Malicious evasion of alimony payment: how long, criminal law, judicial practice

This obligation is absolutely not affected by the relationship between parents, the presence or absence of a marriage stamp in the passport.

For violation of the obligation to support their children, fathers and mothers may be held accountable, including criminal liability.

Evasion from paying alimony (Article 157 of the Criminal Code of the Russian Federation) involves repeated and malicious violations of mutual agreements or court orders for the payment of funds for the maintenance of children.

What are the consequences of non-payment of alimony?

The concept and essence of alimony payments

Child support is the responsibility of both parents . These are cash payments that are necessary to support a child until he reaches 18 years of age. This is the narrow meaning of this concept.

In a broader sense, alimony is a payment for the maintenance of an individual who, due to a serious health condition or other reasons, cannot independently provide himself with financial resources for subsistence.

Alimony may be paid to the following categories of persons:

• Children under 18 years of age;
• Disabled parents.

The following may act as alimony debtors:

• Spouses present and former;
• Common-law spouses registered as parents;
• Children over 18 years of age;
• Emancipated children over 16 years of age;
• Other family members recognized as guardians in the absence of parents.

If the spouses were able to peacefully agree on the order of child support, they can independently conclude a bilateral agreement on this.

If the spouses are in a state of conflict and cannot divide the children, this issue can only be resolved in court.

What is considered malicious evasion?

Malicious evasion of payment of alimony is a failure by a parent to fulfill the obligation to support a minor child, when the failure to fulfill is systematic, deliberate and prolonged.

The set of signs characterizing malicious evasion is defined in Resolution of the Plenum of the Armed Forces of the Russian Federation No. 44 and is as follows:

• Attempts to hide property or sources of income;
• Change of job or place of residence without notifying bailiffs;
• Administrative violations for non-payment of alimony;
• Criminal penalties for non-payment of alimony.

Only that person in respect of whom there is a court decision that has entered into force on the obligation to pay alimony payments can be recognized as a malicious evader for non-payment of alimony.

In addition, for a parent’s behavior to be recognized as a malicious violation, there must be an impressive amount of debt and direct intent in his behavior.

If a person is a couple of months late in payment, this will not be grounds for initiating a criminal case against him for non-payment of alimony.

The obligation to pay alimony is enshrined in Art. 80 of the Family Code . The same codified act establishes a penalty as the first type of liability for late payment of alimony.

In Art. 115 of the RF IC defines this sanction . But here we are not talking about malicious evasion of alimony obligations.

More serious and systematic violations of alimony payments entail administrative or criminal liability.

As a rule, first, the draft dodger is repeatedly brought to administrative responsibility. If the behavior is not corrected, criminal liability is applied to it.

Execution of a court decision

As part of civil proceedings, a decision is made to award alimony for the maintenance of a minor child. A month later, when the decision comes into force, it will be transferred to the bailiffs for execution.

The bailiffs are obliged to immediately open enforcement proceedings and, if the defendant evades execution of the decision, apply compulsory enforcement measures against him. They are enshrined in Art. 64 and art. 68 Federal Law “On Enforcement Proceedings”.

In particular, bailiffs have the right to apply the following penalties against the evader:

• Search for the defendant’s property and its location;
• Seizure of the debtor's property and its sale at auction;
• Seizure of accounts;
• Restrictions on driving a car;
• Ban on traveling outside the country, etc.

The bailiff, on his own initiative, can take measures against the debtor to enforce a court decision and even bring him to administrative responsibility.

The plaintiff in a civil case, in whose favor alimony will be collected, must cooperate in every possible way with the bailiffs and assist them in the execution of the court decision.

Administrative liability for non-payment of alimony

Administrative liability in accordance with the Code of Administrative Offenses of the Russian Federation can be applied to draft dodgers under several articles, in particular:

• For failure to comply with the requirements of the bailiff or for providing false information, the defendant may be punished with a fine of 1 to 2.5 thousand rubles on the basis of Art. 17.14 Code of Administrative Offenses of the Russian Federation.
• For a two-month delay in non-payment of alimony, a draft dodger can be prosecuted under Art. 5.35.1 Code of Administrative Offenses of the Russian Federation. In this case, sanctions may be applied to him in the form of compulsory work for up to 150 hours, administrative arrest for 10-15 days, or a fine of up to 20 thousand rubles.

A penalty can only be applied to certain categories of citizens: military personnel, police officers, disabled people, etc.

The bailiff is obliged to deliver the offender to the courtroom and be present in court until a ruling is made against him. This is because the judge can impose arrest as a punishment.

To ensure that the draft dodger does not escape, the bailiff will have to accompany him to the place of execution of the punishment.

Criminal liability for non-payment of alimony

In order to bring the offender to criminal responsibility, at least 4 months of evasion are necessary.

As a punishment under Art. 157 of the Criminal Code of the Russian Federation can be applied:

• Correctional labor for up to a year;
• Forced labor for up to a year;
• Arrest up to 3 months;
• Imprisonment for up to a year.

These measures can be applied against unscrupulous parents . When the evaders are able-bodied children who do not fulfill the responsibilities of supporting their disabled parents, the punishment will have exactly the same types and sizes.

In court, the defendant will need to prove with documents that he paid at least some minimum money for the maintenance of the child.

In a situation where a child was placed in an orphanage, employees of the orphanage can initiate a criminal case against the unscrupulous parent.

Family legal responsibility

In accordance with the RF IC, two types of liability can be applied to draft evaders:

• Calculation of penalties on the amount of debt. According to Art. 115 of the RF IC for each day of delay a penalty of 0.5% must be charged.
• Deprivation of parental rights from father or mother. According to Art. 69 of the RF IC, any violation of the obligation to support children can lead to the deprivation of paternity by the guardianship authorities and the PDN.

Even after deprivation or restriction of parental rights in relation to unscrupulous parents, they retain the right to pay child support.

Can they be jailed for failure to pay child support?

How long can they be imprisoned for such a crime? Theoretically, according to Art. 157 of the Criminal Code of the Russian Federation, a malicious evader can be imprisoned for up to one year. But in fact, this happens extremely rarely.

In order for a real period of imprisonment to arise for non-payment of alimony, a confluence of certain circumstances is necessary:

• The defendant has an outstanding criminal record;
• The defendant has an outstanding period of parole;
• The defendant fails to comply with the imposed requirements of the sentence. At the initiative of employees of the criminal-executive inspection, if the procedure for executing a court decision is not observed, the sentence may be revised.
• The presence of a large number of aggravating circumstances.

That is why the question: whether people are imprisoned for failure to pay alimony cannot be reliably determined . When considering a criminal case, the judge will determine the punishment.

How to initiate a criminal case for alimony

In order to initiate a criminal case for alimony, it is necessary to follow the legal procedure, take the initiative and involve employees of many services and authorities.

In order for it to be possible to bring a person to criminal liability, it is necessary, first of all, a civil decision to collect alimony.

Civil case for the collection of alimony

The entire process of enforcement proceedings begins with an application to the court to award one of the parents the obligation to make child support payments.

Alimony can be collected through a statement of claim or a court order. A court order is issued if the person who will be the defendant in the case has one child. This is a summary proceeding and does not involve trial.

Usually it goes like this. The mother writes an application for a court order to collect alimony, after which the judge issues it within 5 days. The applicant independently submits this document for execution to the bailiffs or to the work of the defendant.

When the defendant already pays alimony for a child, the issue of awarding these payments to the second child will be resolved through the claim proceedings.

In this case, the parties to the process will be called to resolve the issue, including other wives to whom the defendant is already paying alimony for other children.

Criminal proceedings

The inquiry procedure under Art. 157 of the Criminal Code of the Russian Federation is carried out by an employee of the bailiff service . The defendant must be assigned a defense attorney.

To initiate a criminal case, it is necessary to apply from the debtor, which will outline the debtor’s violations. Based on it, the bailiff draws up a report, which he passes on to the FSSP investigator.

• As a general rule, the investigator has 3 days to verify the information about violations contained in the report.
• After the initiation of a criminal case, the investigator makes a decision recognizing the minor child as the injured party.
• After this, the investigator interrogates all participants in the criminal case, draws up an indictment and transfers the materials to the prosecutor's office.

Crime in 2020 under Art. 157 of the Criminal Code of the Russian Federation will be considered by a magistrate. Such cases, as a rule, are considered in a special order when the defendant pleads guilty.

Malicious evasion of non-payment of alimony, although a crime of minor gravity, is regulated by a large list of legislative acts.

This disorder has serious negative consequences for the well-being of the younger generation.

Parents are obliged to support their children no matter what: job loss, financial difficulties, conflicts with former partners and other unimportant circumstances.

Video: Non-payment of alimony

Malicious evasion of alimony payment, judicial practice

November 9, 2016

In accordance with the current legislation, several types of alimony are provided: for the maintenance of a child, ex-wife, parents, etc.

If a person does not comply with the requirements prescribed by a court order or an agreement between the parties (that is, does not make alimony payments) for a long time, then appropriate measures may be applied to him.

The degree of punishment may vary depending on the surrounding circumstances. Parents who fail to pay child support may face criminal charges.

What is considered malicious evasion?

To bring a person under an article of the Criminal Code of the Russian Federation, several circumstances must be present. The term “malicious evasion of child support” means the absence of regular payments for a long period without good reason.

As a rule, defaulters deliberately stop transferring funds, hiding behind all sorts of situations and circumstances. That is, there must be a systematic, over a long period of time and without good reason, refusal of the obligation to financially help one’s children.

The term “malicious evasion of alimony payment” can be legally used only if there is a corresponding ruling from the court.

Who can be recognized as a willful defaulter?

This can only be done in court. A citizen can be recognized as a willful defaulter if he:

• has a large debt in alimony payments;
• refuses to carry out actions ordered by the court after receiving a warning from the bailiff about criminal liability;
• hides from bailiffs, regularly changing his place of residence;
• does not make contributions in favor of a dependent for more than four months without compelling reasons;
• wanted;
• refuses to report information about available income or provides false information.

Read also: Help for schools in Belarus 2020-2021: for large families, for the poor, targeted

The presence of such actions on the part of the defaulter indicates that he deliberately does not provide financial assistance, this can lead to a criminal case. The Criminal Code of the Russian Federation qualifies evasion of alimony under Article 157.

When can you get a payment deferment?

There are a number of reasons that may be grounds for mitigating a judge’s sentence and refusing to prosecute the accused. These include:

• delay of wages at the official place of work due to the fault of the employer;
• making minimum contributions for the last six months;
• being registered with the employment service;
• availability of documents confirming the fact of alimony payments (checks, receipts, statements, etc.), even if the funds were not transferred to the recipient (for example, the bank did not transfer the funds);
• deterioration of a citizen’s condition, which led to significant financial costs.

In this case, the court will not incriminate malicious evasion of alimony payments (Article 157 of the Criminal Code of the Russian Federation) or establish a minimum sanction. But it is worth noting that these facts do not exempt you from the obligation to provide financial assistance.

What consequences can evasion of alimony lead to: liability of defaulters

As enforcement measures for violators for malicious evasion of alimony payments, the Criminal Code of the Russian Federation provides for the following punishment options:

• deprivation of liberty;
• correctional or community service;
• arrest.

The civil code also prescribes measures such as:

• inability to drive a vehicle;
• restricting the ability to travel around the country;
• ban on leaving the territory of the Russian Federation;
• risk of loss of parental rights, etc.

How can a citizen be held accountable for non-payment of alimony?

A citizen who refuses to financially help his children can be brought to justice only if the fact of evasion of payment is officially proven, and the payment of financial support was previously ordered by the court. In this case, an application for non-compliance with the requirements of the court order may be filed.

What procedure must be carried out to fulfill the two above conditions?

1. Contact the court and file a claim for the need to receive alimony due to non-payment by the responsible citizen.
2. Wait for the judge's decision and receive a decision sheet if the outcome of the application is positive.
3. Send this document and the petition for collection to the bailiff, who, in turn, must take measures to collect the debt as part of enforcement proceedings.
4. If it was not possible to obtain financial assistance from the parent in this way, then you will have to go to court again to initiate a criminal case to prove malicious evasion of payment of alimony and failure to comply with court requirements.

How to make a written appeal to the FSSP?

The application, which is sent to the bailiff along with the court order, must contain the details of the service to which the application is made and the following information:

• information from documents of marriage and divorce between parents;
• information about the children in whose favor alimony is paid, including their place of residence;
• amount of debt;
• information about alimony payments, if any.

Until the moment when a citizen is named a willful defaulter, the necessary measures will be taken: the circumstances are clarified, the details of the violator are established, notifications are sent to the defaulter in writing about the existing debt and the possibility of bringing him to criminal liability if the non-payment of alimony is of a long nature, evidence has been collected. After this, if the citizen’s guilt is proven, the punishment will be determined.

Our ancestors slept differently than we do. What are we doing wrong? It’s hard to believe, but scientists and many historians are inclined to believe that modern man sleeps completely differently than his ancient ancestors. Initially.

20 photos of cats taken at the right moment Cats are amazing creatures, and perhaps everyone knows this. They are also incredibly photogenic and always know how to be in the right place at the right time.

Unforgivable Movie Mistakes You Probably Never Noticed There are probably very few people who don't enjoy watching movies. However, even in the best cinema there are mistakes that the viewer can notice.

Why are some babies born with an "angel's kiss"? Angels, as we all know, are kind to people and their health. If your child has the so-called angel's kiss, then you are out of luck.

How to look younger: the best haircuts for those over 30, 40, 50, 60 Girls in their 20s don’t worry about the shape and length of their hair. It seems that youth is created for experiments with appearance and daring curls. However, already last.

Contrary to all stereotypes: a girl with a rare genetic disorder conquers the fashion world. This girl's name is Melanie Gaydos, and she burst into the fashion world quickly, shocking, inspiring and destroying stupid stereotypes.

Malicious evasion of alimony payments

Malicious evasion of alimony payment is regulated by Art. 157 of the Criminal Code of the Russian Federation. Such actions of a person are grounds for criminal punishment to be applied to him. It is believed that holding a defaulter accountable is possible in the absence of financial support for children under 18 years of age.

Signs of an offense

I bring citizens to criminal liability only in cases of violation of the parents’ obligations to the child. Family relationships receive special attention from the state.

What does malicious evasion of alimony payment mean? It is considered as such if the crime is preceded by an unenforced court decision on the payment of maintenance.

Regular and deliberate failure to comply with the obligation to support a child is malicious in the following cases:

• frequent changes of residence (false addresses) in order to evade transferring money;
• concealment of real earnings;
• unpaid maintenance for 4 months;
• the existence of informal employment;
• wanted notices due to unpaid alimony;
• having large payment debts;
• refusal to look for work while able to work;
• changes in personal data;
• the existence of unpaid alimony after a warning from bailiffs about criminal liability has been received.

Thus, these are actions associated with a prolonged and unfounded reluctance to financially support the child.

Important! A malicious defaulter of alimony is punished for his unwillingness to support disabled children who have reached the age of majority. Refusal to support disabled parents is also an offence.

Penalty for non-payment

The main result of such behavior is criminal prosecution, namely:

• payment of penalties (amount of debt and interest for missed time);
• performing community or correctional labor (1 year);
• arrest (3 months);
• imprisonment (1 year).

The punishment depends on mitigating or aggravating conditions.

A criminal record brings negative consequences - restriction of the right to move freely around the country and travel beyond its borders, to hold certain positions (managerial and elected), and a person’s reputation suffers.

Important! If the court proves the fact of malicious evasion of payment of alimony, the interested party can file a lawsuit in order to deprive the debtor of parental rights.

In this case you can:

• travel abroad at your own discretion;
• change the first, patronymic and last name of the child without the consent of the party deprived of parental rights;
• prohibit meetings with children and assistance in their upbringing;
• allow you to adopt a child.

When can you legally not pay child support?

Adult children have the right not to support a parent in old age and not to pay alimony.

A father or mother deprived of parental rights loses the opportunity to:

• reclaim minors from other persons;
• protect children's rights;
• give consent to enter into transactions with minors and recognize them as legally capable persons (from 14 to 16 years old);
• apply to deprive or limit a minor’s right to dispose of profits (from 14 to 18 years old);
• receive a pension upon the death of a child (breadwinner);
• receive children's inheritance.

Responsibility of persistent non-payers of alimony

To apply liability measures to a persistent non-payer of alimony, the following is required:

• prove the maliciousness and intentional nature of the evasion (no payments for a long time, concealment of information about work, etc.);
• the purpose of the funds and the fact of the crime must be determined by a decision of the judicial authority.

A claim for child support must be filed. If the requirements are satisfied, a writ of execution is issued and should be sent to the bailiff service.

Important! The bailiff's duty is to comply with the court order within 10 days. His actions include searching for the defaulter.

Writing an application

If this person cannot be found, sanctions will be applied to him. You must write an application addressed to the bailiff who is executing the case of collecting alimony (two copies).

It is drawn up in any form. The upper right corner is called the addressee (bailiff service), the applicant’s full name and contact information are indicated.

The document sets out the circumstances of the case, namely:

• information about the marriage (conclusion and dissolution) between the payer and the recipient of the salary;
• complete information about children;
• decision of the judicial authority on the payment of maintenance for children (indicating the amount and form of payment);
• data on receipt of funds;
• amount of debt.
• information about the debtor, if known (where he lives and works, income received).

The application must contain a demand to hold the debtor accountable. It is important to prove the direct intention of his actions, that is, a conscious decision to evade alimony, despite the court order.

Confession of guilt of a persistent alimony defaulter

Before admitting the defaulter’s guilt in this offense, the judicial authority carries out the following mandatory procedures:

• the suspected person is notified in writing that he will be held criminally liable for refusal to pay alimony;
• after a month, another notification is sent;
• collection of information about the offender (place of residence, earnings);
• a report from a representative of the executive service about an administrative offense (failure to comply with requirements or causing obstacles to the activities of an official);
• If there are no positive results, a criminal case is initiated.

Having completed the above steps, the court makes a decision on guilt.

There are mitigating circumstances:

• the person has lost his job and is registered with the employment center;
• withholding of wages by the employer;
• the bank has not made payments, the debtor has payment documents;
• long-term illness, which led to large financial costs;
• assistance was transferred over the last six months in minimal amounts.

We describe typical ways to resolve legal issues, but each case is unique and requires individual legal assistance.

To quickly resolve your problem, we recommend contacting qualified lawyers on our website.

Actions of the bailiff

If the penalties are not related to imprisonment, the bailiff, after receiving the verdict, within a week applies to the address of the criminal enforcement inspection to register the defaulter in accordance with the place of registration.

When the offender is awarded correctional labor, the bailiff decides to collect payments from the alimony worker by sending documents to the place of work.

If the debtor continues to evade alimony, the named official has the right to demand that this penalty be replaced with imprisonment. The bailiff makes a request to the correctional institution about the prisoner's employment and earnings, and sends information on his obligations for alimony payments and their withholding.

In addition to criminal punishment, administrative and civil measures (fines, prohibition to drive a vehicle, etc.) are applied to violators of the law.

If the use of these methods does not bring results, the bailiff submits a report on the presence of signs of a crime. At the same time, he continues to identify the presence of funds and property of the citizen and warn him about the onset of liability.

• In 2022, bank accounts and property of defaulters will be seized.
• Video about the consequences of malicious evasion of alimony payments.

Read also: Failure to pay child support: deprivation of parental rights, criminal liability

Malicious evasion of alimony payments

If there is a deliberate, stable disregard by the debtor of the requirements for the collection of alimony, accompanied, among other things, by a significant debt (for a period of more than 4 months), then the evasion is recognized as malicious and may entail liability, including criminal liability .

The debtor can be brought to criminal liability only if civil and administrative measures have already been applied to him.

The process of bringing a persistent alimony defaulter to justice is inextricably linked with the interaction of the debt collector with the bailiffs. To avoid punishment , the debtor must begin to repay the existing debt or, if there are good reasons, apply to the court with a request to reduce or even reset the amount of the debt.

Who is a persistent alimony defaulter?

Malicious evasion of alimony payment is a deliberate long-term (more than 4 months) non-payment of funds assigned by a court decision, arising as a result of the deliberate actions of the debtor and solely through his fault.

Malicious evasion of alimony payment applies to debtors in the event of failure to comply with legal requirements for maintenance:

• minor children;
• adult disabled children;
• disabled parents.

• If signs of malice , the following officials can, in close cooperation, bring the guilty person to the highest (criminal) level of responsibility for debts incurred and concealment of income:
• Also, the collecting party has the right to initiate criminal prosecution for failure to pay funds for the maintenance of children or disabled parents by filing a corresponding petition with the territorial body of the Federal Bailiff Service.
• If a notarial agreement on the payment of alimony was concluded between the parties, and the father (or mother) of the child ceased to comply with its terms, then the defaulter can also be brought to criminal liability.

The main features of a willful defaulter are reflected in clause 11 of the “Methodological recommendations on the procedure for fulfilling the requirements of executive documents for the collection of alimony” dated June 19, 2012 No. 01-16. It is characterized by:

• concealment of real income: both from informal employment and others - for example, from creative activity, rent payments, etc.;
• hiding property subject to collection for debts;
• change of place of residence without notifying the bailiff or collector;
• making changes to personal data (change of full name) without warning the bailiff or recoverer;
• change of employment, dismissal without informing the recipient of funds and the official conducting the proceedings;
• presenting false information about income and existing property: for example, submitting certificates with underestimated wages;
• lack of response to the application of administrative sanctions due to non-payment of alimony and continued accumulation of debt.

The signs of maliciousness also include such a relatively “harmless” option as deliberate non-employment without registering with the employment center as someone in need of a job.

• Answer a few simple questions and get a selection of site materials for your case ↙

If malicious evasion of payment of funds for the maintenance of minor children is detected, the guilty person is subject to extreme measures in civil and administrative law. If these sanctions do not encourage the debtor to repay the debt , then the guilty person may be held criminally liable for evading the payment of alimony.

Thus, in general, there are three types of liability for failure to comply with a court decision to collect alimony:

• civil;
• administrative;
• criminal

Civil liability (collection of penalties through court)

Applicable at any stage of non-fulfillment of alimony obligations and represents a claim for a penalty for delayed payments in the amount of 0.1% of the total amount of debt for each overdue day of payments. Only the recipient of funds has the right to initiate the collection of a penalty by filing a corresponding statement of claim with the magistrate's court.

If the parties entered into a notarized alimony agreement, then the amount of the penalty is determined by this agreement - see Part 1 of Art. 115 RF IC.

Administrative liability for malicious evasion (Administrative Code of the Russian Federation)

The decision to bring the guilty person to administrative responsibility can only be initiated by an official of the Federal Bailiff Service and includes the following sanctions:

As an extreme administrative measure of liability for a persistent non-payer of alimony, deprivation of parental rights (Article 69 of the RF IC) is a measure of removing parents from the opportunity to participate in raising a child, but at the same time retaining all responsibilities for their maintenance.

Criminal liability for evasion of alimony payments (Article 157 of the Criminal Code of the Russian Federation)

Criminal prosecution of the debtor becomes possible only after the application of previous administrative and civil measures to encourage the repayment of debt, which did not bring results , as well as taking into account the mandatory two-time warning of the defaulter about the involvement in such.

Criminal penalties for persistent non-payers of alimony are provided for in Art. 157 of the Criminal Code of the Russian Federation and include:

• correctional labor (term - up to one year);
• forced labor for a similar period;
• arrest up to three years;
• imprisonment (term - up to one year).

It is possible to bring a defaulter to criminal liability regardless of the method of payment of alimony: it does not matter whether they were collected on the basis of a court decision or a notarial agreement.

Getting a debtor to pay “the bills” is sometimes a difficult task even for officials.

However, a special role in this matter is assigned to the recipient of funds, who is most interested in receiving the awarded funds. We are talking primarily about the fact that the recipient, according to Art.

50 of Law No. 229-FZ “On Enforcement Proceedings”, has the right to any statements and petitions related to enforcement proceedings.

Having this right, you can implement it as follows :

A sample application (petition) for malicious evasion of alimony payment and bringing the defaulter to criminal liability addressed to the senior bailiff of the territorial branch of the FSSP is given below.

DOWNLOAD

However, you need to know that the powers of the bailiff in this direction will depend on the possibility or impossibility of notifying the guilty person of criminal prosecution. If, for example, the debtor is on the enforcement wanted list, and it is impossible to warn him, then it will not be possible to initiate criminal prosecution until the location of the defaulter is established.

How can a defaulter avoid liability for malicious evasion?

If a person who does not fulfill his obligations to support his minor children is recognized as a persistent defaulter, it is difficult to avoid the measures taken.

To mitigate the extent of liability, the debtor must, as soon as possible:

• partially or fully repay the resulting debt;
• file a claim with the court in accordance with Art. 119 of the RF IC on changing the amount of payments (reducing the amount of alimony) or on exemption from their payment - but this claim requires proof of the absence of the payer’s fault in creating the debt, for example:
  • acquisition of disability;
  • sudden appearance of disabled dependents (for example, disability of a close relative);
  • dismissal from work through no fault of the debtor, etc.

However, the practice of applying Art. 119 of the RF IC shows that these cases are considered for a long time (at this time the debt continues to grow), and in general it is not always possible to prove to the court that there are sufficient grounds for reducing the amount of alimony.

Therefore, the most effective method of avoiding liability for non-payment of alimony still remains the full repayment of the debt and preventing its further occurrence.

Source: http://alimenty-expert.ru/neuplata/uklonenie/zlostnoe-uklonenie/

Malicious evasion of alimony payment Article 157 of the Criminal Code - judicial practice, comments

In order to “earn” criminal liability, the alimony worker must go through several stages. This is a serious sanction, so it is not simply assigned for minor violations. It is necessary to prove facts of systematic evasion that are malicious in nature.

The claimant has the right to initiate the opening of a case. It is better to do this through the bailiff service (UFSSP) - the production materials serve as indisputable evidence of the debtor’s guilt.

What it is

Article 157 of the Criminal Code provides for a sanction for malicious evasion of alimony payments up to imprisonment for 1 year. In this case, several conditions are required, the main one of which is the malicious nature of the draft dodger’s behavior.

Alimony is ordered by the court when a couple divorces or is determined in the alimony agreement by the parties (spouses). The specified body makes a decision and issues an order or writ of execution (hereinafter referred to as ID, that is, a writ of execution).

It is on this basis that funds are withheld.

An agreement certified by a notary is itself an executive document - permission from any authorities is not required to use it to collect funds. It can be immediately presented to the Federal Bailiff Service or at the defaulter’s place of work.

This punishment is possible only when the “maliciousness” of the debtor’s actions is proven. Let's look at its signs below.

This sanction is imposed only by the court at the request of the bailiff (in most cases) or the prosecutor on its own initiative or at the request of the recipient. Its types: correctional labor, arrest, restriction of freedom.

To initiate a case, you need to contact the department of the Federal Bailiff Service; accordingly, before that you need to submit an ID there. That is, the entire procedure is done through bailiffs.

The applicant also has the right to immediately write a statement to the prosecutor's office. But, most likely, he will be refused due to insufficient evidence. That is why it is imperative to present your ID to the Federal Bailiff Service and act through this body.

Briefly the main points:

• it is necessary to file an application with the court for an order for the collection of alimony. If the debtor disputes this, a writ of execution is issued. These procedures do not exist when there is an alimony agreement between the parties - it is immediately presented to the Federal Bailiff Service;
• The ID must be submitted to the above authority for enforcement;
• if all the bailiff’s measures are ineffective, then it is necessary to write him a petition to resolve the issue of criminal liability. The official himself is obliged to do this, but in practice he often needs to be “stimulated” with complaints and statements;
• the specified person prepares a petition and submits documents to the investigator of the Federal Bailiff Service, and from there the materials are transferred to initiate a case.

It is not always possible to achieve real punishment, but still, even the very fact of initiating a case, as a rule, has a sobering effect on the defaulter.

Malicious evasion of alimony payment under Article 157 of the Criminal Code with comments

Since in most cases the punishment in question is initiated through bailiffs, Art. 157 of the Criminal Code we will consider in connection with the legislation on enforcement proceedings, namely with the Methodological recommendations on this issue.

It is the Recommendations that show how all the necessary measures are implemented in practice.

So, for a successful case, the malicious nature of the actions of the defaulter is necessary. This means the following facts and the following behavior of the draft dodger:

• deliberately does not pay after a warning when there are real opportunities to do so. The official must carry out all actions aimed at enforcing the ID within 2 months;
• systematic and repeated (3 or more cases);
• failure to comply with the requirements of an authorized person (failure to appear on a subpoena, concealment of information);
• concealment of income completely or most of it, the same applies to property;
• in order to hide from the demands of the authorized bodies and the recipient of the money, he changes his place of residence and work, submits false information about this;
• does not find a job, does not register with the employment center;
• uses false data on the above issues;
• There are already administrative penalties (under Part 1 of Article 17.14, Article 17.8, Article 19.7, Part 1 of Article 20.25 of the Code of Administrative Offenses of the Russian Federation) imposed for failure to comply with the requirements of the bailiff, as well as non-payment of such fines.

Read also: Tax deduction for the treatment of a child: documents if over 18 years old

What does a citizen face?

The consequences for the defaulter are as follows:

Stage Sanctions Preliminary actions of the bailiff If the defaulter does not appear to give explanations, he is subject to enforcement through law enforcement agencies.
He is wanted if he is hiding.
In this case, a ban on leaving the country applies. The work of the FSSP investigator The bailiff transfers the case materials and the petition to the FSSP investigator. For the debtor, this threatens with tedious interrogations, writing explanatory notes and participation in other procedural actions. Court Investigator of the Federal Bailiff Service makes a decision to open a criminal case and prepares materials for the trial.

• If a decision is not in favor of the debtor, the following sanctions are possible:
• · 12 months correctional or forced labor;
• · up to 3 months arrest;
• · 12 months imprisonment.

Can they go to jail for failure to pay child support in 2020?

In the process of the described manipulations, the debt is established, including a penalty of 0.5% for each day of delay. The bailiff also carries out other actions, for example, he can give the draft dodger a referral to the employment center.

Possible consequences

The defaulter will face very painful consequences, which include not only the restriction of his rights and freedom due to criminal penalties, but also civil and administrative sanctions.

Administrative fines may be imposed by the bailiff. He also has the right to prohibit the debtor from traveling abroad and to submit a petition to the traffic police for the purpose of depriving him of his driver’s license (if the debt amounts to more than 10 thousand rubles)

Attraction under Art. 157 of the Criminal Code gives a greater chance that the debtor will be deprived of parental rights if the claimant files a lawsuit about this.

Criminal prosecution and punishment

The main theses of the process of imposing punishment, so that in its end a real or at least to some extent effective result appears, are as follows.

The ID must be in execution. For 2 months. the executor is obliged to carry out all basic actions to collect funds. The total production time may be long, but all major measures must be carried out within the specified time.

The claimant needs to monitor enforcement proceedings (complaints, inquiries about the progress of execution). If the actions of this department are not effective, it is necessary to apply to open a case.

Main conditions: non-payment for more than 4 months. payments, the fact of concealment of income, the deliberate nature of such actions, their systematic nature.

The executor transfers the materials to the FSSP investigator, which are sent from there to the court. As a rule, if they have already gotten there, then the defendant will face a real sanction (we have indicated its types above).

It must be taken into account that if the payer is wanted, then it will not be possible to open a case, and all that the recipient can count on is social assistance from the state in connection with non-receipt of maintenance.

Administrative responsibility

Administrative sanctions are imposed by the FSSP executor, their types are as follows:

• fine up to 20 thousand rubles. for malicious evasion (Article 35.1 of the Code of Administrative Offenses of the Russian Federation);
• seizure of property, accounts, including credit cards;
• travel ban, ban on issuing a foreign passport;
• deprivation of a driver's license (if the debt is more than 10 thousand rubles);
• ban on issuing a foreign passport;
• the last resort is deprivation of parental rights (Article 69 of the Family Code). It must be initiated by the recipient of the funds. The materials of the enforcement proceedings will be the main evidence. It should be said that the obligation to support the child does not stop.

Civil liability

The recipient of funds has the right to a penalty of 0.5% for each day of evasion of payment. To calculate it, you need to take a certificate with the amount of debt from the FSSP; you can also determine the amount yourself if there is evidence of non-payment.

To receive penalties and debt, you must file a claim (as a rule, materials and certificates from the FSSP are attached to it).

The claim is filed personally by the claimant in the magistrate's court. In addition, the applicant has the right to increase the required amount if he proves damage caused by non-payment.

The algorithm of actions is simple: you need to submit your ID to the Federal Bailiff Service at the debtor’s place of residence. Next, wait some time and write a statement to the same body with a request to resolve the issue of criminal punishment.

The process can be initiated after 4 months. non-payment, but you can wait a longer period - the larger the debt, the harsher the court will be against the culprit.

The executor makes a decision on criminal liability and submits the materials to the FSSP investigator, and from there they go to court. The applicant only needs to monitor the process and get acquainted with the production materials from time to time.

In the process of preparing for the transfer of documents to the court, four subjects closely interact: the bailiff, the FSSP investigator, the head of the department of this body, as well as the claimant directly (an application is required from him).

Arbitrage practice

1. In practice, most of these cases are resolved not in favor of the draft dodger, especially if the claimant is a woman with children.
2. If the materials have already been transferred to this body, this means that all the evidence of the person’s malicious evasion has already been collected, otherwise the bailiff would not have done this, accordingly, there are all the grounds for passing a sentence.

How to take an oath of Russian citizenship? The answer is here.

How to pass the citizenship test? Find out further.

Cases of refusal of criminal liability or mitigation of punishment are possible if the debtor is not hiding, is registered at the employment center, has other dependents, or is disabled. All procedures are very unpleasant for him, therefore, even if he does not receive a real sentence, this will be an incentive to activate him to search and pay the money.

Source: https://101zakon.ru/alimenty/otvetstvennost-za-neuplatu/zlostnoe-uklonenie-ot-uplaty-alimentov-statja-157-uk/

Without administrative prejudice, you cannot be convicted for failure to pay alimony if you have an unexpunged conviction for the same

The magistrate of judicial district No. 23 of the Elizovsky judicial district in the Kamchatka Territory addressed the Constitutional Court with a request to verify the constitutionality of paragraph 1 of the notes to Art. 157 of the Criminal Code of the Russian Federation, which establishes the procedure for bringing criminal liability for non-payment of alimony.

The reason for the appeal was the following situation. In January 2017, L.V. Zhigalev was brought to administrative responsibility for committing an offense under Part 1 of Art. 5.35.1 Code of Administrative Offenses (non-payment of funds for the maintenance of children or disabled parents). In November of the same year, the citizen was found guilty of committing a crime under Part 1 of Art. 157 of the Criminal Code for a similar act.

On October 18, 2018, the bailiff drew up a new protocol against Zhigalev for committing an offense under Part 1 of Art. 5.35.1 of the Administrative Code, and this happened after the established Art. 4.6 of the Code of Administrative Offences, the period during which a citizen was considered subject to administrative punishment.

When considering the case of this offense, the magistrate came to the conclusion that Zhigalev’s act contained signs not of an administrative offense, but of a crime under Part 1 of Art. 157 of the Criminal Code.

He justified his conclusion by the fact that during the period during which Zhigalev, in violation of a court decision, did not fulfill his obligation to pay alimony, he had a criminal record for committing a crime provided for by this provision of the criminal law.

In this regard, the magistrate issued a ruling to terminate the proceedings in the case of an administrative offense and forward the materials to the prosecutor.

Subsequently, the Elizovsky District Court of the Kamchatka Territory overturned this court ruling and sent the case for a new trial. The court indicated that Zhigalev had a criminal record under a 2017 verdict for committing a crime under Part 1 of Art.

157 of the Criminal Code, is not a basis for qualifying his inaction, expressed in repeated non-payment of alimony without good reason, under this article of the Criminal Code, since the basis for bringing a person who does not pay alimony to criminal liability is administrative prejudice and the period during which this person is considered subject to administrative punishment.

In this regard, the magistrate sent a request to the Constitutional Court, in which he indicated that clause 1 of the note to Art. 157 of the Criminal Code does not comply with the Constitution to the extent that it excludes the possibility of criminal prosecution of persons who continue to evade payment of alimony during the period when such persons have an unexpunged or unexpunged conviction for committing a crime under Part 1 of the same article.

On June 6, the Constitutional Court issued Ruling No. 1509-O, which declared the magistrate’s request not subject to further consideration.

As the Constitutional Court noted, the controversial norm, linking the criminal liability of a person who fails to pay funds for the maintenance of minor children without good reason in violation of a court decision, with the fact that at the time of committing this act the person was subjected to administrative punishment, i.e. with such a person having a state of administrative punishment does not in itself contain uncertainty.

The Court also indicated that the magistrate in the request, indicating the need to include a note to paragraph 1 of Art. 157 of the Criminal Code of the amendments that are appropriate, from his point of view, actually insists on extending Part 1 of this article to persons who have an unexpunged and unexpunged conviction for committing the crime provided for by it.

“However, the resolution of such issues is not within the competence of the Constitutional Court of the Russian Federation and falls within the competence of the federal legislator, who, within the framework of his discretion, has the opportunity to choose and establish effective measures of public legal responsibility, is obliged to comply with the constitutional principles of necessity, proportionality, proportionality and fairness,” the Court emphasized.

In a commentary to “AG”, lawyer of the Moscow Administrative Office Vasily Vayukin noted that the ruling of the Constitutional Court actually clarified that the basis for bringing a person who does not pay alimony to criminal liability is administrative prejudice and the period during which this person is considered subject to administrative punishment, even if there is a relapse .

Thus, the lawyer believes, taking into account the peculiarity of Art. 157 of the Criminal Code, if there is a relapse of the crime, in order to re-bring a person who does not pay alimony to criminal liability, it is necessary that this person be administratively punished for a new period of non-payment.

“I consider the position to be legitimate and justified, since bringing a person to criminal liability, in the presence of a recidivism in the absence of administrative punishment, leads to the deprivation of the opportunity for the guilty person to exercise his right to payment in an administrative manner, given that such a norm is provided for by law,” summed up Vasily Vayukin .

Lawyer of MCA "SED LEX" Valeria Arshinova indicated that the disposition of Art. 157 of the Criminal Code in the new edition, in comparison with the disposition of this article as amended by the law of December 7, 2011 No. 420-FZ, contains a new crime-forming feature - repetition, i.e. the commission by a person of a similar act during the period when he is considered to be subject to administrative punishment for it. The article, she notes, does not talk about recidivism of a criminal offense.

Valeria Arshinova emphasized that the new legal regulation is aimed at clarifying the disposition of Art. 157 of the Criminal Code, and, as the Constitutional Court correctly noted, “this norm, linking the criminal liability of a person who does not pay, without good reason, in violation of a court decision, funds for the maintenance of minor children, with the fact that at the time of committing this act the person was subjected to administrative punishment , i.e. with such a person having a state of administrative punishment does not in itself contain uncertainty.”

“At the same time, Art. 157 of the Criminal Code, as amended, was in force until July 15, 2016, provided for criminal liability for malicious evasion of payment of funds for the maintenance of children by a court decision, and here in judicial practice various interpretations arose of what is recognized as “malicious evasion,” she indicated advocate.

Source: https://www.advgazeta.ru/novosti/bez-administrativnoy-preyuditsii-nelzya-osudit-za-neuplatu-alimentov-pri-nesnyatoy-sudimosti-za-eto-zhe/