Jus strictum

In modern criminal procedural science, there is no doubt that the prosecutor and subordinate prosecution officers are participants in criminal proceedings. Separate disputes arise only when discussing the issue of classifying the prosecutor as a party to the prosecution. At the same time, the role and functions of officials of the prosecution authorities in criminal proceedings are not so obvious and unambiguous. Although Part 1 of Article 37 of the Code of Criminal Procedure of the Russian Federation assigns the functions of supervision and criminal prosecution to the prosecutor, the heads of the prosecution authorities and the employees subordinate to them do not always pursue these goals, and officials of the prosecution authorities do not always act in the status of a prosecutor or public prosecutor. Analyzing the current norms of criminal procedural legislation and comparing them with the actual legal personality of prosecutorial employees entering into relations with participants in criminal proceedings, the author substantiates the conclusion about the necessity to distinguish between two fundamentally different legal statuses of the prosecution officials. The first one is the official status of the prosecutor as the head of the prosecution authority, allowing him to exercise state powers to supervise the preliminary investigation bodies without accepting the additional procedural status of a participant in legal proceedings. The second one is the criminal procedural status acquired by an official of the prosecution authority, including a prosecutor, for a certain period (stage, phase) of criminal proceedings to carry out one of two procedural functions – criminal prosecution (acquires the status of a public prosecutor) or law enforcement function, protection of the interests of an individual, society and the state (acquires the status of other prosecutor or a prosecutor representative).

The ambiguity of interpretation of the rules applied when challenging transactions within the framework of the initiated bankruptcy case and the absence of clear criteria for the grounds for challenging debtor’s transactions determine the reasonability of a deep comprehensive theoretical study of such categories as abuse of rights, unequal counter-execution, and artificial debt. The conducted analysis of judicial practice allowed concluding that invalid debtor’s transactions concluded with abuse of rights in order to create artificial debt or with unequal counter-execution are identified by signs, based on the personal conviction of a judge, but still allowing them to be established with a high degree of reliability. Such signs, in particular, include: economic inexpediency of a transaction, when, for example,  in the presence of financial difficulties, the debtor sold the capital goods, thereby depriving himself of his main activity and profit; transfer of funds by the debtor in transit through friendly organizations, returned to the debtor in the form of a loan from a controlled organization; raising of a cash loan from individuals who do not have the financial ability to provide a loan; the supplier’s inability to deliver goods for which the debtor has incurred a debt; the absence of information about the transaction in the accounting statements of the debtor and its counterparty, etc. The authors believe that the absence of grounds for liability for intentional actions to create artificial debt and abuse of rights, the absence of clear criteria for the equivalence of counter-execution lead to the fact that unfair participants in economic turnover receive an unjustified benefit. In this regard, the authors propose to define more clearly in the law special grounds for challenging debtor’s transactions for the intentional creation of artificial credit debt, the withdrawal of debtor’s assets, and to establish grounds for liability and consequences for unfair persons.