Special Grounds for Exemption from Criminal Liability for Criminal Bankruptcy: Critical Assessment of a Legislative Novel

Abstract

One of the consequences following the legislator’s attempts to radically improve the effectiveness of the norms on criminal liability for criminal bankruptcy in July 2021 was the addition of Article 195 of the Criminal Code of the Russian Federation. It came with a note the made it possible for the nominal head of the bankrupt organization to be exempt from criminal liability if they contributed by their actions to compensation for the damage caused by the crime. After analyzing this novel, the author paid attention to the fact that it accumulated not only statutory concepts common for the Russian criminal law, but also certain provisions inherent in competition law. Meanwhile, such a reception was of a shambolic nature, since the legislator did not use the concept of a person controlling the debtor (which, obviously, he assumed), but only one of the presumptions of control over the debtor — extracting benefits from illegal or unscrupulous behavior of the debtor, which does not seem quite correct. In addition, the comment does not imply any encouragement for the fake manager for disclosing information about the debtor’s property that was hidden by his controlling persons, although this approach is present in the bankruptcy law and increases the chances of creditors to restore their violated rights. Moreover, the exemption of the guilty person from criminal liability is for the most part dependent on the actions of third parties, and not the nominal value itself. The key conclusion of the study is that the considered norm is unlikely to be applied in practice both due to the lack of a proper incentive for the nominal value, and due to the uncertainty of the procedural mechanism of its application. Following the critical evaluation, the author proposes the optimal, in his opinion, revision of the analyzed norm.