ST 235 of the Criminal Code of the Russian Federation.
1. Carrying out medical activities or pharmaceutical activities by a person who does not have a license for this type of activity, provided that such a license is required, if this has negligently caused harm to human health, is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of wages wages or other income of the convicted person for a period of up to one year, or by restriction of freedom for a term of up to three years, or by forced labor for a term of up to three years, or by imprisonment for the same term.
2. The same act, which through negligence resulted in the death of a person, is punishable by forced labor for a term of up to five years or imprisonment for the same term.
Part 1 art. 235 of the Criminal Code of the Russian Federation
Carrying out medical activities or pharmaceutical activities by a person who does not have a license for this type of activity, provided that such a license is required, if this has negligently caused harm to human health, is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one year, or by restriction of freedom for a term of up to three years, or by forced labor for a term of up to three years, or by imprisonment for the same term.
The Plenum of the Supreme Court eliminates competition between articles of the Criminal Code
The Plenum first addressed the topic of responsibility for crimes provided for in Art. 238 of the Criminal Code, said Supreme Court Judge Oleg Borisov. Meanwhile, 4,500 people were convicted under this article in 2022, and another 3,773 in 2018. “The clarifications are very relevant and timely, they will be in demand by the courts and will provide invaluable assistance when considering cases of this category,” emphasized Artem Grachev, Deputy Chairman of the Supreme Court of the Republic Mari El Republic.
Nikolai Pikurov, professor of the department of criminal law disciplines at the University of the Prosecutor's Office of the Russian Federation, said: the main problem of Art. 238 of the Criminal Code – in competition between similar offenses. “In similar situations, different decisions are made,” he emphasized.
Composition differentiation
Therefore, one of the problems that the Plenum resolved is precisely the qualification of the crime. Courts must remember: if criminal liability for violation of special requirements or rules is established in other articles of the Criminal Code, then qualify the act under Art. 238 is not allowed.
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The resolution gives an example: if a tram driver violated traffic rules, causing people to die, then his actions should be qualified not under Art. 238, and according to Art. 264 CC. Another example of competition between compositions from practice was given by Pikurov: the qualification of a fire in a restaurant should take place according to Art. 219 “Violation of fire safety requirements”, and not according to 238.
“The difficulty in qualifying under Art. 238 is due to the imperfection of the current legislation and does not have simple solutions. In general, the delimitation of crimes proposed by the project seems correct,” emphasized Leonid Korzhinek, a representative of the Prosecutor General’s Office.
Only a real threat
The Plenum of the Supreme Court notes: criminal liability under Article 238 occurs provided that the danger of goods, products, works or services to human life or health is real. The real danger of goods and products may be indicated, for example, by the presence of design flaws in them, which could result in harm to the health of the consumer.
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When special knowledge is required to establish such a danger, the courts must have the appropriate expert or specialist opinions.
Since the Code of Administrative Offenses also stipulates such liability, when qualifying an act it is necessary to take into account whether the goods or services posed a real danger of causing serious harm to the health or death of a person. If yes - the Criminal Code, if no - the Administrative Code.
Without intent is not a crime
If the case is qualified under Art. 238 of the Criminal Code, then when deciding whether a person’s actions contain corpus delicti, the court must establish that the non-compliance of goods and products, performance of work or provision of services with safety requirements was covered by his intent.
And a necessary condition for the onset of criminal liability for the production, storage and transportation of goods and products that do not meet safety requirements is the commission of these acts for the purpose of sales.
Victim without a contract
Crime under Art. 238 of the Criminal Code encroaches on public relations, the Plenum notes. This means that the victim of such a crime may also be a person who was not in a contractual relationship with the criminal.
For example, in the case of an accident with the same tram, a person does not have to travel on a tram with a ticket in order to be recognized as a victim.
“Resolving all the complex, confusing issues regarding the application of Article 238 of the Criminal Code will help increase the certainty of the criminal law,” Pikarov expressed his opinion. The Ministry of Justice also supported the Plenum project. A representative of the Prosecutor General's Office also supported the initiative of the Supreme Court, but at the same time made a number of comments on the draft, which will be transferred to the drafting commission.
“The proposed clarifications most closely comply with the requirements of the law and will allow us to avoid mistakes in classifying crimes,” said Deputy Chairman of the Supreme Court of the Republic Mari El Grachev.
At the end of the discussion, Chairman of the Supreme Court Vyacheslav Lebedev sent the draft resolution for revision.
- Maxim Varaksin
Commentary to Art. 235 of the Criminal Code of the Russian Federation
Commentary edited by Esakova G.A.
1. The objective side is expressed in mixed inaction: the implementation of medical or pharmaceutical activities (action) by a person who does not have a license for this type of activity (inaction). The procedure for licensing medical activities is regulated by Decree of the Government of the Russian Federation of April 16, 2012 N 291; pharmaceutical activities - Decree of the Government of the Russian Federation of December 22, 2011 N 1081 (see also Article 52 of the Federal Law of April 12, 2010 N 61-FZ “On the circulation of medicines”).
2. The concept of medical activity is given in Art. 2 of the Federal Law of November 21, 2011 N 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation.”
3. A mandatory sign is the occurrence of consequences in the form of harm to a person’s health (Part 1) or his death (Part 2).
4. The subject of the crime is the person obliged to obtain a license, i.e. an individual entrepreneur operating in a given area without a license, a private person operating in a given area without a license and without registration as an individual entrepreneur, the head of an organization operating without a license. Employees of an organization or individual entrepreneur carrying out their activities without a license, in the event of the occurrence of these consequences, are liable under Art. 109, 118 CC.
Commentary on Article 235 of the Criminal Code of the Russian Federation
Commentary edited by Rarog A.I.
1. Private medical practice means the provision of medical services, both outpatient and inpatient (diagnosing health conditions, consulting, treatment) in the private healthcare system with the aim of making a profit.
2. Private pharmaceutical activities mean activities for the production of all types of dosage forms, their storage, delivery and sale outside the state and municipal healthcare system.
3. The crime in question is a special case of illegal entrepreneurship (see commentary to Article 171 of the Criminal Code).
4. Harm to human health as a consequence of a crime includes the infliction of grave harm.
5. The crime is considered completed from the moment of causing harm to health (Part 1) or the death of a person (Part 2).
6. From the subjective side, the crime is characterized by a careless form of guilt.
7. The subject of the crime is a person who has reached the age of 16 years.
Commentary on Article 235 of the Criminal Code of the Russian Federation
Commentary edited by A.V. Brilliantova
The object of the crime is relations to protect public health.
The objective side of the crime is expressed by an action - engaging in private medical practice or private pharmaceutical activity by a person who does not have a license for the chosen type of activity, if this has negligently caused harm to human health.
In accordance with the Federal Law of November 21, 2011 N 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation,” the organization of health care is based on the functioning and development of state, municipal and private health care systems. The private healthcare system consists of medical organizations, pharmaceutical organizations and other organizations operating in the field of health care created by legal entities and individuals.
Private medical practice is the provision of medical services by medical workers outside the institutions of the state and municipal healthcare systems at the expense of citizens’ personal funds or at the expense of enterprises, institutions and organizations, including medical insurance organizations, in accordance with concluded contracts.
In accordance with the Federal Law of May 4, 2011 N 99-FZ “On licensing of certain types of activities” (as amended on March 4, 2013), the Decree of the Government of the Russian Federation of April 16, 2012 N 291 “On licensing of medical activities” was approved (except for the specified activities carried out by medical organizations and other organizations included in the private healthcare system on the territory of the Skolkovo innovation center)” (together with the Regulations on licensing of medical activities (except for the specified activities carried out by medical organizations and other organizations included in to the private healthcare system, on the territory of the Skolkovo innovation center)) (as amended on January 17, 2013). Both organizations and individual entrepreneurs have the right to engage in medical activities.
The licensing requirements for an individual entrepreneur are as follows: the presence of a higher medical education, postgraduate and (or) additional professional education, provided for by the qualification requirements for specialists with higher and postgraduate medical education in the field of healthcare, and a specialist certificate, and if they intend to provide pre-medical care, a secondary medical education and a specialist certificate in the relevant specialty; in addition, the person has work experience in the following specialty:
at least 5 years – with higher medical education;
at least 3 years - with secondary medical education.
The use of traditional medicine must be distinguished from private medical practice.
In accordance with Art. 50 of the Federal Law of November 21, 2011 N 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation” traditional medicine are methods of healing that have been established in folk experience, which are based on the use of knowledge, skills and practical skills in assessing and restoring health . Traditional medicine does not include the provision of services of an occult-magical nature, as well as the performance of religious rituals.
A citizen who has received a permit issued by the executive authority of a constituent entity of the Russian Federation in the field of health protection has the right to practice traditional medicine.
The decision to issue a permit to practice traditional medicine is made on the basis of an application from a citizen and the presentation of a medical professional non-profit organization or an application from a citizen and a joint presentation of a medical professional non-profit organization and a medical organization. The permit gives the right to practice traditional medicine on the territory of the subject of the Russian Federation whose executive authority issued such a permit. Pharmaceutical activities include the manufacture of medicines, their receipt, storage, delivery, control over manufacturing technology, and sale to the public.
The actions of a person engaged in private medical practice or private pharmaceutical activities without the appropriate special permission (license) entail criminal liability if they negligently caused harm to health (mild, moderate or severe) or (under Part 2 of Article 235 of the Criminal Code of the Russian Federation ) death of a person.
The corpus delicti is material.
In the event that the implementation of private medical practice or private pharmaceutical activities without the appropriate special permission (license) did not entail the consequences specified in Art. 235 of the Criminal Code of the Russian Federation, but in this case major damage was caused to citizens, organizations or the state or income was generated on a large scale or on an especially large scale, the actions of the person should be qualified under the relevant part of Art. 171 of the Criminal Code of the Russian Federation (clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property acquired by criminal means”).
The subjective side of the crime is characterized by careless guilt.
The general subject of the crime is a sane person who has reached the age of 16 and is engaged in private medical practice or private pharmaceutical activity without a license. The subject of a crime can be either a person who has a special medical or pharmaceutical education (higher or secondary) or one who does not.
Judicial practice: sentences and punishment under Art. 235 of the Criminal Code of the Russian Federation
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