THE ECONOMIC SECURITY OF A CREDITOR IN THE CONDITIONS OF A DEBTOR’S INACTION: CRIMINAL LEGAL ASPECT

The article raises issues of criminal law protection of creditors’ rights by bringing to criminal responsibility an unscrupulous debtor. The authors analyze the mechanisms of criminal law protection of creditors’ rights provided for by the current criminal legislation, in particular, the signs of the elements of crimes provided for in articles 177 and 315 of the Criminal Code of the Russian Federation are investigated. The authors conclude that the formulation of the signs of an act in the criminal law through the term “malice” shifts the emphasis in proving from the debtor to the creditor and the law enforcement officer (including by consolidating the obligation of the latter to substantiate the debtor’s ability to fulfill the obligation), thereby effectively freeing the debtor from legal liability. As a result, the researchers conclude that the arsenal of funds provided for by the criminal law is not enough to effectively combat unscrupulous debtors, in connection with which it is proposed to consider bringing to criminal responsibility for the debtor’s inaction, failure to take measures to fulfill the obligation assumed and established by the judicial act that entered into force, shifting the burden of proving the absence of the ability to repay the debt to the debtor. The authors also propose to classify such a category of cases as criminal cases of private prosecution in order to ensure a balance between the rights of the creditor and the debtor.