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In
practice management can often encounter companies that actually have
the financial and untenable, but for some reasons conceal this fact. In this case we can talk about hidden bankruptcy. On the other hand, a number of entities pursuing certain goals can deliberately declare themselves bankrupt, not being such. Thus there is a fictitious bankruptcy. For
many state enterprises are typical situation where the officers
maliciously or by negligence of the entity to demonstrate financial
crisis and bankruptcy. To
avoid these negative manifestations of the Criminal Code of Ukraine
stipulates punishment if entrepreneurs or responsible officials of
resorting to them.
Latent
failure: the deliberate concealment of fact stable financial insolvency
through the submission of false data, if this caused financial losses
to creditors, shall be punished with imprisonment up to 2 years or
penalty of up to 300 times the minimum salary with deprivation of the
right to engage in certain activities within 5 years.
Objectively hide the fact of bankruptcy is defined by two features:
- Providing false information about the creditor financial condition of an insolvent debtor;
- Causal connection between filing of such data and losses that they suffered a creditor.
The motives and goals of concealment of bankruptcy:
- Hope to improve the financial condition or financial obligations of persons who, in turn, are debtors of the person,
-
Attempt to obtain a bank loan to cover the debt or appropriation of
funds received from the subsequent liquidation of the enterprise,
- The desire to obtain a favorable order for production of goods and services from the government or other customers, etc.
Subjects hidden bankruptcy may be the founders of the company, owners, officers.
The minimum penalty in the event of a hidden bankruptcy apply:
*
If hidden financial failure is a result of bankruptcy or other legal
entity was caused by violation of the law counterparts (monopolization
of the market prices, unfair competition, fraud with financial
resources);
* If it is a consequence of force majeure.
The
maximum penalties apply if the financial inability is the result of
inability to maintain effective financial and economic activity, lack of
leadership skills, negligence, theft, all sorts of abuses, errors on
the assessment of markets, etc.
In
this context we can mention a very interesting principles for settling
disputes between creditor and debtor "Ruska Pravda" Yaroslav (the first
systematic codification of the rights of Kievan Rus). It
reads as follows, "when bankruptcy occurs through a merchant unhappy
accident, not through his negligence, ie, when the ship will sink or
lost goods during the war, or from fire, the creditor may not require
immediate competition - can not take it captivity
or sell: merchant is given the right to pay its debts particles, for
pity from God, but he was not guilty and if he get rid of his property
as a result of drunkenness, or Climbing in criminal cases, or even
destroy it his neporadnistyu, he is given the will lenders - they can give him "prolonhatu" or immediately sell it along with all property. "
Fictitious bankruptcy can be called a situation where the company is actually bankrupt, but insists on its financial failure. In
this regard, the Criminal Code provides that obviously false statement
is a citizen - the founder or owner of the company, and officer of the
company on financial inability to debt and budget shall be fined from
300 to 500 minimum wages to ban this activity to 5 years. The
same actions that caused significant property damage creditors or the
state, punishable with imprisonment for years with confiscation of
property.
Great material damage - a loss that exceeds 50 or more times the size of allowances. Damage resulting from failure to return debts, failure to pay interest and taxes.
Goal post false information may be different:
* The institution of proceedings for bankruptcy or reorganization of the enterprise within provalennya bankruptcy,
* Liquidation, reorganization or privatization of enterprises in order to hide the illegal expenditure of funds
* Providing false data the auditor to obtain biased opinion on the financial condition of the enterprise.
Bankruptcy. The new bankruptcy law introduced provisions on liability for intentional bankruptcy. Willful
failure - is deliberately bringing the business entity to a stable
financial insolvency through the implementation of the selfish motives
of the owner or officer of the company through unlawful acts or failure
to perform or improper performance of their duties, which caused
substantial damage to state or public interests or legitimate rights owners and creditors.
Intentional
bankruptcy if it caused substantial damage to state and public
interests or the rights and interests of creditors, which are protected
by law - punishable by a fine of five hundred to eight hundred untaxed
minimum incomes with deprivation of the right to occupy certain
positions or engage in certain activities for up to 5 years. The
same actions that caused extensive damage to property - punishable by
imprisonment up to 5 years with confiscation of property.
These
and other factors and circumstances should pay attention to the owners
and financial services to local businesses during the proceeding
financial and economic activity.
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