necessary to submit a request to the prosecutor’s office with the appropriate circumstances.
3. If there is evidence of fraud and the person responsible for the crime has been identified, as well as if a pre-trial procedure has been carried out, which consists of an attempt to resolve the conflict through a claim, it is permissible to file a claim in court.

The application, regardless of the chosen body, must contain standard blocks of information, which are filled out and supplemented depending on the specifics. In general, the application is written by hand or drawn up using computer technology, printing and reproduction of documents.

The form must indicate:

1. In the upper right corner:
   1. Data about the addressee of the application, including a sequential indication of the position of the manager, the name of the government body, and the full name of the addressee (manager).
   2. Information about the applicant, who must be the victim or his authorized representative, including full name, residential address, current telephone number.
   3. In the center of the sheet is the name of the document “Application”.
   4. The red line is the circumstances of the incident, including all significant events and interactions with a person potentially guilty of committing fraudulent actions. Possible evidence of the attacker’s guilt is indicated, and all available documents and evidence are attached.
   5. The red line indicates a request depending on the addressee - to hold accountable, conduct an audit of activities, compensate for damage, etc.
   6. From the red line - all available applications are listed.
   7. The document is signed in your own hand and dated.

Punishment and article

Liability for fraud in business is characterized by duality, consisting in the following:

• punishment for such crimes is provided for in Article 159.4 of the Criminal Code of the Russian Federation, but only as amended by Part 1, if the fraud occurred before June 12, 2015, or in full for earlier offenses;
• punishment for fraudulent actions committed after June 12, 2015 and falling under parts 2 and 3 of Art. 159.4, provided for in parts 3 and 4 of Article 159.

A similar decision was made by Resolution of the Constitutional Court of the Russian Federation No. 32-P dated December 11, 2014 due to the disproportion of punishment to the gravity of the crime.

The following video also contains a lot of useful information on the issue of business fraud:

Fraud in the field of business activity is one of the qualified types of fraud introduced into the Criminal Code of the Russian Federation by Federal Law of November 29, 2012 N 207-FZ. Like fraud in general, qualified fraud in the field of business activity is a type of theft committed by deception or abuse of trust, but only exclusively in the field of business activity.

The disposition of the commented norm is of a blanket nature; therefore, its application must be preceded by the fact of establishing and analyzing a specific regulatory framework regulating the relations of the parties. Clause 1 of Art. 2 of the Civil Code of the Russian Federation defines entrepreneurial activity as an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.

The objective side of this type of qualified fraud is strictly limited by the legislator: “intentional failure to fulfill contractual obligations.”

A criminal act is considered completed from the moment the offender receives goods or money, as well as acquires the legal right to dispose of these goods or money.

The law does not establish specific deadlines regarding the moment when the victim discovers that the perpetrator has failed to fulfill his obligations. Apparently, if the culprit has not fulfilled the contractual obligations within the period established by the contract and there is every reason to believe that the party to the contract is not going to fulfill them, then the other party to the contract has the legal right to contact the police with a corresponding statement.

A criminal act is considered completed from the moment the offender receives goods or money, as well as acquires the legal right to dispose of these goods or money...

The subject of this type of fraud may be property, the right to property, or property rights.

As mentioned above, the methods of fraud are the same as in the unqualified type of fraud - deception and breach of trust.

Deception in fraud can be expressed in various ways, for example, in a deliberately false statement about facts that do not correspond to reality, in silence about facts of significant significance, which the perpetrator must have reported

Deception in this composition may concern the actual intentions of the perpetrator. regarding the identity of the fraudster, etc.

Breach of trust is possible when the perpetrator, using a relationship based on trust between two parties, receives money for fulfilling certain obligations that he does not intend to fulfill and does not fulfill within the agreed period.

The direct object of this crime is the social relations that develop in the process of carrying out business activities.

The subjects of this type of fraud are citizens who have reached the age of 16 and are legally capable.

The subjective side is formed by direct, specific intent and is characterized by a person’s deliberate failure to fulfill his obligations under the contract. A mandatory feature is a selfish motive.

Intentional failure to fulfill contractual obligations consists of the open unwillingness of the perpetrator to fulfill them, despite the terms of the contract.

The entry into force of a court decision in civil proceedings is not required to establish a person’s guilt.

Article 159.4 of the Criminal Code of the Russian Federation provides for its own qualified composition of this type of fraud, namely fraud in this area on a large scale and fraud on an especially large scale (Part 3).

In accordance with the note to Art. 159.1 of the Criminal Code of the Russian Federation on a large scale for the type of fraud in question, theft of property in the amount of 1 million 500 thousand to 6 million. rubles... A particularly large amount is the receipt of property in the amount of 6 million rubles. and higher.

Corpus delicti « Fraud in the sphere of business activity is new, and therefore the practice of its application is only developing.

Many law enforcement officers believe that it is easier to prove the intentionality of a fraudster than to prove his intent to steal when assuming contractual obligations. The culprit will not be able to unfoundedly refer to the fact that he was let down by unscrupulous contractors without documentary evidence of the reasons for non-fulfillment of his contractual obligations. Any arguments of the perpetrator in this part will be easy to verify. Thus, the investigative authorities only need to prove intentional failure to fulfill the obligation and receipt of reward, and not the presence of intent to steal property.

As practice has shown, from the very beginning, law enforcement officials had a question: which act is considered “simple” fraud, and which one is committed in the business sphere. The Supreme Court tried to provide clarification on this issue, and, as it turned out, it was not in vain. Taking into account the explanations, practice has developed an approach about the primacy of being over form. Therefore, even if in form the actions of the accused contained all the attributes of entrepreneurial activity, but in reality they pursued only the goal of deceiving the victim’s property free of charge, then we should be talking about a classic type of fraud.

The reader’s attention should be drawn to the fact that by Decree of the Constitutional Court of the Russian Federation dated December 11, 2014 No. 32-P, Article 159.4 of the Criminal Code of the Russian Federation was recognized as inconsistent with the Constitution of the Russian Federation to the extent that these provisions establish fraud associated with deliberate failure to fulfill contractual obligations in the field of business activity , if it is committed on an especially large scale, a punishment disproportionate to its social danger in the form of imprisonment for a term that allows, in the system of existing criminal law norms, to classify this crime as a crime of medium gravity, while for those also committed on an especially large scale such the same act, responsibility for which, without determining its specificity by subject and method of commission in relation to certain specific areas of business activity, is provided for by the general norm of Article 159 of this Code, is punishable by imprisonment for a period classifying it as a grave crime, moreover, that an especially large amount of stolen property in relation to the onset of criminal liability under Article 159 of this Code is recognized as significantly less than under its Article 159.4. The legislator was asked to make changes to this article of the Criminal Code within 6 months. If the necessary changes are not made to this norm within the specified period, then from June 12, 2015 it will lose its force.

The Presidium of the RF Armed Forces explained that “acts falling under the elements of a crime under Art. 159.4 of the Criminal Code of the Russian Federation, committed before June 12, 2015, should be qualified under the repealed Art. 159.4 of the Criminal Code of the Russian Federation. The RF Supreme Court explained its decision by the fact that actions under Art. 159.4 is not decriminalized, but cannot be qualified under Article 159 of the Criminal Code of the Russian Federation, which establishes a more severe punishment for them.

Of greater interest to entrepreneurs is paragraph 6 of the said resolution of the Constitutional Court, which establishes a ban on giving this decision retroactive effect.
This means that fraud in the field of business activities, which will be reclassified from Article 159.4 to Article 159 of the Criminal Code of the Russian Federation, should be subject to significantly shorter statutes of limitations for criminal prosecution, significantly more lenient penalties and broad grounds for termination of a criminal case, as well as other privileged criminal -legal consequences arising from the relevant provisions of Article 159.4 of the Criminal Code of the Russian Federation.
Thus, even if the act is reclassified from Art. 159.4 for simple fraud under Art. 159 of the Criminal Code of the Russian Federation, in fact, the consequences for the accused should be the same as if he had been tried under Art. 159.4, which is softer.

In other words, fraud in the field of business activities, which will be reclassified from Article 159.4 to Article 159 of the Criminal Code of the Russian Federation, should be subject to significantly shorter statutes of limitations for criminal prosecution, significantly more lenient penalties and broad grounds for termination of a criminal case, as well as other privileged criminal law consequences arising from the relevant provisions of Article 159.4 of the Criminal Code of the Russian Federation.

Thus, even if the act is reclassified from Art. 159.4 for simple fraud under Art. 159 of the Criminal Code of the Russian Federation, in fact, the consequences for the accused should be the same as if he had been tried under Art. 159.4, which is softer.

What entrepreneurs need to know to avoid criminal liability for fraud today:

To avoid problems
1) Based on the materials of the criminal case, check to what extent the incriminated act contains signs of theft, including a selfish motive and the illegality of confiscating property from the owner, as well as turning it into one’s own favor or in favor of third parties.

2) In the case of fraud charges, assess whether the evidence collected in the criminal case sufficiently indicates the presence of intent aimed at deliberate failure to fulfill the obligation, which was a condition for the transfer of property (rights to property), as well as the emergence of criminal intent precisely before the commission of the relevant transactions.

3) If there was no intent to steal, build a defense based on the following three circumstances (collecting documents and other materials supporting them):

a) whether at the time of the transaction you have a real opportunity to fulfill your obligations;

b) the occurrence after the transaction of an unforeseen (force majeure) or foreseen but unlikely (business risk) event that made it impossible to fulfill the obligation under the transaction. In this case, it is necessary to refer to paragraph 3.2 of Resolution No. 32-P, according to which failure to fulfill an obligation due to business risk is not a basis for concluding that there is intent to commit fraud;

c) your actions aimed at fulfilling the obligation.

4) In the case of reclassification of an act from Article 159.4 to Article 159 of the Criminal Code of the Russian Federation, check whether the rules on the inadmissibility of giving retroactive force to the decision of the Constitutional Court of the Russian Federation of April 20, 2006 No. 4-P, as worsening the position of the person accused of fraud, in including regarding the statute of limitations for criminal prosecution, as well as the grounds for termination of a criminal case and the amount of punishment.

5) Do not try to take property by force, threats, blackmail or violence to which you have no right, even in compensation for any debt obligations.

6) If the right to property is disputed, in order to ensure its safety, file a claim with the court to take interim measures provided for by law, including the possibility of transferring the property for safekeeping to the applicant. Do not try to take this property until the court decision recognizing the right to it comes into force.

For a sample petition to the court for mitigation of punishment in connection with amendments to the Criminal Code of the Russian Federation regarding fraud, see

On July 15, 2016, changes to Art. 159 of the Criminal Code of the Russian Federation, which was supplemented by Part 5 “fraud associated with deliberate failure to fulfill contractual obligations in the field of business activity, if this act entailed causing significant damage” and Part 6 and Part 7 of the same act committed on a large and especially large scale . Now, when qualifying actions as fraud in the field of business activity, one should be guided by this provision of the law.

Within the meaning of Part 5 of Article 159 of the Criminal Code of the Russian Federation, only deliberate failure to fulfill contractual obligations in the field of business activity is a criminal offense if significant damage was caused. The parties to the agreement must be only entrepreneurs and (or) commercial organizations, and not individuals.

Significant damage is considered to be damage in the amount of at least 10,000 rubles. Major damage is considered to be damage worth more than three million rubles. A particularly large amount is considered to be the value of property exceeding twelve million rubles.

Fraud in business activities from July 15, 2016

Law 326-FZ introduced changes regarding criminal liability for fraud. Since July 15, 2016, “Entrepreneurial” fraud (former Article 159.4 of the Criminal Code, which is excluded by this law) is now in a modified form in Part 5 of Article 159 of the Criminal Code of the Russian Federation.
The norm provides for “fraud involving deliberate failure to fulfill contractual obligations in the field of business activity, if this act resulted in significant damage,” as well as its qualified elements: on a large scale (Part 6) and on an especially large scale (Part 7). The maximum penalty for such fraud is imprisonment of up to 5, 6 and 10 years, respectively.
Article 159 now has four notes:
1. In Part 5, damage in the amount of at least 10 thousand rubles is considered significant.
2. Large size in part 6 is the value of property exceeding 3 million rubles.
3. In Part 7, a particularly large amount is recognized as the value of property exceeding 12 million rubles.

Application of parts 5–7 art. 159 of the Criminal Code faces questions depending on the time the crime was committed (before or after July 15, 2016) and the amount of damage caused.
For example, it is not clear by what standard to qualify an act under Part 2 or Part 5 of Art. 159 of the Criminal Code of an entrepreneur, if he committed fraud in the amount of more than 2.5 thousand, but less than 5 thousand rubles. until July 15, 2016, and also if the amount of theft is from 5 thousand to 10 thousand rubles. The sanctions for both articles are the same.
However, significant damage in Part 2 of Art. 159 of the Criminal Code from the specified date was increased from 2.5 thousand to 5 thousand rubles. In this case, significant damage to business fraud cannot be less than 10 thousand rubles.
The question of business fraud committed before July 15, 2016 by a group of persons by prior conspiracy or by an organized group also remains open. Such qualified compositions are parts 5–7 of Art. 159 of the Criminal Code do not provide for this.

In the second half of the year, the Plenum of the Supreme Court of the Russian Federation plans to adopt a resolution on the application of new rules on fraud and other economic crimes, and apparently it will provide answers to these questions

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Fraud—the theft of someone else's property or the acquisition of rights to someone else's property through deception or breach of trust—has become widespread. This act is subject to prosecution in accordance with Art. 159 of the Criminal Code of the Russian Federation. However, in the field of entrepreneurship, situations often arise in which actions that are ordinary business activities are classified as fraud.

Economic dispute in criminal terms

We are talking primarily about failure to fulfill contractual obligations that fall under the scope of civil legal relations. Naturally, an entrepreneur must fulfill concluded agreements, but in order to collect debts, counterparties often resort to various abuses, in particular, trying to bring the other party to the agreement to criminal liability. Such actions can be aimed both at obliging this party to fulfill the contract under the threat of criminal prosecution, and at destroying competitors, including through a raider takeover of a business.

In the case when business disputes are transferred to the criminal plane, this creates negative consequences for the entire business, since searches are carried out at the entrepreneur, documentation and hard drives are confiscated. These actions paralyze the work of the enterprise, the business suffers significant reputational damage, the entrepreneur loses contractors, and instead of engaging in normal activities, he spends time and money resolving this situation.

In addition, if a criminal case is initiated, there is a significant risk that the entrepreneur himself or a number of persons involved in the proceedings may be taken into custody or under house arrest. And although in 2009 changes were made to Part 1.1. Art. 108 of the Code of Criminal Procedure, which prohibits taking entrepreneurs into custody, but this ban is quite easily circumvented. While in custody or house arrest, an entrepreneur loses the ability to manage a business, and until recently, in such a situation, he did not even have the opportunity to notarize the right to manage a business for his proxies, since notaries were not allowed to see entrepreneurs who were in pre-trial detention or under house arrest .

The Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs B. Titov cited statistics on the criminal prosecution of entrepreneurs: for example, in 2016, 187,077 cases were initiated under Art. 159–159.6 of the Criminal Code of the Russian Federation in relation to business. Of these, only 29,021 cases were brought to court, which is 16.3%, while the rest “fell apart.” In a number of criminal cases, a decision is sometimes made to combine them into one proceeding, and then they are recorded in the statistics of the Judicial Department of the Supreme Court of the Russian Federation as one case.

Even those cases that are closed and do not go to trial lead not only to reputational costs, but also to significant material damage to the business, and sometimes this even leads to liquidation and closure of the business.

Russian President V. Putin pointed out this problem in his message to the Federal Assembly in 2015: “... the absolute majority (about 80%) of the 83% of entrepreneurs against whom criminal cases were opened lost their business completely or partially. That is, they were put under pressure, robbed and released. And this, of course, is not what we need in terms of the business climate. This is a direct destruction of the business climate.”

In addition, the President of the country drew attention to the problem of transferring civil legal relations to the criminal plane: “It is necessary to exclude from the legal system all clues that make it possible to turn an economic dispute into settling scores with the help of custom-made criminal cases.”

Such illegal actions by law enforcement agencies cause damage not only to the entrepreneur, but also to the country as a whole, as it leads to the closure of jobs, a reduction in taxes going to the budget, and also negatively affects business activity and the investment attractiveness of our state.

Article 159.4 of the Criminal Code of the Russian Federation

Back in 2012, deputies of the State Duma drew attention to this problem and made amendments to the Criminal Code of the Russian Federation, in particular, a number of special offenses in the field of fraud were added. This is how Art appeared. 159.4 of the Criminal Code of the Russian Federation “Fraud in the field of entrepreneurial activity” (Article 159. 4 of the Criminal Code of the Russian Federation was put into effect by Federal Law of November 29, 2012 No. 207-FZ “On Amendments to the Criminal Code of the Russian Federation and certain legislative acts of the Russian Federation”).

According to the changes made, the amount of damage caused (regular, large and especially large), after which criminal liability occurs, was increased multiple times. This amendment was adopted taking into account the fact that entrepreneurs in their activities operate with significantly larger sums than ordinary citizens. In this article, “a significant amount of damage” and qualifying features such as “a group of persons by prior conspiracy”, “using their official position” and “an organized group” were excluded. These changes were made taking into account the fact that in business any activity involves the work of the general director and accountant and can be brought under “a group of persons by prior conspiracy.”

The new article of the Criminal Code of the Russian Federation significantly increased fines for entrepreneurs and reduced terms of imprisonment, since they must first bear financial responsibility for economic crimes, especially since the level of public danger of such crimes is not high. In addition, an entrepreneur, while in prison, will not be able to compensate for the damage caused, whereas if a fine is applied, he has the opportunity to continue his business activities and the chance to compensate for the damage caused to both the injured person and the state.

In accordance with the adopted changes, given that we are talking specifically about entrepreneurial activity, the provision of Part 1.1 of Art. 108 of the Code of Criminal Procedure on the prohibition of detention in order to exclude the possibility of exerting unlawful pressure on an entrepreneur who is in a pre-trial detention center.

New amendments to Art. 159 of the Criminal Code of the Russian Federation

In December 2014, the Constitutional Court of the Russian Federation, generally recognizing Art. 159.4 of the Criminal Code of the Russian Federation is constitutional, determined a number of provisions that did not comply with the Constitution of the Russian Federation (citizens who were considered victims under this article were in a obviously less protected position than citizens who suffered under the general article 159 of the Criminal Code of the Russian Federation) and proposed that the legislator make appropriate changes within six months .

The legislator did not manage to make changes within the established period, and this norm ceased to apply on June 12, 2015. Now it applies only to crimes committed before its abolition, since it is more lenient in relation to the general norm of Art. 159 of the Criminal Code of the Russian Federation.

Article 159.4 of the Criminal Code of the Russian Federation has lost its force, but crimes related to fraud in business activities still remain. And representatives of business public associations and the Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs regularly drew attention to this problem. The pressing issues were considered on March 23, 2016 at a meeting of the working group on monitoring and analysis of law enforcement practice in the field of entrepreneurship under the Administration of the President of the Russian Federation. As a result of this meeting, a bill aimed at creating more favorable conditions for entrepreneurs was prepared and submitted by the President of the Russian Federation to the State Duma. The amendments proposed by the bill to the Criminal Code of the Russian Federation were approved by the State Duma of the Russian Federation in July 2016.

In accordance with the adopted amendments to Art. 159 of the Criminal Code of the Russian Federation was supplemented with parts 5, 6 and 7, which established the elements of fraud in the field of entrepreneurship. These compounds were specified: “involved with deliberate failure to fulfill contractual obligations in the field of entrepreneurial activity.” The note to this article states that we are talking only about individual entrepreneurs and commercial legal entities, that is, to qualify under this article it is necessary that both the perpetrators of the crime and the victims be entrepreneurs.

As a result of the amendments, the amount of damage, after which criminal liability for a business begins, was multiplied - a significant amount of damage is set from 10 thousand rubles, a large amount of damage - from 3 million rubles, an especially large amount - over 12 million rubles.

Also, as in Art. 159.4, qualifying features such as “group of persons”, “organized group”, etc. were removed. The adoption of these amendments should have a positive impact, in particular, on the application of the ban on imprisoning entrepreneurs. At the same time, the sanctions in these compounds remain the same as in ordinary fraud.

Disadvantages of the new edition of Art. 159 of the Criminal Code of the Russian Federation

Problems of law enforcement of Art. 159 of the Criminal Code of the Russian Federation still remains in the field of entrepreneurship.

The main one is sometimes the deliberate transfer of proceedings of ordinary business activities between entrepreneurs into criminal prosecution. Simply put, the initiation of a criminal case by unscrupulous representatives of law enforcement agencies in the absence of fraud in order to put pressure on business, including for corrupt reasons.

The only factor that separates non-performance of a contract from fraudulent activity is the intent to commit a crime. If an entrepreneur entered into an agreement in order not to fulfill it and steal money, this is a crime, but if, after concluding the agreement, he fulfilled it for several years, and then (for example, due to a crisis) was unable to fulfill his obligations, this is a subject for investigation in within the framework of arbitration courts. As it seems, the solution to this problem lies in increasing control by senior management of law enforcement agencies over subordinates, supervision of the prosecutor's office and a more objective formation of judicial practice in order to actually prove intent. Unfortunately, at present, indictments and sentences often contain only a statement of the assumption that there was intent.

Another problem is the amount of damage caused, which is charged to entrepreneurs under this article. The indictment charges the entrepreneur with the total amount of the contract, and not the amount of money that was actually stolen (not paid). For example, 160 million rubles were invested in the construction of a house. own and 100 million rubles. raised funds. At the same time, the house was built, but was not delivered due to circumstances beyond the control of the person. The developer was brought to criminal liability and was charged with damages in the amount of 260 million rubles, although the real amount would have to be recognized not as the entire amount of funds spent, but only as part of the funds raised but not used for their intended purpose.

In the new edition of Art. 159 of the Criminal Code of the Russian Federation does not qualify ordinary fraud in the field of business - there is only a significant, large and especially large amount of damage. Thus, entrepreneurs who have committed small-scale fraud fall under Part 1 of Art. 159 (common fraud). Provisions on special amounts of damage caused cannot be applied to them, and therefore an entrepreneur who made a mistake by more than 2.5 thousand rubles. when paying under a multimillion-dollar contract, may be subject to criminal prosecution.

When qualifying entrepreneurial activities, questions also arise: are the general director and accountant entrepreneurs, and are their actions subject to special qualifications? It would seem that the answer is obvious - a legal entity can only act through these persons, so they must fall under the entrepreneurial article. However, in practice, under the pretext that the general director and accountant are not entrepreneurs, they are often taken into custody.

Recently, courts have begun to more often use a preventive measure - house arrest instead of detention, but such a preventive measure as bail in relation to suspects and accused is practically not used. Considering that house arrest not only restricts a person’s movements, but also does not allow him to perform the duties of managing a business, we believe that for economic crimes it is quite possible to expand the use of such an interim measure as bail.

In addition, proposals are periodically made about the need to move the article “Fraud in the field of business” to Chapter 22 of the Criminal Code of the Russian Federation (“Crimes in the field of economic activity”). We cannot agree with this proposal, since this could lead to a sharp decrease in the application of the entrepreneurial clause, since this clause will not be considered as special in relation to ordinary fraud.

Elimination of problems of law enforcement of Art. 159 of the Criminal Code of the Russian Federation, such as:

– resolving ordinary business disputes through criminal prosecution of entrepreneurs,

- formality of proving intent,

–rare use of a preventive measure in the form of bail for economic crimes,

– lack of a general definition of “business fraud”,

– refusal to consider the general director and accountant as entrepreneurs,

will help significantly improve the legal situation of entrepreneurs who face criminal prosecution for fraud, and will also reduce the number of people unjustifiably brought to justice.

Business fraud can indirectly harm a large number of people, depriving them of work, income, and sometimes leading to the collapse of the enterprise as an economic entity. The proposed material examines the concept, provides examples and measures of liability for such crimes.

Fraud in business: regulatory framework and judicial practice

Until relatively recently, the Criminal Code of the Russian Federation considered fraud in the field of business activity as an independent type of fraud, qualified under a separate article of the Criminal Code. However, legislation tends to change quickly, and Art. 159.4 of the Criminal Code, which was previously applied in such cases, has lost force. Now such acts need to be classified according to CC. 5-7 tbsp. 159 of the Criminal Code, taking into account the qualifying characteristics that are seen in the actions of the perpetrator.

The Plenum of the Supreme Court reacted quite quickly to the changes made to the Criminal Code and hastened to resolve possible difficulties in law enforcement that might arise, adopting Resolution No. 4 of November 15, 2016 and then touching on this issue in paragraph 11 of Resolution No. 48 of November 30, 2017. In particular, the judges paid special attention to the criminal procedural aspects of the investigation and the importance of defining entrepreneurship as an area of ​​crime. To do this, you need to define entrepreneurship in accordance with paragraph 1 of Art. 2 of the Civil Code as an activity characterized by such features as:

• systematic;
• independence;
• own risk of the person carrying it out;
• commercial purpose;
• legal registration of an entrepreneur.

This is an extremely important point for qualifying the crime, because if the court decides that the crime was committed outside the business sphere, then the responsibility will be completely different.

In the same resolution, one can find explanations about what circumstances confirm the criminal intent of the subject and allow one to differentiate the undesirable consequences of business risk from a crime.

Business fraud: criminal legal characteristics

Part 1 art. 159 of the Criminal Code defines fraud as the theft of someone else’s property or the acquisition of rights to it by deception or abuse of trust. Hh. 5-7 norms extended this concept to business activities. In note 4 to Art. 159 of the Criminal Code explains that in the context under consideration, fraud should be understood as a deliberate failure to fulfill obligations under contracts to which the parties are business entities: individual entrepreneurs and commercial organizations.

This allows us to draw 2 important conclusions:

1. Fraud in the field of entrepreneurial activity is committed exclusively by a special subject - an individual entrepreneur or a member of the management body of a commercial organization. The same position was voiced by the Plenum of the Supreme Court in Resolution No. 4.
2. Such crimes are committed exclusively with direct intent. That is, the person does not initially intend to fulfill the obligations under the contract that he enters into (personally or indirectly).

Objective side of the crime

The objective side of business fraud as a crime is expressed in the actions of the subject aimed at concluding contracts that will obviously not be fulfilled. On the objective side, we can distinguish the following elements that must be present simultaneously:

• actions to conclude a civil contract for an amount not less than that provided for in Part 5 of Art. 159 of the Criminal Code (10,000 rubles), without the intention of fulfilling it in the future;
• receipt of material benefits, services or funds under a contract;
• inaction in relation to the fulfillment of contractual obligations or actions as a result of which the contract was not fully or improperly performed.

IMPORTANT! The specified actions (inaction) committed by a person who does not have the status of an individual entrepreneur, but who misled the injured party by convincing him of the existence of such status, are not fraud in the field of entrepreneurship and are subject to qualification under Parts 1-4 of Art. 159 of the Criminal Code of the Russian Federation.

Problems of proving fraud in business

As part of the evidence in the case, it is necessary to establish the following facts:

• commission of a crime by entrepreneurs;
• the existence of a civil agreement concluded between the parties;
• the presence of a goal - the illegal acquisition of goods and property;
• the amount of damage caused by the actions of the perpetrator;
• complete or partial failure to fulfill the contract;
• the presence of the defendant's intent to non-fulfill (improper fulfillment) of the agreement.

The greatest difficulty is proving intent to fail to fulfill obligations. The law does not contain a list of signs or grounds that would directly indicate its presence. But in paragraph 9 of Resolution No. 4, the Supreme Court judges explained to some extent what may indicate the presence of intent.

In particular, these are:

• the perpetrator lacks the initial opportunity to fulfill the contract;
• concealment of information about liens on property that became the subject of the agreement;
• disposal of funds received under the agreement for personal purposes;
• concluding an agreement using forged documents.

However, the presence of all these circumstances is only suggested by investigators for evaluation by the judge and is not direct evidence of fraud.

The second difficulty is related to establishing the time of the crime. Considering that most civil law agreements have a clearly established moment of execution, it is impossible to talk about actual non-fulfillment of an obligation before its occurrence.

However, since fraud is a crime with a material element, it will be considered completed from the moment the socially dangerous consequences occur, which in this case are expressed in causing property damage to the victim. Thus, the time of committing entrepreneurial fraud is the moment the defendant receives illegal benefits (money, services, etc.).

Criminal liability measures for fraud in business

Fraud in the field of business activity is a qualified element of fraud. Consequently, the measure of responsibility for it is much more severe than in the general composition reflected in Part 1 of Art. 159 of the Criminal Code.

So, sanctions CC. 5-7 tbsp. 159 of the Criminal Code provide a significant choice of types of punishment:

• fine;
• compulsory work;
• correctional work;
• forced labor;
• restriction of freedom (in this case used only as an additional punishment);
• deprivation of liberty.

An analysis of judicial practice has shown that sentences in cases of business fraud almost always include a fine as a punishment - if not the main one, then an additional one. This is caused not so much by the liberality of the judges, but by the purpose of this measure of influence.

Thus, the crimes in question belong to the group of economic ones and are aimed primarily at obtaining illegal benefits. Consequently, the fine in this case acts as a tool to prevent unjust enrichment. It’s not for nothing that even Part 7 of Art. 159 of the Criminal Code, which provides for a maximum penalty under this article of 10 years in prison, determines a fine of 1 million rubles. or in the amount of 3 years of income of the convicted person as a potential additional punishment.

It remains to conclude that the Criminal Code contains quite severe penalties for fraud in the field of business activity, and any act of this kind with damage exceeding 10,000 rubles can lead to the dock, and then, if not to jail, then at least to the obligation to pay a large fine.