ST 202 of the Criminal Code of the Russian Federation.
1. The use by a private notary or private auditor of their powers contrary to the objectives of their activities and in order to obtain benefits and advantages for themselves or other persons or to cause harm to other persons, if this act caused significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state - is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities. activities for a term of up to three years or without it, or arrest for a term of up to six months, or imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
2. The same act, committed in relation to a person known to be a minor or incompetent, is 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 forced labor for a term 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 arrest for a term of up to six months, 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 up to three years.
Commentary to Art. 202 of the Criminal Code
1. The objective side of the crime is a violation of the rules for performing notarial acts established by the Fundamentals of the legislation of the Russian Federation on notaries of February 11, 1993 N 4462-1. The use by a private notary of his powers contrary to the objectives of his activity can be expressed either in notarial actions, which he is prohibited from performing by law, or in notarial actions in the absence of grounds provided for by law. Minor deviations from the rules for performing notarial acts do not constitute a crime.
The second type of act is a violation of the procedure for carrying out auditing activities (see Federal Law of August 7, 2001 N 119-FZ “On Auditing Activities”).
Abuse by private notaries and auditors when they provide services related to notarial actions and audits, provided for in Art. 15 Fundamentals of the legislation of the Russian Federation on notaries and clause 6 of Art. 1 of the Federal Law “On Auditing Activities”.
Abuse of powers by private notaries and auditors may be associated with the commission of other crimes (for example, crimes against property). What was done in such cases is classified as a set of crimes.
2. The crime is considered completed from the moment of causing significant harm. The significance of the harm caused is an evaluative concept.
3. From the subjective side, the crime is characterized by direct intent and alternatively provided goals: a) the goal of extracting benefits and advantages for oneself, i.e. for a private notary or auditor personally, or for other persons, or b) for the purpose of causing harm (property or non-property) to other persons.
4. The qualifying feature - the commission of an act in relation to a obviously minor (Article 21 of the Civil Code of the Russian Federation) or a obviously incompetent (Article 29 of the Civil Code of the Russian Federation) person (Part 2) - can only be present in cases of abuse of powers by private notaries, since the specifics of auditing activities presuppose the impossibility their commission of the crime in question in relation to a obviously minor or a obviously incompetent person.
The Supreme Court adopted a resolution on crimes against the interests of service in commercial organizations
On June 29, the Plenum of the Supreme Court considered and adopted a resolution on certain issues of judicial practice in cases of crimes against the interests of service in commercial and other organizations (Articles 201, 201.1, 202, 203 of the Criminal Code of the Russian Federation). As previously reported, the draft document was reviewed on June 8 and sent for revision.
Second commentary to Art. 202 of the Criminal Code of the Russian Federation
1. The direct object is the procedure established by the state for performing notarial acts and auditing, ensuring compliance with the rights and legitimate interests of citizens, organizations, society and the state. The activities of private notaries are carried out in accordance with the Fundamentals of the legislation of the Russian Federation on notaries dated February 11, 1993 No. 4462-1, as well as decrees of the Government of the Russian Federation and orders of the Ministry of Justice of Russia.
2. The objective side consists of actions the performance of which is prohibited for private notaries, in particular:
1) disclosure of information or disclosure of documents that became known to them in connection with the performance of notarial acts;
2) issuance of information (documents) about notarial acts performed to other persons, except those on whose behalf and on whose behalf these acts were performed;
3) performing notarial acts in one’s own name and on one’s own behalf, in the name and on behalf of one’s spouses, their relatives and their relatives (parents, children, grandchildren);
4) provision of intermediary services when concluding contracts;
5) participation in the business activities of entities in respect of which a private notary performs notarial acts, etc.
3. The activities of auditors are regulated by Federal Law No. 307-FZ of December 30, 2007 “On Auditing Activities” (as amended on May 1, 2017). Types of audit services, including a list of audit-related services, are established by the Ministry of Finance of the Russian Federation.
Auditors are prohibited, in particular, from disclosing the contents of documents received or compiled during the audit without the consent of the audited entity; provide information obtained during the audit to third parties without the permission of the audited entity.
4. The objective side of abuse of the auditor’s powers is characterized by failure to comply with the requirements of objectivity, reliability and confidentiality of the audit that are mandatory for the auditor. Thus, it can be expressed in the preparation of a deliberately false audit report (Part 5 of Article 6 of the Law on Auditing Activities); in the use of information about the financial condition or economic position of the audited entity in one’s own interests or the interests of other persons; in providing information obtained during the audit or conclusions drawn from its results to competitors of the audited entity or other persons; in deliberate distortion of audit results to the detriment of the audited entity, etc.
5. A sign of the objective side of this crime is the use by a private notary or auditor of their powers not in the interests of this activity, but contrary to its objectives. The objective side includes, as a mandatory feature, causing significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. The content of this feature is identical to the content of the consequences provided for in Art. 201 of the Criminal Code of the Russian Federation.
6. The subjective side of the crime is characterized by direct intent and the special purpose of obtaining personal gain or obtaining material or other advantages for oneself or for other persons, or the purpose of causing harm to other persons.
7. The subject of the crime is special. He can be either a private notary (a person who has passed the qualification exam, has a license to engage in notarial activities and is a member of the notary chamber), or an auditor (a person who has received a qualification certificate of an auditor and is a member of one of the self-regulatory organizations of auditors).
8. The qualified corpus delicti of this crime (Part 2 of Article 202 of the Criminal Code of the Russian Federation) provides for the commission of a crime against a known minor or incompetent person.
The Plenum of the Supreme Court clarified the norms of the Criminal Code that apply to private notaries and security guards
Collage: Legal.Report The Plenum of the Supreme Court of the Russian Federation approved the resolution for the second time, which clarifies judicial practice in cases of crimes against the interests of service in commercial and other organizations. We are talking, among other things, about the abuse of power by private notaries and auditors and the abuse of power by private security guards and detectives.
The Plenum of the Supreme Court for the first time summarized judicial practice under articles of Chapter 23 of the Criminal Code of the Russian Federation (201, 201.1, 202 and 203). As the developers of the document noted, crimes of this kind have become widespread recently, so clarification of complex issues of their qualification is becoming more in demand than ever before. At the same time, courts face problems when considering cases falling under these articles of the Criminal Code, which is caused by the complex structure of the crime, competition of criminal law norms and the multiplicity and heterogeneity of socially dangerous consequences.
Structurally, the 11-page resolution consists of 23 points.
An interpretation is given of abuse of power (Article 201 of the Criminal Code of the Russian Federation) and abuse of power in the implementation of state defense orders (Article 201.1 of the Criminal Code of the Russian Federation). In particular, the actions of a manager who, for example, hires people who do not actually perform labor duties, relieves the organization’s employees from performing labor duties and is sent to renovate an apartment or improve a home owned by the manager himself or his relatives and friends should be qualified as abuse of authority. , if this entailed socially dangerous consequences provided for in Art. 201 of the Criminal Code of the Russian Federation. It is clarified that when resolving the issue of the existence of consequences of abuse of power in the form of significant harm in relation to Art. 201 of the Criminal Code of the Russian Federation, it is necessary to take into account, in particular, the number of injured citizens, the severity of the physical, moral or property harm caused to them, the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and size of the material damage suffered by it.
Recognizing the harm caused to the rights and legitimate interests of citizens or organizations as a result of abuse of power by private notaries or auditors (Article 202 of the Criminal Code of the Russian Federation) as significant, the court must proceed from the significance of the violated right and legitimate interest for a particular victim, the amount of property damage caused to him (for example , termination of rights to property as a result of certification of a transaction that does not comply with the law, as well as in the absence of one of the parties to the transaction or the necessary documents, loss of the right to inheritance by a heir as a result of a notary issuing a certificate of the right to inheritance to a obviously improper person).
Under a significant violation of the rights of citizens and organizations as a result of the commission of acts, liability for which is provided for in Art. 203 of the Criminal Code of the Russian Federation, is understood as a violation by a private detective or a private security guard of the rights of individuals and legal entities guaranteed by the Constitution of the Russian Federation, generally recognized principles and norms of international law, federal laws (for example, the right to respect for the honor and dignity of the individual, personal and family life of citizens, the right to integrity home and the privacy of correspondence, telephone conversations, postal, telegraph and other messages, etc.).
The attention of the courts is drawn to the need to comply with the requirements of the law on a strictly individual approach to sentencing to persons who have committed crimes under Chapter 23 of the Criminal Code of the Russian Federation. And also to ensure that, when assessing the degree of public danger of an act, take into account the content of motives and goals, the significance of the duties that were violated, the duration of criminal actions (inaction), the nature and severity of the harm caused, the number of victims, the presence of harm to the interests of the state protected by law, other factual circumstances and information about the identity of the perpetrator.
The courts are also recommended to identify the circumstances that contributed to the commission of crimes, as well as other violations of the law, and in accordance with Part 4 of Art. 29 of the Code of Criminal Procedure of the Russian Federation with private definitions (decrees) to draw the attention of relevant organizations and officials to them.
Article 202 of the Code of Criminal Procedure of the Russian Federation. Obtaining samples for comparative research (current edition)
3. Samples for research can be obtained either at the initiative of the investigator or at the request of an expert on a voluntary or compulsory basis (except for experimental samples of handwriting and voice). For general conditions for the application of procedural coercive measures, see the commentary. to Art. 97. It appears that the right of state authorities to forcibly seize samples should be interpreted restrictively. First of all, it is necessary to take into account that Part 2 of the commented article stipulates: when obtaining samples for comparative research, methods that are dangerous to human life and health or humiliating his honor and dignity should not be used. This norm meets the requirements of Part 1 of Art. 21 of the Constitution of the Russian Federation, according to which “personal dignity is protected by the state. NOTHING (emphasis mine - A.S.) can be a basis for belittling him." The word “nothing” here means that no external expediency (the needs of a state of emergency or martial law, the fight against crime, legal proceedings, etc.) gives the state the right to make exceptions from the principle of respect for human dignity. Thus, this principle does not apply to the possibility of restricting constitutional rights and freedoms in the cases mentioned in Part 3 of Art. 55 of the Constitution of the Russian Federation. As the Constitutional Court of the Russian Federation recognized in its Resolution No. 12-P of May 16, 1996, in any legal relationship a person acts not as an object of state activity, but as a full-fledged subject, which, in particular, imposes on the state the obligation not to violate his dignity. Personal dignity is the awareness of the person himself and the recognition of those around him that he has a sufficient set of ethical and intellectual positive (socially recognized) properties. Consequently, if the method of forced removal of samples in one way or another detracts from the above-mentioned positive personality traits, then it is unlawful. So, for example, it is impossible to recognize as legal the seizure of samples in a way that objectively puts a person in a position that gives rise to a feeling of shame in him, because modesty is a positive ethical property of a person. On the other hand, the use of force in the event of unlawful resistance on the part of a person to obtain samples does not infringe on his socially recognized qualities, and therefore may be legal. When obtaining samples, the individual may also experience physical pain and, in some cases, even health hazards. So, within the meaning of Art. 35 of the Federal Law “On State Forensic Expert Activities...” when conducting a forensic examination, it is not prohibited (except for cases of voluntary examination) to use forced methods of research and obtaining samples, including if they are associated with “mild” pain. It should be taken into account that, according to Part 2 of Art. 21 of the Constitution of the Russian Federation “no one can be subjected to medical, scientific or other experiments without voluntary consent.” Experience, according to the norms of the Russian language, is defined as the reproduction of a particular phenomenon experimentally or the creation of some new object under certain conditions for the purpose of research and testing. But what is obtaining a sample for examination (in this case, forensic), if not creating a new object for research and testing (comparison)? If so, does this not mean that the forced removal of samples for forensic examination is generally unacceptable without the consent of the person being tested? It seems that the answer to this question requires a general interpretation of the law. According to Part 1 of Art. 22 of the Constitution of the Russian Federation, every person has the right to personal integrity. Part 2 of the same article only states that arrest, detention and detention are permitted only by court decision. But it is quite obvious that the institution of personal inviolability also includes guarantees against bodily or biological inviolability. Thus, the forced removal of samples from a person (for example, blood, semen, saliva, hair, etc.) literally affects his personal integrity. However, the right to personal integrity is not absolute. The enumeration in the Constitution of fundamental rights and freedoms should not be interpreted as a denial or derogation of other generally recognized rights and freedoms of man and citizen (Part 1 of Article 55 of the Constitution of the Russian Federation), including the rights of persons affected by crimes to judicial protection (Article 52 Constitution of the Russian Federation). According to the general meaning of Art. 22 of the Constitution, its true meaning is broader than could be concluded only from a literal interpretation of Part 2 of this article, and covers personal integrity in its entirety. Therefore, restriction of bodily integrity, including through the forced removal of samples from a person for forensic medical research, as well as arrest, should be allowed, in our opinion, only by court decision.
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See: Ozhegov S.I., Shvedova N.Yu. Explanatory dictionary of the Russian language. M., 1994. P. 449.
4. Part 4 of the commented article regulates a special way of obtaining samples for comparative research - by the expert himself during the examination. This provision must be interpreted taking into account the prohibition on an expert independently collecting material for the examination (Clause 2, Part 4, Article 57 of the Code of Criminal Procedure; Article 16 of the Federal Law “On State Forensic Expert Activities...”). Obtaining samples is allowed by the expert himself as part of an expert study if one of the following conditions is met: a) the samples are not individually defined, and the location of their discovery does not matter (for example, samples of industrial products); b) samples are available to the expert. Thus, if the accused (suspect) is in a medical hospital in connection with a forensic examination being carried out against him, then samples may be obtained from him as part of the examination as part of the expert study. According to Art. 35 of the Federal Law “On State Forensic Expert Activities...” such samples are obtained in the presence of two medical workers of a given medical institution, and forced collection of samples from persons sent for forensic examination on a voluntary basis is not permitted. And vice versa, if the accused as an object of study is not available to the expert, then the samples are obtained by the investigator in accordance with Parts 1 - 3 of Art. 202 Code of Criminal Procedure.
