Criminal Falsification of Registration Records of Organizations and Records of Rights to Securities

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introduction

Information from the Unified State Register of Legal Entities, the Register of Securities Holders, and the depository accounting system (hereinafter also collectively or separately, respectively – The Unified State Register of Legal Entities, registry, system) are of increased importance due to the state registration of all organizations in the country, as well as taking into account the rights to registered securities, which dictates the need for their criminal protection, in particular from falsification in the form of submitting deliberately false data to the body authorized to maintain the Unified State Register of Legal Entities or to the organization that carries out accounting rights to securities in the registry or system.
The relevant criminal law regulations on liability for the said crime are contained in Part 1 of Article 1701 of the Code, which ensure the reliability of the accounts of the Unified State Register of Legal Entities, the registry and the system.
Unfortunately, with a very rare and largely fragmentary exception, the above-mentioned encroachment has not actually been independently studied. Thus, theoretical sources do not adequately address the issue of the discrepancy between the form and content of this crime. The question of what is meant by the accounting register information listed casually in the disposition of the noted norm, the falsification of which is criminally punishable, was also not included in the field of view of theorists. Finally, the validity of the normative reflection of the goals of the specified crime (and not only their correction) as a constructive feature of the composition was practically not evaluated by the researchers.
The above indicates that there is a gap in the scientific understanding of registry falsification in this form (Part 1 of Article 1701 of the Criminal Code of the Russian Federation) and, consequently, the need for additional study in order to formulate recommendations and suggestions that, on the one hand, can be taken into account by the legislator when improving the criminal law, and on the other hand, will be of interest in carrying out further research.

RESULTS AND DISCUSSION

There is hardly any doubt that the state and society are interested in ensuring that the Unified State Register of Legal Entities, the registry or the system reflect only the actual situation of the facts and circumstances they take into account. The fact is that information from the registration of legal entities accumulated in the Unified State Register of Legal Entities, as well as data on the accounting of rights to registered securities reflected in the registry or system, serve the purpose of legitimizing organizations, establishing the ownership and volume of registered securities, shares in the authorized capital of business entities, determining the head of the legal entity, and so on. That is why the increased public danger of committing illegal acts with the loss of their authenticity (the object of the crime) by the marked registers predetermined the introduction of norms on liability for their falsification into domestic criminal law (art. 1701 of the Criminal Code of the Russian Federation).
Without referring to the background of the appearance of these norms in the Code and, consequently, the problems of raiding, because this goes beyond the scope of this article, the criminal law literature justifiably notes that a big problem for a state with a market economy is the submission of false information to official bodies and institutions [8, p. 473]. It seems that the criminal law prohibitions on falsification of the Unified State Register of Legal Entities, the registry and the system are fully focused on preventing the above, and in particular those providing for the criminality of submitting documents to the body carrying out state registration of legal entities and individual entrepreneurs (the Federal Tax Service of Russia), or to an organization that records rights to securities (registrar, depository), containing deliberately false information (Part 1 of Article 1701 of the Code).
Meanwhile, the inconsistency of the name of Article 1701 of the Criminal Code of the Russian Federation (Falsification of the Unified State Register of Legal Entities, the Register of Securities Owners and the depository Accounting System) with the crime reflected in Part 1 cannot but cause complaints, being, according to the legislator's plan, a form of falsification of these registers and the system.
In particular, in Russian, falsification means "distortion, substitution, forgery" [11, pp. 549-550]. In the theory of criminal law, the sought-after concept is given a generally similar meaning [7, p. 186; 14, p. 5]. Moreover, in relation to registers, their falsification is often realized by entering false information [6, p. 68], as a result of which the accounts are distorted. Forgery with substitution also implies an illegal modification of the latter. 
However, the actual distortion of the Unified State Register of Legal Entities, the registry or the system does not occur from the submission of documents with false information, and may not occur at all if the submitted documentary data is refused. By itself, the presentation of false information does not have the destructive property by which registry entries necessarily lose, in whole or in part, their inherent reliable accounting character. Therefore, the act reflected in Part 1 of Article 1701 of the Code is not yet falsification. Hence, in general, one cannot disagree with the position of scientists who reasonably believe that the presentation of false information is only a preparatory stage of the desired crime [2, p. 52].
At the same time, the possibility of harming the object of criminal law protection is recognized in the theory of criminal law as putting it in danger [3, pp. 199-202]. By submitting documents with deliberately false information, the perpetrator thereby creates only conditions for distorting registry entries, if they have already been previously reflected and are available in the Unified State Register of Legal Entities, registry or system, or for their initial entry into the latter in an unreliable form. If this is the case, then Part 1 of Article 1701 of the Criminal Code of the Russian Federation essentially reflects the composition of creating a risk of distortion of accounts, which is at odds with the title of the article containing it. The last one is already empty. This is where we see the problem of the discrepancy between the form and content of the crime under investigation, which requires a solution.
In the system of legal technology, the legislative-textual approach, which occupies an important place in the construction of structural and semantic headings of a criminal law in the form of designations, including the names of its articles, provides guidance for the search for a regulated norm, which also contributes to adequate perception with optimal clarity and completeness of the criminal law prescriptions contained under the general title [10, pp. 212-214]. In view of the above, from our point of view, the name of art. 1701 of the Code does not meet this requirement, which allows us to propose the following correct name of the mentioned article, including, respectively, the state of danger of distortion of registry information, reflected in its Part 1: "Article 1701. Falsification or creating a risk of falsification of the Unified State Register of Legal Entities, the register of Securities Holders or the depository accounting system." It seems that, without being redundant, in the proposed form, the title of this article will adequately reflect the nature of the criminally punishable act prohibited in Part 1.
In the science of criminal law, it is noted that the desired crime, from the standpoint of the objective side, is committed by submitting documents containing deliberately false information to the appropriate registration authority or organization, and as such, the method of committing a crime by submitting documented false information (in electronic form, on paper) does not matter [13, p. 58]. In order to qualify a completed crime, these documents must reach their addressee and be handed over to him [1, pp. 167-168].
However, for criminality under Part 1 of art. 1701 of the Criminal Code, the nature of the deliberately false information provided is of great legal importance, a specific list of which (in relation to the first group of targets of the crime, about them – below) is casually stated in the specified composition of the crime: "about the founders (participants) of a legal entity, about the size and nominal value of their shares in the authorized capital of a business company, about the registered owners of registered securities, the number, nominal value and category of the latter, about the encumbrance of a share or security, about the person managing such shares shares and securities transferred by way of inheritance, about the head of the permanent executive body of a legal entity or about another person, who has the right to act on behalf of the organization without a power of attorney."

At the same time, it should be noted that the question of what is considered (hidden under) the mentioned information, the falsification of which is prohibited under threat of punishment, is not actually discussed in the literature of the criminal law cycle, leaving, apparently, without a proper understanding of what exactly is at risk of register distortion when committing a crime provided for in Part 1 art. 1701 of the Criminal Code of the Russian Federation. It seems that the noted information should be understood as information that uniquely identifies each of the requisites (attributes) of the Unified State Register of Legal Entities, registry or system indicated in the disposition of the criminal law norm.
Thus, information about the founders (participants) of a legal entity is determined by the relevant application form approved by Order of the Federal Tax Service of Russia dated 08/31/2020 No. ED-7-14/617@ "On Approval of Forms and Requirements for Registration of documents Submitted to the Registration Authority during State Registration of legal entities, individual Entrepreneurs and peasant (farming) farms" (Official online portal of legal information http://pravo.gov.ru , 09/16/2020), submitted to the registration authority for their inclusion in the Unified State Register of Legal Entities. In particular, for the founder (participant) - a legal entity, such information is: the main state registration number (OGRN), the individual taxpayer number (INN), the name of the organization, etc.; for the founder (participant) - an individual – surname, first name, patronymic, date and place of birth, citizenship, etc.
The registered owner of registered securities in the register of their owners by virtue of clauses 2.1, 2.2, 2.5, etc. Regulations of the Bank of Russia dated 06/29/2022 No. 799-P "On the opening and maintenance by the holder of the Register of holders of securities of personal accounts and accounts not intended for accounting of rights to securities" (Bulletin of the Bank of Russia. 2023. No. 3) or in the depository accounting system according to clauses 1.8, 4.2, etc. Regulations of the Bank of Russia dated 13.11.2015 No. 503-P "On the Procedure for Opening and Maintaining Depo Accounts and Other Accounts by Depositories" (Bulletin of the Bank of Russia. 2015. No. 119) is identified through personal data. These are recognized for an individual: surname, first name, patronymic, date and place of birth, registration address, etc.; for a legal entity – name, OGRN, INN, surname, first name, patronymic of the head, etc.
The number, nominal value and category of registered securities, as well as the size and nominal value of the shares in the authorized capital of the business company of the founders (participants) of the legal entity are determined and identified, respectively, in the records of the Unified State Register of Legal Entities, the registry or the system indicating their specific volume (size, quantity), a specific monetary expression (nominal value) and the type/type (ordinary, preferred, etc.) of registered securities.
It should be noted at the same time that such a prop (attribute) The Unified State Register of Legal Entities, as "the size and nominal value of their shares in the authorized capital of a business company" refers only to the participants (founders) of the latter, which is clearly indicated by the personal pronoun "them", referring to the previous sign of the crime. Meanwhile, in some cases, a business company, without being a participant (founder) of itself (because this is impossible), may be the owner of shares in its own authorized capital (for example, when a participant leaves a limited liability company and its share is transferred to the company in this regard by virtue of the legal provisions of paragraph 2 of art. 94 Civil Code of the Russian Federation (Rossiyskaya Gazeta. 1994. 08 Dec.), which is subject to registration in the Unified State Register of Legal Entities and, therefore, can be falsified.
Since the criminal law in Part 1 of Article 1701 does not take into account the above, the elimination of the noted disadvantage is seen in the correction of the feature in question by excluding the pronoun "them" from it. It is noteworthy that in comparison with registered securities, which in some cases may also belong to their issuer and be accounted for according to the provisions of Articles 72, 72.1, 75, etc. Federal Law No. 208-FZ dated December 26, 1995 "On Joint-Stock Companies" (Rossiyskaya Gazeta. 1995. 29 Dec.), there was no significant error in the comparable feature of this crime, taking into account that the information "on the number, nominal value and category of registered securities" concerns all persons registered in the register of securities holders or the depository accounting system, including the issuer of securities.
Encumbrances of registered securities or shares of participation in the authorized capital of a business company are identified in the records of the Unified State Register of Legal Entities, the register or the system through the relevant data on the obligation burdening the ownership right of the owner of the registered security or share of participation in the authorized capital, as well as the person in whose favor the corresponding encumbrance is established. For example, the Unified State Register of Legal Entities on the encumbrance of a pledge of a share in the authorized capital of a limited liability company includes information about the pledge agreement itself (number and date), about the pledgee-a legal entity (OGRN, INN, name, etc.), about the pledgee-an individual (surname, first name, patronymic, gender, citizenship, date and place of birth, etc.), the amount of the pledged share, etc. In the register of holders of registered securities or in the depository accounting system, entries on the encumbrance of registered securities with collateral contain information that allows identifying the securities themselves, their number, content and conditions of a specific collateral encumbrance, as well as the pledgee.
Given the special importance of the figure of the head of the organization (in the Code, this feature is stated too cumbersomely: "about the head of the permanent executive body of a legal entity or about another person who has the right to act on behalf of a legal entity without a power of attorney," which, I think, can be shortened without loss of quality to a more concise wording in the relevant regulatory act (specified further) – "on a person who has the right to act on behalf of a legal entity without a power of attorney"), at the level of the Federal Law of 08.08.2001.  No. 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" (Rossiyskaya Gazeta. 2001. Aug. 10) provides an exhaustive list of identifying information about the mentioned person to be reflected in the records of the Unified State Register of Legal Entities: for an individual, these are: surname, first name, patronymic, individual taxpayer number, position, passport data, place of residence; for a legal entity – name, OGRN, INN (item "l" h. 1 v. 5). For a trustee (a person managing a security or shares that are inherited), the identifying information in the relevant records of the Unified State Register of Legal Entities, the registry or the system is similar to the above.
The subject of a crime under Part 1 of art. 1701 of the Code, there are statements in the prescribed form on the entry of information into the registers, decisions, minutes of meetings of participants (founders), other competent governing bodies of the organization, contracts (for example, on the establishment of a legal entity, on changing the membership of a business company or on making an additional contribution by a participant to the authorized capital of the latter, on changing the head of a legal entity persons), questionnaires of persons registered in the register of securities holders (in the depository accounting system – depositors' questionnaires), orders (orders) on conducting transactions with securities on personal accounts (depo accounts), including collateral orders on encumbrances, changes, repayment of encumbrances of securities or shares of participation, etc. Falsification in the form of submitting these documents with deliberately false data is aimed at potentially distorting the information identifying the object of registration (in Part 1 of Article 1701 of the Criminal Code of the Russian Federation).
The considered list of falsified accounting information, on the one hand, may seem too cumbersome, redundant, complicating the application of criminal law norms in practice. On the other hand, the amount of information entered into the registers is generally incomparably greater than that reflected in Part 1 of Article 1701 of the Code (see, for example, Article 5 of the aforementioned Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" on the composition of data included in the Unified State Register of Legal Entities). And in this sense, the falsification of not all information represents, in our opinion, the level of public danger inherent in a crime. Hence, it is impossible not to support the legislator, who established the criminality of falsification of only the most significant registry information, excluding competition with Part 5 of Article 14.25 of the Administrative Code of the Russian Federation on the same basis (range of information) (Rossiyskaya Gazeta. 2001. December 31), which provides for administrative liability in relation to information from the Unified State Register of Legal Entities for submitting documents containing knowingly false information to the Federal Tax Service of Russia, if such an act does not constitute a crime.

From the point of view of the subjective side, the formal structure of Part 1 of Article 1701 of the Criminal Code of the Russian Federation, as well as signs of the deliberate presentation of documentary false data and the strictly targeted orientation of the encroachment indicate a direct intent to commit falsification of registry entries. This approach is generally accepted among researchers. However, the issues raised in the press about the subjective side of the act in question are related to the violation by the legislator of the rules of legal technique and the need to adjust the objectives of the crime in this regard, the inaccuracy of the normative presentation of which can cause difficulties in their interpretation.
In particular, scientists propose to consider the purposes of falsification provided for in the required composition of the crime as alternative signs relative to each other, rather than cumulative to impute them to the perpetrator [15, p. 16-18]; with clarification and breakdown of the purposes of a) entering false information into registers or b) acquiring the right to someone else's property into separate independent elements of the crime [9, pp. 116-117]; with the replacement of all the goals of the act reflected in the current version with the single goal of "seizing control in the organization" [4, pp. 59-60]. Without entering into a discussion on the topic of correcting and clarifying the goals of falsification, we agree on a twofold (alternative) target orientation of the crime under investigation (Part 1 of Article 1701 of the Code), namely: the first group of goals of encroachment is not related to its other goals and is predetermined by the entry into the Unified State Register of Legal Entities, the registry or the system of previously considered false identifying information. The second autonomous group of goals of the act is focused on acquiring the right to someone else's property, while the list of fictitious data provided is not established by criminal law.
At the same time, the noted target feature of falsification, in our opinion, is dysfunctional. Thus, with regard to the first group of purposes, there is no doubt that falsified information is submitted to the Federal Tax Service of Russia, an accounting organization on the securities market (registrar or depository), not for reporting or archival storage, but only for its entry into the aforementioned registers or system, because, as noted, it is accompanied by relevant statements, decisions, agreements, protocols, etc. on registration, on amendments to the Unified State Register of Legal Entities, on the transfer of securities, their encumbrances, repayment of encumbrances, etc. Otherwise, criminality under Part 1 of Article 1701 of the Criminal Code of the Russian Federation is excluded.
The situation with the second group of falsification targets is noticeably worse. Thus, in the science of criminal law, it is not unreasonably noted that this encroachment, while not being a crime against property (otherwise its place is in Chapter 21 of the Code), is not characterized by the acquisition of the right to someone else's property [12, p. 46]. But even if we agree with the legislator, the following unsolvable problems arise: a) what documentary information (about what) should be provided to the guilty person in order to acquire the right to someone else's property, given the rather extensive and, perhaps, exhaustive list of what can be unlawfully acquired through distortion of registers, excluding the intersection of signs "acquired" and "contributed" in relation to different groups of crime targets; b) the absence, in the context of the purpose of acquiring the right to someone else's property, of a normative indication of a dogma that distorts registers or the system, makes it possible to completely falsify encroachments completely uncharacteristic of it, for example, some tax crimes, when the perpetrator, submitting to the same body – the Federal Tax Service of Russia a distorted tax return or calculation of insurance premiums, evades from paying them, and therefore actually appropriates the amounts of taxes and fees belonging to the state (part 1 of art. 198, part 1 of art. 199, part 1 of art. 1993 of the Code). The latter most clearly demonstrates a contradiction to the generally accepted meaning of falsification as a distortion, substitution or forgery of something.
It seems that it is possible to achieve a solution to these problems if, in Part 1 of Article 1701 of the Criminal Code of the Russian Federation, in principle, the constituent target designations are abandoned. The fact is that the reliability of registry entries can be violated regardless of any goals of the perpetrator. The public danger of falsification of accounting registry data is determined not so much by the targeted nature of the act as by the possible loss of their reliability within the boundaries of the most important details (attributes) discussed above The Unified State Register of Legal Entities, the registry and the system in case of any deliberate official presentation of documented deliberately false information to be entered in the registers. Consequently, after our proposed targeted annihilation in Part 1 of Article 1701 of the Code, falsification in the form of deliberately false information will not become a less socially dangerous act.
The foreign experience of the legal regulation of falsification also testifies to the exclusion of the target signs of the subjective side from the required corpus delicti. Thus, in the criminal law of Canada (Articles 378 of the Criminal Code), China (Articles 158, Articles 181 of the Criminal Code), Germany (§ 271 of the Criminal Code), Switzerland (Article 153 of the Criminal Code), Ecuador (Article 314 of the Criminal Code), etc. In the vast majority of cases, there are practically no signs of targeted distortion of the register of trade registration (analogous to the domestic Unified State Register of Legal Entities) or the register of securities owners [5, pp. 560-566].
Finally, it is necessary to abandon the goals of the crime also because the information used by the legislator in Part 1 of art. 1701 of the Criminal Code of the Russian Federation is a construction of criminal falsification, in which the objective feature of a crime (circle, list of falsifiable registry credentials) is actually determined by intrusion and under the influence of its subjective feature – one of the objectives of the encroachment: "... in order to introduce false information about the founders (participants) of a legal entity, about the size and nominal value of their shares, etc.", which also indicates the imperfection of legal technology in the construction of criminal law norms for the considered crime.

CONCLUSION AND CONCLUSIONS

1. The norms of Part 1 of Article 1701 of the Code ensure the reliability of the Unified State Register of Legal Entities, the Register of Securities Holders, as well as the depository accounting system from falsification in the form of submitting documents with deliberately false information to the relevant body or organization. Meanwhile, it has been established that falsification is a distortion (substitution, forgery) of something, and in this sense, the mere presentation of documents with fictitious data before the latter is entered into the registration records of these registries or systems is not capable of leading to their falsification. This criminal act, in essence, creates only the danger of distortion of accounting records (the composition of creating danger), which, in our opinion, should be reflected in the title of art. 1701, which, in its current version, does not really reflect the content of the encroachment in its part. 1, which is included in the basic base of criminality.
2. The registry accounting information is aggregated and stored in the Unified State Register of Legal Entities, the registry or the system in the form of relevant details (attributes) (for example, the founder (participant) of a legal entity, the owner of registered securities, the head of the legal entity, etc.) with their filling with unique identifying data of the accounting object (for example, OGRN, INN, Full name, passport data, place of residence, size (volume) and value of the ownership interest in the authorized capital, registered securities, etc.). Falsification is aimed at distorting the latter when presenting deliberately false data.
3. The reflection in the disposition of Part 1 of Article 1701 of the Criminal Code of the Russian Federation of the objectives of the crime does not seem justified, since the reliability of the registry within the boundaries of the most important (casuistically described in the same punishability) information is put in danger and may suffer regardless of any purpose of the commission of this crime. In fact, the above information is provided only for their entry, which means that the distortion of the Unified State Register of Legal Entities, the registry and the system, while the purpose of acquiring the right to someone else's property is in principle devoid of logical connection with the registers and their distortion.

In the light of the above, a new version of the title of Article 1701 of the Code is proposed, as well as its part 1:
"Article 1701. Falsification or creating a risk of falsification of the Unified State Register of Legal Entities, the Register of Securities Holders or the depository accounting system
1. Submission to the body that carries out state registration of legal entities and individual entrepreneurs, or to the organization that records rights to securities, of documents containing knowingly false information about the founders (participants) of the legal entity, about the size and nominal value of the shares in the authorized capital of the business company, about the registered owners of registered securities, about the number of, the nominal value and category of registered securities, the encumbrance of a security or share, the person managing the security or share, about a person who has the right to act on behalf of a legal entity without a power of attorney, – ".

About the authors

Andrey V. Korpusov

Author for correspondence.
Email: avkrosrf@mail.ru

Postgraduate Student at the Department of Criminal Law and Criminology

References

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