Fraud with government contracts is being asked to be included in a separate section

The head of the Business Russia expert center on criminal legal policy and the execution of judicial acts, Ekaterina Avdeeva, at the round table of the Federation Council Committee on Economic Policy “On the issues of mitigating criminal liability for crimes in the field of economic activity in order to expand freedom of entrepreneurship,” submitted a package of proposals for consideration , formulated within the framework of the President’s instructions. It has been sent to the Presidential Administration (AP), a representative of the organization told Vedomosti. Among the initiatives is the identification of special offenses of fraud (Article 159 of the Criminal Code, Criminal Code) in connection with VAT reimbursement, as well as with the execution of a government contract.

According to Avdeeva, these illegal acts “by their nature, taking into account the current system of inspections, in fact cannot be outside the scope of entrepreneurial activity.” The separation of the “tax” element of fraud from the ordinary one was already discussed in the upper house in February. Representatives of government agencies and law enforcement agencies supported this initiative, and the bill on VAT refunds is currently ready, the representative of Business Russia clarified. At the same time, the organization regularly receives complaints from businesses about the initiation of cases under the ordinary parts of Art. 159 of the Criminal Code, which deprives entrepreneurs of special protection measures in the process introduced to protect companies from subsequent liquidation, employees from job loss, and the budget from a decrease in tax revenues.

Episodes of ordinary fraud charged against businessmen are not always taken into account in the statistics of cases against entrepreneurs. Partner at Rustam Kurmaev and Partners, Dmitry Kletochkin, doubts that recording crimes will help. “Now the investigator, with the full approval of his boss, the prosecutor and – in the end – the judge, writes that the crime cannot be a type of entrepreneurial activity, therefore the accused must be charged with the usual part 4 of Art. 159 of the Criminal Code, and not the special entrepreneurial composition of Part 7 of Art. 159 of the Criminal Code of the Russian Federation. This is done only for the purpose of sending a person to a pre-trial detention center, and the courts are willing to cooperate with the investigation,” he says.

“Business Russia” proposes to improve the recording of crimes in the sphere of business activities. “This can be done by obliging the investigative authorities and the prosecutor’s office to put the appropriate code on the card when an individual entrepreneur or a member of the management body of a commercial organization has committed a crime under Art. 159, 159.1–159.3, 159.5, 159.6, (fraud) 160 (embezzlement), 165 (causing property damage by deception or abuse of trust), 201 (abuse of authority) of the Criminal Code,” says the representative of Business Russia. This is necessary for the application of procedural protection measures for entrepreneurs, since over the years a trend has developed where they effectively work with those crimes that are certainly classified as entrepreneurial, but are rarely used, Avdeeva clarified.

Vice-President of the Association of Lawyers for Registration, Liquidation, Bankruptcy and Judicial Representation Vladimir Kuznetsov considers it important to “once and for all make a clear distinction between economic and other elements of crimes, eliminating the possibility of stretching already existing norms to apply them to businessmen, in fact punishing the latter for absolutely any acts under the pretext, for example, of fraud.” In his opinion, the most appropriate would be to change the approach to understanding the structure of the Criminal Code of the Russian Federation itself, since now the division of crimes is carried out according to the subject, and not the subject or subject-subject criterion. “In other words, separating entrepreneurial structures into a completely separate chapter would partially solve the problem,” says Kuznetsov.

A new definition of the threshold values ​​for large and especially large damage is a long-overdue and important initiative, says Sergei Zhestkov, partner and head of the Tax Law practice, lawyer at Melling, Voitishkin and Partners. “Large taxpayers may face criminal liability more often than smaller ones, and this is unfair. It is advisable to introduce a definition of large and especially large damage as a percentage of the amount of tax liabilities of taxpayers (as was already the case before the amendments to Articles 198 and 199 of the Criminal Code in 2017), but at the same time completely abandon fixed thresholds,” he notes. .