Illegal use of documents for the formation (creation, reorganization)...

Illegal use of documents for the formation (creation, reorganization) of a legal entity

(introduced by Federal Law No. 419-FZ of 07.12.2011)

1. Providing an identity document or issuing a power of attorney if these actions are committed for the formation (creation, reorganization) of a legal entity for the purpose of committing one or more crimes related to financial transactions or transactions with money or other property -

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 seven months to one year, or by compulsory work for a period of one hundred eighty to two hundred forty hours, or correctional works for up to two years.

2. Acquisition of an identity document or the use of personal data obtained illegally, if these acts are committed for the formation (creation, reorganization) of a legal entity for the purpose of committing one or more offenses related to financial transactions or transactions with money or other property -

is punishable by a fine in the amount of three hundred 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 imprisonment for the same period .

Note: In the acquisition of an identity document, this article means receiving it on a paid or gratuitous basis, assigning an identity document found or stolen, as well as capturing it by deception or abuse of trust.

1. The circle of documents referred to in this article is determined identically regardless of the interpretation of the concept of "entity formation": and if this concept is narrowly interpreted, ie, only as the introduction of relevant records on the establishment or reorganization of a legal entity in the relevant register, and if one understands the formation of a legal entity broader, including in it other actions (see paragraphs 3 and 9 of the comment to article 1731). The list of these documents should include documents that are identified in the legislation as identity documents, for example, a passport (passport for travel abroad). In particular, we are talking about the documents of persons specified in cl. 1.2 of Art. 9 of the Federal Law of 08.08.2001 No. 129-FZ, named in the law as applicants. The authenticity of their signature must be attested in the notarial order. In this case, the applicant specifies his passport data or in accordance with US law the data of another identity document and the taxpayer identification number (if any). The list of persons who can act as an applicant is defined in paragraph 1.3 of this article. Driving license, student card, etc. legislation are not recognized as identity documents, although they are recognized in judicial practice as important personal documents. The concept of power of attorney is given in art. 185 GK.

2. These documents, their own or others', for example, stolen, are provided, and the power of attorney is issued to the guilty person who is committing or planning to perform actions aimed at registering the legal entity in the purposes specified in Part 1 of the article. The transfer of documents or power of attorney can be carried out directly or through third parties, both knowledgeable and not aware of the purpose of providing documents, the transfer of power of attorney. In the knowledge of these third parties, becoming intermediaries in the transfer of these documents, the question arises of the possibility of qualifying their actions as complicity, however, it seems that none of those listed in Part 5 of Art. 33 of the Criminal Code of types of complicity committed by them does not correspond.

3. Crime is over, when the document was granted, the power of attorney was handed to the person who is going to use it directly for the formation of a legal entity for the relevant purposes. The actual use of such documents or powers of attorney is beyond the objective side of the act under discussion. If, after the transfer of the document or power of attorney, the person who intends to use them in the purposes specified in Part 1 of the article is unable to obtain them (for example, if these documents were not transmitted directly but through a banking cell or, say, an intermediary), the act constitutes an attempt on the commission of a crime provided for in Part 1 of the article being commented.

4. On the concept of financial transactions and transactions with cash or other property, see the comment. to art. 174 and 1741. At the same time, unlike the mentioned norms, the financial transactions are not recognized in the article being commented as a type of cash transactions. This approach seems to be more precise, since in this case it is possible to refer to financial transactions with the use of specially created fraudulent entities for this purpose, where the subject matter is finance, i.e. money - fraud in the civil-law sense is not a transaction or even an invalid transaction, but a tort.

Indication of the relationship of crimes with financial transactions or transactions with funds or other property, based on the strict interpretation of Part 1 of Art. 1731 of the Criminal Code, the wording of which may not coincide with the intent of the legislator, does not necessarily mean that these transactions or transactions enter into the objective side of this crime - a legal entity may be created, say, for "legend" the activity consisting in gathering of the data making commercial, tax or bank secret named in ч. 1 ст. 183 UK ways.

5. The subjective party is characterized by direct intent. The providing document or the proxy issuing the power of attorney should be aware that: a) the specified items will be used in the appropriate quality (ie they will certify the fact of participation a specific person in the formation of a legal entity) upon passing the procedure for registering the creation or reorganization of this legal entity; b) a legal entity is formed for the purpose of its use (requisites, bank account, etc.) for the commission of one or more offenses related to financial transactions or transactions with money or other property. See also item 7 of this comment.

6. The subject of the offense provided for in Part 1 of the article is general.

7. Part 1 of the article to be commented should cover only those actions that were not related to the implementation of the agreement between the person providing identity documents or a power of attorney by a person and other persons on the commission of a particular offense, committed in the latter case constitutes complicity in the commission of the said crime in the form of aiding by means of committing crime. Otherwise, the commented norm will have to be considered as a special, privileged composition with respect to the composition of complicity in the commission of a particular crime, for example, fraud. Thus, in the commission of a crime provided for by Part 1 of the article being commented, a person should only have a general idea that his actions indirectly contribute to the commission of one or more crimes related to financial transactions or transactions with money or other property.

8. The notion of the described in paragraph 2 of the commented article of the sign of the acquisition of an identity document is disclosed in Note, to this article where the terminology established in criminal law is used in a slightly different meaning: "assignment of the found document", , the appropriation of a stolen document & quot ;, and furthermore, the seizure of such a document by deception or abuse of trust is separated from other forms of theft. Nevertheless, proceeding from the meaning of this rule, by acquiring it is necessary to understand any means by which a person accepts the specified documents when they left their possessor's possession both under the good will of the latter and against his will, including if they were stolen from him by any of the ways provided by law or simply lost. Accordingly, the act in this form should be considered "finished" at the moment the person seized the document.

9. Execution of the act specified in part 2 of the article in the form of acquiring an identity document in the purposes indicated herein is a special case in relation to the crime provided for by Part 2 of Art. 325 of the Criminal Code.

10. The acquisition of these documents precedes their use in the formation of a legal entity in the purposes mentioned in Part 2 of the article, but the use of personal data obtained illegally occurs just in the process of creating or reorganizing a legal entity. This raises the question of the concept of using such data and, accordingly, the moment when the act ends in this form. It seems that, in the sense of the norm being commented on, the actual introduction of personal data obtained illegally into documents that are yet to be submitted to the registration authority for the purpose of creating or reorganizing a legal entity form only a preparation for the commission of a crime provided for in Part 2 of the article being commented. Whereas, completed this act will be in the submission of these documents to the registering authority, regardless of whether it will subsequently decide on the registration of a legal entity and whether a corresponding entry is made to the register. On the notion of personal data , see Art. 3, etc. of the Federal Law of July 27, 2006 No. 152-FZ "About Personal Data". (in the edits of July 23, 2013).

11. The subjective side is a direct intent. The person's actions are aimed at achieving a double goal: a) to use them for preparation or in the process of forming a legal entity; and b) to create or reorganize a legal entity for the purposes the commission of one or more crimes related to financial transactions or transactions with money or other property.

12. The subject of the crime in the form of the acquisition of an identity document is generic. The same personal data may be used by a person who possesses the relevant managerial powers in the already created organization, and then the actor - special.

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