Проблема статуса контролирующего лица как квалифицирующего признака применительно к составу неправомерных действий при банкротстве

Abstract

Abstract. The article examines the issue of recognizing a person as a controlling debtor through the lens of the prejudicial nature of facts established in arbitration proceedings in bankruptcy cases, with regard to the criminal offense of illegal actions in bankruptcy (Article 195 of the Criminal Code of the Russian Federation). A doctrinal analysis of the provisions of current judicial practice has revealed a discrepancy between bankruptcy law and criminal law approaches to the same legal category – the status of a controlling person of the debtor. Since, in the context of criminal law, the status of a controlling person may lead to more severe liability, bankruptcy presumptions, such as the presumption of the status of a controlling person due to the receipt of benefits, cannot be applied in criminal law regulation. This is due to the fact that, according to the systematic interpretation of the provisions of the Criminal Code, the strengthening of the responsibility of the controlling person is conditioned by the hypothetical possibility of real disposal of the debtor’s property, which is not always the case with bankruptcy presumptions.