Abuse in the issue of securities - Commentary to the...

Abuses in the issue of securities

(as amended by Federal Law No. 23-FZ of 04.03.2002)

1. Entering in the prospectus of securities of knowingly unreliable information, approval or confirmation of a prospectus containing information that is known to be inaccurate or a report (notice) on the results of the securities issue, as well as placement of equity securities whose issue has not passed state registration, except for cases when the legislation of the United States on securities there is no provision for state registration of the issue of equity securities, if these acts caused large damage to citizens, organizations or the state , -

is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to two years, or by compulsory labor for up to four hundred and eighty hours, or by corrective labor for a period of up to two years (as amended by Federal Law No. 162-FZ of 08.12.2003, No. 26-FZ of 07.03.2011, No. 420-FZ of 07.12.2011).

2. The same acts committed by a group of persons by prior agreement or by an organized group , -

is punishable by a fine in the amount of one hundred thousand 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 three years, or by deprivation of liberty for the same term

Note: Major damage, large income in articles 185, 185 1 , 185 2 and 185 4 this Code recognizes damages, income in the amount exceeding one million rubles, especially large - two million five hundred thousand rubles (note in the edition of Federal Laws of 30.10.2009 No. 241-FZ, from 22/07/2010 № 224-FZ).

1. The concept of a security is contained in Art. 142 -149 CC (see the commentary, to Article 177). The meaning of the special terms used in describing the characteristics of the crime under discussion is clarified by referring to securities legislation.

In Art. 2 of the Federal Law No. 39-FZ of April 22, 1996 "On the Securities Market" (as amended on July 23, 2013) defines the issue of securities, the issuer, the issuing security, the issue of equity securities, the placement of equity securities, the holder of the securities. Article 19 of the Law determines the procedure for issuing and its stages, including the adoption of a resolution on the placement of equity securities, approval of a resolution on the issue, state registration of the issue, state registration of the report on the results of the issue, etc.

In Art. 22.1 it is determined by whom the prospectus of securities of legal entities is approved and must be signed.

2. According to Art. 20 of the Federal Law "On the Securities Market"; The state registration of issues (additional issues) of equity securities is carried out by the US Central Bank, as well as by the registering authority specified in the federal law.

The order of issuing the issuer's report on the results of the issue is contained in Art. 25 of the Federal Law "On the Securities Market".

3. Incorrect information entered in the securities prospectus may distort any actual data that must be reflected in the prospectus in accordance with Art. 22 of the Federal Law "On the Securities Market". These are information on persons who are members of the issuer's management bodies, information on bank accounts, on the auditor, appraiser and financial adviser of the issuer, as well as on other persons who signed the prospectus; basic information on the issuer's financial and economic condition and risk factors, etc.

4. The issuer has the right to begin placement of equity securities only after the state registration of their issue, unless otherwise provided by law (Article 24 of the Federal Law "On the Securities Market"). Violation of this requirement means the fulfillment of the actions envisaged in the article as a result of the placement of equity securities, the issue of which has not passed state registration.

5. The main criterion for attributing to the characteristics of the act discussed the distortion of information in the securities prospectus, as well as other actions listed in the article, is their ability to generate socially dangerous consequences in the form of major damage.

In Note, to the article being commented, it is determined that major damage in this article is recognized as damage exceeding 1 million rubles. Damage a crime can be caused not only to purchasers of shares, but also to those who, for example, failed to exercise their right (if the relevant right was established by law or, say, the issuer's decision) and purchase securities, yielding a high income.

6. The subjective side of a crime may be in both direct, and indirect intent. However, the actual misrepresentation of information in the prospectus and other actions provided for in the article should be for the person who commits them to be knowingly illegal.

7. Subject crimes are considered to be special. When determining it, one should take into account those powers that the person in the issuing organization perform. In particular, since the obligation to approve the prospectus of securities is vested in accordance with Cl. 22.1 of the Federal Law "On the Securities Market"; in business companies, on the board of directors (supervisory board) or body exercising in accordance with federal laws the functions of the board of directors (supervisory board) of this business entity, then the subjects are recognized as members of the board of directors or the specified body (and those who voted will be responsible for the approval of the prospectus, which for them contains inaccurate information, if such actions entailed the infliction of major damage).

However, it is possible to include in the prospectus of deliberately inaccurate information, for example, another employee of the issuer, and even - hypothetically - a person who is not an employee of this organization. And if these actions caused a failure in the registration procedure of the prospectus and the placement of securities, which resulted in causing major damage to the issuer or purchasers of securities, then the named person can also be responsible for the article being commented.

8. On the concept of committing a crime by a group of persons by prior agreement or by an organized group , see the comment to art. 35. On the rules of qualification for these signs of crimes, the subject of which is a special one, see the comment, to art. 174.

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