NCCG prepared comments and suggestions to the draft Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation with regard to ensuring the reliability of the information submitted for state registration of legal entities and individual entrepreneurs".
The Draft Law proposes to regulate the possibility of making a record Incorporation of the unreliability of the legal entity in order to ensure the reliability of the information specified public registry. At the same time proposed to criminalize the act in the form of presentation of false information to Companies House by making appropriate changes to the Criminal Code of the Russian Federation.
According to the results of examination of the text of the Draft Law NCCG prepared the following comments and suggestions:
1. We consider incorrect the formulation of the question, as stated in the Draft Law. The mere fact of the existence of a legal entity or nominee directors, as well as the lack of a legal entity at the address specified in the registration is not an offense (in the absence of specific victims). If these persons and addresses are actually used to carry out any specific offenses - that is they should identify, investigate and punish. Otherwise, violated the basic principle of legal liability - the presence of specific socially dangerous consequences and their causal link with the action of the subject of law.
2. The Draft Law, in particular, should regulate the possibility of making the Unified State Register of Legal Entities of the unreliability of the legal entity in order to ensure reliability of the information specified public register and inform all external users (including compliance with due diligence). Is not entirely clear how the proposal will be implemented in practice. If the user registry will be issued with a statement indicating that the information in it are unreliable, then the question arises in the use of such a statement to him, in addition, the existence of such records would violate the principle of public reliability of the information contained in the Legal Entities and to limit complicate property turnover. In addition, the need to identify the authenticity of the information contained in the register, require an expansion of the State Tax Service to conduct these activities and other arrangements that would create an additional burden on the federal budget. In addition, it is doubtful the possibility of identifying false information on all legal entities (even with the most careful and stringent checks), resulting in the Incorporation will still be information, as appropriate, and untrue, and, recognize past will is not always possible.
3. In order to more effectively counter the establishment of legal entities for fictitious addresses and the use of the mechanism of registration of the change of the legal entity to evade the execution of civil and public obligations, Draft Law proposes to impose additional requirements such addresses as well as to establish responsibility for the designation of false information on the location of the legal entity. First of all, it should be noted that the discrepancy between the actual legal address does not exempt entity from any responsibilities. On the contrary, such a discrepancy in accordance with p. 3 of Art. 54 of the Civil Code to shift the legal entity (including, for his leadership and members) all the risks associated with non-compliance of the legal and actual addresses. If such a mismatch will cause losses to counterparties of a legal entity, the latter is entitled to pass on to him all they had experienced losses; if because of this disparity there is any other costs that are not losses, counterparties may simply refuse to engage with this entity in property relations. Hence, the need for special control of the conformity of the legal address of the actual practice is not, in addition, such control is imposed on a bona fide participants in civil additional administrative costs. Thus, you need not deal with incidents of non-warning addresses, and ensure that the costs associated with such discrepancies were shifted inexorably would perpetrators.
In addition, the Draft Law (Article 1, paragraph 4) is proposed to introduce a 20-day period (moratorium) between the submission of information to the Incorporation of being in the process of change of address and submission of documents for state registration of change of address has a new address for the location of the applicant. Thus, the two-stage submission of documents entered into Incorporation. In this case, the goal of this procedure is not clear. Could it be refused registration at the new place - if so, on what grounds? If the tax authority intends to refuse the registration in the second step does that mean that the address has not changed, or it must be replaced with a new, third address? The idea to eliminate the so-called places of registration "Mass registration" is not resolved and the consequences of failure to register is not detailed. In addition, the criteria are not clear (the base) is refused registration actions on the part of the Federal Tax Service. This provision also requires greater specificity.
4. The Draft Law proposes to st.173.1 the Criminal Code to introduce the term "shill". One of the criteria for classification as a dummy parties is that such persons (founders, shareholders or governments) "... there is no purpose of a legal person or to profit from the legitimate activities of a legal entity." This innovation seems illegal because criminalizes the reluctance (or inability) to participate in the management of a legal person or make a profit from its activities, which in itself is not guilty of socially dangerous acts (crimes). From a literal reading of the article should also be the creation of a non-profit organization (not aimed at making a profit) initially falls under such an interpretation. In addition, do not understand the criteria by which the state will determine what purpose really pursue founders, participants or controls a legal entity. It seems that such a vague wording could pave the way for abuse by government agencies, whereby it is possible to bring to justice the founders, shareholders or members of management bodies of almost any legal person, for whatever reason do not earn revenues.