The duty of subjects of legal relations to bear responsibility for malicious evasion of the return of a monetary debt or payment for securities is established by Article 177 of the Criminal Code of the Russian Federation in a new edition. The document prescribes in detail the signs of a crime and ways of punishing an individual or the head of an enterprise (organization) who evade fulfilling obligations.
Signs of qualification of a crime as a criminal
Responsibility of a citizen, individual entrepreneur or management legal entity under Art. 177 of the Criminal Code of Russia occurs when the offense is confirmed by four of its components, which are signs for qualification:An acquittal under Article 177 of the Criminal Code of the Russian Federation can be issued in the absence of at least one of the signs of the “maliciousness” of the crime. This legislative norm is applied if there are signs of derogation from the law in the content of a malicious violation in accordance with articles 159 of the Criminal Code (“Fraud”) and 315 (“Failure of a court sentence”).
What responsibility comes for individuals and organizations that violate the law
The crime provided for by Article 177 of the Criminal Code of the Russian Federation on non-payment of a loan or evasion of payment for securities is committed by inaction. But such inactive behavior of the management of an organization, an individual entrepreneur, a Russian citizen or a foreigner is fraught with punishment in the form of fines, forced labor and detention. These measures include:- recovery of a fine of up to 200 thousand rubles. At the same time, the debt amount still needs to be paid in full;
- collection of a sum of money, the value of which is equal to the amount of earnings of the convict, calculated for one and a half years (18 months);
- punishment for committing correctional labor by the evader within 480 hours;
- subjecting the offender to arrest for a period of six months;
- execution of compulsory labor with a duration of serving up to two years.
The maximum possible punishment for a borrower-evader in accordance with the sentence under Article 177 of the Criminal Code of the Russian Federation is to place him in prison or in another correctional facility with a two-year sentence there.
What jurisprudence shows
Judicial practice under Article 177 of the Criminal Code of the Russian Federation confirms that most of the non-payments, debts to suppliers of goods (services), waiver of obligations to pay for shares, bills, bonds and other securities. Such cases are usually subject to consideration in institutions of general jurisdiction or in an arbitration court. In order to make a decision, the following circumstances are fundamental in the case:- solvency of the debtor;
- assessment of the financial position of the borrower, determined for a period of 9–12 months;
- analysis of actions taken by the debtor to conceal their own income.
In the case when the case is not brought to court, many borrowers make payments on the loan in small amounts that are incommensurate with the debt obligation. And such a circumstance in judicial practice is always recognized as a mitigating factor. To avoid such a situation, the creditor must prove to the court that the defendant has the ability to repay a larger amount.
Cases from practice confirm that when a sentence is passed under Article 177 of the Criminal Code of the Russian Federation, the presence of extenuating circumstances will not be decisive if the debtor behaves inappropriately. This is reflected in his aggressive behavior towards bailiffs performing their direct duties. They are often insulted, which is recorded and then presented to the court.
What should a lender do to get their money back?
The basis for initiating a case under an article of criminal law is the creditor's appeal to the bailiff service and the provision of a report to the FSSP employees on the fact of non-payment of accounts payable, if the debtor actually has funds.The sample application under 177 of the Criminal Code of the Russian Federation from the creditor contains the address part, which mentions the head of the bailiff department. The next line - from whom the application was received - full name, address, phone number, passport details. After the title of the document “Statement on bringing to responsibility under Art. 177 of the Criminal Code of Russia "the text reveals the essence of the appeal, the application is signed by the applicant and the date is affixed.
Messages from the interrogating officer are checked for authenticity and supplemented with factual data. To establish the circumstances of malicious evasion from paying a large debt, the following facts are required:
- on the availability of an act of the arbitration court on the collection of accounts payable;
- is there any confirmation of non-execution of this act now;
- whether the debt is classified as "large";
- whether there are signs of "maliciousness" of evasion.
Malicious evasion of the head of an organization or a citizen from the repayment of accounts payable on a large scale or from the payment of securities after the entry into force of the relevant judicial act -
shall be punishable by a fine in the amount of up to 200 thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred and eighty hours, or by forced labor for a term of up to two years, or by arrest for a term of up to six months, or by deprivation of liberty for a term of up to two years.
The note is no longer valid. - Federal Law of 08.12.2003 N 162-FZ.
Comments to Art. 177 of the Criminal Code of the Russian Federation
1. The normal functioning of market relations is possible only if their participants unconditionally fulfill their obligations. Accounts payable may arise as a result of the borrower's failure to fulfill its obligations under the loan agreement (Article 819 of the Civil Code of the Russian Federation) and other agreements (supply, contract, lease, etc.). Failure to fulfill these obligations entails, first of all, civil law consequences (Chapter 25 of the Civil Code of the Russian Federation). Crime-forming signs of evasion from repayment of accounts payable are the large amount of such debt and the maliciousness of evasion after the entry into force of the court decision.
2. For the concept of a security, see Art. 142 of the Civil Code of the Russian Federation.
3. The crime is committed by inaction. The debtor evades repayment of his debt to the creditor or evades in one way or another from paying the security presented to him for payment, which he had to do after the judicial act came into force, recognizing the existence of accounts payable or obligations under the security and obliging the debtor pay off debt or pay for securities.
4. The maliciousness of evasion means, first of all, the intentionality of the act being commented on, if the subject has the opportunity to pay off the debt or pay for the security. At the same time, it is necessary to take into account the reasons and duration of the debtor’s failure to fulfill the obligation assigned to him, the repeated ignoring of the requirements of the bailiff, the creation of obstacles for him to ensure the possibility of collecting the debt, including the concealment of the property he actually has, the facts of unlawful influence on the creditor, the change of legal or actual addresses, etc.
Malicious evasion of repayment of accounts payable or payment of securities is an ongoing crime. It begins after the entry into force of a judicial act that confirmed the validity of the creditors' claim, and the evasion of debt repayment, which is obvious after this, and lasts until the perpetrator continues to evade or is not held criminally liable for this.
The method of evasion (open evasion, by deceit or breach of trust, etc.) does not matter for qualification if it was not associated with the commission of other crimes (for example, forgery of documents). Malicious evasion also occurs in cases where the borrower deliberately stretches long time debt repayment process.
5. The subject of a crime may be the head of a commercial and non-commercial organization of any form of ownership, which is obliged to repay accounts payable or pay for securities, as well as persons acting as managers, as well as a citizen who is a debtor, while not necessarily engaged in entrepreneurial activity.
6. Accounts payable must be large, i.е. exceeding 1.5 million rubles. (Note to Article 169 of the Criminal Code).
The law says nothing about the value of the securities payable. It seems, however, that the definition of a large amount of accounts payable is also relevant to cases of malicious evasion from payment of securities.
The norms outlined in Article 177 of the Criminal Code of the Russian Federation are universal in nature, which means that they satisfy the interests of not only creditors engaged in this activity professionally, they include banks and other credit organizations, but also other persons engaged in commerce.
Accounts payable arises if the borrower does not fulfill or ceases to fulfill its obligations under agreements (credit and others). According to judicial practice, such debts include: loans provided by a bank, overdue debts to suppliers of goods and services, on loans provided, waiver of obligations on securities (stocks, bills, bonds, checks, savings or deposit certificates, etc.). In order for the corpus delicti to be recognized, it is enough to commit acts of malicious non-payment of debts. At the same time, actions must be accompanied by debt on a large scale. Amounts exceeding 1,500,000 rubles fall under this classification, as provided for in the notes to Art. 169 of the Criminal Code of the Russian Federation. The amount of debt must be confirmed by a court decision, and can be added up if the defaulter and creditor are the same.
In practice, it is not uncommon for the amount of the principal debt to increase by penalties, interest for the misuse of other people's funds, and fines. Judicial practice in such cases is usually considered in a court of general jurisdiction or arbitration. The amount of debt can be confirmed not only by a judicial act, but also by other documents, quite often they are a court order.
Case Features
Crimes falling under section 177 may have an objective and subjective side. Objective - can be expressed in the form:
- actions;
- inaction.
A crime committed in the form of an action is accompanied by such methods of debt evasion as:
- providing false information to the bailiff about their income and the presence of property, their concealment;
- unauthorized change of place of residence, work;
- travel abroad without disclosing the place of stay;
- alienation of property and their transfer to third parties.
Crimes committed in the form of inaction are characterized by:
- failure to appear on calls sent by bailiffs;
- not taking any action to improve their financial situation and others.
As judicial practice testifies, crimes falling under Article 177 of the Criminal Code of the Russian Federation are classified as continuing. It becomes malicious after a judicial act on the recognition of claims for repayment of debts is gaining strength and there is evidence of evasion from its implementation. The crime lasts until the moment when the debt is repaid or the person is not prosecuted under Article 177.
Advice: along with the increase in cases of non-repayment or late repayment of loans, cases have also become more frequent when services hired by banks to “knock out” debts call debtors with demands to repay the loan, threatening defaulters with criminal liability and Art. 177. Borrowers should be aware that until the credit case is resolved in court and the executors start proceedings on it, and total amount the debt to the creditor will not reach one and a half million rubles, you should not worry about criminal liability and the application of Article 177 to you.
The term "malicious evasion" was deciphered in the Decree of the Plenum of the Supreme Court of the RSFSR No. 46 of March 19, 1969 "On judicial practice in cases of crimes under Article 122 of the Criminal Code of the RSFSR." This article provided for liability in case of non-execution of court decisions in family matters, in particular, non-payment of alimony. Considering that this Decree has lost its force on the basis of Decree of the Plenum of the RF Armed Forces dated February 6, 2007 No. 8, the current arbitrage practice determines the signs of maliciousness if the debtor was officially presented with claims by bailiffs and warnings were issued about the possible occurrence of criminal liability.
In turn, experienced defaulters with large debts take conceivable and unthinkable steps to avoid receiving such warnings. Their actions bring to naught all the efforts of the executors to enforce the collection of debts.
Obvious signals that the debtor intends to evade the repayment of his obligations are the facts of the sale and other alienation of property, the absence of movements on the current account, the change of residence until leaving the country, and other signs of arbitrariness aimed at evading debt payment.
Problematic issues of judicial practice
A review of judicial practice suggests that the application of such a measure as criminal liability in case of malicious non-payment of debts (Article 177), cannot be considered sufficiently effective. In addition, due to imperfections and inconsistencies in Russian legislation it is rarely used. Cases under Art. 177 rarely reach court. Problems with the application of Article 177 arise largely due to the fact that the content of the blanket evidence of disposition specified in Article 177 is understood differently, and ambiguity, of course, does not contribute to the uniform development of law enforcement judicial practice.
Another point that complicates the application and unpopularity of this article is the absence of any methodological recommendations of the Federal Court of Bailiffs, explaining the interpretation and use of Art. 177 in judicial practice.
Judicial practice also does not define the terms when non-payment is classified as malicious and can determine the sign of its occurrence. Thus, this act is determined on the basis of a cumulative evidence base confirming the deliberate evasion of a person from repaying a debt if the debtor has the opportunity to repay it.
A review of practice suggests that courts decide whether there is fraudulent evasion based on:
- real financial condition debtor;
- its solvency to fulfill its debt obligations;
- actions taken by him to conceal his income.
As a rule, the period that is taken into account in the assessment is 9-12 months.
Advice: if your case has gone to court and is classified under Art. 177, you should be aware that even the minimum loan payments, even incommensurate with the amount of the mandatory payment, testify in favor of the debtor and serve as a mitigating factor in judicial practice. But only if the plaintiff did not provide evidence that the borrower was able to pay larger amounts.
Evidence base
As evidence that the persistent defaulter has funds that could have been used to pay off the debt, but were used for personal needs, judicial practice accepts confirmed purchase data:
- rail or air tickets;
- tourist, sanatorium, resort vouchers;
- services of mobile operators;
- subscriptions to visit sports clubs, etc.;
- foreign language courses, etc.
Evidence that may testify to the debtor's evasion from fulfilling its obligations to the creditor is:
- a loan agreement, as well as documents submitted by the borrower as confirmation of his ability to repay the borrowed amount, collateral agreements, guarantees, etc.;
- a court decision that has entered into force in the case of recognizing the creditor's claims as legitimate, according to the claim;
- a copy of the writ of execution and the resolution on the commencement of enforcement proceedings in the case;
- in case of seizure, a copy of the act of seizure and inventory of property;
- confirmation of the borrower's warning about the consequences of applying Article 177 and criminal liability;
- testimony of persons - participants in the case of malicious non-payment;
- testimony of bailiffs who are entrusted with the execution of a court decision and other documents.
Advice: in the performance of their direct duties, bailiffs often encounter aggressive behavior of the defendants in the case, insults addressed to them. Debtors should refrain from such behavior, since all these facts are recorded and then submitted to the court for consideration, which will not help mitigate the decision in cases.
One of the mandatory documents indicating malicious evasion, as mentioned above, is a warning to bailiffs about the need to fulfill their obligations and the likely onset of criminal liability. Judicial practice shows that not a single case under consideration took place without this document. How many such warnings should be issued is decided on a case-by-case basis. A review of cases shows that there can be from 2 to 5.
At the same time, the absence of such warnings cannot indicate the absence of corpus delicti and the impossibility of applying Article 177 of the Criminal Code of the Russian Federation, which debtors rely on when they avoid receiving warnings. If there is clear evidence of guilt and evidence of malicious non-payment of obligations, liability under Article 177 may also occur without warnings of criminal liability in the case.
Evasion of debt repayment is perhaps one of the most serious problems in banking, and the solution of this problem does not lose its relevance. The author proposes to analyze the norms of Art. 177 of the Criminal Code of the Russian Federation "Malicious evasion of repayment of accounts payable" and eliminate certain misconceptions regarding the application of its norms.The article provides a description of the main elements of the corpus delicti and an analysis of the problems of law enforcement.
Debt evasion is currently quite common in Russia. There are many reasons for this situation: the unstable and problematic nature of economic relations, features of mentality, etc. Improving the effectiveness of the application of Art. 177 of the Criminal Code of the Russian Federation "Malicious evasion of repayment of accounts payable".
Now this norm is used extremely rarely1 and is often called “dead”, but there are opportunities for its “reanimation”. Improving the application of Art. 177 of the Criminal Code of the Russian Federation became most relevant after February 2008, when the inquiry under this article was transferred to the Federal Bailiff Service.
For a better understanding of the problem, we propose to consider and debunk the myths surrounding Art. 177 of the Criminal Code of the Russian Federation and interfering with its application.
Possibilities of criminal prosecution for malicious evasion of repayment of accounts payable Let's start with the myths, ie. common misconceptions about the possibility of criminal prosecution for malicious evasion of repayment of accounts payable. As communication with victims and law enforcers shows, the following myths are currently common.
1. There are no opportunities for effective application Art. 177 of the Criminal Code of the Russian Federation.
We consider this statement a myth, if only because a similar Art. 157 of the Criminal Code of the Russian Federation “Malicious evasion from paying funds for the maintenance of children or disabled parents” is used in some years 200 (!!!) times more often. Practice also shows that in some courts, even within one year, several sentences are passed under the article in question, which is more than 10% of the total number of such sentences in Russia.
2. Article 177 of the Criminal Code of the Russian Federation refers only to debts on loans (accounts payable - that means, on loans, loans).
This misconception arose due to a literal understanding of the text and, in some cases, an inattentive attitude to this composition on the part of the authors of textbooks and commentaries. The article mentions accounts payable, which covers all types of debt and differs from accounts receivable, i.e. the right to demand the payment of certain amounts. Accordingly, any debt is accounts payable (except for tax and other debts referred to in other articles of the Criminal Code). Evasion of debt under a supply contract, compensation for damages, etc. may also qualify under Art. 177 of the Criminal Code of the Russian Federation.
3. From criminal liability under Art. 177 of the Criminal Code of the Russian Federation is easy to get rid of (partial payment of the debt is enough, etc.).
Such representations are connected with analogies with Art. 159 of the Criminal Code of the Russian Federation “Fraud”, in which the absence of intent to steal is sometimes indicated by partial payment of a loan received or repayment of a debt. Malicious evasion is not theft, and such actions will in no way help an unscrupulous debtor if he hides property from collection for more than 250 thousand rubles, even if he pays significant amounts.
4. With the correct application of Art. 177 of the Criminal Code of the Russian Federation there will be a lot of sentences.
This is also a delusion, because. this composition is most often applicable in cases where the debtor has the opportunity to pay the debt, but he does not do this for subjective reasons. If the threat of criminal liability is already real, very often there is a repayment of debt and exemption from criminal liability in connection with reconciliation with the victim (Article 76 of the Criminal Code of the Russian Federation). It can be noted that the features of taking into account the successful movement of criminal cases lead to the fact that reconciliation most often occurs at the stage of judicial review, and not inquiry.
The main elements of the crime Without dwelling in detail on the object of the crime, tk. it has no great practical value, let us turn to the characteristics of the objective side.
Article 177 of the Criminal Code of the Russian Federation establishes criminal liability for malicious evasion of debt repayment on a large scale after the entry into force of a court decision. The composition is formal, i.e. enough actions of malicious evasion. These actions must be associated with a large amount of debt, i.e. more than 250 thousand rubles. In determining the amount of debt, it is necessary to focus on the judicial act by which it is confirmed. At the same time, the amounts of debt under different judicial acts can be summed up if the subject and the victim are the same. A judicial act is most often a decision of a court of general jurisdiction or an arbitration court, but the debt can also be confirmed by other judicial acts, for example, a court order.
The objective side, from our point of view, is expressed in the form of action - evasion. At the same time, for convenience of application, evasion can be considered identical to the concealment of property, which can be levied by a court decision. There is a point of view that evasion can be in the form of inaction, but we believe that this approach does not take into account the possibility of enforcement of court decisions, within which the Federal Bailiff Service has broad powers sufficient to overcome evasion in the form of simple inaction.
Considering possible evasion in the form of inaction, we kind of justify the possible inefficient work of bailiffs who do not take all the necessary measures to collect the debt.
Concealment of property (cash, real estate, etc.) to evade debt repayment is of two types:
- legal;
- physical.
In our practice, there was a case when an individual entrepreneur (IE) evaded debt repayment by concluding a fictitious contract with a person without certain place residence, for which obtaining the status of an individual entrepreneur was organized by one law firm, which then used the data of this person for illegal purposes. A frequent case of legal evasion is the receipt of wages that are not reflected in official reporting (note that the so-called “black” wages can be summed up over a certain period so that there is an amount necessary for criminal prosecution).
The types of legal cover-ups are constantly evolving, such as marriage contracts or child support agreements where all assets go to one spouse and all debts go to the other, although the actual marital relations continue after divorce.
Physical concealment is manifested in the fact that any property (most often movable) is hidden in such a way that the creditor and bailiffs do not know about its whereabouts. Physical concealment is less common than legal concealment as it is more complex and not suitable for all types of property.
We emphasize that if a person is unable to repay a debt that is more than 250 thousand rubles, criminal liability under Art. 177 of the Criminal Code of the Russian Federation, from our point of view, is impossible, since it would be a kind of objective imputation. Article 177 of the Criminal Code of the Russian Federation refers to actions after the occurrence of a debt and does not cover actions to receive funds.
Separately, we will dwell on cases where actions to legally conceal property are carried out before a court decision is made or its entry into force.
Naturally, an unscrupulous debtor, realizing that the court decision will not be in his favor, often does not wait for it to be issued, but hides the property in advance. We believe that after the entry into force of a judicial act in such cases, it is still possible to qualify under Art. 177 of the Criminal Code of the Russian Federation, since the debtor, actually owning, using and disposing of the property, “de jure” has nothing to do with it and makes it impossible to enforce the court decision. In these cases, a situation is obtained that is similar to ongoing crimes that are associated with dereliction of duty (for example, escape, evasion of military service, etc.).
The sign of malignity requires special attention, which, according to practitioners, often makes it difficult to qualify under Art. 177 of the Criminal Code of the Russian Federation.
We believe that malice as an evaluative concept can be defined different ways. For example, an analogy with Art. 157 of the Criminal Code of the Russian Federation "Malicious evasion of the payment of funds for the maintenance of children or disabled parents." In the practice of bringing to criminal responsibility for evading the payment of alimony, maliciousness is defined as failure to fulfill the obligation to pay, if possible, after two warnings from the bailiff.
However, the maliciousness of evading the repayment of accounts payable can also be spoken of in cases where there were no two warnings from the bailiff. In practice, a situation may arise when the debtor colludes with the bailiff and, accordingly, there are no necessary warnings.
Quite a few examples can be given when the evaluative concept of "malice" is applicable.
The main problems of law enforcement The evaluative nature of this feature is evidenced by different understanding maliciousness in various legal acts. For example, malicious non-payment of a fine in accordance with the Criminal Code of the Russian Federation is considered to be the absence of payment on the last day of the deadline for fulfilling this obligation for disrespectful reasons. In general, it is advisable to associate maliciousness with the commission by the debtor of special actions to hide his property (concluding agreements, bribing bailiffs, etc.).
Subjective signs of a crime under Art. 177 of the Criminal Code of the Russian Federation, cause less controversy than objective ones. There must be a direct intent to evade repayment of debt. We emphasize that direct intent is quite easily proved in case of legal concealment of property, since execution of imaginary transactions (signing of contracts, acts, etc.) clearly indicates the awareness of the social danger of their actions and the desire to commit them. At the same time, the technique often used to conceal fraud, when the debt is gradually paid off and this is considered evidence of the absence of intent to commit a crime, does not help in this case if property worth more than 250 thousand rubles is hidden.
The subject of the crime under Art. 177 of the Criminal Code of the Russian Federation can be both the head of a legal entity and a citizen. We especially note that for qualification under Art. 177 of the Criminal Code of the Russian Federation, it is necessary to remember the possibility of bringing to responsibility the actual, and not the nominal head of the organization. In detail the prosecution of de facto principals is elaborated for tax crimes2. Accordingly, in cases where the actual head of the debtor organization leaves it and creates a new organization, where he becomes the actual head and earns income that he does not send to pay off the debt of the original organization, one can raise the issue of criminal liability under Art. 177 of the Criminal Code of the Russian Federation.
Unfortunately, in publications under Art. 177 of the Criminal Code of the Russian Federation rarely considers the possibility of complicity in this crime and an attempt on it. From our point of view, very often, when evading debt repayment, there is a distribution of roles: persons who sign fictitious contracts, according to which they allegedly receive property, etc., become accomplices. Accordingly, when investigating debt evasion, attention should be paid to the qualifications of the actions not only of the contractor, but also of other accomplices.
It is important to pay attention to the possibility of an attempt under Art. 177 of the Criminal Code of the Russian Federation. Imagine a situation where a debtor who does not want money to be deducted from his salary to pay off the debt, agrees with the employer that wages (in the amount of, for example, 100 thousand rubles per month) will be paid unofficially. Suppose that this fact is revealed after 2 months and it turns out that the amount of evasion required for qualification under Art. 177 of the Criminal Code of the Russian Federation, not yet, but actions aimed at evading on a large scale have not been completed for reasons beyond the control of the person. We believe that in such cases the actions of the perpetrator can be qualified as an attempt.
Thus, Art. 177 of the Criminal Code of the Russian Federation "Malicious evasion of repayment of accounts payable" can be applied more efficiently than at present. The improvement of law enforcement practice should be facilitated by scientific consulting and public support.
1 In 2006, only 15 sentences were handed down in such cases.
2 Clause 7 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of applying criminal legislation on liability for tax crimes by courts”.
Every year in the country there are more and more debtors on loans. This is due, first of all, to the rapid growth in the number of various financial institutions that are happy to provide another loan to almost any citizen.
At the same time, people's greed and hindsight play a role in borrowing so much money that in the end they are horrified by the fact that it is impossible to pay the loan on time.
Of course, any bank will not tolerate this, therefore, in order to return their legitimate funds, they have to use the services of collectors. However, not everyone knows that non-payment of the loan threatens not only with the threats of collectors, but even with prison or correctional labor.
Thus, modern legislation provided for criminal liability for malicious evasion of repayment of accounts payable (Article 177 of the Criminal Code of the Russian Federation). Next, we will consider how this rule regulates this area in 2020.
As a rule, if the debtor does not return the money borrowed from the bank, the bank will not immediately intimidate him. First of all, employees of the financial institution must find out the reasons for non-payment.
If they turned out to be insignificant, and therefore could not create any obstacles for the timely payment of the loan, then the bank is obliged to warn such a client about the liability provided for by Article 177 of the Criminal Code of the Russian Federation.
So, on the basis of Article 177 of the Criminal Code of the Russian Federation, in case of debt on a loan, a debtor may be prosecuted for evading loan repayment and even sentenced to a criminal term.
At the same time, persistent violators face the most severe punishment - imprisonment for a maximum term, which is up to 2 years in prison.
It is worth noting that not so long ago this rule was used quite rarely. However, already in February 2008, the practice of applying Article 177 of the Criminal Code became much wider. First of all, this was due to the transfer of consideration of cases in this area to the FSSP.
It should be mentioned that under non-payment of accounts payable is meant not only non-payment of debt on a bank loan.
In fact, non-payment of accounts payable is any situation where a person owes another.
If you do not consider Article 177 of the Criminal Code of the Russian Federation in detail, it will be quite difficult to see the different facets of its application. That is why it is so important to pay attention both to the text of the article itself and to the comments of experts.
To begin with, it is worth considering the composition of this crime - malicious evasion of payment of accounts payable.
Consider what is the object of the crime? The main object of the crime is public relations in the monetary area. An additional object is relations in the field of justice.
The subject of the crime is a debt on a loan on a large scale. Large amount under article 177 of the Criminal Code of the Russian Federation - how much?
The note to article 169 of the Criminal Code indicated a large amount that exceeds 2.25 million rubles or securities. The definition of a security is given in Article 142 of the Civil Code.
The elements of the crime are formal. The objective side is expressed as inaction in two forms:
- Malicious evasion of a citizen from the payment of debt on a loan on a large scale.
- Malicious evasion of a citizen from the payment of securities.
The subjective side of this offense is characterized by guilt with direct intent. That is, the perpetrator understands that he deliberately evades paying a large debt or from paying securities and desires this.
At the same time, the purpose and motive of the crime do not play a role for its qualification, but they can be taken into account for imposing an appropriate punishment.
The subject of the crime is any citizen who has reached the age of 16.
The comments to article 177 of the Criminal Code of the Russian Federation rarely mention the possibility of complicity in this crime. However, judicial practice shows that often in the process of evading debt repayment there is a certain distribution of roles.
So, for example, accomplices can sign fictitious contracts for receiving property, etc. Therefore, in the process of investigating this crime, it is worth taking into account the actions of both the perpetrator and other accomplices.
The statute of limitations for malicious evasion of debt on a loan begins its calculation from the moment a criminal case is initiated.
Malicious evasion of paying a debt on a loan or securities means the deliberate non-payment of a debt by a citizen who has material means to pay off the debt.
In addition, in order to recognize a citizen as a malicious violator of this norm, at least one of the following conditions must occur:
If a person has a large accounts payable, but at the same time he made small contributions every month to pay it off (for example, 3000-4000 rubles), then, according to modern legislation, he should be held criminally liable.
To do this, you will have to provide evidence that the violator has material means that would allow him to pay the full amount of the loan, but he deliberately did not do this, aware of criminal liability.
So, the Criminal Code regulates the punishment for persistent non-payers of large credit debts.
In addition to the principal amount of the loan, by court decision, various fines, penalties, as well as interest for the use of other people's money may be included in the total composition of accounts payable.
The Criminal Code provides for the following penalties for this offense:
- Imposition of an administrative fine in accordance with the Code of Administrative Offenses in the amount of two hundred thousand rubles.
- A fine in the amount of wages or other income of the debtor sentenced to 18 months.
- Two years of compulsory work.
- Six months of arrest.
- Imprisonment for up to two years.
Thus, the Criminal Code of the Russian Federation provided for a serious penalty for malicious non-payment of loan debt.
How to avoid the application of Article 177 of the Criminal Code of the Russian Federation? Some believe that if they partially pay the amount of the debt, then thanks to this they will be released from liability.
Such an erroneous opinion may be based on article 159 of the Criminal Code “Fraud”, according to which the partial payment of a debt indicates a lack of intent.
However, according to article 177 of the Criminal Code of the Russian Federation, partial deductions will not be able to help the debtor get rid of a fair measure of responsibility.
At the same time, the most reliable option, how not to fall under Article 177 of the Criminal Code of the Russian Federation, is to timely pay the loan installments previously stipulated in the agreement.