5 rules to avoid director criminal liability risks
Rustam Jane, a lawyer in criminal law practice, and Dmitry Lyapin, a lawyer at the Leontyev & Partners Law Firm, share five common examples from their practice when directors of organizations were prosecuted, not initially planning to commit crimes and not understanding the danger of the actions being taken, and explain how to protect yourself from potential risksOften, company executives are held criminally liable for actions whose criminality they do not even realize – “ignorance of the law does not exempt from liability”. According to statistics, in recent years the number of cases where directors have been prosecuted has been steadily increasing. Directors are attracted for various types of fraud (Articles 159-159.6), embezzlement or embezzlement (Article 160), illegal business (Article 171), tax crimes (Articles 198-199.2) and other actions. Therefore, each director should know a number of basic rules that will help minimize the risks associated with criminal prosecution.
The first rule. Always check counterparties
The most common mistake made by company executives is a superficial check of counterparties. In cases where a company is convicted of entering into transactions with one-day firms, the manager may be held criminally liable for tax evasion from organizations.
For example, the general director of a joint-stock company was sentenced under paragraph “b” of part 2 of article 199 of the Criminal Code of the Russian Federation (tax crimes) to two years in prison. The A-Mega company engaged third-party organizations – subcontractors to carry out the work. In connection with the conclusion of subcontracts, the company applied tax deductions. As a result, construction projects were completed on time, there were no complaints about quality, which was confirmed by relevant documents and testimonies of witnesses. On the part of the Federal Tax Service of Russia there were no claims to the documents confirming the fact of subcontracting, as well as their reflection on the accounts of accounting and tax accounting. However, one-day firms turned out to be subcontractors, which was the reason for bringing the head of A-mega company to criminal liability for tax evasion.
Due diligence on counterparties can help to avoid criminal liability.
By the way! For a quick check of a counterparty, you can use the My Business online service. You can do this in one click by entering the TIN / BIN / name / full name or address of the counterparty of interest. You can get free access to the service right now at the link.
The second rule. Be attentive to your duties as a manager for coordinating and monitoring the activities of employees
We will consider this rule by the example of bringing the director to criminal liability for the payment of wages to a fictitious employee, if not consciously.
The director of one metallurgical enterprise, on the oral instructions of a member of the board of directors, accepted an employee for the position of deputy director for development. This employee did not actually appear at the workplace, but, according to a member of the board of directors, performed his duties in good faith. For three years, a salary of 300 thousand rubles was paid monthly to the employee. During the inspection, law enforcement authorities found that the fictitious employee did not appear at work and did not carry out any activities in this company. A criminal case was instituted against the director on the grounds of corpus delicti, provided for in paragraph 4 of Article 160 of the Criminal Code of the Russian Federation (embezzlement, that is, theft of property entrusted to the perpetrator). For this crime, the punishment can reach 10 years in prison.
This example demonstrates the need to carefully fulfill the immediate responsibilities of the leader, including the coordination and control of employees.
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The third rule. Prioritize cash allocation
One of the duties of the director is to maintain a competent balance between the distribution of funds for business expansion on the one hand, and the fulfillment of the requirements of state authorities, and especially court decisions on the other.
According to a court decision, the enterprise was supposed to pay about 5 million rubles to creditors, but there were no available funds for the calculation. The company ignored the repeated demands of bailiffs for debt repayment. Instead, the manager directed the funds to other needs of the enterprise. As a result of his actions, the head was prosecuted under this article, article 177 of the Criminal Code of the Russian Federation – malicious evasion of paying off payables on a large scale.