Si pubblica, col consenso dell’Autrice e dell’Editore, la traduzione del Capitolo primo «Исторический анализ развития рынка ценных бумаг и криминальных проявлений в сфере обращения ценных бумаг» della monografia di ELENA VLADIMIROVNA VALLASK, Мошенничество с использованием ценных бумаг: ретроспективный анализ, криминалистическая характеристика и программы расследования, Saint Petersburg, Юридический центр Пресс, 2007, pp. 198. ISBN 978-5-94201-539-8

Indice del volume

 

 

 

Elena Vladimirovna (Vallask) Barkalova

St. Petersburg Law Institute (branch office)

University of the Prosecutor's Office of the Russian Federation

Saint Petersburg

 

 

Historical analysis of development of securities market and criminal acts in the field of securities circulation

 

 

Contents:1. Development of securities market and analysis of criminal acts in the sphere of securities circulation in Pre-revolutionary and Soviet period of the Russian history. – 2. The current state of the securities market and the criminogenic situation in the sphere of securities circulation in Russia. – Abstract.

 

 

 

 

1. Development of securities market and analysis of criminal acts in the sphere of securities circulation in Pre-revolutionary and Soviet period of the Russian history

 

The appearance of securities in economic circulation was inevitably accompanied by the emergence of criminal encroachments using these financial instruments. Therefore, the study of criminality in the securities market as a phenomenon of reality in the historical aspect is impossible without studying the processes of formation and development of the securities market itself[1].

Legal historians have not developed a consensus on the period of securities appearance in the trade turnover of Pre-revolutionary Russia. It is assumed that the prototype of the security was mortgage bond, which referred "... to strictly formal documents, resembling Roman literal contracts, the execution of which is conditioned on the possession of the document and its return to the debtor"[2].

One of the first securities to appear in civil circulation is a promissory note[3], the introduction of which is not directly indicated either in regulatory legal acts or in special literature until the end of the XVII century. I. Tabashnikov assumed an earlier appearance in circulation of promissory notes in Russia, arguing his point of view that Novgorod Velikiy was part of the Hanseatic League[4], in whose member cities the promissory note was used to transfer money when paying for transactions for the purchase and sale of goods, performance of works and provision of services, presumably starting from the XII century. Accepting money in one place, professional money changers, by writing letters called bills of exchange, entered into communication with their colleagues in other cities, and thus, the client could receive money at the place of destination he needed.

In the XV century, the promissory note began to be used to formalize a loan agreement. A significant obstacle to the use of a bill of exchange in trade (initially, the possibility of acquiring it existed only at fairs when making settlements between merchants) was soon overcome with the advent of an endorsement. In the XVI century, exchanges appeared - special premises for transactions between merchants, and a little earlier in Italy – banks as special organizations engaged in a number of transactions. However, the historian S.M. Barats, who is an adherent of the theory of the later formation of the Russian bill turnover, noted in his monograph that "ancient Russia stood outside the movement that gave rise to a bill"[5].

The formation and state regulation of the securities market began during the reign of Peter I. In Russia, bills of exchange began to be actively used after the publication of a number of decrees on the transfer of state money using bills of exchange for the maintenance of the Russian army abroad. In 1729, during the reign of Peter II, the Bill of Exchange Charter[6] was adopted, which was the first document in Russia that regulated in such detail the issues of the form and details of the bill, the rules for its compilation and circulation. In addition to trade relations, a promissory note has become actively used in civil circulation when processing debt obligations of individuals. In this regard, abuses with it became widespread, the most socially dangerous of which was embezzlement by fraud using a bill of exchange.

The following methods of bill fraud were known to pre-revolutionary criminal practice:

1. Issuance of unsecured promissory notes[7].

2. Making transfer inscriptions on bills with a defect[8].

3. Issuance of a bill by an unauthorized person.

4. Non-compliance with the form and details of the bill[9].

5. Admission to the accounting of bills drawn up and accounted for on behalf of fictitious persons or, although existing, but without their participation and knowledge.

6. Embezzlement of funds by an employee of a credit institution by drawing up forged bills for their relatives or trusted persons.

7. Forcing individuals to issue promissory notes under the influence of deception or abuse of trust:

7.1. under the pretext of signing documents for charitable purposes;

7.2. forced to conclude an unprofitable and illegal transaction;

7.3. selling property at obviously inflated prices (several times higher than the cost of a property);

7.4. forced to conclude a gift agreement ("friendly gift").

Such a method of fraud as the issuance of unsecured bills was widely used by criminals. Representing themselves as well-known in certain circles, wealthy citizens, or spreading false rumors about their recently received inheritance, a large win on the stock exchange or acquisition of property as a result of successful business activity, criminals issued bills of purchase for significant amounts or debt obligations. Having received money or goods from the bill holder, the scammers have disappeared. Subsequently, it turned out that information about the relationship with noble persons or possession of gold mines by criminals turned out to be false.

In a multi-volume criminal case, which received the title "Club of Jacks of Hearts" in the press, a number of episodes were considered by the court in which criminals used the mentioned above method of fraud. In particular, "spreading false information about the wealth of citizen Protopov, citizen Davydovsky made loans on his behalf, forcing him to issue non-monetary bills and then discounting them to different persons"[10].

The defendant Kalinin took a loan from the merchant Oldenburg, who gave him part of money, and received bills of exchange for the rest of the amount, allegedly written by proxy of the mother and two sisters of citizen Davydovsky in the Tula Civil Chamber, while such a state institution never existed. The defendant Dolgorukov introduced himself as the nephew of the Governor-General of Moscow and, without checking his solvency, purchased horses on unsecured bills in the amount of 4,500 rubles.

The defendants Erganyants and Massari misled a number of people about their well-being, having received 14,000 rubles under promissory notes. Erganyants reported that he was the executor of the wealthy Princess Levashova and would receive a significant amount of money on the sale of her estate, as well as that he was married to her ward, and part of the funds under the spiritual will of the princess should certainly go to him[11].

There have been cases of issuing promissory notes by an unauthorized person, in connection with which the regulatory legal acts provided for an exception to the general dispositive rule on allowing the issuance of promissory notes to all persons[12].

Non-compliance with the form and details of a bill as a method of fraud on securities market was widely used by criminals. Using credulity and inexperience of a bill holder, the fraudsters drew up a bill of exchange with a defect that made it insignificant. Having received goods or money from the bill holder, the guilty persons disappeared or refused to satisfy the creditor's claims on the bill within the specified period, indicating its defect.

Opportunities for abuse were created by the issuance of blank bills, i.e. bills in which a payer and a payer of the bill are designated (in a bill of exchange, since they coincide in a simple one). In cases where a security fell into the hands of intruders, it was enough to enter the name of the remitter into the bill and present it for payment, subsequently, the legality of ownership of the bill had to be defended in court.

With the legislative consolidation of the provisions on the establishment of credit institutions in Russia, a new way of fraud in the securities market has appeared - the theft of funds by an employee of a credit institution by drawing up forged bills for their relatives or trusted persons. Employees of credit institutions, using their official position, carried out certain banking operations in their personal interests that related to the functions of credit institutions and were related to the use of securities, in particular, accounting for bills and other term trading securities or obligations based on trade transactions, buying and selling securities at their own expense[13]. After performing these operations, the bank employee had to cover the shortage of funds of the credit institution, since significant funds were required to purchase securities. In this case, he executed the bank's obligations with the help of bills of exchange in the name of his relatives or close persons, acting as a bill collector, and subsequently transferred the debt on the bill to third parties.

In the case brought against Lyubarsky-Written E.P. on charges of abuse in the Yekaterinoslav Commercial Bank, it was established that Lyubarsky-Written E.P. purchased interest-bearing securities of the Hartman, Donetsk-Yuriev companies, after which, to cover the debt, he made forged bills in the name of his wife and withdrew 90,000 rubles from the bank for her shares. Responding to the arguments given by the prosecution during the judicial review of these cases regarding the prohibition of lending in his own bank to persons holding senior positions, the defendant justified the legality of his actions by the rule established in the Regulation of 04.29.1902 that in all bank charters approved before 1888, members of the management board can be credited without restriction. If the commission of the specified operation is prohibited, it must be liquidated within a year[14]. In the charter of the Commercial Bank, the ban on this operation was not fixed.

Coercion to issue bills by individuals under the influence of deception or abuse of trust was used by fraudsters in various forms, in particular, under the pretext of signing documents for charitable purposes, fraudsters urged the victim to sign bills with an obligation to pay a significant amount of money to the bill holder. Since promissory note is an abstract obligation, i.e. "detached" from its foundation, it did not specify the purpose of the promissory note obligation, and its holder could use the amounts of debt received at his discretion.

The trial of the case on charges of Abbess Mitrofanya of committing fraudulent actions - forgery of promissory notes by Medyntseva and Solodovnikov became widely publicized, since in the criminal practice of those years women rarely acted as an organizer and performer of fraud.

During the investigation, it was found that Abbess Mitrofanya forced Medyntseva "... to sign forms on sheets of paper, under the guise of submitting petitions to various persons for the removal of guardianship, who have now turned into debt obligations, according to Abbess Mitrofanya, for 50,000 rubles, but as it turned out in reality - for 300,000 rubles." The forms were lured out by the promise of assistance from famous people... "to remove custody from Medyntseva "... and debt obligations were entered in back datess when custody did not exist"[15]. In addition to these acts, the defendant was also charged with forgery of Mr. Solodovnikov's promissory notes. "The bills of his died brother, the manufactory adviser Mikhail Solodovnikov, issued in the name of the Serpukhov merchant of the 2nd guild Alexei Platonov Mikhalin..."[16], with whom the deceased had neither business nor friendly contacts, were received for collection. Abbess Mitrofania filed a lawsuit against the heirs of Mr. Solodovnikov to recover from them bills in the amount of 480 000 rubles.

Another form of coercion to issue promissory notes by individuals under the influence of deception or abuse of trust was coercion to conclude an unprofitable and illegal transaction. Criminals came into contact with a potential victim and tried to find her "weak points" (inexperience in contractual practice, a tendency to drink alcoholic beverages) in order to gain confidence and force the victim to write bills in their favor.

In one of the episodes of the "Club of Jacks of Hearts" case, the malefactors, having drugged the merchant K.F. Eremeev, who had a fortune of 150,000 rubles, fraudulently forced him to write out promissory notes for several tens of thousands of rubles. First, they "... offered to buy 8 horses under Yeremeyev's bill of 15,000 rubles, allegedly for a discount they took a bill for a large amount of money," while the merchant distributed dozens of ruble bills to the "company". Yeremeyev "... was given to sign a stamp paper, which he spoiled by 40 rubles," after which he wrote out 3 bills for 1500 rubles, another bill for 20 rubles, and even drew up an agreement with the members of the "company" on the method of satisfying bills[17].

A very common crime was commercial forgery of bills of exchange, despite the fact that the form, details of the bill, the rules for transactions with this security were sufficiently regulated by the Bill of Exchange Charter of 1729 [18].

During investigation against Berenson, Savitsky, Zhukov and Slonimsky on charges of forgery of bills of Count Shuvalov, it was found out that the defendants presented 5 forged bills of 50,000 rubles from the name of Count P.P. Shuvalov and a letter on the letterhead of the Count, whose signature was certified by a notary, for sale to private individuals. After checking the creditworthiness of Count Shuvalov, the bills were taken into account by creditors, the funds for them were paid to Berenson, and the demands for payment were presented to the Count[19].

It should be noted that the pre-revolutionary criminal practice was characterized by only partial forgery of bills of exchange, since the criminals did not have the necessary technical means to produce a forged document in its entirety. They made changes to the existing forms of securities. The following case from judicial practice is indicative:

In the case of Gulak-Artemovskaya and Bogdanov, who were accused of forgery of bills of exchange[20], it was established that in 1877, after the death of an honorary hereditary citizen N.A. Pastukhov, a sworn attorney came to his brother and presented 3 bills of 18,000 rubles each for payment. The appearance of the presented bills was motivated by the card loss of the late Gulak-Artemovsky, with whom he had friendly relations and repeatedly spent evenings together. However, after examining N.A. Pastukhov's personal documents, conducting an expert examination and conducting other investigative actions, it was found that the text on the bills and signatures were executed by various persons and had nothing to do with N.A. Pastukhov's signature.

Reacting to the widespread abuse of promissory notes, the legislator introduced in the XVII century special rules on criminal liability for committing fraud of this kind. Until the middle of the XVI century, fraud was not distinguished in regulatory legal acts as a separate crime corpus delicti, and the actions of persons guilty of committing theft of someone else's property in a fraudulent way were covered, first of all, by such a type of larceny as theft. In particular, M.F. Vladimirsky-Budanov notes in his monograph the existence of prohibitions on theft of other people's property, established in the treaties concluded between Russia and Byzantium in 911 [21]. I. Foynitsky, who wrote about the "roguish nature of property bargaining" in the reviewed period, mentioned the facts of fraudulent actions by merchants during the sale of goods in his work[22]. In Russian Pravda, fraud was also not particularly distinguished from theft, but the concept of theft ("tatba") was developed in more detail in this regulatory legal act[23].

The concept of "fraud" is found for the first time in the Judicial Code of 1550: "A fraudster is the same execution as Tatya" (thief) (Article 58)[24]. In subsequent articles, the legislator uses the term "omaschik", i.e. the one who commits fraud. Thus, deception as a way of stealing someone else's property began to stand out as a sign characterizing the composition of fraud.

In the Cathedral Code of 1648. criminal liability was established for the commission of fraudulent actions[25], and the following acts were distinguished from fraud: "invalid transactions to the detriment of third parties"; "taking excess interest"; "composition and subscription", i.e. the compilation of invalid acts. The Cathedral Code recognized as criminally punishable acts forgery of documents of a state nature (if there is a state interest or with participation of state authorities). Criminal liability was not specifically established for the commission of forgery of documents of a private-property nature. In this case, the rules on marriage, fraud and extortion were applied.

The Articles of Peter the Great did not establish responsibility for committing fraudulent actions, including with securities, and since the abuse of promissory notes became widespread, the actions of the perpetrators were qualified according to the Cathedral Code of 1649. In paragraph 5 of the Decree "On the court and penalties for theft of various kinds and on the establishment of workers' houses in all provinces" of April 3, 1781 [26], a legal definition of fraud was given, in which "deception" or "fiction" were singled out as ways of committing larceny by fraud, a guilty person "without will, without consent" of the proprietor "appropriates" the property belonging to him.

In volume XV of the Code of Laws of the Russian Empire of 1832, fraud was distinguished as an independent crime against property[27], the concept of larceny by fraud was disclosed in more detail in the Code of Criminal and Correctional Punishments of 1845 as "any theft of other people's things, money or other movable property by means of any deception"[28]. The legislator focused on the main sign of fraud - deception, and also stressed that only movable property can be the subject of theft. Theft of someone else's real estate by fraud was qualified as "appropriation through forgery and other kinds of deceptions of someone else's real estate"[29]. The Criminal Code of 1903 gave a similar legal definition of fraud[30].

In the middle of the XIX century, securities were actively used in the Russian civil turnover for registration of contractual relations, certification of obligations and for other purposes. The legislator determined the form of securities, their purpose, regulated the procedure for their issuance and circulation. The most common definition of securities used by lawyers of the pre-revolutionary period was "the obligation embodied in the document" (Verkoerperte Forderungsrechte)[31], thus, such a function of securities as the certification of binding legal relations was emphasized.

In order to structure the idea of the types of securities that were in commercial circulation and became the subject or mean of committing a crime, it is necessary to give their classification. The most common classifications of securities developed by lawyers of the XIX century are the following:

1. By content: related to property or obligation law.

2. According to the identity of a debtor:

state (tickets of state internal and external interest-bearing loans, state-continuously-profitable tickets, bank tickets, tickets of the state treasury, consolidated bonds of Russian railways, mortgage sheets of the state noble land bank, state certificates of the peasant land bank);

public (borrowed securities of City land administrations, shares, bonds);

private (check, promissory note).

3. According to the identity of a creditor: nominal, order (or by order) and nameless (or bearer)[32].

These classifications subsequently formed the basis of modern classifications of securities used in Russian jurisprudence. In pre-revolutionary practice, shares received wide circulation, in addition to bills of exchange. During the reign of Peter I, the rules for the creation and operation of joint–stock companies (hereinafter - JSC), whose capital consisted of shares called stocks[33], were fixed at the legislative level, but the first JSC "Russian Trading Company in Constantinople" was established much later in 1757.

In the XIX century, legislative activity in the field of regulation of joint-stock legal relations was actively developed. In accordance with the Manifesto "On the benefits granted to Merchants, differences, advantages and new ways to spread and strengthen trading enterprises" of 1807, three organizational and legal forms of legal entities were established: a faith-based partnership, a full partnership and a partnership of participants. The partnership of participants was a prototype of the modern JSC. Subsequently, the Manifesto was reworked into a separate chapter of the Trade Charter "On Trade Partnership".

Shares, as a general rule, were registered securities. When they were assigned from one person to another, it was necessary to inform the management board of the company and rewrite the shares in the name of the new owner. However, in some joint-stock companies, nameless shares circulated freely, which created the opportunity for abuse.

In 1836, the "Regulation on Companies on Shares" was adopted, which introduced new mandatory requirements to the charter of the Joint-Stock company, which were approved by the Ministry and were subject to official publication. The activity of JSC became widespread in the XIX century, and by 1913 the number of JSC was already about 2000 [34].

Bonds[35] and deposit (credit) tickets appeared in circulation in the XIX century, which was associated with the issuance of bank loans, and the need for government loans. Subsequently, the right to issue bonds was granted to legal entities. If the units provided a share of participation of partial partners in a limited partnership, stocks - a known share of participation of each member of the company (shareholder) in this company, then by issuing bonds, a legal entity made a loan that brought a certain income in the form of interest, announced in advance.

The owner of share or stock became a member of partnership or company, i.e. not only its creditor, but also participant in profits and losses, and the owner of bond was exclusively a creditor of a joint-stock company, receiving a certain percentage for the capital lent by him and not taking any part in its affairs[36]. In this regard, responsibility of legal entities issuing obligations increased, since they received citizens' money for a long period of time and had to responsibly approach the payment of income on bonds, through the issuance of which the loan was issued. Citizens, in turn, needed to be vigilant, to be interested in the business reputation of organizations in which they invested their funds, since fraud has become common in joint-stock companies.

It is possible to distinguish the following methods of committing theft by fraud with shares, used by criminals in pre-revolutionary Russia: sale of shares with omission or dissemination of false rumors about the pre-bankruptcy financial condition (solvency) of a legal entity, speculative term transactions on the rate of interest-bearing securities, the issue of unsecured shares, etc.

In the case of D.D. Schumacher's accusation of committing abuses in the Moscow Commercial Bank, the members of the bank's board, knowing about its financial collapse, did not take any action to liquidate it, motivating their inaction by the fact that the bank's charter did not specify specifically which body (management board, board or general meeting of shareholders) should carry out these procedures when reducing its investment capital below the minimum limits. Taking advantage of the flaw in the bank's regulatory acts, the members of the board committed a number of abuses, including speculation with securities, as a result of which the bank's depositors suffered damage in the amount of more than 5 million rubles. Issues of shares with silence about the actual financial condition of the bank were implemented on the stock exchange[37].

The sale of shares with silence or the spread of false rumors about the pre-bankruptcy financial condition (insolvency) of a legal entity could be committed by both representatives of this legal entity (persons acting on the basis of the charter or power of attorney) and professional participants in the securities market (in pre–revolutionary Russia - brokers). In particular, sale of shares without providing information about the negative financial situation of the bank through a broker under the fictitious names of the owner took place during the commission of abuses in a commercial loan bank in Moscow[38].

One of the most common ways of committing theft by fraud in the securities market was commission of speculative futures transactions on the exchange rate of interest - bearing securities and currency[39]. In the indictment in the case of the collapse of Commercial bank in Yekaterinoslavl, among the abuses committed by members of the Bank's management Board, "playing on the stock exchange at the expense of the bank itself to the detriment of its interests ... on behalf of figureheads" was indicated[40]. In the case under conditional name "Banking Epic", the trial of which was described by G.O. Rosenzweig, persons who held senior positions in the bank committed “games on the stock exchange with Russian and foreign currencies and interest-bearing securities”[41].

Since the middle of the XIX century, charters of organizations have gradually become means of circumventing existing legislation, since law enforcement practice often did not comply with the provisions of regulatory legal acts. In 1857, after a sharp decline in interest rates in state-owned banks, investors, wishing to preserve their income, began actively to invest in the purchase of shares of JSC. By investing in securities, individuals wanted to securely dispose of their property and receive a certain income from it. However, when investing money in enterprises that promised a sharp increase in interest on them, they had to be aware of the risk they were exposed to, since credit institutions with a reliable reputation could not offer quick income. Many organizations, having received significant funds from depositors and having paid them insignificant amounts of money, ceased to exist after a short period of time. As a result, hundreds of depositors suffered losses without receiving back either income or invested funds.

The issue of unsecured shares began actively to be carried out in the second half of the XIX century in the Russian Empire. M.G. Iontsev characterized the years 1857, 1864 and 1869 as a "boom of stock fraud"[42]. Organizations created to commit fraudulent manipulations with depositors' funds have became prototypes of modern "financial pyramids".

The conclusion of illegal invalid transactions, in particular when making speculative transactions with securities on the stock exchange, was considered as property fraud. In future, regulatory regulation in terms of criminal law protection of relations in the securities market was developed in the Criminal Code of 1903. According to the article 580, communication of deliberately false information to shareholders, which could cause harm, was recognized a criminal offense[43].

In pre-revolutionary Russia, securities had an exclusively documentary form, and therefore it was obvious that there was a need for comprehensive state control over the turnover of securities, especially bearer securities, because despite the accounting carried out by the competent authorities (the board of JSC on shares owned by investors, state commissions – on bonds and other government securities), abuses with bearer securities were widespread. The loss by the owner of a security of this type entailed the loss of the possibility of exercising the right to it.

By 1910, Russia had adopted regulatory legal acts on the comprehensive regulation of the activities of entities in the securities market, as well as the system of control and supervision bodies for implementation of legislation in this area. The Ministry of Finance, in addition to regulating the current activities of the stock exchange, carried out active legislative work[44]. In 1913, the institute of stockbrokers was reorganized, who began to be appointed not for life, but for 5 years, prohibitions were imposed on their purchases of securities at their own expense and restrictions on the rate of 0,5%. A special meeting under the Ministry of Finance, established in 1911 under the chairmanship of N.N. Pokrovsky to revise the regulations on the stock department of the St. Petersburg Stock Exchange, was actively functioning, after lively discussions, which put forward proposals for the reform of the stock exchange.

Thus, by 1914, a system of state bodies was organized in Russia to counteract abuses in the sphere of securities turnover, and effective rules for carrying out activities in this area were developed. Law enforcement agencies actively contributed to the investigation and disclosure of securities fraud. However, foreign policy events (Russia's participation in World War I) negatively affected the country's economy – implementation of government loans to cover the costs of industry and military defense led to significant increase in public debt and a sharp drop in the stock exchange rate on the domestic stock exchange.

In conclusion, it should be noted that the changing situation, including the state of regulatory legislation, had a significant impact on the choice of the method of criminal encroachment by fraudsters, since dispositive norms often did not fully regulate the rules for the issuance and circulation of certain types of securities, which can be traced when analyzing specific methods of committing crimes. In this regard, numerous changes were made to the criminal legislation, including the development of an official definition of "larceny by fraud".

The change in the political and state system in Russia as a result of the events of 1917 had an impact on all spheres of society, including the concept of economic development of the country. After 1917, the nationalization of joint-stock companies took place, the shares of which, nevertheless, were not canceled, the owners could dispose of them with the consent of local Councils, but in fact, during the period of War Communism, securities did not constitute an object of turnover on the territory of the USSR.

The decree of the Central Executive Committee of January 21, 1918 annulled all state domestic and foreign loans, as well as guarantees given by the tsarist and provisional governments on loans to enterprises and institutions. At the same time, however, debts to the state itself were not canceled, i.e. it was supposed to collect loans provided by the state through commercial banks secured by bonds[45]. The system of nameless securities, which received the most widespread in the civil circulation, was abolished (decree of April 19, 1918).

As A.M. Agarkov notes, "after transition to a new economic policy, the developed civil turnover and the law and order regulating it revived the institution of bearer securities and introduced it into the current Soviet law. However, until very recently it had a very limited meaning"[46]. In 1920, the People's Commissariat of Finance decided to issue in-kind loans, the first of which was issued for 10 million pounds of rye and was called the "first grain loan", whose bonds were bought for money, but the issue amount of the loan and the nominal value of the securities were expressed in pounds of rye. The owner of the bond had the right to receive an appropriate amount of natural product upon its repayment.

The resolution of the Central Executive Committee of May 22, 1922 "On basic private property shares" regulated the procedure for creating a joint-stock company. A more detailed consolidation of the issues of the establishment, activities and liquidation of the Joint-Stock Company was made in the Civil Code of the Russian Soviet Federative Socialist Republic (RSFSR) of 1922. The creation of a joint-stock company was allowed to all legally capable citizens, however, despite the presence of the above-mentioned dispositive norms, this procedure was strictly controlled by state authorities.

Joint-stock companies were established on the basis of the charter submitted by the founders through the Main Committee on Concessions and Joint Stock Companies for approval by the Labor and Defense Council (Article 323). The charter of the JSC had to strictly comply with the requirements set out in Article 324 of the Civil Code of the Russian Soviet Federative Socialist Republic (RSFSR). As a general rule, the shares were issued registered, if the company's charter did not provide for the issue of bearer shares.

By decree of October 13, 1922, it was prohibited to issue bearer securities without permission of the Сouncil of people's commissars of the Union of Soviet Socialist Republics (USSR). In subsequent legal practice, only government securities could have a similar form, which prevented the spread of abuses related to forgery and fraud with private bearer securities, but did not protect government securities from these abuses. In connection with development of the public credit system, first bank notes were put into circulation, and then other types of government securities, including short–term obligations of the Central Cash desk of the People's Commissariat of Finance, bonds of the housing and construction loan of the Moscow City Council and others. The resolution of the Central Executive Committee and the Council of People's Commissars of the USSR of January 16, 1925 allowed free circulation and trading of stock values, which, nevertheless, were subject to strict state regulation. Thus, during the Soviet period, practically only state securities were in circulation

During the New economic policy (NEP) period, the courts considered cases on charges of false cooperation and abuse of authority in share companies[47]. There were almost isolated cases of criminal prosecution for committing financial fraud, including with the use of securities. In the 20s of the XX century, a significant public response was received by the trial of the case of abuse in the Bazar-Karabulak agencies of the State Bank in connection with the significant amount of damage, as well as the number of perpetrators and victims. The law enforcement agencies of the Russian Soviet Federative Socialist Republic (RSFSR) suppressed the criminal activities of an organized group (42 defendants) accused of illegal lending, forgery of bills of exchange and committing a number of other crimes.

Having established a retail and semi-wholesale trade company headed by citizen Kholuisky, its participants began to be credited to the Kuznetsk Agency of the State Bank. When receiving promissory note and commodity loans, the defendants did not fill out questionnaires. The information about their property status was fictitious and was not verified. In the Bank, the amount of registered bills exceeded those repaid. Recalculations were made 5-7 days after the due dates of the promissory notes. Illegal lending stopped after the check up of documentation. However, after the protest of the bills at the notary, it was found that most of the bills issued on behalf of cooperative organizations and individuals were invalid. A network of cooperative and state organizations was also identified, which were figureheads acting in the interests of Kholuisky's trading company, among which were Saratov office "Dobroflot", Transport Company, Chaadaev Consumer Society and 9 other organizations, as well as a number of individuals[48].

In the Soviet criminal legislation, fraud as a criminally punishable act was first introduced by the decree of 05.05.1921 "On the restriction of the right to judicial sentences", but its concept was not disclosed in the specified normative act. In the Criminal Code of the RSFSR of 1922, fraud was defined as obtaining property or the right to property for a selfish purpose through abuse of trust or deception.

In addition to fraud, the Criminal Code of the RSFSR of 1922 established responsibility for committing other abuses with securities. In accordance with paragraph 85, forgery of state interest-bearing securities was recognized as a criminal offense if it was committed by prior agreement of several persons on the ongoing basis. Almost exclusively government securities were in circulation, and consequently, the commission of certain abuses with them was regarded as an encroachment on the economic stability of the state.

Despite the introduction of legislative prohibitions on the commission of larceny by fraud in the securities market in the 20s of the XX century, in practice there was virtually no judicial statistics on bringing perpetrators to criminal responsibility for the commission of the mentioned above crimes, since the issue and circulation of private securities were prohibited. Criminal cases initiated on charges of committing securities crimes were mostly fabricated, and in many cases innocent persons were brought to justice.

The Criminal Code of the RSFSR, adopted in 1926, did not actually amend the wording of the concept of fraud, defining it as abuse of trust or deception in order to obtain property or the right to it or other personal benefits (Article 169). The object of securities fraud were various types of securities, as well as the right to use property. Deception could be committed both in active (reporting false information) and passive (omission of facts that need to be reported) forms.

A stage in the development of legislation regulating the procedure for issuing and circulation of bills of exchange was the introduction of the Regulation on Promissory Notes and Bills of Exchange, approved by the Resolution of the Central Executive Committee and the Council of People's Commissars of the USSR on August 7, 1937 and in force to the present[49]. This provision was based on the Geneva Promissory Note Conventions of 1930 [50], adopted in more than 70 countries around the world.

The resolution of the Central Executive Committee and the Council of People's Commissars of the USSR of January 7, 1937 "On transactions with currency values and payments in foreign currency" established the exclusive right of the State Bank of the USSR to make transactions on the territory of the USSR with payment documents issued in foreign currency (bills, checks, transfers, etc.) and with foreign stock values (shares, bonds, coupons to them, etc.). The resolution specifically stipulated that individuals were prohibited to make any transactions with certain types of securities, including those listed above. These actions were qualified as a violation of the rules on currency transactions. The monopoly of the State Bank of the USSR on transactions with currency values was confirmed in its Charter of 1949, and subsequently in the Charter of 1960 [51].

In the 60s of the XX century, bills of exchange in the USSR were used only in external calculations. More than 90% of the total number of joint-stock companies were state-owned, the main goal for them was economic activity, not capital multiplication. The paradoxical nature of this phenomenon was noted by M.G. Iontsev, revealing its most amazing feature - comfortable existence of unprofitable enterprises in the Soviet Union[52]. Since the investment capital of most joint-stock companies belonged to the state (100% of the state shares of VAO Intourist, Ingosstrakh), the profit was distributed by the relevant departments.

In Soviet jurisprudence, securities were determined as "securities issued by the state (and for capitalist states and individual organizations and associations) certifying the right of their owner to receive money or other property, the possession of which is necessary for the exercise of the property right expressed in them"[53]. Securities acted both as means of payment and as documents securing the right of their owner to receive income (stocks, bonds, savings books).

V.G. Samoilov distinguished two groups of securities: payment documents and stock values. He referred to bills of exchange, cheques, transfers, payment orders and letters of credit as payment documents, and to stock securities - those securities that were issued in foreign currency and granted their holder the right to receive income (shares, bonds and coupons). The listed types of securities acted as currency values when making transactions.

Individuals have widely used such type of security as a check issued by the USSR State Bank in foreign currency. The check was a security containing the customer's order to the bank to pay a certain amount of money from the funds available in the bank from the person who issued the check[54]. The State Bank of the USSR also accepted cheques issued in freely convertible currency, issued by foreign banks, commercial transport organizations. External trade bank of the USSR issued personal traveler's checks, which were the subject of purchase and sale transactions with foreign banks[55].

In the 50-s of the XX century, crimes were committed in the USSR that violated the rules of circulation of currency values, including speculation with them. Criminals had an opportunity to organize illegal circulation of securities. The public danger of these acts was that the economic foundations of the state were being undermined, and the Soviet monetary system was being damaged. Illegal transactions with securities could lead to the fact that an illegal foreign exchange market developed in the USSR, i.e. a set of state-controlled transactions with securities made by private individuals. In turn, the price difference during the resale of securities could lead to spontaneous fluctuations in the economic situation and negatively affect the financial balance of the country.

During the Soviet period, there was a quasi-securities market, since the possibility of circulation of private securities issued by individuals and legal entities was practically declarative. In fact, in the 30-s of the XX century, the government securities market began to take shape, which functioned until the early 90s of the XX century. As a result of the analysis of the development of the securities market and criminal manifestations in the sphere of securities circulation in the pre-revolutionary and Soviet period of Russia's history, the following conclusion can be drawn.

Securities appeared in the civil circulation of Russia much earlier than the regulatory legal regulation of the protection of public relations in the sphere of their issue or circulation[56]. The changing situation, including the state of regulatory legislation, had a significant impact on the choice of the method of criminal encroachment by fraudsters, since dispositive norms often did not fully regulate the rules for issuance and circulation of certain types of securities, which can be revealed when analyzing specific ways of committing these crimes.

 

 

2. The current state of the securities market and the criminogenic situation in the sphere of securities circulation in Russia

 

In the late 80-s - early 90-s of the XX century, due to the beginning of political and economic reforms, a radical change in legislation was required, especially in the field of civil, financial, commercial, and tax law. However, the process of legal regulation, as usual, lagged significantly behind the changes in the economy and socio-political life of the country. In this regard, for a long time there was no detailed regulatory framework regulating legal relations in the field of securities circulation.

In the scientific community, there are different points of view regarding the periodization of the formation of the securities market in the Russian Federation. In particular, N.S. Rebchenko suggests considering three stages: Stage I: 1991-1994, stage II: 1995-1997, stage III: 1998- present. A number of scientists note the following factors that determined development of the Russian market at the first stage:

1) large-scale privatization and the associated issue and circulation of shares of privatized enterprises;

2) development of the practice of financing the deficits of the federal budget and the budgets of the constituent entities of the Russian Federation through the issuance of securities, as well as the restructuring of internal foreign currency debt based on the issuance of securities;

3) crisis of non-payments and appearance of specific financial instruments (treasury obligations, tax exemptions and promissory notes) due to the shortage of financial resources in circulation

4) issuance of securities and their surrogates by new commercial entities, including unlicensed financial companies;

5) gradual opening of access to international capital markets for securities issued in the Russian Federation[57].

At this stage, the regulation of the securities market was carried out on the basis of subordinate regulatory legal acts of the executive authorities of the Russian Federation[58], there were gaps in the legislation regarding many issues of the activity of subjects of economic legal relations.

Against the background of privatization of State property and issuance of unsecured securities by private organizations, significant abuses were committed, especially theft by fraud in securities market. The most common method of fraud was organization of a "financial pyramid". A.V. Belyanin and O.G. Isupova described it as "a private company that attracts deposits from individuals, promising incredibly high interest rates, many times exceeding market rates; for some time the company maintains its reputation and pays its own funds, but then turns out to be bankrupt"[59].

In Russia, embezzlement by fraud under the scheme of a "financial pyramid" began to be committed in 1993 - 1994. Securities or their surrogates were used as a financial instrument, to which the principle of self-quoting was applied, i.e. artificial creation of the effect of liquidity of securities. A classic example of a pyramid was JSC "MMM", which sold its own shares and bought them back, and the price was artificially increased by the company all the time, which created an incentive to invest. Payments to depositors were made at the expense of newly attracted persons.

Subsequently, JSC "MMM" expanded the range of its operations – not only shares were issued, but also "MMM" tickets, "MMM" certificates, like tranches of government securities. Surrogates of securities of JSC "MMM" took a leading position on the stock market in Russia, in some months they accounted for more than two-thirds of the exchange turnover. The struggle of state bodies with the circulation of "MMM" tickets has been unsuccessful for a long time, and when, finally, the Federal Commission on Securities Market of the Russian Federation officially recognized "MMM" tickets and certificates that do not have the legal regime of securities, the surrogates of securities issued by "MMM" ceased to be quoted on stock exchanges, in credit institutions.

Along with "MMM", such large fraudulent structures as JSC "Hopper-Invest", JSC "Russian House of Selenga" and others operated in Russia. Many of them did not have a license required to issue securities[60]. In 1994, the damage from fraud in the private investment market amounted to more than 454 billion rubles and 13.5 million dollars, the number of defrauded depositors – 430000 people. According to the data of the State Committee for Property Management of the Russian Federation, as of June 1994, 7 companies were identified whose management stole the privatization checks of their depositors, as a result of which criminal cases were initiated against the heads of these companies[61].

Despite significant abuses committed during issuance of securities and process of their circulation, the foundations of the securities market began to form in Russia by 1995. In 1995, the number of fraudulent structures decreased to 24, and the amount of stolen - to 32 billion rubles, and already in 1996, no major fraud was registered[62].

The Decree of the President of the Russian Federation "On approval of the concept of development of securities market in the Russian Federation"[63] laid down the main directions of development of securities market in Russia. A special state regulatory body in this area was created – the Federal Commission for Securities Market in the Russian Federation[64], which in order to ensure control over the legality of the activities of securities market entities carried out a number of measures, including licensing of professional participants in securities market in 1997.

During the reviewed period the main regulatory legal acts regulating the activities of stock market entities were adopted, including the Civil Code of the Russian Federation[65], federal laws "On the Securities Market"[66] dated 22.04.1996 No. 39–FZ, "On Joint Stock Companies"[67] dated 26.12.1995 No. 208-FZ, "On Promissory Notes and Bills of Exchange"[68] dated 11.03.1997 No. 48-FZ, other laws, as well as acts of the Ministry of Finance of the Russian Federation, the Central Bank of the Russian Federation and other federal executive authorities specifying the provisions, laid down in the listed laws. Nevertheless, some issues regarding the activities of securities market participants have not found their legislative consolidation in these regulatory legal acts, and certain legal norms contained provisions that were used by many persons to abuse the rights of other entities.

In particular, the Law on Joint-Stock Companies adopted in 1995, by introducing a rule on the consolidation of shares[69], created an opportunity for abuse by the owners of a controlling stake. As a result of the consolidation of shares, that is, the issue of one with a large nominal value instead of a certain number of shares, minority shareholders became owners of fractional shares that were subject to redemption by the company.

This rule has become widely used by shareholders who decided to gain absolute control over the company, displacing minority shareholders from it who had no intention of leaving it. Since January 1, 2002, after the entry into force of the amendment to this provision of the Law, the negative practice of ousting owners of a small number of shares has been suppressed[70].

Noting the active development of investment process in the Russian economy, N.S. Rabchenko provides the following data: "By the end of 1997, the market capitalization was equal to nearly 1.2 trillion rubles, according to the International Finance Corporation, the Russian market was recognized as the most profitable emerging market 1997"[71].

Criminals began to use bills of exchange in transactions with natural and legal entities. The types of deception used by the subjects of crimes are very diverse and are constantly being modified depending on changes in legislation, the situation of fraud, however, as noted by V.A. Gamza and I.B. Tkachuk, "... the basic scheme of their commission remains unchanged. The fraudster assumes a certain obligation, which he does not intend to fulfill, commits a false deed, receives money, other property or the right to it (a bill of exchange) in payment for the obligation (false deed), turns the property in his favor, and then evades fulfilling his part of the obligations, using various tricks»[72].

The third stage of development of securities market in the Russian Federation was marked by a financial crisis on the world market, and as a consequence - the crisis in Russia in 1998, which worsened the situation on domestic stock market. The implementation of loans at high prices and for a short period of time caused a rapid increase in internal public debt, which caused an increase in the cost of servicing it. The amount of funds needed to repay previously issued debt securities began to exceed budget revenues. Due to deterioration of the solvency of the Russian Federation and political crisis, foreign investors began to withdraw their assets from the market of Russian state and corporate securities, as a result of which their exchange rate fell.

In 1998, the Ministry of Finance of the Russian Federation canceled auctions for the placement of government bonds. The Government of the Russian Federation has offered owners of short-term bonds to convert them into medium-term or long-term with a maturity in 7 and 20 years. Due to reduction of foreign exchange reserves of the Central Bank of the Russian Federation, devaluation of the ruble became an inevitable solution. Significant losses as a result of the crisis were incurred by professional participants of securities market who had investments in government securities.

At the same time, financial crisis contributed to the unification of professional participants in securities market into self-regulating organizations and consolidation of specialized registrars. The events that took place for a long time undermined the confidence of individuals in investing in securities. It was necessary to develop a mechanism for protecting the rights of investors in securities market, in connection with which new laws were adopted and amendments were made to the existing ones[73]. Gradually, the securities market began to take form in Russia, the organization of a system of state bodies in the field of control over the turnover of securities, the activities of professional participants in securities market began.

The analysis of the situation in which social relations are formed in securities market in the Russian Federation is of particular importance for our research, since it has a direct impact on the possibility of committing criminal encroachments in the sphere of the mentioned legal relations.

The securities market consists of three segments, including legal relations: (1) when issuing securities; (2) in case of primary alienation of equity securities and other types of securities ("primary securities market"), (3) secondary placement of securities with the involvement of professional intermediaries ("secondary securities market")[74]. The current legislation provides for standards for the functioning of all three segments of securities market, with certain features inherent in certain types of securities.

From the point of view of the "life cycle" of a security, it is possible to distinguish primary and secondary securities markets. The primary market covers the initial sale of securities issues, as a result of which the issuer receives the necessary financial resources, and the investor receives an object for investing his funds. The secondary market covers the sphere of resale of securities. Transactions carried out on the primary securities market are covered by the concept of “placement of securities”, and on the secondary market – “their circulation”.

The issue procedure is carried out exclusively by issue-grade securities, which are characterized simultaneously by the following features: secures a set of property and non-property rights subject to certification, assignment and unconditional exercise in compliance with the form and procedure established by law; is placed by issues; has equal scope and timing of rights within one issue, regardless of the time of acquisition of security.

Issue-grade securities undergo an issue procedure, which is a sequence of actions of the issuer for the placement of issue-grade securities, the stages of which are set out in the Article 19 of the Law on the Securities Market and Standards for the Issue of Securities[75]:

1. Making a decision on the placement of issue-grade securities;

2. Approval of the decision on the issue (additional issue) of equity securities;

3. State registration of the issue (additional issue) of equity securities;

4. Placement of equity securities;

5. State registration of the report on the results of the issue (additional issue) of equity securities.

The second segment of the securities market includes legal relations arising from the primary alienation of all types of securities (the "secondary market"). The main regulatory legal acts regulating the general issues of the functioning of the "secondary securities market" are the Civil Code of the Russian Federation (Chapter 7 "Securities"), the Law "On the Securities Market" - in relation to equity securities, as well as other laws and subordinate regulatory legal acts.

The third segment of the securities market covers the specifics of the creation and activities of professional participants in the securities market. The Law "On the Securities Market" provides for seven types of activities of professional participants in the securities market: brokerage, dealer, securities management, clearing, depository, activities for maintaining a register of securities owners, activities for organizing trading in the securities market. For each type of activity, both separate laws[76] and subordinate regulatory legal acts have been adopted, regulating in more detail the procedure for the creation and activities of professional participants in the securities market[77].

Larcenies by fraud with the use of securities are actually committed in the second and third segments of the functioning of securities market, i.e. during the sale of securities.

The procedure for changing the owners of an organization may not entail a change in its sphere of activity[78], but may lead to a re-profiling of production, a reduction in the number of employees and other adverse changes associated with the deterioration of the situation of the organization's employees and (or) shareholders[79]. This process may take an illegal form – the so-called "corporate (forceful) seizure"[80], which can be carried out both during the ordinary sale of the property complex of a business company, and during the reorganization of a legal entity. They have a high degree of public danger due to the fact that they cause significant damage to the owners of shares[81], lead to reduction in the real sector of the economy, and are often accompanied by the physical elimination of competitors.

The scientific community discussed the need to introduce a separate article in a special part of the Criminal Code of the Russian Federation, establishing responsibility for illegal seizure of property or a special qualifying feature in separate articles of the Criminal Code of the Russian Federation[82]. However, the legislator chose the third option – to criminalize the most common methods of illegal seizure of property by introducing new articles into the Criminal Code of the Russian Federation. Most often, illegal seizures were qualified as theft of someone else's property by deception or abuse of trust (fraud - Article 159 of the Criminal Code of the Russian Federation), abuse of official position in a commercial organization (Article 201 of the Criminal Code of the Russian Federation), arbitrariness (Article 330 of the Criminal Code of the Russian Federation) and other articles of the Criminal Code of the Russian Federation, depending on the actions actually committed[83]. Subsequently, Federal Law No. 147-FZ of 01.07.2010 introduced Articles 170-1 (falsification of the unified state register of legal entities, the register of securities owners or depository accounting system), 185-4 (obstruction or illegal restriction of the rights of securities owners), 185-5 (falsification of the decision of the general meeting of shareholders (participants) of a business company or the decision of the board of directors (supervisory board) of a business company) into the Criminal Code of the Russian Federation.

In the course of the analysis of the activities of the subjects of "corporate seizures", three main ways of their implementation were identified: 1) "seizure of an organization" through the purchase of shares by illegal methods (corporate blackmail)[84]; 2) "seizure of an organization" in the course of its bankruptcy procedure (illegal alienation of assets at a reduced price); 3) "forcible seizure" - by forging constituent and other title documents, their submission to various state bodies (court, tax inspectorate, state bureau of registration of rights to immovable property and transactions with it), the actual (forcible) seizure of organization with the involvement of employees of private security companies.

"Corporate" seizure can be defined as the larceny of assets of an enterprise committed fraudulently in order to make a profit of a business company and the opportunity to influence actively its decision-making or for the purpose of subsequent withdrawal of assets of the business company. The term "corporate takeover" is often used as a synonym for the term "raiding". A raider[85] as a person specializing in organization and implementation of "corporate seizures", for whom this type of activity has become a criminal trade, is one of the potential subjects of "corporate seizure". Thus, raiding can be defined as a criminal activity for the organization and implementation of corporate seizures. Since 2007, the investigative bodies of the Russian Federation began to keep statistics separately on crimes characterized as "raider seizure of organizations", and such acts began to include:

1) any embezzlement of stocks or shares in the authorized capitals of legal entities for the purpose of changing executive bodies, illegal alienation of assets, or other unlawful disposal of the company's property;

2) illegal or intentional bankruptcies, as well as abuses in the course of bankruptcy committed in order to establish control over the property of the enterprise (state unitary enterprises, municipal unitary enterprises);

3) facts of submitting fictitious documents about participants and executive bodies of legal entities, as well as real estate, for registration with state bodies;

4) abuse in the issue of securities;

5) any violent actions used in the course of corporate conflicts to invade the protected territory of enterprises of any form of ownership related to damage or destruction of property, causing physical or moral harm[86].

However, after 2010, the number of corporate seizures of organizations decreased significantly compared to 2000 - 2008 after the suppression of the criminal activities of organized criminal groups in Moscow, St. Petersburg, Great Novgorod and other cities of the Russian Federation.

Another type of securities fraud is manipulation of prices on the stock exchange. The legislator has established a ban on committing such manipulations, as well as on forcing the purchase or sale of securities by providing intentionally distorted information about securities, issuers of equity securities, prices of securities, including information presented in advertising[87]. Article 185-3 of the Criminal Code of the Russian Federation criminalized manipulation in the securities market, defining it as intentional dissemination through mass media, including electronic, information and telecommunication networks (including the Internet), knowingly false information or transactions with financial instruments, foreign currency and (or) goods, or other intentional actions prohibited by the legislation of the Russian Federation on countering the misuse of insider information and market manipulation, if as a result of such illegal actions, the price, demand, supply or amount of trading in financial instruments, foreign currency and (or) goods deviated from the level or were maintained at a level significantly different from the level that would have been formed without taking into account the mentioned above illegal actions, and such actions caused major damage to citizens, organizations or a state or are associated with the extraction of excess income or avoiding large-scale losses. There is no practice of bringing to justice for the commission of the mentioned crime, since it is difficult to determine all the circumstances to be established in cases of price manipulation, as well as to collect the necessary evidence[88].

Due to the digitalization of legal relations, the effect of restrictive measures to counter COVID-19 during the pandemic, there has been a significant increase in crimes in the field of information and communication technologies[89]. Fraudulent schemes using smartphones, Internet resources, as well as financial pyramids have once again become widely used on the territory of the Russian Federation. Victims of such crimes are not only pensioners, but also a wide range of citizens. So, in July 2021, the organizers of the Finico financial pyramid in Kazan were detained, who are accused of committing fraudulent acts[90]. They attracted victims' money to invest non-existent activities and even created a new "currency" - dates. Problematic aspects of countering fraud using Internet technologies are: 1) remoteness of criminals and victims, who in many cases are not only in different subjects of the Russian Federation, but also in different countries. As a consequence of this circumstance, difficulties in production of investigative and other procedural actions in the execution of requests for legal assistance in criminal cases – the absence of bilateral and multilateral treaties and political tension between individual states. 2) completeness of the establishment of the circumstances included in the obbject of proof (Article 73 of the Code of Criminal Procedure of the Russian Federation), in particular, the place of commission of crime and the "binding" of the guilty person to it. Accused, as a rule, put forward a version about the use of their gadgets by other persons, whether they are cellmates in places of detention or acquaintances at their place of residence or work. 3) interaction of investigative bodies with other state bodies, credit organizations, mobile operators to assist in production of investigative and other procedural actions, development and introduction of a set of measures to prevent the mentioned above crimes (prohibition of the use of SIM cards with floating numbers, restrictions on the number of SIM cards registered for one person, blocking suspicious financial transactions (for a large amount of money and not characteristic of the client), etc.

In 2012 – 2016, amendments were made to the Criminal Code of the Russian Federation regarding the differentiation of types of fraudulent actions and a number of special norms were introduced, in particular, Part 5 of Article 159 (fraud involving intentional non–fulfillment of contractual obligations in the field of entrepreneurial activity, if this act caused significant damage), Articles 159.1 - 159.6. In this context, articles 159.3 (fraud using electronic means of payment) and 159.6 (fraud in the field of computer information, that is, theft of someone else's property or acquisition of the right to someone else's property by entering, deleting, blocking modification of computer information or other interference in the functioning of storage, processing or transmission of computer information or information and telecommunication networks). At the same time, in 2018, criminal liability was established for the commission of qualified theft - paragraph "d" of Article 158 of the Criminal Code of the Russian Federation - theft from a bank account, as well as in relation to electronic money (in the absence of signs of a crime provided for in Article 159.3 of the Criminal Code of the Russian Federation) . Explanations on the differentiation of these elements of crimes are given in paragraph 25.1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 27.12.2002 No. 29 "On judicial practice in cases of theft, plunder and robbery" (ed. from 06.29.2021)[91].

As a result of the analysis of formation and development of the securities market, as well as criminal manifestations in this area in modern Russia, the following conclusions can be drawn: 1. With transition to a market economy in Russia in the 90s, a new regulatory framework regulating the functioning of securities market was developed. Many legal institutions were borrowed from pre-revolutionary and foreign practice. At the same time, some normative legal acts adopted in the USSR continued to operate for a certain period, and some of them are an integral part of Russian legislation at the present time. The legislator has settled the general issues of the functioning of the segments of securities market in the Russian Federation, however, the legislation regulating the procedure for the issuance and circulation of securities is in the process of formation. Changes are constantly being made to legal norms that create conflicts on the issues under consideration, as a rule, after the negative practice of their use in the commission of abuses, including criminal ones. The legislator took the path of criminalizing the most common ways of abuse in the sphere of securities circulation and corporate legal relations. New criminal law norms were also introduced, establishing liability for fraud, including with the use of securities, and differentiated depending on the method of commission, a certain sphere of legal relations where crimes were committed, and according to other criteria.

2. After introduction of securities into circulation in the 90s of the XX century, new ways of committing larceny by fraud with their use appeared. The absence of a detailed regulatory framework regulating the securities market for a long period of time, low efficiency of supervisory, control and law enforcement agencies, introduction of securities into circulation among the population, with which most citizens did not know how to handle, due to lack of experience and special knowledge, had a significant impact on the criminal situation in the country.

3. Scientific and technological progress, expressed in digitalization of legal relations, transition mainly to electronic, including remote, calculations, widespread use of smartphones, tablets and other gadgets by the population, led to the introduction into criminal practice of new methods of fraud in the field of information and communication technologies, counteraction of which has a number of legal, organizational and technical features.

 

 

Abstract

 

This is the first chapter of the monograph dedicated to the problems of investigation of securities fraud. It examines historical aspects of the development of the securities market in Russia and abuses in this area with an analysis of examples from forensic practice and scientific points of view. The chapter consists of two paragraphs devoted to the Pre-revolutionary and Soviet historical periods, as well as the current state of the securities market and the crime situation in this sphere.

 

Keywords: criminalistics, investigation, fraud, security, securities market.

 



[1] Yani S.A. noted that "... in order to improve and effectively use the existing criminal legislation in order to strengthen the fight against fraud, the entire history of development of criminal law fight against this type of crime should be carefully analyzed". // Yani S.A. Fraud investigation. Abstract dis. … cand. legal sciences. Moscow, 1967. P. 2.

[2] Nersesov N.O. cites in his monograph a case that occurred at the end of the 14th century, when the Grand Duke, sending his envoys to Constantinople, gave them white charters with an attached grand ducal seal, in order to write bondage on them if necessary, thanks to which they had the opportunity to make loans from foreign merchants. // Nersesov N.O. Selected works on representation and securities in civil law. Moscow, 2000. P. 191.

[3] Ital. lettera di cambio, Ger. Wechsel, Wechsel-Brieff, French – lettere de change, Eng. - note, bill of exchange; in translation - change, alternation // Tikhomirova L.V., Tikhomirov M.Yu. Legal Encyclopedia. Ed. 5th, add. and reworked. / Ed. M.Yu. Tikhomirov. Moscow, 2001. P. 115.

[4] Tabashnikov I. Past of bills. Historical and legal research. Odessa, 1971. P. 61.

[5] Barats S.M. Bill of exchange course. SPb., 1893. P. 670.

[6] Bill charter. – M.: Pech. At the Senate, June 23, 1729. // Cited. Quoted from: Russian legislation of the 10th – 20th centuries. In 9 volumes. T. 5. Legislation during the heyday of absolutism. - Moscow, 1987. P. 421 - 458.

[7] The issuance of unsecured bills was one of the ways of committing abuses in the Kronstadt Commercial Bank // Process of the Kronstadt Commercial Bank. Speech of the Prince A.I. Urusov, parting word to the jury A.M. Kuzminsky and the conclusion of the chief prosecutor N.A. Neklyudov // Judicial dramas. Book. 8. Moscow, 1903. P. 73-74.

[8] Deliberately defective making of endorsements on promissory notes under the influence of coercion or deceit was a way of committing a crime under Articles 59, 1666, 1671 of the Penal Code.

[9] .P. Tsitovich noted that "... only a bill of exchange formally correct, in the fullness of its meanings in general, suitable for making a protest against it in non-payment" can be presented for payment. // Tsitovich P.P. Proceedings on commercial and bill of exchange law. In 2 vols. T. 2. Course of bill of exchange law. M., 2005. P. 283-284.

[10] Protocol of the meeting of the Moscow District Court in the case of the "Jacks of Hearts Club". PP. 6-7.

[11] The same source. PP. 36, 41, 59, 61, 66.

[12] In accordance with the Bill of Exchange Charter of 1729 all persons who, by law, were allowed to enter into debt obligations, could be bound by bills, both simple and transferable, however, by decrees of the emperor of August 31, 1752, of July 15, 1761, they were excluded from the circle of persons who could act in as drawers: persons of the clergy of all faiths; peasants who do not have immovable property, if they have not taken trade certificates; married women without consent of their husbands; girls who are not separated from their parents, if they do not independently conduct trading activities. // Russian legislation of the X - XX centuries. In 9 volumes. T. 5. Legislation during the heyday of absolutism. - Moscow, 1987. P. 480 - 481.

[13] Kavelin K.D. Selected works on civil law. M., 2003. P. 486.

[14] The speech of the real State Councilor Lyubarsky-Pismenny E.P., spoken by him in his defense in the case of abuses in the Yekaterinoslav Commercial Bank. M., 1904. P.3.

[15] Indictment in the case of the Head of the Moscow Diocesan Empress of the Intercession Community of the Sisters of Mercy and the Serpukhov Monastery, Abbess Mitrofania, and other accused of various crimes. I. The case of Medyntseva. P.3.

[16] The same source.

[17] Protocol of the meeting of the Moscow District Court in the case of the "Jacks of Hearts Club". M., 1877. P. 3-4.

[18] Bill charter. – M.: Printed at the Senate, June 23, 1729. P. 1 - 23. // Cited. Quoted from: Russian legislation of the 10th – 20th centuries. In 9 volumes. T. 5. Legislation during the heyday of absolutism. - M., 1987. P. 421 - 458.

[19] Protocol of the court session on the charge of Berezovsky, Slonimsky and others in the forgery of Count Shuvalov's bills. M., 1904. P. 2 - 4.

[20] Speech by Prince I. Urusov on the case of Gulag-Artemovskaya at a meeting of St. Petersburg District Court from October 20 to 23, 1979 // Judicial dramas. 1902. Vol. 15. Book. 11. P. 3 - 5.

[21] Vladimirsky-Budanov M.F. Review of the history of Russian law. Rostov-n / D, 1995. P. 308 -310.

[22] Foinitsky I. Fraud under Russian law. Comparative study. SPb., 1871. P. 9.

[23] Reader on the history of the internal state and law. M., 1987. P. 13 - 19.

[24] The same source. P.42.

[25] Chapter XXI article 11 of the Cathedral Code // Russian legislation of the X - XX centuries. M., 1985. Vol. 2. P. 243 - 246.

[26] Complete collection of laws of the Russian Empire. Collection 1. Vol. XXI. No. 15147.

[27] Code of Laws of the Russian Empire. Vol. XV. SPb., 1832.

[28] Code of Laws of the Russian Empire. Vol. XVI. SPb., 1887.

[29] Code of Laws of the Russian Empire. Vol. XVI. SPb., 1887.

[30] Criminal Code of 1903. SPb., 1903.

[31] Nersesov N.O. Selected works on representation and securities in civil law. M., 2000. P. 139.

[32] The same source. 142 - 146.

[33] A share as a type of security appeared in Russian legislation from the German law (from Latin actio - action, order; German - die Aktie; in English share, American version - stock) // Tikhomirova L.V., Tikhomirov M.Yu. Legal Encyclopedia. P. 34. The introduction of shares into circulation was enshrined in Decrees of October 27, 1699, October 27, 1706, March 2, 1711 and November 8, 1723 // Complete collection of laws of the Russian Empire. Vol. 3. No. 1706. Vol.7. No. 4348.

[34] Iontsev M.G. Joint stock companies: Legal bases. property relations. Management and control. Protecting the rights of shareholders. M., 2002. P.9.

[35] Bond (inscription) - from lat. obligatio - obligation; English - finance bond, obligation; German – die Obligation // Tikhomirova L.V., Tikhomirov M.Yu. Legal Encyclopedia. P. 557.

[36] Kavelin K.D. Selected works on civil law. M., 2003. P. 494.

[37] Speech of sworn attorney V.D. Spasovich, delivered in defense of D.D. Schumacher at the meeting of the Criminal Cassation Department on April 10, 1877 in the case of the Moscow Commercial Loan Bank. M., 1977. P. 3-11.

[38] Copies of decisions and protocols in the case of abuses in a commercial loan bank in Moscow, produced by investigator of the Moscow District Court for the investigation of particularly important cases Globo-Mikhalinsky. M., 1875 - 76. P. 17 - 20.

[39] Note by V.A. Svishchov in the case of abuses in the Commission Bank. SPb., 1897.

[40] Snegirev L.F. Yekaterinoslav process. With preface of A.M. Palkhovsky // Judicial dramas. 1905. XV-XVI.

[41] Rozentsweig G.O. From the courtroom. Judicial essays and pictures. SPb., 1900. P. 278.

[42] Iontsev M.G. Joint stock companies: Legal bases. property relations. Management and control. Protecting the rights of shareholders. M., 2002.

[43] It could consist in the following actions: “...in placing deliberately false information about the state of affairs or accounts in a publication, report, balance sheet or trading book; in providing a knowingly incorrect calculation for the calculation and for the issuance of a dividend; in the issuance of bonds or mortgage accounts that are not secured by a deposit in accordance with the charter; in the issue of bonds or other securities in an amount exceeding this permission. // Criminal code of 1903. SPb., 1903. Art. 580.

[44] Improvement of the quotation rules was reflected in the “Instructions for the Quotation Commission at the Stock Department of the St. Petersburg Stock Exchange”, approved by the Ministry of Finance, which supervised the activities of brokers; Saint-Petersburg Stock Exchange", in 1912 - "Rules for the delivery to the quotation commission by brokers and other full members of the stock department at the St. Petersburg Stock Exchange of the data necessary for compiling quotations." // Shabalin A.O. Development of the Russian securities market in the XX century. - M., 2001. P. 29 - 34.

[45] The same source. P. 70.

[46] Agarkov M.M. Selected works on civil law. In 2 volumes. Vol.1. M., 2002. P. 106.

[47] Trial of embezzlers and false cooperators. Agitation-staging by A.A. Vlasov. M., 1928.

[48] Klebansky M., Milov V., Paperny S. The trial of the authorized cooperative. M., 1927. Indictment in case No. 15 on abuses in the Bazarno-Karabulak agencies of the State Bank. Saratov, 1926.

[49] Regulations on a promissory note and a bill of exchange No. 104/1341 of 08/07/1937, approved by Decree of the Central Executive Committee and Council of People's Commissars of the USSR // Code of Laws of the USSR. 1937. No. 52. Art. 221.

[50] On the Uniform Law on Transferable and Promissory Notes: Convention No. 358 of 07.06.1930 (entered into force for the USSR on November 25, 1936) // SZ USSR. 1937. Section II. No. 18. Art. 108. On the resolution of certain conflicts of legislation on bills of exchange and promissory notes: Convention No. 359 of 07.06.1930. (entered into force for the USSR on November 25, 1936) // SZ USSR. 1937. Section II. No. 18. Art. 109. On stamp duty in respect of promissory notes and bills of exchange: Convention No. 360 of 07.06.1930 (entered into force for the USSR on February 23, 1937) // SZ USSR. 1937. Section II. No. 18. Art. 110.

[51] SP USSR. 1960. No. 18. Art. 160.

[52] Iontsev M.G. Joint stock companies: Legal bases. property relations. Management and control. Protecting the rights of shareholders. M., 2002. P.10.

[53] Samoilov V.G. Responsibility for crimes infringing on the foreign exchange interests of the Soviet state. Volgograd, 1976. P. 16.

[54] Instruction of the State Bank of the USSR dated 12/15/1961. No. 1008.

[55] There were also checks of a special type in circulation - cut-off checks of Vneshtorgbank of series "A" and series "D". The value of series "A" checks was indicated in rubles and they were issued to Soviet citizens - members of the crews of Soviet ships of foreign navigation at their request in exchange for foreign currency due to the daily allowance for the flight for the purchase of goods and products in specialized stores of Torgmortrans. Checks of the "D" series were intended for foreign citizens in exchange for foreign currency for sale in specialized stores of Vneshposyltorg and Beryozka. They could be exchanged for foreign currency or traveler's checks of the State Bank of the USSR in foreign currency and were treated as currency values, being a means of payment. // Instructions on the procedure for the sale of industrial and food products to Soviet sailors abroad in foreign currency, approved on 27.08.1963 by the Ministry of the Navy of the USSR and the State Bank of the USSR.

[56] A.V. Bondar, O.V. Starkov and I.V. Uporov, who analyzed larceny by fraud in the banking sector, a significant sector of which is the securities market, noted in their monograph: “This situation fits perfectly into the logic of the legislative regulation of public relations: first, banks appear as independent financial and credit institutions, then criminally inclined persons try to steal other people's property in this area by deceit or abuse of trust, and only then the state, reacting to this negative phenomenon, establishes appropriate prohibitions” // Bondar A.V., Starkov O.V., Uporov I.V. Fraud as a type of criminal encroachment against property and features of its manifestation in the field of banking / Ed. Ed. O.V. Starkov. Syktyvkar, 2003. P. 14.

[57] Rebchenko N.S. Securities market and its formation in Russia: a study guide. SPb., 2000. P.6. Bolotsky B.S., Gilmutdinov A.R., Larintsev V.D. Counterfeit money (counterfeiting). M., 2002. P. 39.

[58] On approval of the Regulations on the issue and circulation of securities and stock exchanges in the RSFSR: Decree of the Government of the RSFSR No. 78 of 12/28/1991. // Financial newspaper. 1992. No. 5. (lost force on the basis of the Decree of the Government of the Russian Federation “On recognizing as invalid some Decrees of the Government of the Russian Federation on the regulation of the securities market and protecting the rights of investors” dated 12/17/1999 No. 1402. // Collection of legislation of the Russian Federation. 1999. No. 52. Article 6399). On approval of the Regulations on joint-stock companies: Decree of the Council of Ministers of the RSFSR No. 601 dated 25.12.1990. // SP RSFSR. 1991. No. 6. Art. 92. Legislation and economics. 1992. No. 9, 10. (lost force on the basis of the Decree of the Government of the Russian Federation “On the recognition of invalid decisions of the Government of the Russian Federation in connection with the Federal Law “On Joint-Stock Companies” dated 06.03.1996 No. 262 // Collection of Legislation of the Russian Federation. 1996. No. 12. Article 1137).

[59] http://www.cerc.ru/195.28.33.75.

[60] Kirikov A. Players in the financial field // Bulletin of privatization. 1994. No. 15. P. 77.

[61] Employees of LoriEN LLP stole 8.5 thousand vouchers, Erovikt and Astron LLP - 10 thousand vouchers each, People's Construction Company CJSC - 15 thousand vouchers, and Technical Progress JSC - 300 privatization checks. // Kobich A. Most of all vouchers were stolen by "Technical progress" // Bulletin of privatization. 1994. No. 14. P. 94 - 95.

[62] Bekryashev A.K. Shadow economy and economic crime // http://newasp.omskreg.ru/bekryash/

[63] On approval of the concept of development of the securities market in the Russian Federation: Decree of the President of the Russian Federation of July 1, 1996 No. 1008 (as amended and supplemented) // Collection of Legislation of the Russian Federation. 1996. No. 28. Art. 3356. 2000. No. 43. Art. 4233.

[64] Initially, the Federal Commission for Securities and the Stock Market under the Government of the Russian Federation was established by Decree of the President of the Russian Federation No. 2063 dated 04.11.1994. “On measures for state regulation of the securities market in the Russian Federation” // Collected Legislation. 1994. No. 28. Art. 2972. 1996. No. 13. Art. 1312. 2000. No. 31. Art. 3252. 2002. No. 3. Art. 193. 2004. No. 49. Art. 4887. On its basis, the Federal Commission for the Securities Market of the Russian Federation (hereinafter referred to as the Federal Commission for the Securities Market of the Russian Federation) and its regional branches in the constituent entities of the Russian Federation were created on the basis of Decree of the President of the Russian Federation No. 1009 dated 01.07.1996. “On the Federal Commission for the Securities Market in the Russian Federation” // Collected Legislation of the Russian Federation. 1996. No. 28. Art. 3357. 1999. No. 16. Art. 1967. 2000. No. 15. Art. 1574. 2002. No. 8. Art. 809. 2004. No. 49. Art. 4887. (lost force on the basis of the Decree of the President of the Russian Federation dated November 29, 2004 No. 1480). The Federal Law “On the Securities Market” defined the powers of the Federal Commission for the Securities Market of the Russian Federation, which were specified later” in Decree of the President of the Russian Federation No. 620 of 03.04.2000. "Issues of the Federal Commission for the Securities Market": Decree of the President of the Russian Federation // Collection of Legislation of the Russian Federation. 2000. No. 15. Art. 1574. (lost legal force on the basis of the Decree of the President of the Russian Federation “On recognizing as invalid some acts of the President of the Russian Federation on issues of federal executive bodies” 11/29/2004 No. 1480 // Collection of Legislation of the Russian Federation. 2004. No. 49. Art. 4887.). Decree of the Government of the Russian Federation "On Approval of the Regulations on the Federal Service for Financial Markets" dated June 30, 2004 No. 317, the Federal Service for Financial Markets of the Russian Federation (FFMS of the Russian Federation) was formed on the basis of the FCSM of the Russian Federation. // Collection of legislation of the Russian Federation. 2004. No. 27. Art. 2780. 2005. No. 33. Art. 3429. In Decree of the Government of the Russian Federation No. 206 of 04/09/2004 "Issues of the Federal Service for Financial Markets" defines its main functions. // Collection of legislation of the Russian Federation. 2004. No. 16. Art. 1564. In 2013, the FFMS of the Russian Federation was liquidated, and its powers were transferred to the Central Bank of the Russian Federation on the basis of Decree of the President of the Russian Federation of July 25, 2013 No. some acts of the President of the Russian Federation.

[65] Part 1 of the Civil Code of the Russian Federation was introduced on January 1, 1995, Part 2 of the Civil Code of the Russian Federation - on March 1, 1996.

[66] On the securities market: Federal Law of 22.04.1996 No. No. 39-FZ (as amended and supplemented) // Collection of Legislation of the Russian Federation. 1996. No. 17. Art. 1918. No. 25. Art. 2956. 1998. No. 48. Art. 5857. 1999. No. 22. Art. 2672. No. 28. Art. 3472. 2001. No. 33. Art. 3424. 2002. No. 52 (part 2). Art. 5141. 2004. No. 27. Art. 2711. No. 31. Art. 3225. 2004. No. 25. Art. 2426. 2006. No. 1. Art. 5. No. 2. Art. 172. No. 31 (part 1). Art. 3437. 2007. No. 1 (part 1). Art. 45. No. 18. Art. 2117. No. 22. Art. 2563. No. 41. Art. 4845. No. 50. Art. 6247. No. 50. Art. 6249. 2008. No. 44. Art. 4982. No. 52 (part 1). Art. 6221. 2009. No. 1. Art. 28. No. 7. Art. 777. No. 18 (part 1). Art. 2154. No. 23. Art. 2770. No. 29. Art. 3618, 3642. No. 48. Art. 5731. No. 52 (part 1). Art. 6428. 2010. No. 17. Art. 1988. 2010. No. 31. Art. 4193. No. 41 (part 2). Art. 5193. 2011. No. 7. Art. 905. No. 23. Art. 3262. No. 27. Art. 3873. No. 27. Art. 3880. No. 29. Art. 4291. 2011. No. 48. Art. 6728. No. 49 (part 1). Art. 7040. No. 50. Art. 7357. 2012. No. 25. Art. 3269. 2012. No. 31. Art. 4334. 2012. No. 53 (part 1). Art. 7607. 2013. No. 26. Art. 3207. 2013. No. 30 (part 1). Art. 4043. No. 30 (part 1). Art. 4082, 4084. No. 51. Art. 6699. No. 52 (part 1). Art. 6985. 2014. No. 30 (part 1). Art. 4219. 2015. No. 1 (part 1). Art. 13. 2015. No. 14. Art. 2022. No. 27. Art. 4001. No. 29 (part 1). Art. 4348. 2015. No. 29 (part 1). Art. 4349, 4357. 2016. No. 1 (part 1), Art. 50, 81. No. 27 (part 1), Art. 4225. 2017. No. 25. Art. 3592. No. 27. Art. 3925. 2017. No. 30. Art. 4444. 2017. No. 48. Art. 7052. 2017. No. 52 (part 1). Art. 7920. 2018. No. 1 (part 1). Art. 6570. No. 17. Art. 2424. No. 18. Art. 2560. 2018. No. 32 (part 1). Art. 5088. No. 49 (part 1). Art. 7524. No. 53 (part 1). Art. 8440. 2019. No. 25. Art. 3169. No. 30. Art. 4150. 2019. No. 31. Art. 4418. No. 48. Art. 6739. No. 52 (part 1). Art. 7772, 7802, 7813. 2019 (part 5). No. 49. Art. 6953. 2020. No. 15 (part 1). Art. 2238. No. 30. Art. 4738. No. 31 (part 1). Art. 5018, 5065. 2021. No. 24 (part 1). Art. 4210. 2021. No. 24 (part 1), art. 4210, 27 (part 1). Art. 5153. No. 27 (part 1). Art. 5171, 5181, 5182.

[67] On Joint Stock Companies: Federal Law No. 26.12.1995. No. 208-FZ (as amended and supplemented) // Collection of Legislation of the Russian Federation. 1996. No. 1. Art. 1. No. 25. Art. 2956. 1999. No. 22. Art. 2672. 2001. No. 33. Art. 3423. 2002. No. 12. Art. 1093. No. 45. Art. 4436. 2003. No. 11. Art. 913. 2004. No. 11. Art. 913. No. 15. Art. 1343. No. 49. Art. 4852. 2005. No. 1 (part 1). Art. 18. 2006. No. 1. Art. 19. No. 2. Art. 172. No. 31 (part 1). Art. 3437. Art. 3445. Art. 3454. 2006. No. 52 (part 1). Art. 5497. 2007. No. 7. Art. 834. No. 31. Art. 4016. No. 49. Art. 6079. 2008. No. 18. Art. 1941. No. 42. Art. 4698. No. 44. Art. 4981. 2009. No. 1. Art. 14, 23. No. 19. Art. 2279. No. 23. Art. 2770. No. 29. Art. 3618, 3642. No. 52 (part 1). Art. 6428. 2010. No. 41. Part 2. Art. 5193. No. 45. Art. 5757. 2011. No. 1. Art. 13. 2011. No. 1. Art. 21. No. 30 (part 1). Art. 4576. No. 48. Art. 6728. No. 49 (part 1). Art. 7024. No. 50. Art. 7357. 2012. No. 25. Art. 3267.31, art. 4334, 53 (part 1), Art. 7607. 2013, N 14, art. 1655, 30 (Part I), Art. 4043, 4084. No. 45, Art. 5797.51, art. 6699. No. 52 (part 1). Art. 6975. 2014. No. 19. Art. 2304. No. 30 (part 1). Art. 4219. No. 52 (part 1). Art. 7543. 2015. No. 1 (part 1). Art. 4. No. 14. Art. 2022. No. 27. Art. 4001. 2016. No. 1 (part 1). Art. 29. No. 23. Art. 3296. No. 27 (part 2). Art. 4271, 4272, 4273, 4276. No. 31 (part 1). Art. 4782. 2018. No. 1 (part 1). Art. 65. No. 11. Art. 1584. No. 18. Art. 2557. No. 30. Art. 4544. No. 53 (part 1). Art. 8440. 2019. No. 16. Art. 1818. No. 44. Art. 6177. 2020. No. 15 (part 1). Art. 2238. No. 30. Art. 4738. No. 31 (part 1). Art. 5018. No. 31 (part 1). Art. 5056, 5065. 2021. No. 9. Art. 1464. No. 27 (part 1). Art. 5179. 2021. No. 27 (part 1) Art. 5182.

[68] On promissory notes and bills of exchange: Federal Law of 11.03.1997 No. No. 48-FZ // Collection of Legislation of the Russian Federation. 1997. No. 11. Art. 1238.

[69] The previous Art. 74 of the Federal Law “On Joint Stock Companies”.

[70] For more details, see Vallask E.V. Topical issues of protecting the rights of shareholders. // Human rights in modern society. Materials of the interuniversity scientific-theoretical conference. January 27, 2005 Ch. I. SPb., 2005. P. 60 - 70.

[71] Rebchenko N.S. The securities market and its formation in Russia: a study guide. P.8.

[72] Gamza V.A., Tkachuk I.B. Crimes in the field of bill circulation: forensic characteristics and prevention measures. Educational and practical guide. - M., 2004. P. 41.

[73] On mortgage (pledge of real estate): Federal Law No. 102-FZ of July 16, 1998 (as amended and supplemented) // Collection of Legislation of the Russian Federation. 1998. No. 29. Art. 3400. 2001. No. 46. Art. 4308. 2002. No. 7. Art. 629. No. 52 (part 1). Art. 5135. 2004. No. 6. Art. 406. No. 27. Art. 2711. No. 45. Art. 4377. 2005. No. 1 (part 1). Art. 40, 42. 2006. No. 50. Art. 5279. No. 52 (part 1). Art. 5498. 2007. No. 27. Art. 3213. No. 50. Art. 6237. 2008. No. 20. Art. 2251. No. 52 (part 1). Art. 6219. 2009. No. 1. Art. 14. 2010. No. 25. Art. 3070. 2011. No. 27. Art. 3879. No. 27. Art. 3880. No. 50. Art. 7347. 2013. No. 19. Art. 2328. No. 51. Art. 6683. 2014. No. 26 (part 1). Art. 3375. 2014. No. 26 (part 1). Art. 3377. No. 30 (part 1). Art. 4218. 2015. No. 1 (part 1). Art. 29. No. 1 (part 1). Art. 52. 2015. No. 14. Art. 2022. No. 41 (part 2). Art. 5640. 2016. No. 26 (part 1). Art. 3886. No. 27 (part 2). Art. 4248. No. 27 (part 2). Art. 4294. 2017. No. 27. Art. 3938. No. 31 (part 1). Art. 4761. No. 31 (part 1). Art. 4766. No. 48. Art. 7052. No. 50 (part 3). Art. 7549. 2018. No. 1 (part 1). Art. 70. No. 49 (part 1). Art. 7523. 2019. No. 18. Art. 2200. No. 23. Art. 2921. No. 31. Art. 4420. No. 52 (part 1). Art. 7801. 2020. No. 14 (part 1). Art. 2036. No. 29. Art. 4512. No. 52 (part 1). Art. 8593. 2021. No. 1 (part 1). Art. 33. 2021. No. 1 (part 1). Art. 53. No. 18. Art. 3062. On the peculiarities of the legal status of joint-stock companies of workers (people's enterprises): Federal Law of 19.07.1998 N 115-FZ (as amended and supplemented) // Collection of Legislation of the Russian Federation. 1998. No. 30. Art. 3611. 2002. No. 12. Art. 1093. 2019. No. 31. Art. 4460.

On the protection of the rights and legitimate interests of investors in the securities market: Federal Law of March 5, 1999 No. 46-FZ (as amended and supplemented) // Collection of Legislation of the Russian Federation. 1999. No. 10. Art. 1163. 2001. No. 1 (part 1). Art. 2. No. 53 (part 1), Art. 5030. 2002. No. 1 (part 1). Art. 2. No. 50. Art. 4923. No. 52. (Part 1). Art. 5132. 2003. No. 52 (part 1). Art. 5038. 2004. No. 35. Art. 3607. No. 52 (part 1). Art. 5277. 2005. No. 25. Art. 2426. No. 52. Part 2. Art. 5602. 2006. No. 1. Art. 5. No. 31 (part 1). Art. 3437. No. 52 (part 2). Art. 5504. 2007. No. 18. Art. 2117. No. 50. Art. 6247. 2009. No. 18 (part 1). Art. 2154. No. 29. Art. 3642. 2010. No. 41 (part 2). Art. 5193. 2011, N 48, art. 6728. 2012. No. 53 (part 1). Art. 7607. 2013. No. 30 (part 1). Art. 4084. 2016. No. 27 (part 1). Art. 4225. 2018. No. 53 (part 1). Art. 8440. 2020. No. 14 (part 1). Art. 2027.

On the state program for protecting the rights of investors for 1998 - 1999: Decree of the Government of the Russian Federation of July 17, 1998 No. 785 // Collection of Legislation of the Russian Federation. 1998. No. 32. Art. 3870.

[74] Art. 1 of the Federal Law "On the Securities Market".

[75] On securities issue standards: Bank of Russia Regulation No. 706-P dated December 19, 2019 // Bulletin of the Bank of Russia. 2020. No. 37-38.

[76] On clearing, clearing activities and the central counterparty: Federal Law No. 7-FZ of February 7, 2011 (as amended on July 2, 2021) // Collected Legislation of the Russian Federation. 2011. No. 7. Art. 904.

[77] On requirements for a qualified central counterparty, procedure for recognizing the quality of management of a central counterparty as satisfactory, on grounds and procedure for making a decision on recognizing the quality of management of a central counterparty as unsatisfactory, procedure for communicating information about decision to the central counterparty: Bank of Russian Regulation No. 658-P dated November 1, 2018 (as amended on June 30, 2021) // Bulletin of the Bank of Russia. 2019. No. 11. On uniform requirements for the rules for brokering activities when making transactions with the property of a broker’s client: Instruction of the Bank of Russia dated July 25, 2014 No. 3349-U // Bulletin of the Bank of Russia. 2014. No. 81. On uniform requirements for the rules for carrying out securities management activities, for the procedure for disclosing information by managers, as well as requirements aimed at eliminating a conflict of interest of a manager: Regulation of the Bank of Russia dated 03.08.2015 No. 482-P // Bulletin of the Bank of Russia . 2015. No. 117. On the requirements for the implementation of depository activities when creating records on the basis of documents related to depositary accounting, as well as documents related to the accounting and transfer of rights to securities, and when storing these documents: Regulation of the Bank of Russia dated 13.05. 2016 No. 542-P // Bulletin of the Bank of Russia. 2016. No. 63. On the activities of specialized depositories: Bank of Russia Regulation No. 474-P dated June 10, 2015 // Bulletin of the Bank of Russia. 2015. No. 56. On the peculiarities of the procedure for maintaining the register of registered securities holders by issuers of registered securities: Order of the Federal Financial Markets Service of the Russian Federation of August 13, 2009 No. 09-33/pz-n // Bulletin of normative acts of federal executive authorities. 2009. No. 46.

[78] In journalistic, popular science and economic literature, this process is usually called “friendly takeover”, however, this term is not officially enshrined in regulatory legal acts. // For details, see: Iontsev M.G. Joint stock companies: Legal bases. property relations. Management and control. Protecting the rights of shareholders. M., 2002. Korsak A. A revision of the legislation is necessary // EJ-Jurist. 2005. No. 41. Osinovsky A.D. Shareholder versus joint stock company. 2nd ed., rev. and additional SPb., 2004. Osinovsky A.D. On the barricades of corporate conflicts. Part I. Everything is for sale. - St. Petersburg, 2006. – 296 p. Pylaev I., Tutykhin V. A guide to hostile takeovers or the art of corporate wars. M., 2004. Sychev P.G. Corporate wars in modern Russia // Information Bulletin of the Investigative Committee of the Ministry of Internal Affairs of Russia. M., 2004. No. 4. Khakimov T.A. Hostile takeovers. Technology, strategy and tactics of attack // Merger and acquisition. 2003. No. 1.

[79] This process is called "hostile takeover", but there is no legal definition of it. Iontsev M.G. characterized the concept of "hostile takeover" of a company as "establishment of complete control over this company or asset, both in actual and physical sense, against the will of the management and / or owner of this company or asset", identifying the concepts of "hostile takeover" and "corporate takeover ". // Iontsev M.G. Corporate takeovers: mergers, acquisitions, greenmail. 2nd ed., revised. and additional - M., 2006. P. 9 - 10.

[80] From English. hostile takeover. Vallask E.V. Securities Fraud: A Retrospective Analysis, Forensic Characterization, and Investigation Programs. - St. Petersburg: Legal Center Press, 2007. - 207 p.

[81] A. Korsak notes that as a result of the illegal seizure of enterprises or hostile takeovers, the subjects of the crime receive shares worth several tens of millions of rubles. // Korsak A. Revision of the legislation is necessary // EZh-Jurist. 2005. No. 41.

[82] Vallask E.V. Counteraction to corporate takeovers of enterprises by criminal law means: analysis of legislative novels // Lawyer. 2012. No. 6. P. 9 - 16. Kozlovskaya A.E. Criminal law protection of property of legal entities from illegal corporate seizures (criminological and criminal law research). Abstract diss. … cand. legal Sciences. M., 2009. - 29 p. Sokolov I.A. The state and development of the criminal law mechanism for countering the illegal seizure of legal entities (raiding). Dis. cand. legal sciences ... according to spec. 12.00.08. M., 2014. - 199 p. Voevodkin A.V. Criminal legal protection of corporate management relations as a way to counter raiding. Dis. cand. legal sciences ... according to spec. 12.00.08. Yekaterinburg, 2018. - 197 p.

[83] See: Iontsev M.G. Corporate takeovers: mergers, acquisitions, greenmail. 2nd ed., revised. and additional - M., 2006. P. 215 - 218. Raiders are advancing. // Russian newspaper. 2006. August 8.

[84] Greenmail (derived from the English words "green" in the meaning of "money" and "blackmail" - "extortion") in the national journalistic and economic literature is defined as "corporate blackmail". The specified term is borrowed from foreign practice; its official definition is absent in Russian legislation. P. Gohan believes that “greenmail” is “... a form of targeted share repurchase (targeted share repurchases), which is a general term that is accepted more broadly and also includes other share repurchases from a particular group of shareholders, which, perhaps, even did not think about making a takeover of the company. // P. Gohan. Mergers, acquisitions and restructuring of companies. / Per. from English. - 2nd ed. M., 2006. S. 252 - 253. We believe that "greenmail" can be defined as a set of measures to acquire a minimum stake in a joint-stock company (usually from a company with "diluted" capital) by legal and illegal methods (by deception, threats ), obstructing the holding of a general meeting of shareholders or its disruption, as well as taking other measures to destabilize the activities of a joint-stock company, taken in order to force the owners of a controlling stake to buy out the shares belonging to the "greenmailers" at a price significantly exceeding their market value.

[85] Raider (from the English raider) - originally the term was used to refer to sea pirates during the Victorian peroid in England. Subsequently, "raiders" began to be called marauders. M. Chernigovsky defined raiders as specialists "... in intercepting the operational management or property of a company with the help of a specially initiated business conflict." // Chernigovsky M. With a brief enemy visit // http://www.compromat.ru/main/top50/raider.htm

[86] On strengthening control over the legality and validity of procedural decisions in criminal cases on raider seizures: Information letter of the Investigative Committee of the Ministry of Internal Affairs of the Russian Federation No. 17 / 3-14260 dated 08.08.08.

[87] Paragraph 2 of Art. 51 of the Federal Law "On the Securities Market".

[88] Ivanova E.V. Financial derivatives: futures, forwards, options, swaps. Theory and practice. - M., 2005.

[89] Barkalova E.V., Ruchkin K.V., Serova E.V. Topical issues of criminal prosecution in cases of crimes in the field of information and communication technologies // Kriminalist. No. 3. 2021. - P. 57 - 64.

[91] Bulletin of the Supreme Court of the Russian Federation. 2003. No. 2.