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§ 3. Tehniko-legal preconditions of perfection of norm about lzhepredprinimatelstve in the Russian criminal law

Timely and qualitative perfection of legal regulation of enterprise relations, including criminally - legal means, becomes actual scientific and practically significant problem as the corresponding Russian legislation is in process of formation more and more and inevitably there is a contradiction between objective requirements of a real life and "backlog" normotvorchestva.
Thereof the current legislation in enterprise sphere is characterised by presence of blanks and discrepancy. From the practical point of view, in the course of criminalisation it is necessary to establish, it is how much precisely registered in UK a criminally-legal interdiction, whether it interferes with normal development of positive public relations in economic sphere, whether the rule of law deforms criminally - those socially significant purposes which were pursued by the legislator by preparation of the corresponding legislation. «The criminal law, - writes B.V.Jatselenko, - should possess such properties which would allow it to react in due time, on the one hand, on changing social validity that is to be flexible, and with another - not to turn in« the proving ground for-norms,-occurrence-which is not caused by the valid necessity »31. The norm fixed in item 173 UK ("Lzhepredprinimatelstvo"), criticised practically all researchers, causing serious difficulties in interpretation and practical application, remains in an invariable kind since time of acceptance UK. At the same time the legislation, re - gulirujushchee enterprise activity, extremely dynamically, requires constant changes and дополнениях.87 Criminally - legal science, most likely, has not developed offers comprehensible to legislature on perfection of structure of the given crime. For this purpose more than it is enough preconditions. As follows from the maintenance of item 173 UK, the objective party of an effective standard about lzhepredprinimatelstve is limited by creation, and, as a matter of fact, registration of the commercial organisation in corresponding bodies. And creation of the commercial organisation in its any organisation-legal form is penal not simply, and is indispensable provided that its founder (founders) obviously has no (have) no intention after reception of the corresponding status to carry out enterprise or bank activity. It obliges bodies of preliminary investigation and court to prove, applying item 173 UK, that as in drawing up of constituent instruments and fulfilment of other actions previous registration, and at the moment of the registration of the commercial organisation the subject precisely knows, that he is not going to be engaged in legal business or lawful bank operations. In practice proving of the given circumstance causes the big difficulties as in an objective reality such intention can be supported with nothing. The problem of correct qualification lzhepredprinimatelstva even more becomes complicated whereas on sense of the law acquisition in any form of already created organisation, and use for the purposes specified in structure, the organisation which are in procedure of bankruptcy is equal, under oo Item 173 UK does not fall. 87 See: Rogozhin N.A.judiciary practice and its role in legal regulation of enterprise activity. - «Volters Kluver», 2004 8 Lopashenko N.A.crime in economic activities sphere (the Comment to chapter 22 UK the Russian Federation).
A series «the Law and a society». Rostov-on-Don: "Phoenix", 1999 С.86 Though there is also other opinion. So, Etc. Ustinova assumes, that under the term "creation" the legislator meant any ways of occurrence, formation of the commercial organisation, and not just its initial registration. The author suggests to understand as creation and acquisition of already existing organisation (for example, as a result of making contract of purchase and sale of the legal person which carried out earlier enterprise activity for its further RQ Uses in quality lzhefirmy). Such point of view sometimes is proved by that «the basic idea of the legislator at criminalisation of the given act was that the procedure of enterprise activity by subjects of business at the very first stages of realisation of this actively - criminally-right protection is exposed 90 STI ». However such explanatory will not be adjusted with positions of the civil legislation where it is accurately defined that is understood as creation of the commercial organisation; acquisition of existing firm is not equated to its creation. It is impossible to interpret the same concepts on - a miscellaneous with reference to criminal and to civil law if other is not established by norms of one of branches of law. Such cases are exceptions, should be specially reserved in standard documents. D lja concept considered here «creation of the commercial organisation» any exceptions the legislator is not made. In the literature there is also an opinion that the fact of the crime provided by item 173 UK, is present and in the event that the organisation leads enterprise activity mismatching the authorised purposes for the sake of extraction property выгоды.32 However this is tsija also contradicts the civil legislation. Realisation of the activity which has been not provided by constituent instruments of the commercial organisation, in itself does not form lzhepredprinimatelstva as the commercial organisation according to the current legislation possesses the general legal capacity and can carry out any kinds of the activity which has been not forbidden by the legislation. This rule does not extend on the unitary state and municipal enterprises, and also the organisations with so-called special franchise (all noncommercial organisations). In a case of fulfilment without the licence of transactions on delivery of credits, it is necessary to talk about illegal realisation of bank operations, responsibility for which is provided in item 172 UK the Russian Federation. The resulted variants of activity of the subject can testify only to an orientation of its intention at registration of the commercial organisation on creation "lzhefirmy", instead of on realisation of lawful enterprise activity. However these acts do not concern signs of the objective party of a crime. It is impossible to agree with the opinion stated in a number of sources that lzhepredprinimatelstvo it is made by pseudo official registration of the commercial organisation and consists in false, fraudulently received illegal registration. Though article disposition contains instructions on absence at guilty intentions to lead enterprise activity, it does not mean, that such activity at lzhe - - Business should be absent in general. - on the contrary, - it is very frequent Guilty to reach the illegal purposes, conclude commercial transactions and even carry out a part of the taken obligations. However, as a rule, such transactions are only cover of actual intents of the persons who have founded such organisation. If such organisation also is engaged in any activity only for tap of suspicions, on purpose to cause to itself trust as to the partner. In similar actions besides lzhepredprinimatelstva as that signs of other structure prestuple - nija are possible. In general, as practice shows, lzhepredprinimatelstvo is accompanied by fulfilment of other crimes, and also infringement of requirements antimonopoly more often, tax laws, the consumer legislation, etc. Therefore at investigation of such crimes the careful analysis of the transactions made by the guilty is necessary. For correct qualification of act it is important to establish the purpose of transactions, and also to define, to whom the damage is particularly caused by a crime and in what it is expressed. Cases when the commercial organisations are created specially for the purpose of property plunder are frequent. In this case in the literature it is offered to qualify actions guilty on set — as plunder and lzhepredprinimatelstvo as under such circumstances the way of plunder represents the considerable social danger and forms independent structure преступления.33 Thus set lzhepredprinimatelstva and plunders can take place, if it will be established, that the organisation was specially created for criminal intent realisation. Intention occurrence on achievement of criminal purposes after creation of the organisation by structure lzhe - 93 Businesses it is not covered. The fact of creation of the commercial organisation from an outer side cannot be qualified in any way as criminal action. At lzhepredprinimatelstve it is created lawful under the form организация.34 the Current legislation (first of all GK and FZ «About the state registration of legal bodies and individual businessmen») establishes possibility of creation of the commercial organisation in two ways: - By establishment of the newly founded commercial organisation; - By reorganisation (merge, joining, division, allocation, transformation) the existing legal person. The commercial organisation is considered reorganised (except reorganisation in the form of joining) from the moment of the state registration of the newly arisen legal bodies. By reorganisation by joining to other commercial organisation the first of them is considered reorganised from the moment of entering into the state register of record about the termination of activity of the attached organisation. The commercial organisations of one kind can be transformed to the commercial organisations of other kind (in economic associations and societies of other kind or in production co-operatives under the decision of general meeting of participants; the production co-operative under the unanimous decision of its members can be transformed to economic association or a society). On the basis of item 2 of the Federal act from August, 8th, 2001 «About the state registration of legal bodies and individual businessmen» 35 and the governmental orders of the Russian Federation from May, 17th, 2002 the Ministry of the Russian Federation of taxes and tax collections is the authorised federal enforcement authority which is carrying out since July, 1st, 2002 the state registration of legal bodies, and since January, 1st, 2004 - the state registration of physical persons as individual businessmen, - also the state registration country - - (farmer) economy. The moment of the state registration entering by registering body of record into the corresponding state register admits. At the state registration of the created legal person following documents are represented to registering body (the list It is established by the Federal act «About the state registration of legal bodies and individual businessmen»): The statement for the state registration The decision on creation of the legal person in the form of the report, the contract or other document according to the legislation of the Russian Federation; Constituent instruments of the legal person; Extract from the register of foreign legal bodies of corresponding country of origin or other equal proof on a validity of the legal status of the foreign legal person - the founder; The document on State Tax payment. Thus registering body does not find out, whether namereno the person actually to carry out enterprise activity. There is a principle of a presumption of legality of the data presented by the applicant if formally they correspond to shown requirements. As in item 173 UK it is spoken about creation of the commercial organisation without intention to carry out the enterprise or bank activity, many authors the moment of occurrence of intention on fulfilment lzhepredprinimatelstva communicates with the moment of creation (registration) of the false commercial organisation, 36 that basically will be adjusted with the text criminally-rule of law, but in essence incorrectly and that is why ^ - - At the state registration of the created legal person the statement signed by the applicant for the state registration, the decision on creation are represented to registering body, in particular, The legal person, constituent instruments of the legal person. In the statement proves to be true, 37 that: - The presented constituent instruments correspond to the established requirements to constituent instruments of the legal person of the given organisation-legal form, - The data containing in these constituent instruments, other documents presented for the state registration, the statement for the state registration, are authentic; - At creation of the legal person the order of their establishment, including charter capital payment (the authorised capital, the joint stock, shares) at the moment of the state registration is observed established for legal bodies of the given organisation-legal form. Under circumstances when the person in the statement in writing expresses desire to register the commercial organisation, it is absurd to do the assumption, that in practice chances of its creation with eventual recklessness or with such form of fault as imprudence. That fact, that the commercial organisation was created without intention to carry out enterprise or bank activity, even more strengthens an intention orientation. In Russian the word "intention" is treated, how «the assumption to make that-n., the desire, a plan».38 External demonstration of presence of intention in a situation when it is supposed, at its absence can be regarded as the deceit form as lie, and any lie - «intended (it is allocated by me - M. K) true distortion».39 At creation lzheorganizatsii the person operates with desire to create such clod - mercheskuju structure, being covered which legal status, it could be engaged for the purpose of a profit in illegal activity. In the legal literature absence of intention to carry out enterprise or bank activity one authors name "antipurpose" лжепредпринимательства40, others - the motive, that prompting which directs the person on achievement of the purposes лжепредпринимательства.41 And both those, and others notice, that absence of such intention is one of the main signs, allowing to delimit lzhepredprinimatelstvo from adjacent crimes (in particular, from swindle). It is necessary to pay attention also, that in lzhepredprinimatelstve according to item 173 UK creation of the commercial organisation is directed on achievement of definite purposes - reception of credits, tax exemption, extraction of other property benefit or cover of the forbidden activity. At qualification of act under item 173 UK it is enough to establish presence at least one of the specified purposes. And as the aim of crime - an express intent element, 42 that and all actions provided by item 173 UK, Moiyr to be made only with the express intent. Being based on it, many authors do a conclusion, that the subjective party lzhepredprinimatelstva is characterised by fault in the form of direct умысла.43 Now bear the criminal liability for lzhepredprinimatelstvo the physical person who is directly involved in creation of the commercial organisation, that is its founder can only. Other persons who were not accepting personal participation in establishment or reorganisation of the commercial organisation, including its general director, despite all importance of its figure, cannot be executors of the given crime. In judiciary practice and the legal literature such sight at a circle of subjects lzhepredprinimatelstva dominates. So, prof. N.A.Lopashenko writes, that as the subject of a considered crime «any person who has reached of age of 16 years, registered commercial lzheorganizatsiju» acts. And as lzheorganizatsija, as a rule, it is created by a group of persons (founders) «all of them, in the presence of signs of the subjective party, are made accountable under item 173 UK the Russian Federation» 44. Similar explanations contain in other comments to item 173 УК45 and in numerous scientifically - research работах.46 However it has been noticed, that such position sins with serious lacks. An essence of one of them has convincingly shown in S.A.Zhovnir's master's thesis which writes: «... According to act definition in the structure provided by item 173 UK, to responsibility for lzhepredprinimatelstvo it is possible to involve only the founder of the commercial organisation. The consequences specified in article, can be only result of activity of the created organisation. They come from actions of the head of enterprise structure. However actions of the head are not provided by act of the objective party of structure. According to modern edition of a disposition of item 173 UK it turns out, that for the harm caused by actions of the head, the founder of the organisation (it so if the founder and the head do not coincide in one person) should bear responsibility. The founder (not carrying out simultaneously a management of the organisation) does not make anything, that could be estimated as socially dangerous act. Creation of the organisation is quite lawful, prestupny only the purposes provided by the founder at registration of firm. But the purposes is not behaviour of the person, we have not the right to punish for them, is equal as have not the right 1 П7 To punish for thoughts, belief, desires ». Realising imperfection of the criminal law in this part, many authors suggest to interpret item 173 UK more widely and to make accountable not only the founder, but also the head of the organisation who is not its founder. So, I.G.Rogozin marks: «the Perpetrator is the physical person who has reached of 16-year-old age, founding the commercial organisation or carrying out administrative functions. In __ the commercial organisation (it is allocated. Me._ — M. K)». 47 A.S.Gorelik, I.V.Shishko and G.N.Hlupina carry to subjects lzhepredprinimatelstva the director of the commercial organisation who are not its founder as, in their opinion, it carries out nepo - sredstvenno a number of actions on creation of the commercial organisation, for - 109 kljucheniju from her name of credit contracts etc. Possible variants of attraction of the head of the commercial organisation (director) to responsibility under item 173 UK are offered Etc. Ustinovoj. She considers, first, that if the head of the organisation is not a part of founders, but knows that this commercial organisation will not be engaged in enterprise activity or will be engaged in the forbidden activity, and agrees to participation in such activity it comes under to the criminal liability, but not as the executor, and as the helper. Secondly, if the part of actions on creation lzhepredprijatija was carried out by founders, and a part - the director all of them are co-authors. At last, in - tretih if actions on creation lzheorganizatsii were made by the director who was inclined to it by the persons who are true founders of firm, but actually not carrying out its registration their actions are qualified as instigation, and actions of the director as executor. Simultaneously Etc. Ustinova recognises, what even such design not to the full reflects degree of participation in committing a crime of the head of the commercial organisation, since. It makes those actions which lead to achievement of the purposes specified in item 173 UK, and cause large ущерб.48 B.V.Volzhenkin subjects lzhepredprinimatelstva recognises not only founders and heads lzhepredprinimatelskoj the organisations, but also other persons authorised by them which were taking part in its official создании.49 The widest sight at a problem of the perpetrator provided by item 173 UK, is presented to O.A.Vagratjana's dissertations. By the author to subjects lzhepredprinimatelstva are carried: «businessmen, proprietors of the enterprises, operating the companies, managers, that is such economic agents who in practice solve questions of the organisation of the economic activities, engaged in business».50 However and at such wide approach to the decision of the given question the norm fixed in item 173 UK, does not extend on all persons having actual possibility really to be engaged lzhepredprinimatelskoj by activity. So, under given article the persons founding the noncommercial organisations, and also the persons registered as individual businessmen even if they operate for achievement of the purposes specified in the criminal law now do not come under to responsibility. The criminal liability under operating item 173 UK is not come under also by the one who with a view of lzhepredprinimatelstva gets, will reorientate or uses already created organisation. Thus, one of the basic tehniko-legal preconditions of perfection of norm about lzhepredprinimatelstve in the Russian criminal law is imperfection criminally-rule of law, fixed in item 173 UK.
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A source: KOVJAROV MICHAEL JUREVICH. CRIMINALLY-LEGAL CHARACTERISTIC LZHEPREDPRINIMATELSTVA. Moscow. 2008

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