ST 145 of the Criminal Code of the Russian Federation.
Unreasonable refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy, as well as unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age, for these reasons - is punishable by a fine of up to two hundred thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a period of up to three hundred and sixty hours.
Commentary to Art. 145 Criminal Code
1. The victim is a pregnant woman or a woman who has at least one child under the age of three.
2. The objective side is characterized by an unjustified refusal to conclude an employment contract with the victim or an unjustified termination of the employment contract with the victim. Refusal to conclude an employment contract and termination of an employment contract with the victim become unjustified when they are caused by reasons related to pregnancy or the presence of a child under three years of age, and not other considerations of the employer.
Criminal liability under Art. 145 of the Criminal Code is not excluded in the case where the dismissal of a woman (termination of an employment contract) occurs not on the initiative of the employer, but by agreement of the parties, the initiative of the employee or other circumstances known to labor law, however, all these circumstances are artificially created by a person who does not want to have employee a pregnant woman or a woman with a child under three years of age.
3. Special subject: an individual who is an employer, or an individual authorized on behalf of a legal entity to enter into and terminate an employment contract.
Second commentary to Art. 145 of the Criminal Code of the Russian Federation
1. The object of the crime is the constitutional right to the protection of motherhood and childhood, which, in accordance with the Constitution of the Russian Federation, must be ensured by the state (Article 38 of the Constitution of the Russian Federation).
2. The objective side is the unjustified refusal to hire or unjustified dismissal from work of a pregnant woman or a woman with children under three years of age.
The crime is completed from the moment of refusal to hire or dismissal from work.
3. The subject of the crime is an official, as well as a person performing managerial functions in a commercial or other organization, enjoying the right to hire and dismiss from work.
4. Subjective side - guilt in the form of direct intent. The motive for the crime was reluctance to employ a pregnant woman or a woman with children under three years of age.
Commentary to Art. 145.1 of the Criminal Code of the Russian Federation
In accordance with Part 3 of Art. 37 of the Constitution of the Russian Federation, everyone has the right to work in conditions that meet safety and hygiene requirements, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment.
In this regard, the object of the crime in question is to ensure the right of every employee to timely payment of fair wages in full, as well as the right to social security due to age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law.
The subject of the crime is wages, pensions, scholarships, benefits, and payments established by law.
The objective side of the crime consists of an act in the form of non-payment (inaction) of more than two months of wages, pensions, scholarships, benefits and other payments established by law.
Qualified composition (Part 2 of Article 145.1 of the Criminal Code of the Russian Federation) provides, along with the act, the onset of socially dangerous consequences in the form of grave consequences, as well as a causal relationship between the act and the resulting consequences.
The main elements of the crime in question are formal. It ends after two months from the date on which wages are due to be paid. The qualified corpus delicti is material. Such a crime is completed upon expiration of the above period and in the event of grave consequences.
The concept of grave consequences is not specified and is of an evaluative nature. This may be loss of ability to work, illness, disability, harm to health, death of a person, destruction or damage to property, etc.
The composition of non-payment will only be if the non-payment took place when there was a real opportunity to pay wages, etc. Otherwise, there is no corpus delicti of the crime in question.
You should also pay attention to the fact that the objective side of non-payment of wages is carried out through inaction for more than two months in a row. Therefore, the objective side will be absent, for example, when wages are paid, etc., before reaching a two-month period, and then payments are not made again. Thus, the fact of payment interrupts the statutory period for non-payment.
The subjective side of the main element of the crime is characterized by guilt in the form of direct intent. The person realizes that he is unreasonably failing to pay wages, pension, scholarship, allowance or other payment established by law and wishes to take such an action.
The subjective side of a qualified crime is characterized by a double form of guilt. The attitude towards the act is characterized by intent, and the attitude towards the consequences - by negligence.
A mandatory subjective feature of the composition is motive - selfish or other personal interest.
A selfish motive can be expressed in a person’s desire to obtain property benefits, solve current financial problems at the expense of wages, receive profit from the temporary investment of specified funds in real estate, securities, etc.
Another personal interest may lie in the desire for career growth, getting rid of unwanted employees, the desire to gain support, to show the financial viability of the enterprise using the available funds in the account, etc.
The special subject of the crime is the head of the organization, regardless of the form of ownership, the employer is an individual.
Third commentary to Article 145 of the Criminal Code of the Russian Federation
1. The direct object of the crime in question is social relations that ensure the right to work of a pregnant woman and a woman with children under three years of age.
2. The objective side of the crime is characterized by an act (action or inaction) in the following forms: a) unjustified refusal to hire or unjustified dismissal of a pregnant woman; b) unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age. Illegal actions that contradict labor laws and that actually violate the equality of citizens based on gender should be considered unreasonable. The corpus delicti of this crime is formal, i.e. the act is considered criminal regardless of the occurrence of any harmful consequences and is considered completed at the time of the commission of illegal actions.
3. This is a special composition in relation to the corpus delicti provided for in Art. 136 of the Criminal Code. The crime is considered completed at the moment of refusal or when a dismissal order is issued. The duration of pregnancy does not matter, but the perpetrator must know for sure that the woman is pregnant.
4. A crime can only be committed with direct intent. The subject is aware that he is unreasonably (illegally) refusing to hire or dismissing a woman who he knows is pregnant or has children under the age of three, and wishes to act in this way. A mandatory feature is the motive specified in the law - reluctance to employ a pregnant woman or a mother with children under three years of age.
5. The subject of the crime is only special - either an official who exercises the right to hire or fire, or a person performing managerial functions in a commercial or other organization.
If selfish motives or other personal interest are established in the actions of these persons, then an ideal set of crimes is evident (Articles 145 and 201 or 285 of the Criminal Code). ‹Article 144.1. Unreasonable refusal to hire or unjustified dismissal of a person who has reached pre-retirement ageUp Article 145.1. Non-payment of wages, pensions, scholarships, benefits and other payments ›
Comments on Article 145.1 of the Criminal Code of the Russian Federation
The object of the crime is to ensure the right of every employee to timely payment of fair wages in full, as well as the right to social security due to age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law.
The subject of the crime is wages, pensions, scholarships, benefits, and payments established by law.
The victim is the employee, as well as persons receiving, respectively, pensions, scholarships, and benefits.
An injured employee may be not only a person with whom a written employment contract has been concluded, but also a person who is actually in an employment relationship with the employer, as the Supreme Court of the Russian Federation directly indicated in paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 N 46:
Criminal liability in accordance with Article 145.1 of the Criminal Code of the Russian Federation arises, among other things, in cases of non-payment of wages and other payments to employees with whom an employment contract was not concluded or was not properly executed, but they began work with the knowledge or on behalf of the employer or his authorized representative representative (Article 16 of the Labor Code of the Russian Federation).
The objective side of the crime is characterized by inaction - illegal non-payment of wages, pensions, scholarships, benefits and other payments established by law.
“Other statutory payments” should be understood as those amounts the payment of which is provided for by law; There is no criminal liability for non-payment of amounts provided for by-laws or local legal acts.
Part 1 of Article 145.1 of the Criminal Code of the Russian Federation establishes liability for partial non-payment of wages, pensions, scholarships, benefits and other payments established by law for more than three months Thus, the arrears of these payments within three months from the date of the established date of the initial payment is a necessary condition for the objective side of the crime.
In accordance with Note 1 to Article 145.1 of the Criminal Code of the Russian Federation, partial non-payment of wages, pensions, scholarships, benefits and other payments established by law should be understood as making a payment in the amount of less than half of the amount payable.
A qualified crime (Part 2 of Article 145.1 of the Criminal Code of the Russian Federation) is formed by complete non-payment of wages, pensions, scholarships, benefits and other payments established by law for more than two months or payment of wages for more than two months in an amount below the minimum wage established by federal law.
So, for example, the minimum wage from 01/01/2020 is set at 12,130 rubles per month (Article 1 of the Federal Law of June 19, 2000 N 82-FZ “On the minimum wage”).
Part 3 of Article 145.1 of the Criminal Code of the Russian Federation establishes liability for committing acts provided for in parts 1 and 2 of this article, if they lead to grave consequences . To have the objective side of this qualified composition, it is necessary to have a causal connection between the act and the consequences that occur.
The offenses provided for in Parts 1 and 2 of Article 145.1 of the Criminal Code of the Russian Federation are formal . They will be completed, respectively, after three or two months from the initial date of occurrence of the unfulfilled obligation to make payments.
The corpus delicti provided for in Part 3 of Article 145.1 of the Criminal Code of the Russian Federation is material. The crime will be completed upon expiration of the above-mentioned periods from the moment of the onset of grave consequences.
The concept of grave consequences is not specified and is of an evaluative nature. This may be loss of ability to work, illness, disability, harm to health, death of a person, destruction or damage to property, etc.
The composition of non-payment will only be if the non-payment took place when there was a real opportunity to pay wages, etc. Otherwise, there is no corpus delicti of the crime in question. This is also indicated in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 N 46:
The circumstances subject to proof and giving grounds for criminal liability under Article 145.1 of the Criminal Code of the Russian Federation of the head of an organization or other person specified in this article should include whether he has a real financial ability to pay wages, other payments or the absence of such an opportunity due to his unlawful actions .
You should also pay attention to the fact that the objective side of non-payment of wages is carried out through inaction for more than two or three months in a row. Therefore, the objective side will be absent, for example, when wages are paid, etc., before reaching a two-month period, and then payments are not made again. Thus, the fact of payment interrupts the statutory period for non-payment. However, it should also be taken into account that under certain circumstances, complete non-payment of wages and other payments may turn into partial non-payment.
The statute of limitations for criminal prosecution for committing a crime under Article 145.1 of the Criminal Code of the Russian Federation is calculated from the moment of its actual completion, in particular from the date of repayment of the debt, dismissal of the guilty person or his temporary removal from office. The dismissal of an employee who has not been paid wages does not affect the calculation of the statute of limitations for criminal prosecution of the employer (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 N 46).
The subjective side of formal crimes (parts 1 and 2 of Article 145.1 of the Criminal Code of the Russian Federation) of the main crime is characterized by guilt in the form of direct intent . The intentional nature of this act is also indicated in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 N 46.
The subjective side of the material elements of the crime (Part 3 of Article 145.1 of the Criminal Code of the Russian Federation) is characterized by two forms of guilt . The attitude towards the act is characterized by intent, and the consequences - by negligence.
A mandatory feature of the subjective side of a crime is a motive - selfish or other personal interest.
Selfish interest is the desire of a person, by committing illegal actions, to obtain for himself or other persons a benefit of a property nature, not related to the illegal gratuitous circulation of property in his favor or in the favor of other persons.
Other personal interest is a person’s desire to benefit from a non-property nature, caused by such motives as careerism, nepotism, the desire to embellish the actual situation, receive a mutual favor, enlist support in resolving any issue, hide one’s incompetence, etc.
The subject of the crime is special - the head of the organization, the employer - an individual, the head of a branch, representative office or other separate structural unit of the organization.
