Illegal formation (creation, reorganization) of a legal entity in Russian criminal law

Since the beginning of radical socio-economic changes (since the early 90-s of the XX century) the Russian state looked for ways to prevent the creation of legal entities, the founders (beneficiaries) of which were pursuing illegal aims. To characterize such organizations some researches and acts which contain explanations of a normative nature use the following formulations: fictitious organizations, "short-lived firms", "pseudo-organizations", "pseudo-firms" etc. The institutions directed to discourage the creation of such entities were included into the criminal, civil, administrative and tax legislation. During a long time the Criminal Code of the Russian Federation provided for liability for pseudo-entrepreneurship. It was understood as the creation of commercial organizations without the intention to carry out business or banking activities directed at obtaining loans, tax exemptions, getting other property benefits or cover prohibited activities, causing major damage to citizens, organizations or the State. This article was decriminalized in 2010 because of the uncertainty of its content The concept of development of civil legislation of 2009 included the creation of regulations that prevented the emergence of unscrupulous parties in circulation; its provisions were partially implemented in 2013-2016 in the course of the reform of the civil legislation. In their explanations tax authorities since mid-2000's are trying to concretize criteria for a "short-lived firm". The legislation allows: to make records in the USRLE (regarding unauthenticity of data) with the subsequent exclusion of such organizations from it; to refuse the state registration of legal entities if among founders and directors there are persons involved in the creation and activites of such organizations. Nevertheless, it is fully impossible to call the appropriate measures of the state reaction successful. In 2011 the Criminal code of Russia included the article providing for liability for the formation (creation, reorganization) of a legal entity; illegality in this article shall be construed as creation of legal entities through figureheads. This article underwent essential changes in 2015 regarding the definition of such (fake) persons. The research gives the analysis of the reasons for publishing of the article; its basic elements are analyzed. The author shows that the article is unsuccessfully formulated, it contradicts the constitutional principles, including the importance attached to it by the Constitutional Court of the Russian Federation regarding the certainty of a precept of law and liability. Conceptual proposals on legal evaluation of creation of legal entities by means of nominal founders are formulated; approaches to delineation of lawful and illegal conduct are determined; suggestions on the improvement of the criminal legislation are made.

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