Problematic signs of criminal bankruptcies and rules for their qualification: “signs of bankruptcy” and “inability to satisfy creditors’ claims”

The subject of this study is the provisions of Russian criminal law concerning criminal bankruptcy, as well as the provisions of Russian bankruptcy law regarding the elements of a debtor’s bankruptcy.

The aim of this article is to provide a scientific justification for the hypothesis that the circumstances of the commission of the crime provided for in Article 195 of the Criminal Code of the Russian Federation (“signs of bankruptcy”) are identical in substance to the consequences of the crime provided for in Article 196 of the Criminal Code of the Russian Federation (“inability to satisfy creditors’ claims”) and are determined by the signs of objective bankruptcy.

Methodology. Specialized legal methods were also used. In particular, the comparative legal method was used to compare the provisions of Russian criminal legislation on criminal bankruptcy with Russian bankruptcy legislation in order to identify common features and differences in the examined signs of criminal bankruptcy in these branches of Russian law. The formal-legal method is used to analyze bankruptcy legislation in order to substantively define the characteristics of the provisions on criminal bankruptcy. Using a systemic-structural approach, this study analyzes and systematizes such objective elements of the crimes defined in Articles 195 and 196 of the Criminal Code of the Russian Federation as “signs of bankruptcy” and “inability to satisfy creditors’ claims.”

Main results. The author proposes rules for distinguishing the provisions of Article 195 from Article 196 of the Criminal Code of the Russian Federation, firstly, by the circumstances in which these crimes are committed and, secondly, by their subjective side (intent).

Conclusions. The “signs of bankruptcy” in Article 195 of the Criminal Code of the Russian Federation and “the debtor’s inability to fully satisfy creditors’ claims for mandatory payments” in Article 196 of the Criminal Code of the Russian Federation should be understood as the debtor’s total liabilities exceeding the actual value of its assets (objective bankruptcy). Unlike Parts 1, 1.1, and 5 of Article 195 of the Criminal Code of the Russian Federation, the acts provided for in Article 196 of the Criminal Code of the Russian Federation are committed in the absence of circumstances indicating that the total amount of the debtor’s liabilities exceeds the actual value of its assets (objective bankruptcy), but with the intent to bring about such a situation.

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