Incorporation of unreliable information into unified state registers - Commentary on the Criminal Code of the Russian Federation

Incorporation of unreliable information into unified state registers

(introduced by Federal Law No. 147-FZ of July 1, 2010)

1. Deliberate submission by an official to one of the unified state registers provided for by the legislation of the Russian Federation, knowingly unreliable information, as well as deliberate destruction or forgery of documents on the basis of which a record or change was made to the said unified state registers, if the mandatory storage of these documents is provided for by the legislation of the Russian Federation Federation, -

is punishable by a fine of up to eighty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to six months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by forced labor for a period of up to four years, or imprisonment for the same term (

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2. The same acts committed by a group of persons by prior conspiracy -

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is punishable by a fine of up to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to three years, or by forced labor for a period of up to five years, with the deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without it, or by imprisonment for up to six years, with deprivation of the right to hold certain positions or engage in certain activities for a period of six months to three years (in the edition of the Federal Law from 07.12.2011 № 420-ФЗ).

3. Acts stipulated by parts one or two of this article, which entailed grave consequences -

is punishable by imprisonment for up to ten years.

1. Federal Law No. 147-FZ of July 1, 2010 supplemented Art. 2853, which establishes the responsibility for making known unreliable information in the unified state registers.

This crime was attributed by the legislator to crimes against state power, interests of public service and service in local self-government bodies.

2. The article under review provides alternatively two subjects offenses. The first crime subject is unified state registers, which are federal information resources. The nature of the unified state registers, their content, procedure and subject of keeping registers is established at the legislative level and is specified in the relevant decisions of the US Government. In this regard, in order to establish the subject of the crime in question in each specific case, it is necessary to determine on the basis of normative legal acts whether a particular document is classified as a single state register.

For example, Art. 4 of Federal Law No. 129-FZ of 08.08.2001 "On State Registration of Legal Entities and Individual Entrepreneurs"; (as amended on 23.07.2013) it is established that in the Russian Federation state registers are kept, containing respectively information on the establishment, reorganization and liquidation of legal entities, the acquisition by individuals of the status of an individual entrepreneur, the termination by individuals of activities as individual entrepreneurs, other information on legal entities, individual entrepreneurs and relevant documents.

State registers are maintained on paper and electronic media. If there is a discrepancy between records on paper and electronic media, the priority is on paper records, unless a different procedure for maintaining state registers is established.

The above-mentioned state registers are maintained by the registering authority in the manner established by the federal executive body authorized by the US Government.

According to the commented article, the crime subject will take place only if the state register is provided for by US law.

The second crime is "i" the documents on the basis of which a record or change was made to the unified state registers, if the mandatory storage of these documents is required by US law.

Thus, the legislator points out two mandatory features of the second crime subject. The documents referred to in the article should be the basis for making entries in the unified state registers and these documents must be subject to mandatory storage in accordance with US law.

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Consider the issue of the second crime subject again on the example of registration of legal entities. In accordance with Art. 12 of the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs"; to the number of documents submitted, for example, with the state registration of the created legal entity, are:

a) an application for state registration signed by the applicant in a form approved by the federal executive body authorized by the US Government;

b) the decision to create a legal entity in the form of a protocol, contract or other document in accordance with the legislation of the Russian Federation;

c) the constituent documents of the legal entity (originals or notarized copies) and other documents.

In accordance with Part 4 of Art. 5 of this Law, entries are made in state registers on the basis of documents submitted at state registration, i.e. based on the documents listed above.

And, finally, Part 3 of Art. 5 of the same Law, it is established that the procedure and terms of storage of documents contained in state registers by the registering authority, as well as the procedure for their transfer to permanent archives in state archives, are determined by the federal executive body authorized by the US Government.

Thus, the above listed documents are the basis for making entries in the unified state register and are subject to mandatory storage, which is established by US law. These circumstances make it possible to attribute these documents to the subject of the crime provided for in the article under review. Similarly, the issue should be addressed in relation to other documents.

Speaking about the second crime, one should pay attention to the fact that the law speaks of documents as a crime subject only if on the basis of them a record or change was made to a single state register. And if such records were not made? In this case, the literal interpretation of the law allows us to speak about the absence of the crime subject.

3. The objective side of a crime is expressed in action, but its content will vary depending on what is the subject of the crime.

As for the unified state register, the objective side of the crime can only consist in making deliberately inaccurate information in it. The nature of the information to be included in the unified state register is different, depending on the type of registry. Thus, the state register of legal entities includes information on the establishment, reorganization and liquidation of legal entities, namely: the full and (in the case, if any) abbreviated name, including the company name, for commercial organizations in Russian; organizational and legal form; address (location) of the permanent executive body of the legal entity; method of formation of a legal entity (creation or reorganization); information about the founders (members) of the legal entity, etc.

Inaccurate information - this information is completely or partially untrue, distorting it. Such information can be entered into the unified state register both at the initial stage of entering information into the register and at the subsequent stage - supplementing or changing the information previously submitted.

In those cases where the subject matter of the crime is the documents on the basis of which a record or change was made to a single state register, the objective side of the crime is expressed in the destruction or forgery of documents.

By destruction of documents should be understood as any action, the result of which will be to bring the document into total worthlessness (burning, exposure to acid, etc. actions). The destroyed document is not recoverable and can not be used as a document.

Forgery is a generalization that includes both introducing deliberately false information into the document and inserting corrections to the document that distort its actual content.

Entering false information into the document occurs when a document that is original in its form (ie, preserving all external requisites) contains information that is not true to the facts (the so-called intellectual forgery). Also, this act can be expressed in drawing false details on the document, for example, putting a date that does not correspond to the actual date of compiling the document, or in the signature forgery on the document.

Making corrections to the document that distort its actual content is a cleanup, the actual text is added, other actions are performed, as a result of which the content changes, the informational load of the document (material forgery).

4. The fact that the legislator, as noted above, placed the article under review in the chapter on crimes against state power, interests of the state service and service in local self-government bodies, makes it possible to say that the actions in question (entering knowingly false information, destruction, forgery) should To have a connection with the official powers of the guilty person and be carried out in connection with official duties. The absence of this link will also mean the absence of the crime in question. In this case, the actions of the perpetrator, if there are relevant circumstances, can be qualified, for example, under art. 327 of the Criminal Code.

5. The composition of the offense provided for in the commented article is formal. The crime is over from the moment of the actions specified in the dispositions of the rule.

6. The subjective side of the crime provided for in Part 1 of the article is characterized by guilt in the form of direct intent. The instruction of the legislator to know the guilty of the necessary circumstances means the presence of an accurate knowledge of the unreliability of the relevant information.

7. Subject crimes special. The subject of entering knowingly unreliable information into a single state register can be only an official, and the subject of destruction or forgery of documents can be either an official or a civil servant or employee of the local government, who are not officials.

8. Part 2 of the commented article establishes a more strict responsibility for the acts considered committed by a group of persons on a preliminary conspiracy. The notion of groups of persons by prior conspiracy is given in Part 2 of Art. 35 of the Criminal Code. Applicable to the composition of the crime provided for in the commented article, attention should be paid to the existence of a special subject. From the position of the form of complicity, this means that only individuals with certain characteristics can form a group of persons. Thus, a group of persons with regard to making knowingly unreliable information in a single state register can be formed only by officials, and a group of persons with regard to the destruction or forgery of documents - state or municipal employees, who may be both official and non-official.

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9. A specially qualified composition forms any of the considered acts, if it entailed grave consequences. The concept of serious consequences belongs to the category of appraisal. Their presence must be determined in each specific case.

By grave consequences as a qualifying sign of the crime provided for in Part 3 of the commented article, one should, for example, understand the consequences of committing a crime, such as a violation of the organization, causing significant material damage, suicide or attempted suicide victim and the like.

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