Documentation of forensic economic examination. The procedure for the appointment of a forensic economic examination

4. DOCUMENT VERIFICATION RELATIONSHIP

AND FORENSIC AND ECONOMIC EXPERTISE

Forensic economic expertise is the activity of a competent specialist in the study of the case materials presented to him in order to resolve the issues posed to him by the investigator or the court, which ends with the preparation of a written opinion of the expert.

The investigator is authorized to appoint a forensic economic examination if special knowledge in the field is required. accounting, monetary relations and finance, which form the scientific competence of an expert economist.

One should agree with the position of the Investigation Department of the Federal Tax Service of Russia that one of the most important grounds for the appointment of a forensic economic examination is the reasonable doubts of the investigator about the correctness of the conclusions of the tax audit, on the basis of which the criminal case was initiated. However, it is necessary to recall that the doubts themselves should relate to individual conclusions formulated in the act of the tax audit and not require the appointment of a new (control) audit in order to supplement the materials of the criminal case.

The possibility of a procedural error - assigning the function of an auditor to an expert - follows from the undoubted similarity of the two forms of using special economic knowledge in a number of ways.

Both a specialist in the tax audit department and an expert economist have special knowledge in the same areas of economic science.

They base their conclusions on the study of documents, records in accounting registers, in other accounting documentation.

Apply similar methods of research of accounting documents.

Hence, in order to avoid mistakes, it is necessary to remember the significant differences between the audit (documentary verification of compliance with tax laws) and forensic economic expertise, which are usually divided into two groups.

1.Procedural differences.

BUT . A forensic economic examination is carried out only in a criminal case initiated on the basis of an investigator's decision. The basis for conducting a documentary check is sent to the department tax audits order of the head (or deputy) of the relevant body. An inspection may also be appointed at the request of the investigator, including before the initiation of a criminal case.

B . With regard to the audit (documentary verification), the Code of Criminal Procedure of the RSFSR regulates only the right of the investigator to demand its implementation. The procedural regulation of forensic economic expertise in order to ensure legality is determined by many norms of the Code of Criminal Procedure of the RSFSR. Legal basis the appointment and conduct of a forensic examination is regulated by articles 78, 79, 81, 184 - 194, 288, 290 of the Code of Criminal Procedure of the Russian Federation, the legal status, rights and obligations of an expert are regulated by articles 67, 82, 106, 192, 275, 289 of the Code of Criminal Procedure RSFSR. The legal basis of the expert's opinion is regulated by Articles 80, 191 of the Code of Criminal Procedure of the RSFSR. Thus, the assignment to the auditor (including during repeated audits) of the functions of an expert-economist turns a tax audit into an examination devoid of its procedural form, which is an indisputable basis for returning the case for additional investigation. The performance by the expert of actions of a revision nature also puts his conclusions under reasonable doubt.

2. Methodological differences.

BUT. The content of the activity. An audit is an audit of economic activity for a certain (usually reporting) period of time. Verification is carried out on the basis of documents held by the relevant organization. Examination does not check economic activity, but examines the documents attached to the criminal case.

B . On the subject of research and verification. A documentary audit covers all financial and economic activities of an enterprise for a certain period of time in order to identify facts of non-compliance with tax laws. Forensic economic expertise investigates, on the basis of accounting documents, only those circumstances of financial and economic activity that are important for the correct resolution of the case. These specific circumstances are each time determined when posing questions to the expert on the part of the investigation and the court.

AT . According to the objects of study. During the audit, the specialist of the tax audit department himself selects the documents he needs, if necessary, independently seizes individual documents (or requests copies of them). The forensic expert-economist bases his conclusions on the basis of documents attached by the investigator to the criminal case. The expert-economist is not granted the right to independently withdraw documents. If necessary, at his request, the investigator seizes additional documents.

One of the objects of research by an expert economist can be an act of documentary verification. This is possible in situations where the investigator has doubts about the correctness of the method used in the verification of the calculation and justification of the amounts of income and the value of other objects of taxation. In this case, the expert economist does not repeat the audit work, but only analyzes the scientific validity of the calculation methods used by the audit.

There are also a number of other methodological differences (in terms of the subject of the verification and examination, the presentation of the results of the study, etc.). However, even a reference to the main differences shows the mutual indispensability of documentary verification and forensic economic examination.

An audit is appointed at the initiative of an operative officer or investigator in those situations when it is required for the first time, through official control measures, to identify documents and other accounting materials that can serve as evidence in a criminal case. Forensic economic expertise is appointed to study the already identified documentary evidence. The purpose of her appointment is to eliminate the contradictions that have arisen in the case file by obtaining new evidence - the conclusion of an expert economist.

It should be remembered that the conclusion of an expert economist does not have pre-established probative value and is evaluated by the investigator and the court on a par with other evidence collected in the case. Naturally, in the course of studying the materials submitted to him, an expert economist can establish new facts of violations of tax legislation that were previously unknown to the investigation. However, only in order to reveal such previously unknown facts, a forensic economic examination is not appointed.

5. Organization of the appointment of judicial and economic

expertise

By appointing a forensic economic examination, the investigator sets a specific goal. As a rule, the goal is to obtain the judgment of an independent specialist in the field economics and practice, and as a special case - specifically in the field of accounting and taxation, on issues such as:

the correctness of the calculation of the amounts of taxes payable to the budget;

identification of persons responsible for violation of tax legislation;

determination of the amount of undercharged and underpaid taxes to the budget;

establishing a method of hiding taxes from payment to the budget.

In each particular case, the issues raised for the resolution of the examination can be specified.

For example, during the investigation of a criminal case against the president of an open joint-stock company, it was established that during 1995-1996 an open joint-stock company"O." acquired in the joint-stock company "X." margarine and peasant butter. In violation of the current legislation of JSC "O." accrued value-added tax (VAT) in accounting on received products at rates twice the established ones. Then, the overcharged VAT on the products received was written off in the accounting records as a reduction of the VAT due from OJSC “O.” to the budget revenue and, accordingly, in VAT tax returns, the amount of tax due to the budget was underestimated. Thus, OAO O. evaded paying value added tax to the budget in the amount established by law.

Feeling the need for special economic knowledge in the investigation of a criminal case and being guided by Art. Art. 78, 184, 187 of the Code of Criminal Procedure of the RSFSR, the investigator decided to appoint a forensic accounting expertise in this criminal case (Appendix No. 3).

The following questions were asked for the examination:

Does the amount of VAT received by JSC "O." from buyers of products previously supplied by JSC "X." on the amount of VAT presented for reimbursement from the budget for the same product when it is paid to the supplier?

What is the amount of VAT on products received by JSC "O." from JSC "X." could be presented for reimbursement from the budget, and what amount was actually presented for reimbursement from the budget?

If an unreasonably overestimated amount of VAT was presented for reimbursement from the budget, was OAO subsequently compensated? budget damage?

What amount of VAT to be reimbursed from the budget should have been indicated in tax returns Chief Accountant based on the available in the study period in JSC "O." primary documents?

The expert opinion on this case is given in Appendix No. 4.

Based on the circumstances to be established in a particular criminal case, other questions may be formulated to be resolved by the examination.

For example, when investigating a criminal case on charges of the director of a limited liability partnership “Zh.” gr. K., it was established that Zh. LLP, being engaged in commercial activities, received income, part of which, in order to evade taxes, the director of the LLP deliberately concealed. For this purpose, at her direction, the indicators of gross income in the report "On financial results" and their use for the 2nd and 3rd quarters of 1996 were underestimated, which led to the concealment of profit in the amount of 864,155.8 thousand rubles and non-payment of tax on it in in the amount of 302454.5 thousand rubles.

In this case, the following questions were posed for the examination:

1. What is the amount of income from the sale of securities received by LLP "Zh." for the period from January 1 to October 1, 1996 and is it correctly reflected in the accounts of the balance sheet?

2. Is the amount of income from the sale of securities correctly reflected in the report f. No. 2 "Report on financial results" LLP "Zh." for the period from January 1, 1996 to October 1, 1996?

3. What impact did the amount of income actually received from the sale of securities have on the amount of taxable profit of LLP "Zh." for the period from January 1, 1996 to October 1, 1996?

4. What amount of income tax should be due to the budget from LLP "Zh." for 9 months of 1996 and what amount of income tax was actually accrued by LLP "Zh." for this period?

Due to what source of funds LLP "Zh." acquired securities sold from the LLP for the period from January 1, 1996 to October 1, 1996, and on which accounts of the balance sheet is the movement of proceeds from the sale of securities reflected?

It is unacceptable to raise questions that are not within the competence of an expert in this specialty for resolution by a forensic economic examination. So, for example, sometimes the investigator intends to ask questions such as:

1. The authenticity of the documents submitted for examination.

The grounds for the production of the SEA are the decision of the court, the decision of the judge, the person conducting the inquiry, the investigator or the prosecutor. The SEA is considered to be appointed from the date of issuance of the relevant resolution or ruling.

SEE at the stage of preliminary investigation can be appointed both by the body of inquiry and by the investigator. However, after the initiation of a case, the bodies of inquiry are obliged to carry out only urgent investigative actions to identify and fix the traces of the crime, after which they transfer the case to the investigator. Therefore, in the vast majority of cases, the SEE is appointed by the investigator. On the investigator in accordance with Art. 69 of the Code of Criminal Procedure imposes the obligation to collect evidence, on the basis of which the presence or absence of a socially dangerous act, the guilt of the person who committed this act, and other circumstances are established. These data are established by the testimony of a witness, victim, suspect, accused, expert opinion, material evidence, protocols of investigative and judicial actions and other documents.

According to Art. 69 of the Code of Criminal Procedure, the expert's opinion is evidence, and the SEE is a procedural action to obtain it. Acts, certificates, conclusions available in the case on the results of a departmental study of any circumstance called SEA (for example, shortage of goods and materials, etc.), even if received at the request of the investigating authorities or the court, but not meeting the requirements of the rules for conducting SEA , cannot be considered as an expert opinion and serve as a basis for refusing to conduct an SEA.

The investigator may appoint an SEE if special knowledge in science, technology, art or craft is necessary during the preliminary investigation, and if there is a need for a more competent analysis and interpretation of the collected factual data, a description of the course of certain processes related to cases that have already been previously audited (Article 78 of the Code of Criminal Procedure).

The most significant grounds for the appointment of a forensic accounting expertise are:

• the need to study issues that require the use of special knowledge of an expert economist;
• poor-quality conduct of the audit, expressed in the presence of contradictions between the act of audit and other materials of the case, contradictions in the conclusions of the auditors during the initial, repeated or additional audits;
• substantiated petition of the accused for the appointment of the SEE;
• conclusion of experts from other specialties on the need for SEA.

Appointment of the SEE in accordance with Art. 79 of the Code of Criminal Procedure is not mandatory and is at the discretion of the investigator. In addition, the investigator has the right to suspend or terminate the SEA on his own initiative or on the basis of statements by the participants in the process (including the expert) at any stage of its production. These functions can also be performed by the heads of investigative units and prosecutors supervising the investigation.

After making a decision to conduct an SEA, the investigator evaluates the case materials from the point of view of sufficiency and completeness and collects additional data for the SEA, without which it is impossible to conduct it. The collected material is analyzed by the investigator and only after that a decision is made on the appointment of the SEE, which lists the issues to be resolved by the expert. Investigator, court should not allow staging before an expert legal issues that are not within his competence (for example, whether there was a theft, a shortage, who is guilty of embezzlement, etc.). The materials required by the expert economist for each specific case are determined by the investigator. However, the representation additional materials can also be carried out after the appointment of the SEA, if the expert so requests.

Having recognized the materials collected for the production of the SEA as sufficient, the investigator appoints the SEA.

The procedural act implementing this decision is the decision of the investigator on the appointment of the SEE. The investigator, the court is not entitled to replace the decision, ruling on the appointment of the SEA with other documents not provided for by law ( cover letter, a list of questions to the expert, etc.).

The resolution in its content consists of an introductory-descriptive and resolutive parts.

The first of them must contain the following mandatory details: time and place of drawing up the resolution; class rank or military rank of the investigator, his last name; the name of the investigating authority; when appointing the SEE by the court, the ruling shall indicate the name of the court, the names of the judge and assessors; case number; indicate the place and date of the decision.

The operative part announces the decision of the investigator on the appointment of the SEA, the name of the expert or the name of the institution where the SEA is to be carried out, sets out the questions posed to the expert for resolution during the study, and describes the materials provided to the expert. The list of materials indicates: objects of study; samples for comparison; investigative materials, the knowledge of which is necessary for the expert. The location of documents and objects is also indicated.

Methods for the production of expertise are determined, as a rule, by the expert. However, the investigator is entitled, based on the circumstances of the case, to indicate in the decision the need for a certain method of investigation (for example, a cross-check of documents).

The preliminary investigation must be completed in accordance with Art. 133 of the Code of Criminal Procedure no later than within two months. Therefore, if the volume of expert work is large, then in order to speed up the conduct of the SEA, on the initiative of the investigator or the head of the expert institution, several experts of the same specialty are involved in the examination.

Appointment of the SEE by the court is a complex process, which is the result of the implementation of both the initiative of the persons participating in the case and the powers of the court.

When appointing the SEE by the court, a complex of procedural relations is formed: between the court and each of the persons participating in the case; between the court and the expert. These relations differ in terms of origin, content, procedural significance. Relations between the court and each of the persons participating in the case arise regarding a petition for the appointment of an SEE, for the appointment of a specific expert, for the challenge of an expert, for the formation of a range of issues.

These procedural relations are mediated in the petitions of interested persons and court rulings on their satisfaction or rejection and are characteristic of the very process of appointing the SEE; they seem to anticipate the appointment.

The result of the actions to appoint the SEA is reflected in a special procedural act - a court ruling on the appointment of a forensic examination. It is this that brings to life the system of relations between the court and the expert. Therefore, its structure should be considered in more detail.

The court ruling on the appointment of the SEA (as well as the decision of the investigator) in criminal cases must indicate the specific grounds for appointing the SEA, the issues that need to be resolved, the materials and circumstances of the case to be investigated. In the event that an examination was carried out at the stage of the preliminary investigation of the case, the court has the right to put before the expert questions similar to those that he resolved on the instructions of the investigator, and to determine the same range of materials for examination. But from this, the SEA on behalf of the court does not become repeated. The principle of direct investigation of evidence in a case means that the court is not bound and not limited by the materials of the preliminary investigation. He independently appoints and conducts the SEE provided for by law - primary, additional, repeated - and can interrogate an expert (in accordance with Article 289 of the Code of Criminal Procedure).

The peculiarities of the appointment of the SEE in a court session are due to the fact that the accuser, defense counsel, defendant, victim, civil plaintiff, civil defendant and their representatives take part in formulating questions, determining the scope of the circumstances under investigation; on all questions put to the expert, the opinion of the participants in the trial, the conclusion of the prosecutor are heard.

What questions should be put to the permission of the expert, the court ultimately establishes, including them in its definition or supplementing them with the previously issued one. The Code of Civil Procedure, in contrast to the Code of Criminal Procedure (Article 184), does not contain clear rules on this matter. Nonetheless judicial practice and doctrine developed some General requirements and rules for compiling this definition. The ruling on the appointment of the SEA must contain all the details inherent in the judicial ruling and listed in Art. 224 Code of Civil Procedure.

• an indication of the time and place of issuance;
• name of the court (its composition and secretary of the court session);
• the name of the persons participating in the case and the subject of the dispute (brief plot of the case);
• an indication of the circumstances relevant to the case (facts of the subject of proof or evidentiary facts), for the confirmation or refutation of which an expert examination is appointed;
• the motives of the court, on which he came to the conclusion about the need for the SEA, and the reference to the laws that the court was guided by when appointing the SEA;
• name of a particular subject (type) of the SEE;
• formulation of the expert task - questions to the expert;
• definition of the object of research (or in relation to whom it is carried out);
• who is entrusted with the production of the SEA (name of organization, laboratory, surname, name, patronymic of the expert);
• the name of the case materials placed at the disposal of the expert (for example, minutes of the court session, minutes of interrogation of witnesses, handwritten notes of the subject - list which ones);
• description of comparative materials (if any are made available to the expert);
• the period during which the SEA must be carried out;
• the location of the SEA (in court or out of court);
• warning of experts about responsibility, according to current legislation(Article 307 of the Criminal Code of the Russian Federation), for giving a deliberately false conclusion;
• signature of the judge (judges) who issued the ruling.

As you can see, the structural definition includes three parts:

• preparatory or introductory (place, time of issuance, composition of the court, in which case, at the request of which party, if any);
• descriptive (brief plot of the case - highlighting the legal circumstances, the proof of which requires an examination, as well as the reasons and grounds for the examination);
• decision (object and subject of research, questions to the expert, who is entrusted, a list of transferred materials).

The descriptive part should be formulated in such a way that it is clear from it why the need for this SEA arose, for the establishment by the court of what legally significant circumstance its results may be suitable, what is the special purpose of this study.

Given the need to strengthen the procedural guarantees of the rights of the parties when appointing the SEA, the operative part should be supplemented with an indication that the parties are familiar with the definition on the appointment of the SEA.

The ruling on the appointment of the SEA does not specify the procedure and terms for appealing, since the law does not provide for such a possibility. An interested person who does not agree with the determination on the appointment of the SEA (for example, with the range of questions asked to the expert or with the very fact of the appointment of the examination) cannot appeal such a determination separately from the appeal of the court decision.

If a higher court recognizes the appointment of the SEA as illegal or unreasonable and cancels the decision on the appointment of the SEA, then, accordingly, all legal consequences of such a decision are "annulled". For example, if the court has already received an expert’s opinion (in the case when the ruling is appealed without suspending the SEA), then the cancellation by the higher court of the decision on the appointment of the SEA makes it impossible for the court of first instance to use the expert’s opinion as evidence.

Thus, when appointing an SEE at the stage of preparing a case for trial, one must pay attention to the time limits established by Art. 99 of the Code of Civil Procedure (the preparation of the case is carried out within a seven-day period). If the production of the SEA requires more time, then, according to a reasoned decision of the judge, the total period for preparing the case may be extended up to 20 days; however, this power of a judge is provided by law for exceptional cases (part 1 of article 99 of the Code of Civil Procedure).

Since the SEA is most often carried out outside the court (ie not in the courtroom), when it is appointed at the trial stage, it becomes necessary to give the expert time for a special study. Therefore, the Code of Civil Procedure provides for the right of the court to suspend the proceedings in the event of the appointment of an SEE (clause 5, article 215 of the Code of Civil Procedure). The decision to suspend proceedings is issued by the court at the request of the interested persons or on its own initiative.

The need for a commission or complex SEA is indicated in the resolution (determination) on the appointment of the SEA. The head of the expert institution has the right to instruct to conduct a commission or complex SEA on his own initiative or on the initiative of an expert. The expert performing the SEA outside the expert institution, having come to the conclusion about the need for a commission or complex SEA, raises a question about this before the investigator (court) in the manner prescribed by the procedural law.

©2015-2019 site
All rights belong to their authors. This site does not claim authorship, but provides free use.
Page creation date: 2016-04-12

AT modern conditions in connection with the development of the financial and economic sphere, the volume of disputes on economic issues between economic entities is increasing. Moreover, there is an increase not only in the number, but also in the variety of contentious issues considered in court. This process is closely interconnected with the analysis of information about business transactions reflected in accounting and reporting documents. Such information can be obtained during the forensic economic examination. Forensic economic examinations are among the most common in civil proceedings, although their production is organized so far only in some state forensic institutions.

Forensic economic examinations are procedural actions carried out in accordance with the procedure established by law, based on a specialized study economic activity on the basis of financial and economic documentation, which are carried out using special knowledge in the field of economic science in order to identify actual data on the performance of business transactions.

The main purpose of forensic economic examinations is to assist the judicial authorities in the study and interpretation of economic indicators, identifying their intentional and unintentional distortions.

Subject forensic economic examinations are factual data on the performance of business transactions, the study and evaluation of which require special knowledge in the field of economics, accounting, finance, necessary to resolve the case.

If we specify the subject of forensic economic examinations on civil affairs and arbitration disputes, then they are actual data (circumstances of the case) that allow, using special knowledge, to establish violations of the law (civil, tax, financial, labor, etc.), which are the causes of disputes between the parties.

Objects economic expertise are primary and reporting documents that reflect the business transactions and contain information about the availability and movement of material and Money. Such documents are:

• - agreements between business entities;
• - inventory and collation sheets and other inventory materials;
• - primary accounting documents;
• - accounting registers of accounting (statements, magazines-orders, turnover balance sheets, account cards, etc.);
• - financial statements;
• - other materials necessary for the production of a forensic economic examination (materials of conducted audits, etc.).

The above documents reflect the business processes of the organization and have evidentiary value when considering a case in court. During the consideration of arbitration and civil cases on economic disputes, it is necessary to conduct an examination of accounting documentation.

As evidence in arbitration and civil proceedings only an expert opinion is accepted (and not, for example, an audit report, since the auditor is not a participant in procedural legal relations).

The production of forensic economic examinations is regulated by procedural legislation and the Law on Forensic Expert Activities. In addition, an expert economist relies in his research on the norms of codes, other laws and regulations.

The grounds for the appointment of a forensic economic examination are:

• - the need to answer questions using special knowledge in the field of economics;
• - contradiction between the materials of the case;
• - the petition of the participants in the process for the appointment of a forensic economic examination;
• - the conclusion of experts of other specialties on the need for a forensic economic examination.

Modern forensic economic expertise has ample opportunities. With its help, for example:

• - matching operations regulatory documents;
• - identification of actually completed transactions;
• - determination of the value of shares and other elements of the business;
• - determination of the completeness of tax payment to the budgets of all levels, etc.

The methodological base of forensic economic examinations is a set of methodological techniques used in the expert study of business transactions reflected in accounting and evaluation financial activities organizations. In the production of forensic economic examinations, there are no typical situations, and the questions of the court depend on the characteristics of the situation under consideration. This causes the absence of a unified methodology for forensic economic examinations.

When conducting forensic economic examinations, as a rule, the following methods are used:

Synthesis is a method of studying an object in its integrity, unity and interconnection of its parts. In financial and economic control, synthesis can be associated with analysis. It allows you to connect objects dissected in the process of analysis, establish their connection and cognize the subject as a whole.

Induction is a research technique, which is a conclusion from particular factors to general conclusions, i.e. a conclusion about the state of the object is made on the basis of a study of its individual aspects, for example, an examination of documents reflecting the organization's debt is carried out initially according to analytical accounting data, and then according to synthetic accounting data.

Deduction - the study of the state of the object as a whole based on logical reasoning, drawing conclusions about its constituent elements, i.e. reasoning from the general to the particular.

Concretization - the study of objects in all their versatility, diversity.

System analysis - the study of the object of study as a set of elements that form a system, i.e. the ability to assess the behavior of an object as a system with all the factors influencing its functioning.

Economic analysis is a system of methods for disclosing and determining the cause-and-effect relationships that led to conflict situation in business transactions, which as a result became the object of investigation by law enforcement agencies.

The economic-mathematical method is used to determine the intensity of the influence of factors on the results of financial and economic activities in order to optimize the functioning of the organization.

Verification of arithmetic calculations (recalculation) is a verification of the accuracy of arithmetic calculations in primary documents and accounting records, or the performance of independent calculations by an expert.

Verification of documents (inspection): documentary information can be internal, external, external and internal at the same time. Documents prepared and processed within an economic entity are internal. External documents are prepared and sent to the expert economist by third parties. Verification of documents consists in the fact that an expert economist must be convinced of the reliability and good quality of a certain document. To do this, certain records in accounting and the primary document are controlled, which confirm the reality and expediency of the operation, for example, checking documents on formal grounds (compliance unified form, the availability of the necessary details) and on the merits of the reflected operations (their expediency and legality).

Tracking is a procedure during which an expert economist checks some primary documents, the reflection of their data in the registers of synthetic and analytical accounting, the compliance of the standard correspondence of accounts with the chart of accounts and accounting regulations.

A cross check is a check of documents from the counterparty of the audited organization.

In conclusion, the expert economist answers the questions posed by the court on the compliance of the organization of the accounting system regulations, on violation of legislation (civil and tax), on the fulfillment of contractual obligations, etc.

It should be noted that conclusions about intentional actions (distortions), misuse, etc., are not allowed in the opinion, i.e. only a statement of certain facts is possible, but not an assessment of the actions of specific persons, which is the prerogative of the court.

When conducting economic expertise, indicators are used in three measurements: 1) natural; 2) cost; 3) labor.

Currently, forensic economic expertise is divided into two main types: forensic accounting and forensic financial and economic expertise1. Each of the types of economic expertise is divided into types depending on the nature of the economic information being studied. Types of economic expertise, in turn, are divided into subcuts and depending on the specifics of the objects under study.

In modern economic conditions any business transaction is a symbiosis of finance, accounting and other economic phenomena. This determines the relationship between forensic accounting and forensic financial and economic expertise. Based on this, in some cases it is necessary to conduct comprehensive examinations, when the expert has a range of issues that require the use of a wide range of economic knowledge (for example, the valuation of shares and their reflection in the accounting of the enterprise). In this case, the solution of the issue is impossible without the simultaneous joint participation of specialists in various fields of knowledge in formulating one general conclusion.

The expert opinion is subject to evaluation by the investigator, interrogating officer, prosecutor, court, person or body considering the case of an administrative offense.

The conclusion for the court and the investigation is not obligatory and is evaluated according to general rules and the requirements for assessing evidence, i.e. the opinion of an expert accountant is equated with other evidence in the case. It is evaluated in the same way as other evidence.

The opinion of an expert is optional for the court and is evaluated by the court according to the rules established for the evaluation of evidence. The disagreement of the court with the conclusion must be motivated in the decision or ruling of the court. The expert opinion is announced at the court session and examined along with other evidence in the case. The rules for evaluating the conclusion of a forensic examination are given in the articles of the Code of Criminal Procedure "Rules for the Evaluation of Evidence" and the Code of Civil Procedure "Evaluation of Evidence".

In accordance with the rules of procedural law, each evidence is subject to assessment in terms of relevance, admissibility, reliability, and all collected evidence in the aggregate - sufficiency to resolve the case. Therefore, the conclusion of an expert in a criminal case should be assessed by the investigating authorities from four positions:

1) relevance in relation to the case under investigation;

2) admissibility in comparison with other evidence;

3) reliability for compliance with reality;

4) sufficiency in terms of resolving the case.

In civil and arbitration procedural legislation, the opinion of an expert accountant is evaluated in a similar way. The court can evaluate it according to its inner conviction, based on a comprehensive, complete, objective and direct examination of the conclusion and the evidence available in the case.

Several key criteria can be identified.

estimates of the expert's opinion, which are given in the codes. In the process of evaluating the expert opinion, it is necessary to:

Make sure that it is prepared by an expert institution or a person who is authorized to present a forensic accounting report;

Make sure that it is signed by the person (persons) having the right to affix the document with a signature, contains all other essential details of this type of evidence;

Check the quality of the materials provided to the expert.

Given the procedural requirements, there are several areas for evaluating the opinion of an expert accountant:

1. Compliance with the procedural procedure for the preparation, appointment and conduct of an examination: the expert's opinion must meet the procedural requirements. Its structure and content must comply with the procedural rules for drawing up an opinion. During the examination, all procedural rules must be observed.

2. Compliance of the conclusion with the issues formulated in the ruling (decree) on the appointment of an examination: it is necessary to verify the wording of the questions in the conclusion and the resolution (determination) of law enforcement agencies. The expert must check the identity of the questions.

3. The presence of logic and consistency in the presentation of facts, evidence and conclusions: the expert must follow the sequence of consideration of the case materials, i.e. each question should be answered in order. The conclusions of the expert should be interconnected with the processes of economic activity reflected in accounting. The content of the conclusion should not contradict the reliable facts that are reflected in the primary documents, accounting registers, reporting.

4. Objectivity of the conclusion: the conclusions of the expert must be confirmed by the facts and documents established by him and based on accounting and reporting data. The expert may rely on other information provided to him, if it has legal force, is documented and does not contradict the conclusions of the expert.

5. Conclusions should be confirmed by relevant comments to the normative documents on the case under investigation and supported by references to laws, decrees, orders, etc. The absence of references allows, when evaluating the examination, to doubt the objectivity of the expert's conclusions.

6. Determining the completeness of the expert's conclusion: the conclusion must contain information about the examination of the object of examination from all possible sides. In this case, a variety of information base or accounting documents should be used. The examiner may apply several traditional verification techniques. The presence of several options for studying the issue will allow you to assess the completeness of the results of the examination.

7. Scientific validity: the expert must rely on special research methods. In this case, the method, technique or procedure that was used during the examination should be indicated. Non-traditional and questionable methods should be avoided. Also, the conclusions can be substantiated by analytical calculations. The value of the conclusion increases with the parallel application of analytical and documentary methods of verification.

8. Concreteness of the conclusion: it should not contain different interpretations of the questions. It is necessary to give an unequivocal answer to the question, supported by evidence. Answers should sound clear, precise, short, specific.

9. Nature of presentation and style: the conclusion must be understandable. If it is unclear, complex terms are used and their interpretation is not given, the expert may be called in for questioning.

The conclusions of an expert accountant may contradict other evidence collected in the case. The discrepancies are due to two reasons: the presence of possible errors in the opinion of an expert accountant; the unreliability of other evidence with the truth of the expert's conclusions. In these cases, the subjects who appointed the examination evaluate the conclusion according to their inner conviction in conjunction with all the available evidence in the case.

The result of evaluating the opinion of an expert accountant may be its recognition:

Complete, scientifically sound and suitable for use in proving in full;

Insufficiently clear or incomplete, requiring additional study of some objects. In this case, an additional examination is appointed;

Unreasonable, questioning its correctness. In this case, a second examination is appointed by a motivated determination or resolution.

The court or the investigator may disagree with the conclusions of the expert and, without appointing a re-examination, decide the case on the basis of other evidence, if they together allow a true conclusion to be drawn about the actual factual circumstances of the case.

Law enforcement agencies are obliged to reflect the results of the assessment of the conclusion in their decision. In doing so, the decision states:

The motives for which the expert's opinion is rejected, and other evidence is accepted as a means of substantiating the conclusions of the court (investigation). Another situation may arise when the expert opinion is the main evidence in the case, and other evidence is not accepted for consideration;

The grounds on which evidence is given preference over the expert's opinion, and vice versa.

The reasoned part of the decision must contain a convincing analysis of the shortcomings of the expert opinion and reasons why it is rejected.

Planning the process of forensic economic examination.

The procedural rules provide for the time limits for the consideration of criminal and civil cases.

The definitions and resolutions on the appointment of a forensic accounting expertise, among other tasks, provide for the duration of the expertise, i.e. start date and end date, and submission of an expert accountant's opinion. The head of a state or non-state forensic institution, when issuing a task to an expert or a group of experts, adheres to the deadlines established in the resolution or ruling.

In order to fulfill the task of conducting an examination on time and in full, the expert organizer, who is the head of the group of expert accountants (if the examination is carried out by several experts), or the expert himself, draw up a schedule for conducting a forensic accounting examination.

The requirements for drawing up a plan for conducting a forensic accounting examination are not regulated by procedural legislation. The need for planning is due to objective reasons.

Planning by an expert of his work allows:

Comply with expert production deadlines;

Give due attention to all aspects of the case;

Perform work with optimal costs, efficiently and in a timely manner;

Efficiently allocate work among the members of the expert group involved in the review;

Coordinate the work of experts;

Identify events, operations, documents, information that can have a significant impact on the expert's conclusions and the outcome of the case.

The planning of the forensic accounting expert process can be carried out on the basis of the planning principles used in audit practice, but taking into account the requirements of procedural legislation. Such planning is governed federal rule(Standard) No. 3 Audit Planning.

Planning is initial stage conducting forensic accounting expertise. On the basis of the schedule, a program of forensic accounting expertise is developed, which can determine the scope, types and sequence of expert procedures necessary to form an objective and reasonable opinion among expert accountants on the organization of accounting of an economic entity.

The examination program is a set of instructions for the examiner performing the examination, as well as a means of monitoring and verifying the proper performance of the work. In the process of developing a program, the expert should take into account the directions of research of issues raised by law enforcement agencies. The study of questions can be independently detailed by the expert, depending on the subject of the examination (for example, the question involves a documentary examination and arithmetic verification of data).

The planning of a forensic accounting examination should be carried out by an expert accountant in accordance with the general principles for conducting an expert study, as well as taking into account the following particular planning requirements:

Complexity - ensuring the interconnectedness and consistency of all stages of the expert study;

Efficiency - linking all stages of planning in terms of time, in terms of the analyzed issues, in terms of the list of objects under study;

Optimality - providing scheduling variability for selection optimal plan, allowing to reduce the time of examination and optimize the efficiency of the expert result.

Formation and development of forensic economic examinations.

concept forensic examinations and their use in law enforcement.

The structure of forensic economic expertise

The concept, subject and objects of forensic economic expertise.

The concept, subject and objects of forensic accounting expertise.

Tasks of forensic accounting expertise.

Documents used in the production of forensic accounting expertise

Features of the organization of forensic accounting expertise at the stage of preliminary investigation

Production of forensic accounting expertise.

Planning the forensic accounting process

Standards for forensic accounting expertise.

The legal basis for state forensic activities in accordance with the Federal Law "On State Forensic Activities in the Russian Federation"

The Criminal Procedure Code of the Russian Federation - the basis regulation forensic accounting expertise.

The procedure for the appointment of forensic accounting expertise in law enforcement

. Legal status and responsibility of the expert

Legal status and responsibility of a specialist

. Acquaintance of the expert with the materials of the case.

Expert Responsibility.

Rights of a forensic expert

Duties of a forensic expert

20. Special techniques of forensic accounting expertise.

Document verification methods

Methods for checking related documents

Mutual control method

ways to falsify the balance sheet:

Expert study of operations for accounting for financial investments

Securities classification

Classification of financial investments

signs of recognition of forged documents

The procedure for the appointment of forensic accounting expertise in law enforcement

Features of the organization of forensic accounting expertise during the preliminary investigation

Planning the process of forensic accounting expertise.

We don't waste time looking for mistakes, we find the Truth in time"

Main tasks forensic economic expertise is the production of judicial accounting, financial, economic, financial and credit examinations and expert studies for courts, prosecutors, internal affairs, the federal security service, customs, tax authorities, officials entitled to appoint forensic examinations, in accordance with the current legislation of the Russian Federation.

The subject of forensic economic examinations are specific facts, the assessment of which, along with the assessment of the financial and economic consequences of these facts, requires special knowledge in the field of accounting, the economy as a whole, finance and credit, and other sciences. Accordingly, prior to the appointment of a financial and credit examination, in the process of investigating a criminal case, specific facts (operations) must be identified, which together will characterize the criminal act and allow its financial, economic and cost assessment.

This type of expertise can be divided into:

financial and credit

financial and economic

financial and analytical

Financial and credit expertise deals with issues related to lending. It may be necessary to order a financial and credit examination when there is a need to establish the presence of violations or errors in the field of financing and lending. Also, based on the study of financial and credit operations, financial and credit expertise is able to determine the validity of the creation of monetary funds, as well as to find out whether the procedure for their spending and intended use has been violated. Financial and credit examination finds out whether the borrower is creditworthy, whether the return of credit funds is timely.

Specialists involved in financial and credit expertise will explain the problematic aspects in the provision of credit and financial services, assess the range of services provided by financial institutions - banks, leasing companies, funds.

At present, business is unthinkable without additional sources of financing; the vast majority of companies use them when opening and expanding their activities.

Issues to be resolved during the Financial and Credit Expertise:

1. Research on the compliance of accounting data on spending the loan with its intended purpose. Are the principles of lending followed?

2. Research to establish the method of repayment of the loan.

The purpose of financial and credit expertise is to study ways to obtain loans without material and legal security, analysis of loan repayment, study of documentary processing of cash and non-cash payments.

Financial and economic expertise represents:

Study of indicators of the financial condition and financial and economic activity of an economic entity;

The study of signs and ways of distorting data on financial indicators that affect financial results business entity;

Study of the calculation of the equity participation of founders (shareholders) in the authorized capital and distributed profit of an economic entity;

Study of the signs and methods of distorting data on financial indicators that characterize the solvency, creditworthiness, use and repayment of credit funds of an economic entity;

The study of indicators characterizing the formation of the size (value) of wages in order to establish deviations from the current norms of the legislation of the Russian Federation.

Financial and analytical expertise allows you to solve the following questions:

1. Research on the subject of crediting foreign exchange earnings under export contracts with foreign firms to the enterprise's foreign currency account. If there was no enrollment, then in what value terms and what is the enrollment mechanism.

2. A study to establish a security equivalent in value paid in foreign currency (or payment by the importer against obligations under an import contract with the importer's bills of exchange) for the import of goods into the territory of the Russian Federation under import contracts concluded with foreign firms.

3. Investigation to establish the fact of the return of funds to the enterprise's foreign currency account for undelivered goods (or not delivered in full) within the time limits stipulated by the import contract concluded with a foreign company, but no later than the time limits established by the currency legislation.

4. Research on the subject of changes in the solvency of the enterprise in dynamics.

5. Research on the subject of changes in the state of accounts payable of the enterprise in dynamics.

6. Research on the impact on the state of debt and the solvency of the enterprise of certain financial and economic operations.

7. Research on the impact on the state of solvency of the enterprise placement of promissory notes issued by the enterprise and / or other securities.

Forensic economic examination is a relatively new type of forensic examination, which became widespread in the 90s of the twentieth century. Forensic economic expertise is a type of expert activity, which is the establishment of facts related to the investigation of economic crimes, as well as economic disputes underlying civil and arbitration cases, carried out on the basis of special knowledge of various economic sciences. SEA involves the analysis of documentation related to various kinds of financial and economic transactions. In the class of forensic economic examinations, there are:

forensic accounting expertise

judicial financial and credit examinations

complex and commission forensic economic examinations.

The study is conducted by an expert economist on the basis of special knowledge in the manner prescribed by legal documents. Often an expert opinion is the key evidence in a case. In the course of a forensic economic examination, questions can be resolved about the legality of penalties, taxes and fees, about the compliance of the reporting documentation of the organization's activities, about the fulfillment of contractual relations, about the presence or absence of signs of deliberate bankruptcy of the enterprise, and others. Forensic economic expertise solves a fairly wide range of issues and covers almost all areas of civil, criminal, administrative and economic law.

Based on the results of the study, an expert opinion is issued containing an assessment of the financial condition and financial and economic indicators of the economic entity.

It stands out as a kind of forensic examinations carried out with the use of special knowledge in lending and cash flow, as well as knowledge about the financial performance of banks and creditworthiness indicators business entities-borrowers.

The study is carried out on the basis of data and documents of accounting and management accounting credit organizations, loan agreements and documents on their conclusion and execution, as well as other information about the activities of banks.

Judicial financial and credit expertise involves research in particular on the following questions:

What is the creditworthiness of the borrower on a specific date in accordance with the methodological documents of the credit institution;

What is the amount of the annuity payment on the loan in the period;

Are interest, fines, penalties, etc. reasonably accrued? under a loan agreement;

What are the directions of use of funds received by the organization under a loan agreement;

Are the conditions met loan agreement parties as of a specific date.

Economic expertise

Accounting

tax

Financial and analytical

Financial and economic

Financial and credit

Grounds for appointment of expertise

The grounds for the appointment of an accounting expertise, as a rule, are:

a) contradictions between the audit materials and the circumstances of the case; b) inconsistencies in the findings of the initial and repeated documentary audits; c) when the auditors applied methods for determining material damage that are in doubt; d) in connection with the conclusions of examinations of other specialties; e) in all other cases, when issues arise in the case, the resolution of which is possible only with the help of accounting expertise.

The main tasks of accounting expertise

The main tasks of accounting include the establishment of:

a) the correctness of registration of accounting transactions; b) the amount of material values ​​(cash) that are on the liability of certain persons; c) circumstances relating to shortages and surpluses of material assets; d) circumstances relating to the conduct of a documentary audit; e) the size of the inflicted material damage; f) persons who had valuables during the period of formation of shortages, surpluses or damage; g) the state of accounting and control over the movement of values; h) measures that it is advisable to take in order to eliminate shortcomings in the system of accounting, reporting, control over the movement of values.

Investigated objects

The following groups of objects are subjected to the study of an expert accountant:

1) accounting records: primary (requirements, orders for the release of material assets, instructions to the State Bank, receipt and expenditure invoices, cash orders, passes for the export of products, transport documents, write-off acts commodity losses, revaluation of goods, dismantling of repaired objects, payrolls, instructions-obligations for the release of goods on credit, receipts for depositing money, etc.); consolidated (fence books, fence-limit cards, grouping sheets, grouping and accumulation tables, personal accounts, memorial warrants, etc.); c) materials of mechanized and computer accounting;

2)accounting - (counting) registers: books, order journals, turnover sheets, accounting cards (for example, warehouse), etc.;

3) accounting documents: reports of cashiers, advance reports, commodity reports of financially responsible persons, etc.;

4) inventory materials: inventory lists of the availability of goods, collation sheets, minutes of decisions of inventory commissions, explanations of materially responsible persons;

5) Other materials related to the examination: acts of audits and examinations, decisions of higher authorities on acts of audits, certificates, notifications of various organizations about actions with valuables, testimonies of the accused and witnesses, protocols of seizures and searches certifying the sources of origin of the relevant documents, conclusions based on the results of other examinations ( forensic, technological, commodity, economic), unofficial documents.

Sample list of issues to be resolved by accounting expertise

Determining the correctness of registration of accounting transactions

1. Is such and such a transaction with tangible assets (cash) correctly executed, and if not, what is it expressed in, what requirements of which accounting regulatory act does this registration not comply with?

Examples:

a) was such and such a business transaction carried out at such and such a time reflected in accounting?

b) have any requirements of the accounting and control rules been violated in connection with such and such operations, and if so, the requirements of which rules and in what way have they been violated?

c) were the accounting rules violated when drawing up primary and consolidated documents for such and such business transactions in such and such a period, and if so, what rules were violated and in what way?

d) whether the wages of workers and employees of this organization were correctly calculated for such and such a period of time (or accrued according to this payroll), and if not, what were the deviations from the established procedure for calculating them; Are the rates used correctly when calculating salaries, are they too high?

e) Are such and such material assets fully credited, judging by the primary accounting documents?

f) whether such and such an accounting operation is documented; Is it commodity or non-commodity?

j) Are such and such material assets correctly written off in connection with this activity (for production, damage, etc.)?

h) Are there any misrepresentations (overestimation or underestimation) of the expenses (costs) incurred, and if so, which ones, with which business transactions are they associated and to which periods do they relate?

i) was there an overestimation of the volume of written-off materials in such and such a period, taking into account the conclusion of the technological expertise, and if so, in what quantity and amount was the excessive write-off expressed?

j) could the deliverer of the container have the quantity indicated in the acceptance receipts?;

k) is the receipt of money paid in the order of settlements for goods received on credit correctly reflected in the accounting documents?

l) are there any postscripts in the volumes of such and such works indicated in payroll orders ?;

m) whether the rate of natural loss was applied correctly when registering this accounting transaction, whether it was overestimated or underestimated; whether it was applied on the basis of an overestimated turnover of the commodity mass; whether it was applied for transit operations or for goods accepted - released without checking the weight or according to the weight indicated on the container?;

o) were acts of shortage (damage) of material assets taken into account when performing this accounting operation?

n) how can one explain the discrepancies in various accounting documents reflecting such and such a business transaction?

p) do the data of accounting accounts and primary documents agree with each other (do they correspond to each other), and if not, what are the discrepancies, to which business transactions and periods of time do they refer?

c) are there any records in the accounting registers that are not confirmed by primary documents, and if so, for what amounts, for what transactions and periods of time?

m) whether the accounting department observed the correspondence of accounts prescribed by the relevant rules?

y) how can one explain the discrepancies in accounting documents reflecting such and such a transaction?

2. Do such and such accounting operations performed by this official comply with accounting requirements, and if not, what regulations do they contradict?

(Action matching official norms, the interpretation of which does not require special knowledge of an accountant (for example, the norms defining the powers of a director and chief accountant), are established directly by the investigator and the court (without appointing an accounting expertise).

Establishing the quantity of certain types of material assets

1. What was the actual availability of material assets from such and such a materially responsible person at the beginning of the inventory?

2. What were the balances of such and such goods subject to revaluation at such and such a moment?

(Revaluation of goods is carried out with a change in prices, for example, seasonal or obsolete products or those that have lost their original qualities. Revaluation is preceded by an inventory: a) when revaluing within one third of the goods - only those that are subject to revaluation; b) in case of revaluation of more than a third of the goods, all of which are under the report of a financially responsible person.)

3. What is the amount of raw materials and materials excessively written off for production, taking into account such and such their consumption per unit of product and such and such a total number of manufactured products?

4. What is the volume of unaccounted products produced by this enterprise using such and such quantities of raw materials, materials, equipment, labor, electricity, given their consumption rate and a certain volume of recorded finished products?

(The data necessary for an expert accountant may be contained, for example, in the conclusion of an expert technologist on the production costs incurred and in the testimony of the warehouse manager regarding the volume of recorded finished products.)

Establishment of circumstances relating to shortages and surpluses

1. What is the size of the shortage (surplus) formed by such and such a moment at a given facility in physical and sum terms?

2. In what amount should the surplus of money in a given trading enterprise be expressed, provided that such and such goods are sold at such and such prices for a specific period?

(Shortages and surpluses are established by conducting an audit. Therefore, questions 1 and 2 are put before the expert only in cases where the conclusions of the audit are disputed by interested parties or the investigator doubts their correctness).

3. For what period was this shortage (surplus) formed?

(The expert is presented with documents reflecting the imposition of liability on a certain person, the movement of material assets and their availability at a certain point in time.)

4. What are the reasons for the formation of a shortage, are they violations of the accounting procedure or natural loss, excess losses during storage, unreasonable regrading, seizure of material assets?

5. What are the reasons for the formation of surpluses, are they not the non-receipt of material assets, the write-off of non-retired valuables, unreasonable regrading?

6. Is it correct in this case to offset the shortage with surpluses?

7. Who is financially responsible for this shortage?

8. Violations of what accounting rules made it difficult to identify data on shortages (surpluses) of material assets?

Establishing the good quality of the audit

1. Is this audit carried out sufficiently and correctly; whether the auditor used all Required documents and research methods; Are the methods used by him sound?

2. Are the audit findings on certain matters correct and sufficiently substantiated?

3. Did the auditor act correctly by rejecting (not taking into account) such and such of the documents presented to him?

(The conclusion of an expert accountant on the correctness of the rejection by the auditor of the document due to the defectiveness of its execution, for example, due to the absence of any details, does not in itself mean that the transaction executed by this document is fictitious. a certain operation. In the affirmative case, it is required to make an appropriate adjustment to the conclusion of the audit. When the expert accountant establishes the incompleteness of the audit, an additional audit is assigned, and if it is established that it is methodologically inconsistent or incorrect, the unreasonableness of the conclusions drawn, a repeated audit.)

Establishment of the material damage caused and persons responsible for it

1. What is the amount of material damage caused to this organization as a result of such and such illegal actions during such and such a period of time?

2. According to documentary data, which of the employees of such and such an organization had material assets (cash) during the period of causing material damage?

3. By the actions of which persons this material damage was caused and to what extent is each of them responsible for this damage?

Assessment of the state of accounting and determination of measures to improve it

1. Are there any shortcomings in the system of accounting, reporting and control at this enterprise that contribute to crimes, if so, which ones?

Or: does the state of accounting, reporting and control in this organization comply with the normative order, if not, what are the allowed deviations from this order?

2. Does the system of accounting and reporting, operating in such and such a firm, ensure accurate and timely control over the movement of material assets and funds?

3. What measures are required to improve the accounting, reporting and control system operating in such and such an organization?

4. What measures should be taken to improve the documentation of such and such transactions in order to ensure proper control over them?

Before making a decision, all issues are agreed with a specialist.

Forensic economic expertise (SEE) is a special class of expert research, united by the common knowledge of various economic sciences, transformed for the needs of justice. Specific Features forensic economic expertise determined by the fact that the objects of expert research are documentary data - carriers of economic information. SFEE is appointed in the investigation of tax offenses, as well as embezzlement, malfeasance and economic crimes associated with fraudulent methods of obtaining loans, false entrepreneurship, false or malicious bankruptcy, currency and other abuses in the field of finance.

The subject of the SBE are business transactions reflected in accounting (phenomena, events of financial and economic activity), which contain information about the state, movement, presence or absence of material assets and funds and their sources, indicate the presence / absence of violations of accounting and tax accounting .

Depending on the subject of research and the tasks facing the expert, there are several types of forensic economic examinations, including: forensic accounting(SBE) and judicial financial and economic(SEEE), each of which is a study conducted by an expert economist using special knowledge in accordance with the procedure established by the Civil Procedure Code (APC, CPC). Moreover, such a division is very conditional, since the SBE can be an information basis for the production of SPEE; there is a close relationship between them, due to the need to study the same objects.

If it is necessary to solve diagnostic and identification problems, the following questions can be put to the expert:

whether there are any changes in the composition of accounts or in the content of accounting records in the submitted registers that created the possibility of eliminating accounts receivable in the accounting in the amount;

whether the General Ledger contains conflicting account entries;

in what way these items of expenditure were overestimated when compiling the balance sheet;

what is the mechanism of distortion of accounting records;

whether the entries submitted for examination do not belong to the category of accounting records, if so, whether they have a common content with official accounting records;

whether the materials submitted for the study have records that are identical in their elements to accounting data;

which accounting transactions are reflected in the records submitted for examination;

Are the entries presented prepared by a person with accounting skills?

During the production of the SBE, issues of a preventive nature can also be addressed, for example: what shortcomings in record keeping could contribute to the concealment or commission of a crime?

SBE SHOULD BE DIFFERENT FROM AUDIT AND REVISION. SBE is not a form of financial control, pursues goals that are different from the goals of audit and revision, is a form of using special knowledge in legal proceedings, regulated by procedural legislation, the basis for appointing SBE are such circumstances of the case, for the correct assessment of which the investigator or the court needs the opinion of an expert accountant .

The subject of SEEE is information on financial transactions and financial performance of an economic entity, as well as factual data characterizing the formation, distribution and use of income, cash (funds) at the enterprise, negative deviations in these processes that affected economic performance or contributed to the commission of crimes associated with non-compliance with financial discipline.

Most often, when appointing FEEE, experts are asked about the following questions:

whether the reporting data of the enterprise correspond to its financial condition; if not, what economic forces led him to insolvency;

did it allow financial condition enterprises to provide a loan to another enterprise; if so, from what financial sources;

Do not the financial operations of the enterprise indicate the diversion of funds from the economic turnover and their misuse? etc.

Forensic economic expertise

Chaadaev S.G., Doctor of Law, Professor of the International Academy of Informatization Chadin M.V., Lecturer at Moscow State Law Academy

Forensic economic expertise

Depending on the subject of research and the tasks facing the expert, the following types of forensic economic examinations are distinguished: forensic accounting (SBE) and judicial financial and economic (SFEE), each of which is a study conducted by an expert economist using special knowledge in accordance with the procedure established by the CPC (APC, CPC). Moreover, such a division is very conditional, since the SBE can be an information basis for the production of SPEE; there is a close relationship between them, due to the need to study the same objects.

Subject SBE are business transactions reflected in accounting (phenomena, events of financial and economic activity), which contain information about the state, movement, presence or absence of material assets and funds and their sources, indicate the presence / absence of violations of accounting and tax accounting.

To the number main tasks SBE:

- establishment of proper/improper documentation of operations of acceptance, storage, sale of inventory items and cash;

- identification of compliance / non-compliance of reflections in accounting documents, economic and financial transactions with the requirements of accounting and reporting to the current regulations;

- establishing the validity of posting, dispensing and writing off finished products, goods, cash;

- determination of documentary substantiation of the amount of claims and the circle of persons who were credited with inventory items or cash.

SBE SHOULD BE DIFFERENT FROM AUDIT AND REVISION.

SBE is not a form of financial control, pursues goals that are different from the goals of audit and revision, is a form of using special knowledge in legal proceedings, regulated by procedural legislation, the basis for appointing SBE are such circumstances of the case, for the correct assessment of which the investigator or the court needs the opinion of an expert accountant .

Subject SFEE are information about financial transactions and financial performance of an economic entity, as well as factual data characterizing the formation, distribution and use of income, cash (funds) at the enterprise, negative deviations in these processes that affected the performance of economic activity or contributed to the commission of crimes related to with non-compliance with financial discipline.

The need to appoint a FEES arises in the investigation of crimes related to bankruptcy, pseudo-business, malicious evasion of repayment of accounts payable, etc. Main tasks while becoming:

- study of indicators of the financial condition and financial and economic activity of an economic entity, including solvency, financial stability, liquidity, etc.;

- study of signs and ways of distorting data on financial indicators that affect the financial result and settlements on the obligations of an economic entity;

- characterization of the dynamics of the financial condition of the enterprise and analysis of the factors that caused its negative changes;

- determination of the economic feasibility of the financial performance of the enterprise in case of distortion of data on income and expenses;

- the degree of provision of the enterprise with working capital;

- the reasons for the formation of accounts receivable and payabledebt.

1.3. Production of forensic economic examinations

1.3.1. The procedure for the appointment of a forensic economic examination

The grounds for the production of the SEA are the decision of the court, the decision of the judge, the person conducting the inquiry, the investigator or the prosecutor. The SEA is considered to be appointed from the date of issuance of the relevant resolution or ruling.

SEE at the stage of preliminary investigation can be appointed both by the body of inquiry and by the investigator. However, after the initiation of a case, the bodies of inquiry are obliged to carry out only urgent investigative actions to identify and fix the traces of the crime, after which they transfer the case to the investigator. Therefore, in the vast majority of cases, the SEE is appointed by the investigator. On the investigator in accordance with Art. 69 of the Code of Criminal Procedure imposes the obligation to collect evidence, on the basis of which the presence or absence of a socially dangerous act, the guilt of the person who committed this act, and other circumstances are established. These data are established by the testimony of a witness, victim, suspect, accused, expert opinion, material evidence, protocols of investigative and judicial actions and other documents.

According to Art. 69 of the Code of Criminal Procedure, the expert's opinion is evidence, and the SEE is a procedural action to obtain it. Acts, certificates, conclusions available in the case on the results of a departmental study of any circumstance called SEA (for example, shortage of goods and materials, etc.), even if received at the request of the investigating authorities or the court, but not meeting the requirements of the rules for conducting SEA , cannot be considered as an expert opinion and serve as a basis for refusing to conduct an SEA.

The investigator may appoint an SEE if special knowledge in science, technology, art or craft is necessary during the preliminary investigation, and if there is a need for a more competent analysis and interpretation of the collected factual data, a description of the course of certain processes related to cases that have already been previously audited (Article 78 of the Code of Criminal Procedure).

The most significant grounds for the appointment of a forensic accounting expertise are:

the need to study issues that require the use of special knowledge of an expert economist;

poor-quality conduct of the audit, expressed in the presence of contradictions between the act of audit and other materials of the case, contradictions in the conclusions of the auditors during the initial, repeated or additional audits;

substantiated petition of the accused for the appointment of the SEE;

conclusion of experts from other specialties on the need for SEA.

Appointment of the SEE in accordance with Art. 79 of the Code of Criminal Procedure is not mandatory and is at the discretion of the investigator. In addition, the investigator has the right to suspend or terminate the SEA on his own initiative or on the basis of statements by the participants in the process (including the expert) at any stage of its production. These functions can also be performed by the heads of investigative units and prosecutors supervising the investigation.

After making a decision to conduct an SEA, the investigator evaluates the case materials from the point of view of sufficiency and completeness and collects additional data for the SEA, without which it is impossible to conduct it. The collected material is analyzed by the investigator and only after that a decision is made on the appointment of the SEE, which lists the issues to be resolved by the expert. The investigator, the court should not allow the expert to raise legal issues that are not within his competence (for example, whether there was a theft, a shortage, who is guilty of embezzlement, etc.). The materials required by the expert economist for each specific case are determined by the investigator. However, submission of additional materials may be carried out after the appointment of the SEA, if the expert so requests.

Having recognized the materials collected for the production of the SEA as sufficient, the investigator appoints the SEA.

The procedural act implementing this decision is the decision of the investigator on the appointment of the SEE. The investigator, the court is not entitled to replace the resolution, ruling on the appointment of the SEA with other documents not provided for by law (a cover letter, a list of questions for an expert, etc.).

The resolution in its content consists of an introductory-descriptive and resolutive parts.

The first of them must contain the following mandatory details: time and place of drawing up the resolution; class rank or military rank of the investigator, his last name; the name of the investigating authority; when appointing the SEE by the court, the ruling shall indicate the name of the court, the names of the judge and assessors; case number; indicate the place and date of the decision.

The operative part announces the decision of the investigator on the appointment of the SEA, the name of the expert or the name of the institution where the SEA is to be carried out, sets out the questions posed to the expert for resolution during the study, and describes the materials provided to the expert. The list of materials indicates: objects of study; samples for comparison; investigative materials, the knowledge of which is necessary for the expert. The location of documents and objects is also indicated.

Methods for the production of expertise are determined, as a rule, by the expert. However, the investigator is entitled, based on the circumstances of the case, to indicate in the decision the need for a certain method of investigation (for example, a cross-check of documents).

The preliminary investigation must be completed in accordance with Art. 133 of the Code of Criminal Procedure no later than within two months. Therefore, if the volume of expert work is large, then in order to speed up the conduct of the SEA, on the initiative of the investigator or the head of the expert institution, several experts of the same specialty are involved in the examination.

Appointment of the SEE by the court is a complex process, which is the result of the implementation of both the initiative of the persons participating in the case and the powers of the court.

When appointing the SEE by the court, a complex of procedural relations is formed: between the court and each of the persons participating in the case; between the court and the expert. These relations differ in terms of origin, content, procedural significance. Relations between the court and each of the persons participating in the case arise regarding a petition for the appointment of an SEE, for the appointment of a specific expert, for the challenge of an expert, for the formation of a range of issues.

These procedural relations are mediated in the petitions of interested persons and court rulings on their satisfaction or rejection and are characteristic of the very process of appointing the SEE; they seem to anticipate the appointment.

The result of the actions to appoint the SEA is reflected in a special procedural act - a court ruling on the appointment of a forensic examination. It is this that brings to life the system of relations between the court and the expert. Therefore, its structure should be considered in more detail.

The court ruling on the appointment of the SEA (as well as the decision of the investigator) in criminal cases must indicate the specific grounds for appointing the SEA, the issues that need to be resolved, the materials and circumstances of the case to be investigated. In the event that an examination was carried out at the stage of the preliminary investigation of the case, the court has the right to put before the expert questions similar to those that he resolved on the instructions of the investigator, and to determine the same range of materials for examination. But from this, the SEA on behalf of the court does not become repeated. The principle of direct investigation of evidence in a case means that the court is not bound and not limited by the materials of the preliminary investigation. He independently appoints and conducts the SEE provided for by law - primary, additional, repeated - and can interrogate an expert (in accordance with Article 289 of the Code of Criminal Procedure).

The peculiarities of the appointment of the SEE in a court session are due to the fact that the accuser, defense counsel, defendant, victim, civil plaintiff, civil defendant and their representatives take part in formulating questions, determining the scope of the circumstances under investigation; on all questions put to the expert, the opinion of the participants in the trial, the conclusion of the prosecutor are heard.

What questions should be put to the permission of the expert, the court ultimately establishes, including them in its definition or supplementing them with the previously issued one. The Code of Civil Procedure, in contrast to the Code of Criminal Procedure (Article 184), does not contain clear rules on this matter. Nevertheless, judicial practice and doctrine have developed some general requirements and rules for the preparation of this definition. The ruling on the appointment of the SEA must contain all the details inherent in the judicial ruling and listed in Art. 224 Code of Civil Procedure.

an indication of the time and place of issuance;

name of the court (its composition and secretary of the court session);

the name of the persons participating in the case and the subject of the dispute (brief plot of the case);

an indication of the circumstances relevant to the case (facts of the subject of proof or evidentiary facts), for the confirmation or refutation of which an expert examination is appointed;

the motives of the court, on which he came to the conclusion about the need for the SEA, and the reference to the laws that the court was guided by when appointing the SEA;

name of a particular subject (type) of the SEE;

formulation of the expert task - questions to the expert;

definition of the object of research (or in relation to whom it is carried out);

who is entrusted with the production of the SEA (name of organization, laboratory, surname, name, patronymic of the expert);

the name of the case materials placed at the disposal of the expert (for example, minutes of the court session, minutes of interrogation of witnesses, handwritten notes of the subject - list which ones);

description of comparative materials (if any are made available to the expert);

the period during which the SEA must be carried out;

the location of the SEA (in court or out of court);

warning experts about liability, in accordance with the current legislation (Article 307 of the Criminal Code of the Russian Federation), for giving a knowingly false conclusion;

signature of the judge (judges) who issued the ruling.

As you can see, the structural definition includes three parts:

preparatory or introductory (place, time of issuance, composition of the court, in which case, at the request of which party, if any);

descriptive (brief plot of the case - highlighting the legal circumstances, the proof of which requires an examination, as well as the reasons and grounds for the examination);

decision (object and subject of research, questions to the expert, who is entrusted, a list of transferred materials).

The descriptive part should be formulated in such a way that it is clear from it why the need for this SEA arose, for the establishment by the court of what legally significant circumstance its results may be suitable, what is the special purpose of this study.

Given the need to strengthen the procedural guarantees of the rights of the parties when appointing the SEA, the operative part should be supplemented with an indication that the parties are familiar with the definition on the appointment of the SEA.

The ruling on the appointment of the SEA does not specify the procedure and terms for appealing, since the law does not provide for such a possibility. An interested person who does not agree with the determination on the appointment of the SEA (for example, with the range of questions asked to the expert or with the very fact of the appointment of the examination) cannot appeal such a determination separately from the appeal of the court decision.

If a higher court recognizes the appointment of the SEA as illegal or unreasonable and cancels the decision on the appointment of the SEA, then, accordingly, all legal consequences of such a decision are "annulled". For example, if the court has already received an expert’s opinion (in the case when the ruling is appealed without suspending the SEA), then the cancellation by the higher court of the decision on the appointment of the SEA makes it impossible for the court of first instance to use the expert’s opinion as evidence.

Thus, when appointing an SEE at the stage of preparing a case for trial, one must pay attention to the time limits established by Art. 99 of the Code of Civil Procedure (the preparation of the case is carried out within a seven-day period). If the production of the SEA requires more time, then, according to a reasoned decision of the judge, the total period for preparing the case may be extended up to 20 days; however, this power of a judge is provided by law for exceptional cases (part 1 of article 99 of the Code of Civil Procedure).

Since the SEA is most often carried out outside the court (ie not in the courtroom), when it is appointed at the trial stage, it becomes necessary to give the expert time for a special study. Therefore, the Code of Civil Procedure provides for the right of the court to suspend the proceedings in the event of the appointment of an SEE (clause 5, article 215 of the Code of Civil Procedure). The decision to suspend proceedings is issued by the court at the request of the interested persons or on its own initiative.

The need for a commission or complex SEA is indicated in the resolution (determination) on the appointment of the SEA. The head of the expert institution has the right to instruct to conduct a commission or complex SEA on his own initiative or on the initiative of an expert. The expert performing the SEA outside the expert institution, having come to the conclusion about the need for a commission or complex SEA, raises a question about this before the investigator (court) in the manner prescribed by the procedural law.