Commentary to Art. 345 of the Criminal Code
1. From the objective side, the crime is characterized by the abandonment of a dying warship by one of the following entities: a) a commander who has not fully fulfilled his official duties established by the Charter of Service on Navy Vessels, approved by Order of the Minister of Defense of the Russian Federation of July 22, 2010 N 999; b) by a person from the ship’s crew without a proper order from the commander.
2. The encroachment ends from the moment of the unlawful abandonment of the sinking warship.
Commentary on Article 345 of the Criminal Code of the Russian Federation
The object of the crime is the established procedure for abandoning a dying warship.
The objective side is a violation of the rules for abandoning a dying ship.
According to the Naval Charter of the Russian Navy, no one can leave a dying ship without the permission of its commander, and the commander is the last to leave the ship after fulfilling his duties to evacuate people, property and valuables. Abandonment of a dying ship by a commander who has not fully fulfilled his official duties, as well as by a person from the crew without the proper order of the commander, is recognized as a military crime.
Thus, the objective side of the crime is formed by actions expressed in the transition of a crew member from a dying ship to the shore or on board another vessel, including an aircraft, as well as on other vessels, jumping into the water without the permission of the commander and in similar actions of the commander, when they have not fully fulfilled their official duties. In addition, for there to be a crime, it is necessary that these actions were committed precisely in the context of the death of a warship. Leaving a ship in a different environment does not constitute this crime and should be qualified according to the provisions of the Criminal Code of the Russian Federation, which establish liability for other crimes against military service.
The corpus delicti is formal in design. The crime is over from the moment the sinking ship is abandoned, regardless of the consequences.
The subjective side of abandoning a ship by a person from the crew without the commander’s order is characterized only by direct intent, in which the culprit is aware that he is illegally leaving board a dying warship and desires it. The subjective side of the commander’s abandonment of the ship can be characterized by both intentional and careless forms of guilt.
The subject of the crime is a special one - the commander of a warship or members of the ship's crew.
Second commentary to Art. 345 of the Criminal Code of the Russian Federation
1. The article provides for liability for the abandonment of a dying warship by two categories of military personnel: the commander of the ship and a person from the ship’s crew. In circumstances threatening the destruction of the ship, the commander, in accordance with the Naval Charter, must take all measures to save the ship, personnel, passengers and valuable military property.
2. The subjects of the crime are the commander of the ship, appointed to this position in the prescribed manner, and a person from the ship’s crew.
3. A mandatory sign of the composition is the presence of a situation threatening the destruction of the ship, as well as the ability of the commander to carry out all the actions prescribed to him. The crime is considered completed from the moment the sinking warship is abandoned.
4. Abandonment of a dying warship by the commander can be committed either intentionally or through negligence, and by a person from the crew - intentionally.
Commentary on Article 345 of the Criminal Code of the Russian Federation
1. The objective side of the crime is expressed in the unlawful abandonment of a dying ship by the commander or a person from the crew (crew) of the ship. Abandonment by the commander of a dying warship is considered unlawful if the commander has not fully fulfilled his duties to save the ship, people and property; abandonment of the ship by a member of the crew (crew) - without proper instructions.
2. The crime is considered completed from the moment the sinking ship is unlawfully abandoned by its commander or a serviceman from the ship’s crew.
3. The subjective side of the crime is characterized by intentional guilt.
4. The subject of the crime is the ship’s commander or a member of the ship’s crew.
Commentary on Article 345 of the Civil Code of the Russian Federation
1. The title of the commented article does not correspond to its content. The name indicates technical standards that determine what and in what order should be done in order for the collateral to be replaced and restored. The article itself contains not technical, but legal norms. They regulate not the replacement and restoration of the collateral, but a special case of changing the collateral agreement - the case of destruction of the collateral.
2. Replacing the subject of pledge under paragraph 1 of the commented article is one of the special cases of changing the pledge agreement. According to paragraph 1 of Art. 450 of the Civil Code, a change in the contract is possible by agreement of the parties, unless otherwise provided by the contract. It follows that the contract may also provide for a unilateral change. In particular, the pledge agreement may stipulate that the pledged item can be replaced (and therefore the agreement is changed) without the consent of the pledgee.
3. Paragraph 2 of the commented article contains a rule according to which the pledgor is given the right, at his own discretion, to change the pledge agreement in the event of the destruction of the pledged item. The destruction of the subject of pledge means that the civil legal relationship is deprived of its object and cannot continue to exist without a corresponding change. In accordance with Art. 432 of the Civil Code, a contract is considered concluded if an agreement is reached between the parties on all the essential terms of the contract. In this case, the condition regarding the subject of the contract is considered essential. Therefore, replacing the subject of the pledge agreement is a change in the pledge agreement.
Paragraph 2 of the commented article, establishing that the pledgor has the right to replace the lost subject of pledge, thereby gives him the right to unilaterally change the pledge agreement. After such a replacement, the pledge agreement receives a new item, i.e. is an amended pledge agreement.
It is important to emphasize that clause 2 of the commented article does not require the pledgee’s consent to amend the pledge agreement. It indicates that the pledgor has the right to make a replacement. It follows that the pledgee is obliged to agree to such a change in the contract.
Paragraph 2 of the commented article leaves to the discretion of the pledgor not only the decision on whether or not to change the pledge agreement, but also, in the positive case, how to change it and within what time frame to make the change. The article states that the pledgor has the right to replace the item with equivalent property. However, it is not determined how and by whom this equivalence is established. Since the issue of changing the contract is decided unilaterally by the mortgagor, he is thereby given the right to decide which property is of equal value. The commented article does not give the pledgee any rights in this procedure; he is not given the right to vote when the pledgor decides on the equivalence of the property.
A characteristic feature of clause 2 of the commented article is that it does not establish a fixed period during which the pledgor must resolve the issue of changing the pledge agreement. Meanwhile, there are no difficulties in clearly resolving this issue. It is always possible to establish the day on which the collateral died and count the period of one or another, but precisely established duration. Instead, paragraph 2 of the commented article establishes that changes to the pledge agreement must occur within a reasonable time. It is impossible to explain such a refusal of clear regulation. It can only be noted that since all changes to the pledge agreement are made by the pledgor unilaterally, it is left to him to determine what period is reasonable.
In paragraph 2 of the commented article, some other aspects of the relationship are left without regulation, for example, about the form in which the mortgagor’s decision to change the agreement should be implemented, about the possibility for him to cancel this decision, about the possibility of replacing one property offered by him with another property, etc.
4. Paragraph 2 of the commented article also regulates one of the circumstances that lies outside the scope of changing the pledge agreement. It gives the pledgor the right to restore the damaged collateral. For such restoration, of course, it is not necessary to change the pledge agreement: the damaged subject of the agreement continues to exist.
The rule in question gives the pledgor the right (but does not impose an obligation on him) to restore the pledged item, and within a reasonable time. This right of his competes with his other right. If the damaged property was in the possession of the pledgee, then he has the right to demand compensation for losses (clause 2 of Article 344 of the Civil Code). If the property was in his possession, then this right collides with his obligation to take measures necessary to ensure the safety of the pledged property (subparagraph 2, paragraph 1, article 343 of the Civil Code), which, obviously, includes repairs.
Article 345.1 of the Criminal Code of the Russian Federation. Practice and theory
Today, the danger of the spread of the “Nazism virus” is a very acute problem, which was emphasized by our President V.V. Putin.
In his speech, Vladimir Vladimirovich pointed out that “Unfortunately, the “vaccine” against the Nazi virus, developed at the Nuremberg Tribunal, is losing force in some European countries. Of particular concern in this regard is the situation in Ukraine, where an unconstitutional coup d’etat took place, the driving force of which was nationalists and other radical groups.”
In our opinion, the President’s words only partly reflect reality. The threat of Nazism is by far the most dangerous than most citizens of our country imagine. Due to the aggravated political situation around the world, we are seeing outbreaks of the “brown plague”. Fortunately, these phenomena are still local in nature, but if measures are not taken to eliminate them, then it will soon engulf not only Western countries, as it was at the beginning of the 20th century, but the whole world.
The goal of any state is to protect its history from distortion. To do this, the state has such a tool as criminal prosecution. Criminalizing attempts to revise history has at least one obvious advantage - making it clear to all citizens that these acts are clearly prohibited and can lead to very severe punishment for them.
Thus, Federal Law No. 128-FZ of May 5, 2014 supplemented the Criminal Code of the Russian Federation with Article 354.1, which established responsibility for the rehabilitation of Nazism.
This criminal law provision provides for criminal liability for denying or approving the crimes of Nazism, attempts to rehabilitate, distort or justify Nazi criminals, recognize the actions of the anti-Hitler coalition as unlawful, as well as desecration of symbols of Russia’s military glory. Its introduction is not a “spontaneous step”. Back in 2012, at the thirty-seventh plenary meeting of the Interparliamentary Assembly of the CIS Member States, by Resolution No. 37-18 dated May 17, 2012, the Model Law “On the inadmissibility of actions to rehabilitate Nazism, the glorification of Nazi criminals and their accomplices” was adopted, which was signed by the CIS member states . Its main provisions formed the basis of Art. 354.1 of the Criminal Code of the Russian Federation.
In the Criminal Code of the Russian Federation, this article is included in Section 12, Chapter 34, “Crimes against the peace and security of mankind.”
Based on the results of the study, we can safely say that in Russia there is an increasing trend in these crimes, which is an alarming factor.
During the period of introduction of Article 354.1 into the Criminal Code of the Russian Federation, 7 crimes were officially registered, six of which criminal cases were initiated. In two cases, guilty verdicts were returned.
Despite the fact that Art. 354.1 of the Criminal Code of the Russian Federation was introduced relatively recently; law enforcement officials successfully use this article today, since the legislator, when applying this norm, took into account the growth trend of these crimes. Based on the above, we see that this article is not just working, but also has very great prospects in the future.
Of course, the article is not ideal and needs a number of improvements consisting in legislative codification; we observe a number of problems that are associated with the application of this article in practice.
These problems arise not only from the theory of law, but from the practical application of this article. Based on the theory of law, we know that a norm has three components: hypothesis, disposition, sanction. As for the disposition of our article, we believe that it requires improvement and the introduction of a clear concept of “rehabilitation of Nazism” into the norm itself.
The lack of legislative recognition of the concept of rehabilitation of Nazism in the legislation of the Russian Federation may create confusion in law enforcement practice. In order for this norm to really work, in our opinion, it is necessary to give a clear definition of both the concept of Nazism and the responsibility for its rehabilitation.
To simplify the application of this article, we consider it appropriate to introduce a hypothesis in the form of a note that would contain the conditions for the application of this norm. The sanction of this article is not perfect and requires revision in the direction of toughening the punishment.
