Ivan Kailo: what decisions of a business owner can lead to criminal liability

What decisions of a business owner today can have not only commercial, but also criminal consequences?

A business owner should understand that almost any management decision that concerns finances, assets, interaction with counterparties or government agencies can become the subject of criminal assessment if appropriate grounds arise.

Transactions for the acquisition of assets, payment of dividends, attraction of investments, execution of government contracts, tax planning and distribution of powers within the company require special attention.

In itself, a commercial risk or an unsuccessful management decision is not a crime. However, under certain circumstances, a conflict over the execution of a contract can escalate into criminal proceedings – for example, if one of the parties claims fraud, misappropriation of property or forgery of documents.

Therefore, I always emphasize: it is important not only to make economically sound decisions, but also to ensure their proper documentation. A business must be able to explain the logic of its actions, confirm the reality of business transactions, and demonstrate that management decisions were made within the law.

Is it possible to understand in advance that a company is at risk from law enforcement agencies? What signals should not be ignored?

Yes, in many cases there are signals that require increased attention. At the same time, none of them in themselves means that the company will necessarily become a party to criminal proceedings.

Such signals include requests by law enforcement agencies for company documents or operations, summons of employees to provide explanations, reports of criminal proceedings, conflicts with former partners, unusual requests from counterparties for financial information, as well as internal discrepancies in documentation.

A separate risk arises when a business has significant transactions with counterparties whose activities are not sufficiently verified, or when the actual content of business transactions does not correspond to the executed documents.

In such a situation, you should not wait for a search or the serving of a suspect. It is advisable to conduct an internal legal audit, check documents, identify potential weaknesses and develop a response algorithm.

Early response makes it possible to assess risks and prepare a legal position before the situation becomes critical.

How important is it for the owner to check not only the financial reliability of the counterparty, but also its legal and criminal history?

Checking the counterparty is not a formality, but a component of the risk management system. Both the financial strength of the company and its legal history are important.

Before concluding a significant contract, it is worth checking the registration data of the counterparty, the powers of its representatives, litigation, enforcement proceedings, ownership structure, business reputation and compliance of resources with the declared scale of activity.

Depending on the nature of the transaction, it is also advisable to assess sanction risks, the presence of conflicts of interest and circumstances that may indicate the use of the company for the transit of funds or the cover-up of other transactions.

At the same time, the presence of legal disputes or references in criminal proceedings does not automatically mean that the counterparty is unscrupulous. It is necessary to analyze the facts, the status of individuals and the specific circumstances.

The main rule: the inspection should be proportional to the value and risk of the transaction. The larger the transaction and the more serious the possible consequences, the more in-depth the inspection should be.

When can a conflict between partners or shareholders turn from a corporate dispute into criminal proceedings?

A corporate conflict in itself is not a criminal offense. Disagreements regarding the management of the company, the distribution of profits or the exercise of corporate rights must be resolved in accordance with the methods provided for by law.

However, the situation becomes more complicated when, within the framework of such a conflict, there are signs of possible forgery of documents, illegal appropriation of assets, misappropriation of property, abuse of authority or other criminally punishable actions.

In practice, attempts to change control of a company through questionable decisions, forged documents, or transactions with assets without proper authority can be particularly dangerous.

At the same time, criminal proceedings should not be used as a tool to pressure an opponent in a business dispute. The presence of a contract, debt, or unfulfilled obligation does not prove the fact of a crime.

To protect a business, it is important to timely record corporate decisions, follow management procedures, store documents, and separate business claims and circumstances that may actually indicate a criminal offense.

What is one of the most valuable pieces of evidence in business criminal cases today — documents, e-mail, financial transactions, or phone data? How should companies properly handle such evidence?

In business criminal cases, there is no universal proof that automatically resolves the case. The relevance, admissibility, reliability, and totality of evidence are crucial.