The Supreme court plans to generalize the judicial practice in cases on the “business” articles.
The Plenum of the Supreme court discussed a draft resolution, on which work could be completed by mid-November.
On the need to strengthen the trust between government and business, to guarantee his right to a fair and impartial defense have repeatedly said Russian President Vladimir Putin. However, practice is not always adequate measures that the government is taking to prevent unwarranted prosecution of businessmen. This opinion, in particular, voiced by the Deputy head of the armed forces Vladimir Davydov at the plenary session. To ensure unity of judicial practice on this category of cases the court decided to generalize existing ones.
Freeing entrepreneurs may be more expensive
Consensus, however, the meeting was not. The dispute between the parties, in particular, arose from the ideas of the high court to tighten to the business conditions under which they can be exempt from responsibility. So, now to get rid of criminal prosecution for economic crimes of small and average weight in connection with reconciliation of the parties or active repentance. This will need to repair the damage or harm is done.
Sun is considering two options: either to leave things as they are, or to determine the possibility of exemption from liability on these grounds is not only damages, but a payment in the budget twice his size. Thus, a businessman who wants to achieve the termination of the case, will have to return the money to the victim, and to pay to the budget. Exact data about how many entrepreneurs might appreciate the relief from criminal liability yet, but we know that the courts annually receives about 2 thousand cases against businessmen.
In support of the second, the most rigid version was made by the Ministry of justice and the Prosecutor General’s office. Deputy Minister of justice Mikhail Galperin believes that the softer option eliminates special ground for exemption from liability (indemnification and payment of twice the amount in the budget), since the businessmen will try to go more “cheap” by one redress and reconciliation. With this agreement, and the Deputy Prosecutor General of Russia Vladimir Malinovsky, specified that “humanization does not mean lenience”.
Officials tried to oppose the government representative in higher courts Mikhail Barshchevsky. In his opinion, the only option is the inability to establish additional conditions for the cessation of such cases for reconciliation of the parties or active repentance. Otherwise, you can suffer as victims, and entrepreneurs.
— Obligations are so astronomical that it makes no sense to put out — it is cheaper to serve than to pay, Barshchevsky said, Recalling that a person can earn much more at liberty than in prison, and, thus, faster to repair the damage.
The time the intent doesn’t matter
In the new resolution of the Supreme Council plans to indicate to the courts that offences under the new parts 5-7 of article 159 (“Fraud, coupled with deliberate non-performance of contractual obligations”) are always performed in the sphere of entrepreneurial activity. Recall, the new part of article 159 of the criminal code appeared in the summer of 2016 with the filing of the Kremlin working group on the monitoring of law enforcement practice in the sphere of business, after the decision of the constitutional court came to an end special article of the criminal code about business fraud (article 159.4).
The need for such clarification by the Chairman of the armed forces Vladimir Davydov today due to the fact that during the old article 159.4 of the criminal code (five years imprisonment) investigators prosecute General, more severe the fraud (159 of the criminal code — up to 10 years of imprisonment), arguing that intent to commit the crime originated even before the conclusion of the Treaty.
— Although this may only indicate fraud, but not on the scope of the crime, said the judge.
Under a deliberate breach of contract sun offers the courts to understand his “willful failure to perform fully or partially for the purpose of plunder of another’s property”. The intent should also be confirmed, for example, the fact that the defendant had concealed from the parties of the contract information about outstanding obligations on other contracts or spent the money for personal purposes, used a bogus Charter documents and letters of guarantee.
Lawyers support the policy of the armed forces, which States that for qualification of actions as “business fraud”, no matter at what point there was intent to commit it — before or after conclusion of the contract. Now, in practice, the intent must occur prior to the signing of papers.
— This has been used by unscrupulous individuals who entered into the contract, create the appearance or visibility of the performance of obligations under it, for example, paying the initial payment for the goods, after which in a variety of ways to withdraw assets from the organization of the debtor, — says head of the criminal practice of BMS Law Firm Timur Huta.
According to him, a good faith lender after some time received the court decision and writ of execution to recover the money from the organization dummy. The bodies of internal Affairs refused to Institute criminal proceedings.
The mill believes that the specification “will serve as an additional lever for the protection of victims’ rights from the actions of unscrupulous persons.”
Lawyer Konstantin Savin attorney consultation “Pavlov & partners” draws attention that this explanation, in fact, promotes the constitutional court of the Russian Federation of 11 December 2014. It says that the criminalization of actions associated with deliberate breach of contract aimed at the protection of property relations, as it excludes the possibility of withdrawal of guilty from criminal responsibility under the guise of civil transactions.
Opinions were divided
The document also endorsed by the representatives of the Ministry of justice, General Prosecutor’s office. But some lawyers are skeptical. Managing partner Bureau “Business fairway” Roman Terekhin suggests that breakthrough moments in document no, mostly it reflected the current practice on various issues and repeated moments, are described in earlier decisions of the Plenum.
Lawyer Konstantin Savin also believes that the project “is not a breakthrough”, and most of the provisions regurgitate existing text of the law, but in other words and with a few additions.
But Mikhail Barshchevsky, the draft resolution of the Plenum of VS in the end supported.
– I could not believe my eyes when I read to the end, realizing how now should be better, – said Plenipotentiary representative of the government in the higher courts.