Intentional bankruptcy in arbitration and criminal proceedings: Harmonization of approaches to qualification

Relevance. Arbitration managers, as part of their participation in the recognition of various types of debtors as bankrupt, identify signs of the intentional nature of bankruptcy in several thousand procedures annually. Law enforcement agencies also identify crimes related to illegal actions in bankruptcy, fictitious and intentional bankruptcy – several hundred cases per year.

Purpose. Is to find a legal mechanism that allows the conclusions on the intentional nature of bankruptcy made within the framework of the arbitration process to be translated into the criminal process.

Objectives of the study: to investigate the relevant law enforcement practice, comparing the conclusions drawn, based on sentences and decisions rendered under the same circumstances by arbitration and criminal courts; to identify and conduct a comparative analysis of approaches to qualifying the nature of bankruptcy as intentional, respectively, in arbitration and criminal proceedings; to propose measures to harmonize and synchronize such approaches as well as measures to ensure the end-to-end application of the same decision (conclusion) in arbitration and criminal proceedings.

Methodology. The research was based on such methods as formal legal and comparative legal. Also, methods of analysis, description, generalization, system-structural, statistical and mathematical were used.

Results. This article analyzes statistical data on the qualification of bankruptcy as intentional: on the one hand, by arbitration managers, on the other hand, by investigative and judicial authorities. The authors have revealed the reasons why there is a significant difference in the number of procedures qualified as intentional from the point of view of each of these parties. Based on the analysis of the methodological base used in arbitration and criminal proceedings, common approaches to the qualification of the same illegal act in such processes have been identified.

Conclusion. Based on the results of scientific analysis, proposals are given for unification of the applied approaches and synchronization of the existing methodological base. Proposals are formulated for amendments to regulatory legal acts that establish industry procedural rules and determine the signs of the deliberate nature of the actions of certain persons.

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