Awareness of the signs of the subject of the crime provided for in Article 189 of the Criminal Code of the Russian Federation: the position of judicial practice

New edition of Art. 189 of the Criminal Code of the Russian Federation. Illegal export from the Russian Federation or transfer of raw materials, materials, equipment, technologies, scientific and technical information, illegal performance of work (provision of services) that can be used in the creation of weapons of mass destruction, weapons and military equipment

1. Illegal export from the Russian Federation or transfer to a foreign organization or its representative of raw materials, materials, equipment, technologies, scientific and technical information, illegal performance of work for a foreign organization or its representative, or illegal provision of services to a foreign organization or its representative, which the offender knows may be used in the creation of weapons and military equipment and in respect of which export control has been established (in the absence of signs of crimes provided for in Articles 226.1 and 275 of this Code), -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by forced labor for a term up to three years, or imprisonment for the same period.

2. The same acts committed by a group of persons by prior conspiracy, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

3. Acts provided for in part one of this article, committed by an organized group or in relation to raw materials, materials, equipment, technologies, scientific and technical information, works (services), which the perpetrator knows can be used in the creation of weapons of mass destruction, their means of delivery and in respect of which export control has been established -

shall be punishable by imprisonment for a term of three to seven years, with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years.

Note. Lost power.

Commentary to Art. 189 of the Criminal Code of the Russian Federation

In accordance with the Federal Laws: dated 12/08/2003 N 164-FZ “On the fundamentals of state regulation of foreign trade activities”, dated 07/19/98 N 114-FZ “On military-technical cooperation of the Russian Federation with foreign states” and dated 07/18/99 N 183 -FZ “On Export Control” in order to protect the national interests of the Russian Federation when carrying out foreign trade activities in relation to weapons, military equipment and dual-use goods, ensuring defense, security and economic stability, as well as compliance with Russia’s international obligations on the non-proliferation of weapons of mass destruction and others The most dangerous types of weapons and technologies for their creation are subject to an export control system.

Export control is understood as a set of measures that ensure the implementation of the established procedure for foreign economic activity in relation to goods, information, work, services, results of intellectual activity that can be used in the creation of weapons of mass destruction, means of their delivery, other types of weapons and military equipment (Art. 1 of the Federal Law “On Export Control”). The method of export control is, in particular, the permitting procedure for carrying out foreign economic transactions with controlled goods, providing for licensing or another form of state regulation.

2. The subject of the crime is raw materials, materials, equipment, technologies, scientific and technical information, works and services that can be used in the creation of weapons, military equipment and for which export control has been established. The nomenclature of weapons, military equipment, certain types of raw materials, materials, technologies, scientific and technical information, works and services that are or can be used in the creation of weapons of mass destruction, their delivery vehicles, other types of weapons and military equipment ( controlled goods and technologies) are determined by lists (lists) established by decrees of the President of the Russian Federation on the proposal of the Government of the Russian Federation. The President of the Russian Federation, on the recommendation of the Government of the Russian Federation, also approves the list of states to which the transfer of military products is permitted. The export of goods, works, services, results of intellectual activity, the export of which is controlled, is carried out in the manner determined by the Government of the Russian Federation.

3. The objective side can be expressed by one of the following actions: 1) illegal export, i.e. export outside Russia of raw materials, materials, equipment, technologies, scientific and technical information without the obligation to re-import, which can be used in the creation of weapons and military equipment and in respect of which export control has been established; 2) transfer of the same items to a foreign organization or its representative without their removal from the territory of Russia; 3) performing work for a foreign organization or its representative, both within Russia and abroad, that can be used in the creation of weapons and military equipment and in respect of which export control has been established; 4) provision of services to a foreign organization or its representative, both within Russia and abroad, that can be used in the creation of weapons and military equipment and in respect of which export control has been established.

In all cases, these actions are performed illegally, i.e. in violation of established procedures and export control rules. In Art. 30 of the Federal Law “On Export Control”, violations of the legislation of the Russian Federation in the field of export control include: carrying out foreign economic transactions with controlled goods and technologies without licenses or permits; obtaining licenses or permits by submitting false documents or documents containing false information; violation of the requirements and conditions of licenses or permits, etc.

4. The crime is committed intentionally. The motives and purposes of the crime can be anything, with the exception of the desire to provide assistance to a foreign state, foreign organization or their representatives in carrying out hostile activities to the detriment of the external security of the Russian Federation.

5. A special subject of a crime is a person entitled to carry out foreign economic activity (see note to Article 189).

6. The problem of delimiting crimes provided for in Art. 189, and smuggling (Part 2 of Article 188 of the Criminal Code) arises in the case of illegal export of raw materials, materials, equipment that can be used to create weapons of mass destruction, means of their delivery, other weapons and military equipment in respect of which export control has been established , since in other cases provided for in Art. 189, either there is no crossing of the customs border at all, which is necessary for smuggling, or there are no smuggled items. It should be borne in mind that the essence of smuggling is the illegal movement of relevant goods across the customs border in addition to or with concealment from customs control, etc., while in the case of illegal export of goods listed in Art. 189, special export control rules related to quotas, licensing, etc. are violated. Therefore, when smuggling goods specified in Art. 189, responsibility should come specifically for smuggling. The subject of smuggling can also be persons who are not entitled to carry out foreign economic activity.

7. Illegal export or transfer of technologies, scientific and technical information, raw materials, materials, equipment, etc., which can be used in the creation of weapons of mass destruction, their delivery vehicles, weapons and military equipment, are qualified as high treason, if this information and information constitute a state secret and were transferred to a foreign state, a foreign organization or their representatives for carrying out hostile activities to the detriment of the external security of the Russian Federation, as well as if they were not a state secret, but were transferred on the instructions of foreign intelligence also for their use to the detriment of external security Russian Federation.

Illegal export or transfer of relevant technologies, scientific and technical information constituting state secrets, by a person who had access to this information or to whom it was entrusted or became known through his service and, moreover, vested with the right to carry out foreign economic activity, in the absence of signs of high treason, is qualified according to the totality of Art. Art. 189 and 283 of the Criminal Code.

Commentary on Article 189 of the Civil Code of the Russian Federation

1. The will of the person represented to cancel the power expressed in the power of attorney cannot come into force, i.e. entail termination of authority until the representative receives it. Therefore, the representative, contrary to the prescription of the first sentence of paragraph 1 of the commented article, cannot be a person who was not notified that the cancellation of the authority has already taken place.

The one with whom the representative was supposed to enter into a transaction, on the contrary, may not know that the authority has ceased by its cancellation. In order to prevent losses that this person might incur as a result of his belief in the existence of the authority, the commented order obliges the represented person to inform him of the cancellation.

2. If a circumstance such as, for example, recognition of the person represented as incompetent or his death appears as a basis for termination of authority, then according to paragraph 2 of Art. 189 until the representative knows or should not know about the occurrence of this circumstance, the authority remains in force for the represented person or his legal successors. The commented prescription does not apply if, when concluding a transaction with a representative, his counterparty knew or should have known that the authority had ceased (clause 2 of Article 189). In this case, the transaction should not enter into force for the representative.

3. Speaking about the rights and obligations arising from the transactions of the representative, clause 2 of Art. 189 thereby limits the range of these transactions to only obligatory transactions. However, the representative, as is clear from paragraph. 1 clause 1 art. 182 of the Civil Code, can enter into administrative transactions on behalf of the represented person, i.e. transactions directly aimed at transferring, encumbering, changing or terminating rights. If a representative concludes a management transaction (for example, an agreement on debt forgiveness - Article 415 of the Civil Code), in the presence of the prerequisites listed in the commented paragraph, a legal consequence corresponding to its content also occurs for the represented person or his legal successors.

4. After the termination of the authority, the representative, his legal successor or counterparty, in whose possession the power of attorney certifying this authority is located, is obliged to return it to the represented or his legal successor (clause 3 of the commented article).

Civil Code of the Russian Federation Part 1

Chapter 10. REPRESENTATION. POWER OF ATTORNEY

Article 182. Representation

1. A transaction made by one person (representative) on behalf of another person (represented) by virtue of authority based on a power of attorney, an indication of the law or an act of an authorized state body or local government body directly creates, changes and terminates the civil rights and obligations of the represented .

Authority may also be evident from the environment in which the representative operates (retail salesperson, cashier, etc.).

2. Persons who act, although in the interests of others, but on their own behalf, persons who only convey the will of another person expressed in proper form, as well as persons authorized to enter into negotiations regarding possible future transactions, are not representatives. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

3. A representative cannot make transactions on behalf of the represented person in relation to himself personally, as well as in relation to another person whose representative he is at the same time, except for cases provided for by law.

A transaction that was made in violation of the rules established in paragraph one of this paragraph, and to which the principal did not give consent, may be declared invalid by the court at the request of the principal if it violates his interests. Violation of the interests of the represented person is assumed unless proven otherwise.

(Clause 3 as amended by Federal Law dated 05/07/2013 N 100-FZ)

4. It is not allowed to carry out a transaction through a representative, which by its nature can only be completed in person, as well as other transactions specified in the law.

Article 183. Concluding a transaction by an unauthorized person

1. In the absence of authority to act on behalf of another person or when such authority is exceeded, a transaction is considered to be concluded on behalf and in the interests of the person who completed it, unless another person (represented) subsequently approves this transaction.

Before the transaction is approved by the represented, the other party, by making a statement to the person who made the transaction or the represented, has the right to refuse it unilaterally, except for cases where, when making the transaction, she knew or should have known about the lack of authority of the person making the transaction or about their excess.

(Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. Subsequent approval of the transaction by the represented creates, changes and terminates for him civil rights and obligations under this transaction from the moment of its completion.

3. If the principal refused to approve the transaction or the response to the proposal to the principal to approve it was not received within a reasonable time, the other party has the right to demand from the unauthorized person who made the transaction the execution of the transaction or has the right to refuse it unilaterally and demand compensation for losses from this person. Losses are not subject to compensation if, during the transaction, the other party knew or should have known about the lack of authority or about its excess. (Clause 3 introduced by Federal Law dated 05/07/2013 N 100-FZ)

Article 184. Commercial representation

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. A commercial representative is a person who constantly and independently represents on behalf of entrepreneurs when they enter into contracts in the field of entrepreneurial activity.

2. Simultaneous commercial representation of different parties to a transaction is permitted with the consent of these parties, as well as in other cases provided for by law. If a commercial representative acts at an organized auction, it is assumed, unless otherwise proven, that the represented person agrees to the simultaneous representation by such representative of the other party or parties.

3. Features of commercial representation in certain areas of business activity are established by law and other legal acts.

Article 185. Power of attorney

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. A power of attorney is recognized as a written authority issued by one person to another person or other persons for representation before third parties.

2. Powers of attorney on behalf of minors (Article 28) and on behalf of incapacitated citizens (Article 29) are issued by their legal representatives.

3. Written authority to carry out a transaction by a representative may be presented by the represented directly to the relevant third party, who has the right to verify the identity of the represented and make a note about this on the document confirming the authority of the representative.

Written authorization for a representative of a citizen to receive his deposit in a bank, to deposit funds into his deposit account, to carry out transactions on his bank account, including receiving funds from his bank account, as well as to receive correspondence addressed to him in a communications organization may be presented directly to the bank or telecommunications organization.

4. The rules of this Code on powers of attorney also apply in cases where the powers of the representative are contained in an agreement, including in an agreement between the representative and the represented, between the represented and a third party, or in a decision of the meeting, unless otherwise established by law or contrary to the essence of the relationship .

5. If a power of attorney is issued to several representatives, each of them has the powers specified in the power of attorney, unless the power of attorney stipulates that the representatives exercise them jointly.

6. The rules of this article accordingly apply also in cases where a power of attorney is issued jointly by several persons.

Article 185.1. Power of attorney

(introduced by Federal Law No. 100-FZ dated 05/07/2013)
1. A power of attorney for transactions requiring a notarial form, for filing applications for state registration of rights or transactions, as well as for disposing of rights registered in state registers must be notarized, with the exception of cases provided for by law.

2. The following are equivalent to notarized powers of attorney:

1) powers of attorney of military personnel and other persons undergoing treatment in hospitals, sanatoriums and other military medical institutions, which are certified by the head of such an institution, his deputy for medical affairs, and in their absence, the senior or duty doctor;

2) powers of attorney of military personnel, and at points of deployment of military units, formations, institutions and military educational institutions, where there are no notary offices and other bodies performing notarial acts, also powers of attorney of employees, members of their families and family members of military personnel, which are certified by the commander (chief ) these units, formations, institutions or establishments;

3) powers of attorney of persons in places of deprivation of liberty, which are certified by the head of the corresponding place of deprivation of liberty;

4) powers of attorney of adult capable citizens located in social protection institutions, which are certified by the administration of this institution or the head (his deputy) of the relevant social protection authority.

3. A power of attorney to receive wages and other payments related to labor relations, to receive remuneration for authors and inventors, pensions, benefits and scholarships, or to receive correspondence, with the exception of valuable correspondence, may be certified by the organization in which the principal works or studies, and the administration of the inpatient medical institution where he is being treated. Such a power of attorney is certified free of charge.

4. A power of attorney on behalf of a legal entity is issued signed by its head or another person authorized to do so in accordance with the law and constituent documents.

Article 186. Duration of power of attorney

1. If the power of attorney does not indicate its validity period, it remains valid for a year from the date of its execution. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

A power of attorney that does not indicate the date of its execution is void.

2. A power of attorney certified by a notary, intended for performing actions abroad and not containing an indication of its validity period, remains valid until canceled by the person who issued the power of attorney.

Article 187. Transfer of trust

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
1. The person to whom the power of attorney has been issued must personally perform the actions for which he is authorized. It can entrust their execution to another person if it is authorized to do so by a power of attorney, and also if it is forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney and the power of attorney does not prohibit the entrustment.

2. A person who has delegated powers to another person must notify the person who issued the power of attorney about this within a reasonable time and provide him with the necessary information about the person to whom the powers have been transferred. Failure to fulfill this obligation makes the person who delegated the authority responsible for the actions of the person to whom he delegated the authority as if it were his own.

3. A power of attorney issued by way of delegation must be notarized.

The rule on notarization of a power of attorney issued by way of delegation does not apply to powers of attorney issued by way of delegation by legal entities, heads of branches and representative offices of legal entities.

4. The validity period of a power of attorney issued by way of subrogation cannot exceed the validity period of the power of attorney on the basis of which it was issued.

5. Transfer of trust is not allowed in the cases provided for in paragraph 3 of Article 185.1 of this Code.

6. Unless otherwise specified in the power of attorney or established by law, a representative who has transferred powers to another person by way of delegation does not lose the corresponding powers.

7. The transfer of powers by a person who received these powers as a result of a delegation to another person (subsequent transfer) is not allowed, unless otherwise provided in the initial power of attorney or established by law.

Article 188. Termination of power of attorney

1. The power of attorney is terminated due to:

1) expiration of the power of attorney;

2) cancellation of the power of attorney by the person who issued it, or by one of the persons who issued the power of attorney jointly;

3) refusal of the person to whom the power of attorney was issued renounces his powers;

4) termination of the legal entity on whose behalf or to whom the power of attorney was issued, including as a result of its reorganization in the form of division, merger or merger with another legal entity;

5) death of the citizen who issued the power of attorney, recognition of him as incompetent, partially capable or missing;

6) death of a citizen to whom a power of attorney was issued, recognition of him as incompetent, partially capable or missing;

7) the introduction of a bankruptcy procedure in relation to the represented or representative, in which the corresponding person loses the right to independently issue powers of attorney.

(Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. The person to whom the power of attorney has been issued may at any time renounce the powers, and the person who issued the power of attorney may cancel the power of attorney or reassignment, except for the case provided for in Article 188.1 of this Code. An agreement to waive these rights is void. (Clause 2 as amended by Federal Law dated 05/07/2013 N 100-FZ)

3. With the termination of the power of attorney, the sub-power of attorney loses its force.

Article 188.1. Irrevocable power of attorney

(introduced by Federal Law No. 100-FZ dated 07.05.2013)
1. In order to fulfill or ensure the fulfillment of the obligation of the represented person to the representative or persons on behalf of or in whose interests the representative acts, in cases where such an obligation is related to the implementation of business activities, the represented person may indicate in the power of attorney issued to the representative that this power of attorney cannot be canceled before the end of its validity period or can be canceled only in the cases provided for in the power of attorney (irrevocable power of attorney).

Such a power of attorney in any case may be revoked after the termination of the obligation for the fulfillment or enforcement of which it was issued, as well as at any time in the event of abuse by the representative of his powers, as well as when circumstances arise that clearly indicate that this abuse may happen.

2. An irrevocable power of attorney must be notarized and contain a direct indication of the limitation of the possibility of its cancellation in accordance with paragraph 1 of this article.

3. A person to whom an irrevocable power of attorney has been issued cannot entrust the performance of actions for which he is authorized to another person, unless otherwise provided in the power of attorney.

Article 189. Consequences of termination of a power of attorney

1. A person who issued a power of attorney and subsequently canceled it is obliged to notify the person to whom the power of attorney was issued, as well as third parties known to him, for whose representation the power of attorney was given, about the cancellation. The same obligation is assigned to the legal successors of the person who issued the power of attorney in cases of its termination on the grounds provided for in subparagraphs 4 and 5 of paragraph 1 of Article 188 of this Code. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

The cancellation of the power of attorney may be published in the official publication in which information about bankruptcy is published. In this case, the signature on the application to revoke the power of attorney must be notarized. Third parties are considered to be notified of the revocation of the power of attorney after a month from the date of said publication, unless they were notified of the revocation of the power of attorney earlier. (paragraph introduced by Federal Law dated 05/07/2013 N 100-FZ)

2. If a third party is presented with a power of attorney, the termination of which he did not know and should not have known, the rights and obligations acquired as a result of the actions of the person whose powers were terminated remain valid for the principal and his legal successors. (Clause 2 as amended by Federal Law dated 05/07/2013 N 100-FZ)

3. Upon termination of the power of attorney, the person to whom it was issued or his successors are obliged to immediately return the power of attorney.

Another comment on Article 189 of the Civil Code of the Russian Federation

1. A represented person who revokes an issued power of attorney is obliged to inform his representative about this, as well as third parties known to him, for whose representation the power of attorney was intended. In case of termination of the power of attorney on the grounds provided for in sub. 4, 6 p. 1 art. 188 of the Civil Code, a similar obligation is assigned to the legal successors of the person who issued the power of attorney (legal successors of a reorganized legal entity, heirs of a deceased citizen, as well as the guardian of a person declared incompetent, the trustee of a person limited in legal capacity, the manager of the property of a missing person).

2. The power of attorney loses force from the moment one of the circumstances established in paragraph 1 of Art. 188 Civil Code. The activities of the representative after the termination of the power of attorney are recognized as representation without authority. The exception is cases when, when performing actions, the representative did not know and could not know about the termination of the power of attorney. In this case, the represented person (his legal successors) is obliged to accept everything performed by the representative. At the same time, a transaction concluded after the termination of the power of attorney is contestable. The court may recognize this transaction as invalid if it is proven that when the representative entered into the transaction, the third party knew or should have known that the power of attorney was no longer valid.

3. The terminated power of attorney must be returned by the representative (his legal successors) to the person who issued it in order to prevent the possibility of its further misuse.