On March 23 of this year, Deputy Chairman of the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation Alexander Remezkov introduced for consideration the lower house of parliament a bill on criminal liability of legal entities (hereinafter referred to as the Draft Law). According to the Bill, it is planned to punish legal entities for a wide range of crimes - from human trafficking to bribery. In addition, it is assumed that all legal entities, with the exception of state and municipal ones, both Russian and foreign, as well as international organizations, will be held criminally liable.
As Alexander Remezkov explained to the GARANT.RU portal, the idea of extending criminal liability to organizations is not new. Abroad, this type of liability of legal entities has existed for quite a long time and has recently been used more and more widely. This institute operates in all countries of Anglo-American law, including Great Britain, Ireland, the USA, Canada, Australia, continental law countries - the states of the European Union, as well as in China and a number of countries in the Middle East (Jordan, Lebanon, Syria). This institution has also taken root in the post-Soviet space - in Georgia, Kazakhstan, Latvia, Lithuania, Estonia, Moldova, and Ukraine. In addition, the principles of criminal punishment of organizations for criminal activities are also laid down in a number of international norms, recognized, among other things, by our country, for example, in the United Nations Convention against Corruption.
In Russia, this topic was periodically discussed at different levels, but the proposals were never implemented. Thus, in 1994, the draft Criminal Code of the Russian Federation, prepared by the Ministry of Justice of Russia and the State Legal Administration of the President of the Russian Federation, contained provisions on criminal liability of companies, but the legislator did not implement them at that stage. Later, in 2011, the Investigative Committee came up with a similar initiative. The document was submitted for public discussion, but never made it to the State Duma. As Alexander Remezkov explained, the current initiative develops and complements the concept previously proposed by the Investigative Committee, and the text of the Draft Law was prepared in cooperation with it. The proposal was also supported by Rosfinmonitoring and the Bank of Russia.
Goals of the institution of criminal liability of legal entities
Remezkov explains the need to prosecute not only individuals, but also organizations, by a number of socio-economic factors. Thus, it is assumed that the threat of criminal measures will make internal controls in commercial structures and enterprises more stringent, and this will increase their interest in complying with the requirements of the law, even contrary to economic interests. And the threat to the company's reputation will help managers cope with the temptation to circumvent the law.
In addition, putting things in order in the business sphere, according to the author of the Draft Law, will increase the investment attractiveness of the Russian market. The introduction of new mechanisms will also facilitate the application of legal measures against organizations involved in the illegal withdrawal of capital and assets abroad and will speed up their return to Russia. In addition, the new law is designed to create effective tools to combat fictitious legal entities.
Who, in accordance with the Bill, can be held criminally liable?
Compared to the 2011 project, the range of legal entities subject to criminal prosecution is planned to be significantly expanded to include foreign legal entities and international organizations operating within Russia. In addition, the Draft Law implies the responsibility of separate divisions of foreign companies. It is planned to punish Russian organizations that have committed crimes abroad only if they have not been convicted under the laws of foreign states.
According to the document, the organizational and legal form of the company does not matter for bringing to justice, however, it is not planned to subject state and municipal institutions and enterprises to criminal legal measures.
The fact that an organization is held accountable for an unlawful act does not mean that individuals involved in the same crime will be able to escape punishment. A similar rule exists when bringing to administrative responsibility: both the organization and its official are punished for the same act (). At the same time, a person who commits a minor crime for the first time in the interests of an organization and does not receive personal benefit may be released from liability. However, the main condition for this is the conviction of a legal entity.
The Bill pays special attention to fictitious legal entities: so-called “fly-by-night” companies and “shell” companies. They are not considered by the authors as independent subjects of criminal prosecution. Transactions carried out on behalf of fictitious legal entities are blamed on their initiators, and not on those persons who are listed in the documents as the founders and managers of such companies. The document decides in an original way the fate of such fictitious organizations. If during the trial it is established that the company involved in the crime is fictitious, then its registration record by court decision is subject to exclusion from the Unified State Register of Legal Entities without further criminal prosecution. Their property will be transferred to its legal owners, and in the absence of such, it will be turned into state income.
Guilt and liability of legal entities
The document takes a unique approach to determining the guilt of legal entities. According to the Bill, a legal entity will be found guilty not only if it commits criminal acts on its own behalf, but also if it commits a punishable act in the interests of the company, even without the knowledge of its management. For example, a company will be found guilty if a criminal act was committed on its behalf by a person who is not its manager. In addition, the organization will incur criminal punishment for an act committed by a person acting on the basis of an issued power of attorney, as well as if the crime was committed by third parties with the knowledge of the authorized person. In this case, it is assumed that the organization is not guilty of a crime if all measures within its power to prevent the crime were taken, but there was no real opportunity to prevent it.
In addition, accomplices in a crime, in accordance with the Draft Law, can be not only individuals, but also legal entities, despite the fact that the joint participation of individuals and legal entities in a crime does not constitute complicity. An organization can act as a perpetrator, organizer and accomplice of a crime.
A legal entity may be exempt from criminal liability due to their voluntary refusal to commit a crime before the start of illegal actions, or due to active repentance. In the second case, the guilty person is released from liability if a number of conditions are simultaneously met, such as committing the act for the first time and classifying it as of minor or moderate gravity. In addition, such a person must independently report the crime to the authorities before criminal proceedings are initiated and compensate for the damage caused.
What types of punishments can be imposed
The bill provides for a wide range of basic and additional types of punishments imposed by the court on legal entities who are criminals. It is assumed that the type and amount of punishment will be determined by the court, taking into account the nature and degree of public danger of the crime committed, the measures taken by the organization to prevent the crime, as well as the characteristics of the legal entity itself: its past convictions, charitable and other socially useful activities will be taken into account.
As exceptional penalties that can be imposed on legal entities involved in the commission of particularly serious crimes, the Draft Law allows for the use of penalties such as forced liquidation, and for violators with foreign “registration” - a ban on carrying out activities in Russia. Russian branches of foreign companies and international organizations may be forcibly liquidated. The author of the Draft Law proposes to turn the remaining part of the property belonging to these legal entities into state income after satisfying the creditors' claims. These punishments are applied when it is impossible to use a more lenient type of punishment, taking into account the severity of the act committed, as well as the nature of the consequences. It is proposed to liquidate a company for committing particularly dangerous crimes against the individual, public safety and peace, such as human trafficking, money laundering and terrorism.
Less dangerous crimes are punishable by a fine. Its size according to the Draft Law varies from 200 thousand to 30 million rubles. or is assigned in an amount that is a multiple of the criminal income received, but not more than 500% of this amount. It is determined that when imposing a fine, in addition to other grounds for imposing punishment, the property status of the guilty legal entity is taken into account.
The initiative proposes to deprive organizations of licenses, quotas, preferences or benefits in connection with the use of which the crime was committed, and indefinitely. A similar principle applies to punishment in the form of deprivation of a legal entity’s right to engage in a certain type of activity: the activity in connection with which a crime was committed will be prohibited. However, this type of punishment is imposed for a period of six months to three years.
Measures aimed at proper execution of punishment
The initiative includes a number of provisions to prevent an organization from evading punishment. For example, from the moment the criminal case is initiated until the execution of the punishment, fictitious transactions aimed at siphoning off company assets are not allowed. Thus, voluntary liquidation or reorganization of a convicted legal entity is prohibited. It will not be possible to make transactions with an organization’s property exceeding 25% of the total value of its assets without their prior approval from the authorized federal government body. And in the event of reorganization or voluntary liquidation of a legal entity carried out before a conviction, the punishment will be borne by its legal successors or other persons who have become the owners of the property of the convicted organization. However, it is planned that a mandatory condition for extending liability to third parties will be their awareness of the criminal acts of the reorganized or liquidated person, as well as if it is established that the transfer of powers or the abolition of the organization was carried out with the aim of evading the execution of punishment.
In addition to those mentioned, the author of the Bill, in order to ensure confiscation of property and other property penalties, proposes to use such a measure as seizure of property. And if a legal entity evades compliance with this measure, impose a monetary penalty on the violator in the amount of 100 thousand to 3 million rubles.
In addition, the Bill provides for such a negative consequence of criminal prosecution as a criminal record for legal entities. It is assumed that the organization’s outstanding criminal record will allow bona fide participants in commercial transactions to exercise greater caution when choosing a counterparty. In particular, this circumstance will be taken into account by state authorities and local governments when carrying out privatization or procurement for state or municipal needs.
Socially dangerous acts for which legal entities are expected to be held accountable
The bill allows for the possibility of bringing an organization to criminal liability only for those acts for which the Special Part of the Criminal Code of the Russian Federation will directly provide for punishment applicable to legal entities. It is proposed to establish such punishment only for those crimes for which the obligation to impose liability on legal entities is provided for by international legal acts ratified by Russia, as well as for certain accompanying criminal acts.
According to Alexander Remezkov, the obligation to criminally prosecute organizations for corruption-related crimes such as commercial bribery (), as well as for the laundering of proceeds from these crimes, is provided for by acts of the Council of Europe and the UN, ratified by our country back in 2006. The obligations of UN member states to impose sanctions on legal entities for involvement in crimes aimed at financing and other forms of support of terrorism and extremism are provided for by the International Convention for the Suppression of the Financing of Terrorism. And the obligation to establish the liability of legal entities for unlawful access to computer information and its modification, as well as for human trafficking and the organization of illegal migration is formulated in the UN Convention against Transnational Organized Crime. All these acts were also ratified by our country, and therefore are binding. Art. 272);
Procedure for criminal prosecution and execution of punishment
The draft law places the preliminary investigation in criminal cases against legal entities within the competence of the Investigative Committee. Criminal proceedings are planned to be carried out according to current rules, taking into account some nuances. Thus, as a new source of evidence, the Draft Law defines a legal entity’s objection to suspicion, accusation or civil claim, submitted to the investigator or court in writing. The objection indicates the circumstances and conclusions of the investigation with which the company representatives do not agree, and also provides arguments refuting them.
It is assumed that the legal entity will act in legal proceedings as a suspect, accused or civil defendant. Rights and obligations in criminal proceedings on behalf of a legal entity will be exercised by a representative, who can be determined by the legal entity itself or appointed by an investigator. The participation of a representative of a suspected or accused legal entity in criminal proceedings is mandatory. It is intended that such a representative could be the head of the organization or another authorized person acting, for example, on the basis of an agreement or power of attorney.
The initiative allows for the consolidation of proceedings against legal entities and individuals within one criminal case. However, unlike a citizen, it will not be possible to conclude a pre-trial cooperation agreement with an organization.
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Despite the controversial assessment of the Draft Law by the public and a number of representatives of the business community, experts are not inclined to exaggerate, pointing to a number of its positive aspects, such as the decriminalization of the country’s economy and increasing its attractiveness for investors. The bill has every chance of becoming a law, but before that there is a high probability of its serious transformation.
1. The limitation period for bringing to criminal liability is the expiration of the deadlines established by law from the date of commission of the crime, which make it inappropriate to bring a person to criminal liability.
The statute of limitations is calculated from the day the crime was committed until the sentence enters into legal force. Consequently, release due to the expiration of the statute of limitations is possible at any stage of the criminal process before the verdict enters into legal force. In criminal proceedings, the expiration of the statute of limitations is considered one of the circumstances precluding criminal proceedings.
If the expiration of the statute of limitations is discovered during the trial stage, the court brings the case to a conclusion and pronounces a guilty verdict, releasing the convicted person not from criminal liability, but from punishment.
The statute of limitations is calculated in relation to continuing crimes from the time of their termination at the will of the perpetrator or against it, and in relation to continuing crimes - from the moment of commission of the last criminal act constituting a continuing crime. When committing crimes consisting of two acts, the statute of limitations is calculated from the date of commission of the last criminal act.
2. The legislation provides for three different options for resolving the issue of releasing a person who has committed a criminal act from criminal liability:
- 1) upon expiration of the statute of limitations, the competent state bodies are obliged to release the person who committed the crime from criminal liability. Statutes of limitation are differentiated depending on the category (gravity) of the crime committed;
- 2) upon expiration of the statute of limitations, the court receives the right to release a person who has committed a crime punishable by death or life imprisonment from criminal liability. In this case, the entire set of circumstances characterizing the crime, the personality and behavior of the person after the crime is taken into account. For a positive resolution of the issue, an internal conviction of the court composition is required that the person who committed a particularly serious crime has lost his social danger.
- If the court does not consider it possible to release the specified person from criminal liability due to the expiration of the statute of limitations, then the death penalty and life imprisonment are not applied. The maximum term of imprisonment in this case cannot exceed 20 years, and for the totality of crimes and sentences - 25 and 30 years, respectively. Consequently, in this case, the statute of limitations, although not applied as a basis for exemption from criminal liability, nevertheless entails a significant legislative mitigation of criminal repression;
- 3) statutes of limitations do not apply to persons who have committed crimes against the peace and security of mankind, provided for in Art. Art. 353, 356, 357 and 358 of the Criminal Code.
3. If a person commits a new crime, the statute of limitations for each crime is calculated independently.
4. Exemption from criminal liability due to statute of limitations is permitted provided that during the established period the person guilty of the crime did not evade the investigation or trial; otherwise, the running of the limitation period is suspended.
Evasion from investigation or trial is deliberate actions specifically aimed at evading criminal liability. As such, practice considers changing the surname, living without registration, plastic surgery, etc. It can also occur in cases where the investigative body or the court has already carried out certain procedural actions (a preventive measure has been chosen, charges have been brought, etc.) and when a person is hiding in order to evade criminal liability, without being known to law enforcement and judicial authorities.
5. The running of the statute of limitations after its suspension is resumed from the moment the fugitive criminal is apprehended or surrenders. When the running of the statute of limitations is suspended, the time that elapsed before the person evaded the investigation or trial is not canceled, but must be counted toward the general statute of limitations.
6. Termination of an initiated criminal case on the grounds provided for in the commented article is not allowed if the accused objects to this. The proceedings in this case continue as usual. If it ends in a guilty verdict, the court, taking into account the expiration of the statute of limitations, must release the perpetrator from punishment.
Separate norms are contained in Art. 8 of the Criminal Code of the Russian Federation “Grounds of criminal liability” and Art. 19 of the Criminal Code of the Russian Federation “General conditions of criminal liability”.
In the norms of the Special Part of the Criminal Code of the Russian Federation, the legislator established responsibility for socially dangerous acts recognized as crimes, and it also stipulates the types and amounts of punishment for their commission. The presence of such norms, contained in the Special Part of the Criminal Code of the Russian Federation, characterizes criminal liability as preventive. In the theory of criminal law, it is called positive responsibility. It informs citizens under what conditions, if a crime is committed, government measures will be applied.
The implementation of the retrospective (negative) aspect of criminal liability begins from the moment a specific criminal legal relationship appears, arising from the moment a person commits a crime. It is obliged to be subject to government measures, and at the same time has the right to protection. The state, represented by law enforcement agencies, can apply to a person who has committed a crime the measures provided for by criminal law and ensure the right to protection of this person. That is, mutual rights and obligations arise between the person who committed the crime and the state.
In practice, the obligation of a person who has committed a crime to undergo measures of state legal coercion may not always be implemented. For example, when the culprit hides from the investigation and trial, or the crime is not solved under other circumstances. Therefore, the person who committed the crime is not always punished.
Criminal liability is much broader in its scope of punishment. In some cases, the Criminal Code of the Russian Federation provides for criminal liability without imposing punishment. So, for example, in Art. 92 of the Criminal Code of the Russian Federation establishes a provision according to which a minor who has committed a crime of minor or moderate gravity can be released from punishment by applying compulsory educational measures to him.
Criminal liability comes before punishment. From the point of view of the positive aspect, its appearance is the moment the criminal law comes into force, that is, the moment the threat of criminal prosecution of the person who committed the crime arises.
From the point of view of the retrospective aspect, criminal liability arises when a crime is committed and a criminal legal relationship arises. In this regard, rights and obligations arise between the state and the person who committed the crime.
Bringing a person to criminal liability is the next stage of its implementation. Criminal procedural measures are applied to the person who committed the crime; In the committed act, the elements of a crime are established. Next comes the stage of execution of punishment. Criminal liability remains for the entire period of the criminal record until it is withdrawn or expunged, or until an amnesty or pardon is applied.
Criminal liability has the following characteristics.
1. Criminal liability arises only for the commission of a crime (Article 8 of the Criminal Code of the Russian Federation). Acts committed by persons who have not reached the age established by criminal law (Article 20 of the Criminal Code of the Russian Federation) and are insane (Article 21 of the Criminal Code of the Russian Federation), minor acts (Part 2) are not crimes, and, therefore, cannot act as a basis for criminal liability Art. 14 of the Criminal Code of the Russian Federation), as well as acts that are not crimes committed in conditions of necessary defense (Art. 37 of the Criminal Code of the Russian Federation), extreme necessity (Art. 39 of the Criminal Code of the Russian Federation), justified risk (Art. 41 of the Criminal Code of the Russian Federation).
2. Criminal liability is a measure of state coercion provided for by criminal law, imposed only by the court and implemented with the participation of authorized state bodies.
3. Criminal liability is accompanied by an official state conviction of the person who committed the crime. When a conviction is made, the court, on behalf of the state, condemns the offender, recognizes the crime committed, and declares the person who committed the crime to be a criminal.
The scope of deprivation (restriction) of rights, which consists of criminal liability, is the largest (up to life imprisonment) in contrast to all other types of legal liability.
5. Criminal liability is implemented in a special procedural form. The activities of law enforcement agencies and the court to establish a person’s guilt are regulated by the criminal procedure law (Code of Criminal Procedure of the Russian Federation). Execution of criminal penalties is carried out in accordance with the articles of the Criminal Executive Code (hereinafter referred to as the Penal Code of the Russian Federation). Thus, criminal procedural and criminal executive legislation ensure the implementation of criminal liability.
6. Criminal liability is strictly personal in nature, that is, it is assigned only to the person guilty of committing a crime, only to a sane individual who has reached the age established by criminal law (Article 19 of the Criminal Code of the Russian Federation).
In domestic legal science, the concept of criminal liability is interpreted differently. In general, there are the following main points of view on this issue.
1. Criminal liability is the legal obligation of the person who committed the crime to suffer the adverse consequences provided for by the sanction of the criminal law.
2. Criminal liability is a consequence of committing a crime, and it arises only from the moment a person is convicted by a court and a guilty verdict is passed (N.F. Kuznetsova, N.A. Ogurtsov, Yu.M. Tkachevsky, V.G. Smirnov, A.V. . Kladkov and others).
3. Criminal liability is determined through the legal status of the person who committed the crime; is identified with a criminal legal relationship or is determined through a set of criminal legal, procedural and executive relations (A.E. Natashev, A.I. Martsev, Yu.B. Melnikova, etc.).
4. Criminal liability is criminal punishment, the application of sanctions (O.E. Leist).
The disagreements between the first two points of view are associated with the moment of the emergence of criminal legal relations. They contain three elements: subject, content and object. The subjects of criminal law relations are the person who committed the crime, on the one hand, and the competent authorities of the state (inquiry, preliminary investigation, prosecutor's office and court) on the other. The object of a criminal legal relationship is the very fact of committing a crime, and the content is an interconnected set of rights and obligations of both parties to the legal relationship. Since criminal liability is an integral part of the content of law enforcement, the moment of its occurrence is quite legitimately associated with the moment of the emergence of a criminal legal relationship.
Criminal legal relations and criminal liability actually arise from the moment a crime is committed, even if the person who committed it is unknown. Since from this moment the norms of the Criminal Code of the Russian Federation on the expiration of the statute of limitations for bringing to criminal responsibility (Article 78 of the Criminal Code of the Russian Federation), on the operation of the criminal law in time (Articles 9-10 of the Criminal Code of the Russian Federation) begin to apply.
The criminal procedure law gives reason to believe that criminal legal relations arise from the moment the crime is committed. Thus, a criminal case is initiated upon the commission of a crime. A criminal legal relationship cannot exist without all its necessary elements, i.e. there is a subject, an object, and content. Therefore, the first point of view from these positions seems to be the most correct. Thus, criminal liability arises from the moment the crime is committed.
The third point of view about the concept of “criminal liability” reflects the procedural meaning. Indeed, criminal procedural liability arises from the moment a person is brought in as an accused, when he can be subjected to criminal procedural coercive measures: for example, if one of the preventive measures can be chosen.
At the same time, to impose criminal procedural liability, only probabilistic knowledge of a person’s guilt is sufficient. Thus, the investigator has the right to bring charges only if there is sufficient, but not exhaustive, evidence giving grounds for bringing charges against the person. That is, criminal procedural liability is possible in relation to a person who may subsequently be found innocent, but criminal liability for such a person is impossible.
Thus, criminal liability arises before the start of the criminal process and, as a rule, continues after its completion.
In cases established by criminal law, criminal liability for the crime committed is terminated in the following cases:
1) in connection with the entry into force of a new criminal law that eliminates the criminality of the act;
2) in connection with exemption from criminal liability and punishment (Articles 75-85 of the Criminal Code of the Russian Federation);
3) in connection with serving a sentence, expunging or expunging a criminal record (Article 86 of the Criminal Code of the Russian Federation).
Thus, criminal liability is the obligation of the person who committed the crime to personally undergo measures of state coercion, consisting of deprivations of a personal, property, and moral nature, which express a negative attitude towards the committed crime on the part of the state and society.
This obligation arises from the moment the crime is committed, is implemented during the preliminary investigation, when a court pronounces a sentence, while serving a sentence, during the period of an outstanding or unexpunged conviction, and is terminated in the manner prescribed by law.
The concept of criminal liability is closely related to the concepts of “punishment” and “conviction”.
Criminal liability is realized in the process of serving a sentence, but it is also possible without imposing a punishment. In such cases, the court makes a guilty verdict, but does not impose criminal punishment. For example, when minors are released from punishment (Article 92 of the Criminal Code of the Russian Federation).
In addition, criminal liability and punishment do not coincide in time. Criminal liability arises and begins to be implemented from the moment the crime is committed until the sentencing is imposed by the court, and continues in all cases even after serving the sentence in the form of a criminal record. A criminal record is a special legal status of a person, implying restrictions and deprivations of a legal and moral nature. A criminal record continues after serving a sentence for a more or less long period of time in accordance with the provisions of the Criminal Code of the Russian Federation.
Thus, criminal liability in all cases is broader than the concepts of “punishment” and “conviction”. It is possible without imposing a punishment and, therefore, without a criminal record, but punishment and a criminal record without criminal liability are impossible.
Grounds for criminal liability. The difference between criminal liability and other types of legal liability
According to Art. 8 of the Criminal Code of the Russian Federation “the basis for criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation.” Meanwhile, the question of the basis of criminal liability is still one of the most controversial in the science of criminal law. For the first time, “Grounds of criminal liability” were enshrined in Article 3 of the Criminal Code of the RSFSR of 1960, which stated that “only a person guilty of a crime is subject to criminal liability and punishment, that is, who intentionally or through negligence committed a socially dangerous act provided for by criminal law.” . In this norm, the emphasis is on the person’s mental attitude to the act he has committed and its socially dangerous consequences, that is, guilt.
Other scientists considered the basis of criminal liability to be the very commission of a socially dangerous act provided for by criminal law, paying attention to the objective sign of a crime - the commission of a socially dangerous act. The most common point of view regarding the basis of criminal liability was the corpus delicti, containing objective signs (socially dangerous act) and subjective signs (guilt). Attempts have been made to combine all of the above points of view on the issue of the basis of criminal liability into one. N.D. Shargorodsky wrote that “the basis of criminal liability is the presence of a crime in the act of the guilty party, that is, the commission by him, intentionally or through negligence, of a socially dangerous act provided for by criminal law.”
In essence, a similar definition is given in Art. 8 of the current Criminal Code of the Russian Federation: “The basis of criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation.” The basis of criminal liability consists of two components: the factual basis and the legal basis. The first includes the commission by a person of a socially dangerous act provided for by the Criminal Code of the Russian Federation; to the second - the presence of a crime in this act.
According to the norm of the Criminal Code of the Russian Federation contained in Art. 8 “Grounds of criminal liability” is used in the singular and represents the commission of an act containing all the elements of a crime. The concept of “grounds of criminal liability” is also found in educational literature on criminal law. In such cases, its two aspects are implied - philosophical and legal.
Criminal liability, being a type of social responsibility, is a philosophical category. The manifestation of a person's free will when he commits his actions in philosophy is explained differently within the framework of two directions - determinism and indeterminism. Determinism is the doctrine of the universal natural connection and causality of all phenomena. Indeterminism is the opposite teaching that denies such connections. From the point of view of the second direction, human free will is absolutely complete, independent of external conditions and circumstances. This doctrine creates the preconditions for recognizing the basis of criminal liability only as the “evil” will of the criminal, even without committing an act, but only for criminal thoughts and intentions, based on the fact that sooner or later he will commit a crime.
Determinists, on the contrary, condition human free will on external circumstances and conditions. Determinism, in turn, breaks down into two currents - mechanical and dialectical. From the perspective of the first movement, human behavior is always determined by external circumstances; there is no free will. Dialectical determinism recognizes the dependence of free will on the environment.
The philosophical aspect of the basis of criminal liability was largely artificially imposed on the science of criminal law (especially during the years of the USSR) and never played a decisive role in it.
Thus, focusing only on the legal basis of criminal liability, we can conclude that it is the commission by a person of a socially dangerous act that contains all the signs of a crime. The basis of criminal liability consists of a factual basis - the commission of the act itself, and a legal basis - the presence of corpus delicti in this act.
The concept of “grounds of criminal liability” should be distinguished from the concept of “conditions of criminal liability”, which are reflected in Art. 19 of the Criminal Code of the Russian Federation and refer to the signs necessary to recognize a person as a subject of a crime, namely a sane individual who has reached the age established in the Criminal Code of the Russian Federation.
It is precisely on its basis that criminal liability differs from other types of legal liability - administrative, civil and disciplinary. Thus, the basis for administrative liability is the commission by a person of an administrative offense provided for by the Code of Administrative Offenses of the Russian Federation. The basis of a civil offense (tort) is failure to fulfill or improper fulfillment of obligations or causing harm. The basis
3. The subject of criminal liability can only be an individual, that is, a person, and the subject of administrative and civil liability can also be
A specialist from the Shchekin and Partners company, lawyer Alexander Menshikov, analyzed judicial practice on bringing to criminal liability persons who have committed tax crimes for the period from 2009 to 2016 (information used site Judicial Department under the Supreme Court of the Russian Federation). The period covered is due to the presence in the statistical reporting of the Judicial Department under the Supreme Court of the Russian Federation of information on tax crimes starting from 2009 (until 2009, statistical reporting on tax crimes was not provided separately, being an integral part of reporting on economic crimes).
The material provides information on criminal cases received in court with an indictment, based on the criterion “by the number of persons brought to criminal liability.”
As follows from the graph below, since 2009 the number of persons prosecuted for tax crimes has decreased several times.
If the total number of persons against whom criminal cases were sent to court in 2009 was 3852, then in 2013 their number was 674 (the minimum figure for the entire period), that is, a decrease occurred by 5.72 times. Similarly, the number of convicted persons decreased: from 2,656 in 2009 to 449 in 2013 (5.92 times).
The following could be considered as reasons for such a sharp decrease in the number of persons held accountable for tax crimes:
§ The procedure for initiating criminal cases for tax crimes has been changed - initiating a criminal case is possible only on the basis of materials provided by the tax authorities. However, such changes came into force on December 7, 2011 (Part 1.1 of Article 140 of the Code of Criminal Procedure of the Russian Federation was introduced by Federal Law No. 407-FZ of December 6, 2011), and therefore began to be applied in 2012.
§ The powers to carry out preliminary investigations into tax crimes have been transferred to the Investigative Committee of the Russian Federation. However, this change in jurisdiction occurred on January 1, 2011.
§ As a “political” reason, one can name an appeal to law enforcement agencies by the then President of the Russian Federation D.A. Medvedev with the demand to “stop creating a nightmare for business,” which was voiced at the end of July 2008 and had a “delayed” positive effect in the form of a reduction in the number of people brought to criminal liability.
However, in this case, the direct reason for the decrease in the number of persons brought to justice is legal - an increase in the lower limit of the large amount of non-payment of taxes (fees) necessary to qualify the act as a tax crime (amendments made by Federal Law dated December 29, 2009 No. 383-FZ “On amendments to part one of the Tax Code of the Russian Federation and certain legislative acts of the Russian Federation” came into force on January 1, 2010).
Since 2010, a significant number of acts containing signs of tax crimes have ceased to reach the minimum amount of non-payment required to bring criminal liability, especially under Part 1 of Art. 198 and part 1 of Art. 199 of the Criminal Code of the Russian Federation, therefore, criminal cases with such amounts of non-payment have ceased to be initiated since 2010 or were subject to termination at the stage of preliminary investigation. A significant part of the criminal cases brought to court were also dismissed for lack of evidence of a crime.
However, from 2013 to 2016, the number of people prosecuted for tax crimes has been growing every year.
In 2014, compared to 2013, the number of persons brought to criminal liability increased by 7.72%, in 2015 compared to 2014 - by 6.39%, in 2016 compared to 2015 - by 5.68%. The increase in the number of persons brought to justice for tax crimes in 2016 compared to 2013 amounted to 32.49%.
Similarly, from 2013 to 2016, the number of convicted persons has been growing - there has been an annual increase of 0.67%, 8.80%, 0.74%, respectively; growth in 2016 compared to 2013 was 20.49%.
The significant difference between the number of persons prosecuted and the number of convicted persons (as follows from the first graph) should not be misleading regarding the large number of acquitted or released from criminal liability.
In relation to the majority of those released from criminal liability, criminal cases were terminated on non-rehabilitative grounds, which is mainly due to the condition provided by criminal law for release from criminal liability in the event that the guilty persons pay the amounts of arrears, penalties, fines in the amounts charged by the prosecution (Note 3 to Art. 198 of the Criminal Code of the Russian Federation, notes 2 to, 199.1 of the Criminal Code of the Russian Federation, currently also notes 2 to, 199.4 of the Criminal Code of the Russian Federation).
The ratio of the number of persons sentenced to various types of punishment, as well as those released from criminal liability, is given below.
Despite the increase in the total number of convicts since 2014, in the chart above we see a decrease in the number of those sentenced to imprisonment and a fine in 2015 and 2016.
The fact is that in 2015 and 2016, a large number of convicts were released from punishment due to an amnesty - 312 and 288 convicts, respectively. Statistics do not provide precise information about the reasons for the amnesty. Most likely, this basis is an amnesty dedicated to the 70th anniversary of Victory in the Great Patriotic War (Resolution of the State Duma of the Federal Assembly of the Russian Federation dated April 24, 2015 No. 6576-6 State Duma “On declaring an amnesty in connection with the 70th anniversary of Victory in the Great Patriotic War of 1941 - 1945 ").
During the same period, the so-called “capital amnesty” was applied (Federal Law of June 8, 2015 No. 140-FZ “On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation”).
However, from a criminal legal point of view, in accordance with Part 3 of Art. 76.1 of the Criminal Code of the Russian Federation, the law “on amnesty of capital” introduced an additional basis for exemption from criminal liability, and not exemption from punishment, while the statistical tables of the Judicial Department of the Supreme Court of the Russian Federation in this part provide information about exemption from punishment.
In this regard, information about persons subject to the law on “capital amnesty”, in relation to criminal legal categories, should be located in the appropriate sections containing information about persons against whom criminal prosecution was terminated on non-rehabilitative grounds.
It must be borne in mind that in the absence of an amnesty, which served as the basis for exemption from criminal liability, the total number of persons prosecuted in 2015-2016 would have been an even greater figure.
According to the data in the above diagram, the number of acquitted persons, as well as persons against whom criminal prosecution was terminated on exonerating grounds, is insignificant in relation to the total number of persons brought to criminal liability.
The number of these persons was steadily decreasing from 2009 to 2014 (with the exception of a slight increase in the number of acquitted persons in 2015 and 2016).
A significant increase in 2010 in the number of persons against whom criminal cases were terminated on rehabilitative grounds (see diagram) is associated with the reason discussed above for the general decrease in 2010 in the number of persons prosecuted for tax crimes - due to an increase since 2010 year of the lower limit of large amounts of non-payment of taxes (fees), which is a mandatory sign of tax crimes.
For the same reason, in 2016, the number of persons against whom criminal cases were terminated on rehabilitative grounds increased - there was another increase in the lower limit of large and especially large amounts of non-payment of taxes and fees (amendments were made by Federal Law dated July 3, 2016 No. 325-FZ “On amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation” came into force on July 15, 2016).
However, a repetition of the situation of 2010-2011 did not occur: despite the indicated increase in the limit for large amounts of non-payment of taxes (fees), not only did there not be a decrease in the total number of persons brought to justice, but the overall increase in those brought to criminal responsibility for tax crimes continued.
The total number of acquitted persons, as well as persons released from criminal liability on rehabilitative grounds, in relation to the number of persons brought to criminal responsibility has always been insignificant: in 2009, this number as a percentage of the number of persons brought to criminal responsibility was 1.59%; in 2010 - 15.51% (a high percentage is an exception in connection with the considered increase in the minimum threshold for a large amount of non-payment, as mentioned above); in 2011 - 4.53%; in 2012 - 3.38%; in 2013 - 0.59%; in 2014 - 1.79%; in 2015 - 1.07%; in 2016 - 4.81%.
If we take only the number of acquitted persons to the number of convicted persons (without considering the number of dismissed criminal cases on rehabilitating and non-rehabilitating grounds), then in 2009 the number of acquitted persons to those convicted will be 1.88%; in 2010 - 1.47%; in 2011 - 2.5%; in 2012 - 2.8%; in 2013 - 0.66%; in 2014 - 0.88%; in 2015 - 1.65%; in 2016 - 1.46%. That is, the number of persons acquitted versus those convicted is extremely insignificant. This is clearly demonstrated by the diagrams below.
As for persons who were sentenced to real imprisonment, there is a general trend of a sharp decrease in the assignment of this type of punishment from 2009 to 2011 and approximately the same quantitative level from 2011 to 2014, with a minimum number of sentences in the form of real imprisonment in 2014 year (see corresponding chart).
However, in 2015 and 2016, the number of punishments in the form of imposing actual terms of imprisonment increases, outpacing in percentage terms the general trend of increasing the number of persons brought to justice: if the increase in the number of persons brought to justice in 2016 compared to 2013 was 32.49% , then the increase in the number of convicted persons with a sentence of real imprisonment over the same period increased by 62% (relative to 2014, the increase is even higher - by 213.33%).
When considering the actual terms of imprisonment assigned by the courts, we see that if in 2009 the number of those sentenced to imprisonment for up to one year, from one to two years, from two to three years was approximately equal, then since 2010 a large proportion of the terms of imprisonment freedom was assigned within one to two years, until 2016. However, in 2016, there was a significant increase in the proportion of sentences imposed by courts with terms of actual imprisonment from two to three and from three to five years.
Having analyzed the available statistical data, as well as taking into account the emerging position of law enforcement agencies (see: “Methodological recommendations “On the study and proof of facts of deliberate non-payment or incomplete payment of taxes (duties)”, approved by the Investigative Committee of Russia and the Federal Tax Service of Russia (<Письмо>Federal Tax Service of Russia dated July 13, 2017 No. ED-4-2/13650@), as well as<Письмо>Federal Tax Service of Russia dated August 16, 2017 No. SA-4-7/16152@ “On the application of the norms of Federal Law dated July 18, 2017 N 163-FZ “On Amendments to Part One of the Tax Code of the Russian Federation”), according to which tax and law enforcement Authorities are recommended to pay increased attention to the need to prove the taxpayer’s intent to evade taxes (fees, insurance contributions) already at the tax audit stage; it can be assumed that there is a tendency towards an increase in the initiation of criminal cases for tax crimes, and accordingly, towards an increase in the number of persons brought to criminal liability for their commission will be preserved.
A sharp increase in the number of persons brought to criminal responsibility in 2018-2019 is likely. The fact is that the new requirements of the Investigative Committee of the Russian Federation and the Federal Tax Service of Russia on proving the taxpayer’s intent to not pay taxes (fees, insurance contributions) will apply to tax audits starting in the summer of 2017. Taking into account the timing of tax audits, the transfer of inspection materials to investigative authorities, and the timing of the preliminary investigation, the courts will consider an increased number of criminal cases in the second half of 2018 and 2019.
CONCLUSIONS
§ In recent years, the number of people prosecuted for tax crimes has been steadily growing.
§ The decrease in the number of persons brought to justice for tax crimes, which occurred in 2010-2011, was associated with an increase in the lower limit of large amounts of non-payment of taxes (duties), which is a mandatory sign of tax crimes. However, since 2012, the upward trend in the number of people brought to criminal responsibility has not changed.
§ B O The majority of punishments for tax crimes are imposed by the courts in the form of suspended imprisonment, as well as a fine. A significant number of persons are released from criminal liability on non-rehabilitative grounds, in connection with the payment by the defendants in full of the amounts of arrears, penalties, and fines.
§ From the number of persons brought to criminal liability, every year, starting from 2013, the number of persons in respect of whom the courts imposed punishment in the form of actual imprisonment has increased. The terms of imprisonment that convicts are sentenced to serve are also increasing annually.
§ The number of acquitted persons, as well as persons in respect of whom criminal cases were terminated on exonerating grounds, is extremely insignificant in relation to the total number of persons brought to criminal responsibility, and, with the exception of 2016, their total number decreases annually.
§ Taking into account the officially expressed position of law enforcement officials (IC of the Russian Federation and the Federal Tax Service of Russia) on the need to prove the taxpayer’s intent to not pay taxes (fees, insurance premiums) within the framework of a tax audit, in the second half of 2018 and in 2019, a significant increase in the number of persons brought to criminal liability is likely for committing tax crimes.
Specialists of the Shchekin and Partners company are ready to provide advice on issues of criminal liability of taxpayers (payers of fees, insurance premiums), provide legal assistance in representing the interests of persons responsible for non-payment, including legal support in the event of criminal prosecution.
CRIMINAL LAW
E. V. Blagov*
Exemption from criminal liability in connection with compensation for damage
Annotation. The article examines the problems arising in connection with the exemption from criminal liability provided for in Art. 76.1 of the Criminal Code of the Russian Federation (taking into account its latest amendments). The first of these relates to the title of this article. The second problem concerns acts for which release is possible. The third problem is the requirement of damages as a condition of release. The fourth problem has to do with the nature of liberation. The fifth problem is reflected in the procedural form of liberation. In each case, ways to eliminate the identified problems are proposed.
Key words: exemption from criminal liability; conditions of release; crime; an act containing elements of a crime; compensation for damage.
001: 10.17803/1994-1471.2019.105.8.118-127
1. Currently, a type of exemption from criminal liability, and extremely
criminal liability provided for broadly, significantly beyond the list
Art. 76.1 of the Criminal Code of the Russian Federation is called exemption from holy acts, which are included in Art. 76.1 of the Criminal Code of the Russian Federation.
zi with compensation for damage. Until recently, on the contrary, in the names of other species
I called it exemption from criminal liability - exemption from criminal liability,
no responsibility in cases of crimes contained in Chapter. 11 of the Criminal Code of the Russian Federation, scope of distribution
in the field of economic activity. nia is not reflected, but is indicated in connection
The initial designation will consider what liberation occurs with, what is more important,
the proposed type of exemption from criminal charges, because it emphasizes the peculiarities of each type
The theory was sometimes not satisfied with responsibility. liberation. Formal exclusion of co-
It was proposed that Article 76.1 of the Criminal Code of the Russian Federation should be entitled Art. 76.2 of the Criminal Code of the Russian Federation, but it contains the phrases -
“Exemption from criminal liability is “with purpose” within the meaning of the law clearly
persons who have committed crimes in the field of eco- means “in connection with the purpose.”
nomic activity"1. True, castling Precisely indications of what happened in connection with
“cases” against “persons” does not fundamentally change anything; there is an exemption from criminal liability.
la. The reference to spheres remained unchanged; it was missing in Art. 76.1 of the Criminal Code of the Russian Federation before and not
the possible effect of exemption from criminal liability appeared in the proposed innovation. Other
1 Vlasenko V.V. Exemption from criminal liability in cases of crimes in the sphere of economic activity: abstract. dis. ...cand. legal Sci. M., 2014. P. 19.
© Blagov E. V., 2019
* Evgeniy Vladimirovich Blagov, Doctor of Law, Professor, Professor of the Department of Criminal Law and Criminology, Yaroslavl State University named after P. G. Demidov [email protected]
150003, Russia, Yaroslavl, st. Sovetskaya, 14
the situation at present. The new edition of the title of the article already emphasizes why there is an exemption from criminal liability - in connection with compensation for damage.
However, the current title of Art. 76.1 of the Criminal Code of the Russian Federation, in essence, covers only its part 1: part 2 also indicates the need for appropriate transfers to the budget, and part 3 does not mention either compensation for damage or transfers to the budget.
It is also impossible not to notice that compensation for damage is also assumed in case of release from criminal liability in cases provided for in Art. 75, 76, 76.2 of the Criminal Code of the Russian Federation. In other words, the reference to compensation for damage weakly emphasizes the specificity of the type of exemption set out in Art. 76.1 of the Criminal Code of the Russian Federation.
It follows from this that the new title of Art. 76.1 of the Criminal Code of the Russian Federation is difficult to recognize as successful. Moreover, we are talking not just about a verbal designation, but about the essence of the issue. Since the criminal law is intended not only for lawyers, other persons may pay attention only to the title of the article being analyzed and, accordingly, be mistaken about its content.
From the above it follows that in the modern version of Art. 76.1 of the Criminal Code of the Russian Federation essentially provides for three types of exemption from criminal liability:
In connection with compensation for damage to the budget system of the Russian Federation;
In connection with compensation for damage to the budget system of the Russian Federation and (or) transfer of monetary compensation to the federal budget;
In connection with the filing of a special declaration. All of them, in principle, require independent regulation.
2. From criminal liability in connection with compensation for damage under Parts 1 and 2 of Art. 76.1 of the Criminal Code of the Russian Federation, a person who has committed the relevant crime is released. The issue in Part 3 of this article was resolved differently. The law establishes that
Bossing is permissible “if it is revealed that the commission of... acts containing elements of a crime” provided for in certain articles.
Indications of the facts of the commission of acts containing elements of crimes are available only in Chapter. 52 of the Code of Criminal Procedure of the Russian Federation, which regulates the specifics of criminal proceedings in relation to certain categories of persons. And in criminal procedural legislation this is more or less appropriate, because it is not known in advance what is hidden behind the indicated facts: a committed crime or a non-criminal act.
In the noted plan, the wording contained in the Federal Law of June 8, 2015 No. 140-FZ “On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation”2, on the basis which in Art. 76.1 of the Criminal Code of the Russian Federation was introduced, part 3. In part 1 of Art. 4 of this Federal Law talks about exemption from criminal liability if acts have been committed that contain elements of crimes provided for in the relevant articles of the Criminal Code. Although such acts are crimes.
The literature also draws attention to the fact that the use of the prescription in the Criminal Code “when identifying the fact of committing... acts containing elements of a crime” is incorrect, because the presence of elements of a crime is not yet evidence of the criminality of these acts; Moreover, the generally accepted view in theory is that exemption from criminal liability is possible only when a crime is committed; in connection with which “the wording used by the legislator in parts 1, 2 of Art. seems more correct. 76.1 of the Criminal Code of the Russian Federation, “person who committed a crime”3. It is impossible to disagree with the above reasoning.
2 SZ RF. 2015. No. 24. Art. 3367.
3 Vlasenko V.V. “Capital amnesty” as a special type of exemption from criminal liability in cases of crimes in the field of economic activity (Part 3 of Article 76.1 of the Criminal Code of the Russian Federation) // Criminal Law. 2016. No. 1. P. 10.
The point is that in relation to all other cases of exemption from criminal liability, the legislator himself speaks specifically about the crime. Moreover, the terminology of Part 3 of Art. 76.1 of the Criminal Code of the Russian Federation strongly resembles “an act containing signs of a crime” from the previous Criminal Code, an indication of which was not included in the current one.
At the same time, it would be necessary to adjust both the form of transfer and the very list of crimes, the commission of which allows for exemption from criminal liability in connection with compensation for damage caused. Both have essential shortcomings.
Part 1 art. 76.1 of the Criminal Code of the Russian Federation begins with the words “a person who has committed a crime for the first time under Articles 198-199.1, 199.3, 199.4 of this Code...”. Since these articles are separated by commas, the crime committed must be reflected in all of them. In reality, such a crime cannot exist.
In part 2 art. 76.1 of the Criminal Code of the Russian Federation, when listing crimes the commission of which allows for exemption from criminal liability, the singular and plural forms are used without sufficient grounds. At the beginning of Part 2 of this article, the phrase “a person who has committed a crime for the first time” is used, in which the last word is given in the singular form. At the end of the enumeration of crimes, it is recorded in “Articles 195-197 and 199.2 of this Code,” and the use of the connecting conjunction “and” should mean the totality of all those listed in Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation, which in reality, of course, cannot happen.
It’s even worse in Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation, the use of the connecting conjunction “and” between indications of parts of the relevant articles (parts 1 and 1.1 of article 171.1, parts 1 and 2 of article 185, parts 1 and 1.1 of article 193, parts 1 and 2
Art. 194). This can only mean a real totality of crimes, which is also not very vital.
Absolutely the same thing as in part 2 is observed in part 3 of Art. 76.1 of the Criminal Code of the Russian Federation. True, the situation is aggravated by the fact that Part 3 begins with the words “a person is exempt from criminal liability when it is revealed that he has committed... acts...”, which are further cited. The plural form requires the commission of at least two corresponding acts for release, which raises the question of why it is excluded when committing one act, although this situation has a much lower social danger.
Everything noted represents a clear violation of the rules of legislative technology. According to Art. 76.1 of the Criminal Code of the Russian Federation is a fiction and, in principle, cannot be applied. To give the provisions of this article viability, it is necessary in its part 1 between the instructions on Art. 199.3, 199.4, replace the comma with the separating conjunction “or”. The use of the disjunctive conjunction “or” would also eliminate the discrepancies between the singular and essentially plural forms in Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation. The same plan requires transformations in Part 3 of Art. 76.1 of the Criminal Code of the Russian Federation, but at the same time the singular form should be used at the beginning.
In part 3 of Art. 76.1 of the Criminal Code of the Russian Federation lists certain acts that must be committed before January 1, 2015 or 2018. In this regard, it should be noted that this list reflects acts that relate to crimes of minor gravity (part 1 of article 193, part 1 and 2 Article 194, Article 198, Part 1 Article 199, 199.1 and 199.2 of the Criminal Code of the Russian Federation). The statute of limitations for them is two years (clause “a”, part 1, article 78 of the Criminal Code of the Russian Federation). Accordingly, if they were committed even at the beginning of 2017, the persons who committed them are subject to release from criminal liability due to the expiration of the statute of limitations and this cannot be prevented by their failure to comply with the requirements of Part 3 of Art. 76.1 of the Criminal Code of the Russian Federation. From the above it follows that for persons who committed the corresponding crimes of minor gravity before the above date, the “capital amnesty” is a worsening situation for them.
scripture Hence the provisions of Part 3 of Art. 76.1 of the Criminal Code of the Russian Federation in the marked part are subject to adjustment.
3. In part 1 of Art. 76.1 of the Criminal Code of the Russian Federation for exemption from criminal liability a condition is set, formulated in the words “if the damage caused to the budgetary system of the Russian Federation as a result of the crime is compensated in full.” Based on Part 2 of Art. 28.1 of the Code of Criminal Procedure of the Russian Federation “compensation for damage caused to the budget system of the Russian Federation means payment in full of arrears, penalties and fines in the amount determined in accordance with the legislation of the Russian Federation on taxes and fees and (or) the legislation of the Russian Federation on compulsory social insurance against accidents at work and occupational diseases, taking into account the calculation of the amount of penalties and fines presented by the tax authority or the territorial body of the insurer.” Although the law stipulates that the above decision is formulated “for the purposes of this article,” in reality it also applies to Art. 76.1 of the Criminal Code of the Russian Federation4.
In part 2 art. 28.1 of the Code of Criminal Procedure of the Russian Federation there was a substitution of concepts. The fact is that the damage caused to the budget system of the Russian Federation specified in the criminal procedure law is not equivalent to the damage caused to the budget system of the Russian Federation as a result of the crime, as stated in Part 1 of Art. 76.1 of the Criminal Code of the Russian Federation.
Perhaps, only with arrears in relation to exemption from criminal liability in connection with compensation for damages, no questions arise. It is actually caused by a crime. Otherwise - penalties and fines.
Firstly, penalties and fines are not caused as a result of a crime, but are a consequence of arrears. Moreover, in theory, with one
On the other hand, it is recognized that the damage caused to the budget system is only arrears. On the other hand, it is believed that when exempted from criminal liability under Part 1 of Art. 76.1 of the Criminal Code of the Russian Federation, the guilty person must compensate both the arrears and penalties with a fine. And in order to make this obvious, it is proposed to change the law by adding compensation for penalties and fines to the compensation for damage caused to the budget system in the form of arrears5. In terms of de lege ferenda, it makes no sense to object, but de lege lata this does not follow from criminal law. Criminal procedural legislation does not have the right to adjust criminal legislation, which means it is necessary to bring the former into line with the latter.
At the same time, one should not exaggerate when calling the payment of a fine when applying Art. 76.1 of the Criminal Code of the Russian Federation “a revolutionary approach to the legislative solution to the problem of the inadmissibility of “double” (criminal and tax) liability for violation of legislation on taxes and fees”, which “requires a revision” of the principle of justice in the part “no one can be held criminally liable twice for the same thing” same crime” (Part 2 of Article 6 of the Criminal Code of the Russian Federation)6. Still, in this case there is no double criminal liability due to the fact that the person is exempt from criminal liability, and even the combination of it and tax liability does not mean incurring criminal liability twice.
Secondly, in Art. 72 of the Tax Code of the Russian Federation, penalties are presented as a way to ensure the fulfillment of the obligation to pay taxes, fees, and insurance premiums, and not as sanctions. Based on Art. 114 of the Tax Code of the Russian Federation, a tax sanction in the form of a fine is a measure of responsibility for committing a tax offense. Thus, there are no such sanctions for crimes anywhere
4 See: ruling of the Constitutional Court of the Russian Federation dated April 20, 2014 No. 677-O “On the refusal to accept for consideration the complaint of citizen Alexander Alekseevich Voronov about the violation of his constitutional rights by paragraph 5 of the State Duma resolution of July 2, 2013 “On declaring an amnesty” "" // SPS "ConsultantPlus"; Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability.” Paragraph 1 paragraph 14 // Bulletin of the Supreme Court of the Russian Federation. 2013. No. 8. P. 7.
5 See: Vlasenko V.V. Exemption from criminal liability... P. 15.
can be installed. Under such conditions, it is difficult to understand how, for the purposes of exemption from criminal liability under Part 1 of Art. 76.1 of the Criminal Code of the Russian Federation, the tax authority must calculate penalties and fines, which are not provided for in the legislation for committing crimes7.
And one moment. In paragraph 15 of the previously cited resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19, it is explained that “for exemption from criminal liability for crimes specified in part 2 of Article 76.1 of the Criminal Code of the Russian Federation, compensation for damage caused as a result of the commission of a crime to a citizen, organization or the state, as well as the transfer of income and monetary compensation to the federal budget must be made in full.”
It would seem that one can argue with the stated position of the Plenum of the Supreme Court of the Russian Federation, bearing in mind that, in contrast to Part 1, in Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation does not contain the word “full”. In essence, it is probably unnecessary in Part 1 of this article, because compensation as replenishment, replacing something missing or lost with something,8, in contrast to making amends as mitigation with something9, only complete replenishment is immanently inherent. And the word “equivalent”, used in Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation, means completely equivalent to something in some respect10.
4. The nature of exemption from criminal liability in connection with compensation for damage at the normative level is obvious. Law-
The author, having placed compensation for learning in the General Part of the Criminal Legislation, considered it a general type of such exemption. In theory, everything is much more complicated. Firstly, exemption from criminal liability under Art. 76.1 of the Criminal Code of the Russian Federation is considered an exception to the types of exemption provided for by the General Part of the Criminal Code, is called a special type and is listed separately from others11.
Indeed, the exemption from criminal liability reflected in Art. 76.1 of the Criminal Code of the Russian Federation, is formulated in a unique way. Unlike other types of exemption established by the General Part of the Criminal Legislation, in relation to it, it is not the typical signs of crimes of minor or medium gravity that are indicated, in the commission of which it is possible, not crimes in general, but specific crimes. It turns out that exemption from criminal liability in connection with compensation for damage is actually not as general as the others.
At the same time, the type of exemption from criminal liability reflected in Art. 76.1 of the Criminal Code of the Russian Federation, has some similarities with certain types of exemption presented in the Special Part of the Criminal Legislation. At the same time, the provisions of Part 1 of Art. 76.1 of the Criminal Code of the Russian Federation cannot be called, as is sometimes done, neither identical12 notes 3 to Art. 198 and 2 to Art. 199, 199.1 and 199.3, nor duplicating them13, since the former include the latter, and they are contained in the former. Most likely, the provisions of Part 1
See: Kostrova M. B. New grounds for exemption from criminal liability in tax cases
crimes // Problems of criminal policy, ecology and law / resp. ed. V. B. Malinin. St. Petersburg, 2010. P. 304, 305.
1998 No. 125-FZ “On compulsory social insurance against accidents at work
and occupational diseases" (Articles 26.11, 26.22 and 26.28-26.34) (SZ RF. 1998. No. 31. Art. 3803). See: Ozhegov S.I. Explanatory dictionary of the Russian language. M., 2016. P. 149. See: Ozhegov S.I. Decree. op. P. 149. See: Ozhegov S.I. Decree. op. P. 1336.
See: Matveeva Ya. M. Institute of exemption from criminal liability in the Russian criminal system
Law: modernization and search for an alternative way to resolve criminal legal conflicts: abstract of thesis. dis. ...cand. legal Sci. St. Petersburg, 2016. P. 15. See: V. V. Vlasenko. Exemption from criminal liability... P. 8.
See: Quality of criminal law: problems of the General part / resp. ed. A. I. Rarog. M., 2016. P. 170.
Art. 76.1 of the Criminal Code of the Russian Federation outwardly compete with Notes 3 to Art. 198 and 2 to Art. 199, 199.1 and 199.3.
Of course, in all cases we are talking about competition between general (Part 1 of Article 76.1 of the Criminal Code of the Russian Federation) and special (notes to Articles 198, 199, 199.1 and 199.3) norms. Taking into account the requirements of Part 3 of Art. 17 of the Criminal Code of the Russian Federation, special rules will always be applied. The question is why it was necessary to create competition with the same criminal legal consequences - exemption from criminal liability.
The Plenum of the Supreme Court of the Russian Federation in paragraph 11 of the resolution of November 15, 2016 No. 48 “On the practice of application by courts of legislation regulating the specifics of criminal liability for crimes in the field of business and other economic activities” explained that “when exonerating persons from criminal liability on grounds provided for in Article 76.1 of the Criminal Code of the Russian Federation, it is necessary to take into account the notes to the relevant articles of the Criminal Code of the Russian Federation. Based on this, courts should keep in mind that a person is recognized as having committed a crime for the first time if he does not have an unexpunged or unexpunged conviction for a crime under the same article under which he is exempt from liability.”14 Exemption from criminal liability of a person who does not have “an unexpunged or outstanding conviction for a crime provided for in the same article under which he is exempted from liability” must still occur in accordance with the notes “to the relevant articles of the Criminal Code of the Russian Federation.”
Secondly, exemption from criminal liability under Art. 76.1 of the Criminal Code of the Russian Federation recognizes
a special type of release in connection with active repentance15. There is no reason for the latter approach.
On the one hand, all types of exemption provided for in Art. have something in common with release from criminal liability in connection with active repentance. 75-76.2 of the Criminal Code of the Russian Federation. In this case, they all need to be considered special types of release in connection with active repentance. True, this is impossible.
The fact is that, on the other hand, each type of exemption from criminal liability established in the General Part of Criminal Legislation has certain specifics that are absent from the others. Otherwise, there was no point in forming their totality. In other words, all of the above types of liberation can in some sense be called special (which is sometimes done16).
The above, contrary to popular belief17, indicates that there is no competition between the articles regulating general types of exemption from criminal liability. If it is present, only one of the norms has features that are absent in the other18. There is no such thing in the articles of the General Part of the Criminal Legislation on exemption from criminal liability. On the contrary, each of them includes features that are unique to it. Therefore, we are talking about related norms19. Their differentiation is based on the characteristics of which norm are established.
True, competition of norms and related norms in the field of exemption from criminal liability are sometimes unjustifiably identified. Thus, the literature states that
14 Bulletin of the Supreme Court of the Russian Federation. 2017. No. 1. P. 12.
15 See: Vlasenko V.V. On the legal essence of the norms providing for exemption from criminal liability in cases of crimes in the sphere of economic activity // Russian Justice. 2016. No. 3. pp. 22-24.
16 See: Sverchkov V.V. Exemption from criminal liability, termination of a criminal case (prosecution), refusal to initiate it: problems of theory and practice. St. Petersburg, 2008. pp. 61, 62.
17 See: Vlasenko V.V. “Capital Amnesty” ... P. 12.
18 See: Kudryavtsev V.N. General theory of qualification of crimes. M., 2001. P. 215.
19 See: Kudryavtsev V.N. Decree. op. P. 215.
“the presence of competition... criminal law norms allows us to call them related”20.
It turns out that exemption from criminal liability in connection with compensation for damage is still a general type of exemption from criminal liability. The peculiarities of its regulation do not turn it into a special type, none of which are presented in the General Part of the Criminal Code and have a much more local scope.
At the same time, in connection with the list of crimes, the commission of which may entail the application of Art. 76.1 of the Criminal Code of the Russian Federation, the question arises about the correctness of the rulemaker’s determination of the place of regulation of exemption from criminal liability in connection with compensation for damage. First of all, one cannot but agree that its current location “indicates the desire of the legislator to consolidate in the general norm the basis for exemption from criminal liability for a number of similar crimes.” On the contrary, it is difficult to agree that, although it “applies only to the norms of the Special Part of the Criminal Code of the Russian Federation specified in it, and not to all”, such an approach “cannot be considered unproductive”, because instead of providing a note for each of the listed articles , the legislator took into account the specifics of the group of crimes and introduced a general rule on exemption from criminal liability on special grounds,” and “from the point of view of legislative technology, this is a positive point”21. In fact, everything is not quite like that.
Firstly, the provisions of the article in question are of a general nature not for all relevant articles of the Special Part of the Criminal Legislation, but for three groups (parts 1, 2 and 3 of Article 76.1 of the Criminal Code of the Russian Federation). Secondly, there is no need to provide notes in each of these articles. It is enough to do this in the first of
specified in parts 1, 2 and 3 of Art. 76.1 of the Criminal Code of the Russian Federation and extend it to subsequent ones.
Thereby, there are no obstacles to the transfer of the provisions of Art. 76.1 of the Criminal Code of the Russian Federation in the notes to the relevant articles There is no special part of the Criminal Code. And it was there, and not in Art. 76.1 of the Criminal Code of the Russian Federation, it is more productive (if necessary) to implement the idea of “extending the rule governing this type of exemption from criminal liability to most other crimes in the sphere of economic activity, while maintaining the corresponding specificity of the grounds for exemption when committing certain crimes in the economic sphere”22.
5. There are gaps in the criminal procedural form of exemption from criminal liability in connection with compensation for damage. Thus, the procedural conditions for release under Parts 1 and 2 of Art. are unjustifiably different. 76.1 of the Criminal Code of the Russian Federation.
In accordance with Part 1 of Art. 28.1 of the Code of Criminal Procedure of the Russian Federation when committing crimes provided for in Part 1 of Art. 76.1 of the Criminal Code of the Russian Federation, exemption from criminal liability occurs if the damage caused to the budget system of the Russian Federation as a result of a crime is compensated in full before the appointment of a court hearing. Accordingly, in para. 2 clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19, it is determined that “compensation for damage made after the court of first instance appointed a court hearing, in accordance with paragraph “k” of part 1 of Article 61 of the Criminal Code of the Russian Federation, is recognized by the court as a circumstance, mitigating punishment."
In the literature, reasonable bewilderment has been expressed “why, in contrast to the general procedure for exemption from criminal liability, in this case the decision to terminate criminal prosecution is made” in the case
20 Skryabin M. A., Shakirov Kh. C. General and special types of exemption from criminal liability in connection with active repentance. Kazan, 2006. P. 64.
21 Antonov A.G. Exemption from criminal liability in cases of crimes in the sphere of economic activity // Russian justice. 2013. No. 5. P. 21.
22 Balafendiev A. M. Exemption from criminal liability in connection with positive post-criminal behavior: social and legal prerequisites, essence and systematization of types: abstract. dis. ...cand. legal Sci. Kazan, 2016. pp. 22-23.
if, before the appointment of a court hearing, the damage caused to the budgetary system of the Russian Federation as a result of a crime is compensated in full" (Part 1 of Article 28.1 of the Code of Criminal Procedure of the Russian Federation)." At the same time, it is noted that "in all other cases related to compensation for damage or manifestation of active repentance for a crime in other forms, such actions can be taken into account at later stages: at a preliminary hearing, during the trial, in fact, right up to the moment the court retires to the deliberation room to pronounce a sentence (clause 4 of Part 1 article 236, part 2 article 239, article 257 of the Code of Criminal Procedure of the Russian Federation)”23.
Moreover, in paragraph 15 of the resolution of November 15, 2016 No. 48, the Plenum of the Supreme Court of the Russian Federation rightly explained that since “part 3 of article 28.1 of the Code of Criminal Procedure of the Russian Federation does not contain a requirement for compensation for damage before the appointment of a court hearing, criminal prosecution in cases provided for in part 2 of Article 76.1 of the Criminal Code of the Russian Federation, is subject to termination by the court if all the conditions provided for by this norm (damages are compensated and money transfers are made to the federal budget) are fulfilled in full before the court is removed to the deliberation room.” The criminal law does not provide any grounds for differentiating the time for compensation of damages in relation to Part 1
and 2 tbsp. 76.1 of the Criminal Code of the Russian Federation and transform compensation for damage from a circumstance that exempts, other things being equal, from criminal liability, into a circumstance that only mitigates punishment.
Moreover, the procedural form of exemption from criminal liability under Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation is not fully established. We are talking about the indication of Part 3.1 of Art. 28.1 of the Code of Criminal Procedure of the Russian Federation to terminate criminal prosecution only by the court and the investigator with the consent of the head of the investigative body.
In accordance with clause 9, part 3, art. 151 of the Code of Criminal Procedure of the Russian Federation for criminal cases of crimes provided for in Parts 1 and 2 of Art. 194 and specified in Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation, the inquiry is carried out by investigators of the customs authorities of the Russian Federation. This means that criminal prosecution must be stopped by them. In any case, this is what happens with other crimes.
Hence, in theory, a justified conclusion is made that “like Part 3 of Art. 28.1 of the Code of Criminal Procedure of the Russian Federation in part 3.1 should provide for the possibility of termination of criminal prosecution by the investigator with the consent of the prosecutor”24. Now the situation is such that exemption from criminal liability in connection with compensation for damage when committing a crime under Part 1 or 2 of Art. 194 of the Criminal Code of the Russian Federation is nothing more than a fiction.
BIBLIOGRAPHY
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RELIEF FROM CRIMINAL RESPONSIBILITY FOR DAMAGES
BLAGOV Evgeniy Vladimirovich, Doctor of Law, Professor, Professor of the Department of Criminal
Law and Criminology of the P. G. Demidov Yaroslavl State University
150003, Russia, Yaroslavl, ul. Sovetskaya, d. 14
Abstract. The paper examines the problems arising in connection with relieving from criminal responsibility provided for in Art. 76.1 of the Criminal Code of the Russian Federation (given its latest changes). The first of them refers to the title of the named article. The second problem concerns acts in the commission of which relief is possible. The third problem is the claim for damages as a condition for relief. The fourth problem is related to the nature of relief. The fifth problem is reflected in the procedural form of relief. In each case, the author suggests ways to resolve the identified problems.
Keywords: relief from criminal responsibility, conditions of relief, crime, act containing signs of corpus delicti, indemnification.
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