Effective counteraction to the concealment of the debtor's property in the bankruptcy by civil and criminal law means in the context of entrepreneurs' rights protection

The article presents the authors' perspective on the counteraction to the concealment of property from creditors as on an element of the system for protecting the entrepreneurs' rights. The authors dwell on the problem of the rational choice by the persons controlling the debtor of the variant of opportunistic behaviour predetermined by the ratio of the benefits and costs associated with the concealment of the debtor's assets. They argue that the civil law measures to counter the debtor's assets withdrawal are ineffective and emphasise the need to improve the criminal law methods to combat criminal bankruptcies. The study is based on the works by Russian and foreign researchers in the field of civil and criminal law, as well as on legislation and practice of applying the law in the field of countering the debtor's assets withdrawal in bankruptcy. The methodological basis of the study is both general and private scientific methods of cognition as well as methods of economic analysis of law. The analysis of civil remedies to counter the debtor's property concealment from creditors (in particular, the rules on challenging the debtor's transactions in bankruptcy cases, the rules on bringing controlling debtors to subsidiary liability) reveals their ineffectiveness. The controlling bodies do not face significant costs due to the civil means of counteracting the concealment of the debtor's property used against them. The analysis of the statistics of bringing to criminal liability for violations in the sphere of bankruptcy shows no adequate response from the law enforcement system to these violations. The threat of a debtor's "withdrawal of assets" is a circumstance that increases transaction costs and impedes economic development. The authors conclude that it is necessary to improve the mechanism of criminal prosecution for concealing property in bankruptcy as an effective means of fighting against unfair practices on the part of persons controlling the debtor. Criminal measures to combat bankruptcy crimes can lead to a significant increase in the costs of unscrupulous behaviour of the persons controlling the debtor and level off the interest in obtaining unfair advantages because of hiding property from creditors.

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