Commentary to Art. 333 Criminal Code
1. The objective side is expressed alternatively by two actions.
Resistance is characterized by active opposition to a superior or other person performing the duties of military service assigned to him. Thus, the perpetrator, through his own efforts, does not allow these persons to fulfill their duties.
Coercion consists of actions aimed at forcing a superior or other person performing the duties of military service assigned to him to violate the duties assigned to him, i.e. act contrary to the interests of the service.
2. Both resistance and coercion must be committed with the use of violence or the threat of its use. Physical violence includes battery, minor bodily harm, and any threat, including death.
3. The encroachment ends from the moment of violent resistance or coercion.
4. The subject of resistance to a superior or forcing him to violate the duties of military service is a subordinate military man; the subject of resistance to a person performing the duties of military service assigned to him, or forcing this person to violate these duties is a military serviceman who is not in a relationship of subordination with such a person.
5. The concept of grave consequences (clause “c” of part 2) is evaluative, and their presence is established by the court in each specific case.
Resisting or coercing a superior to violate military service obligations
1. Resistance to a superior, as well as to another person performing the duties of military service assigned to him, or forcing him to violate these duties, associated with violence or the threat of its use, is
punishable by restriction on military service for a term of up to two years, or by detention in prison. disciplinary military unit for a term of up to two years, or imprisonment for a term of up to five years.
2. The same acts committed:
- a) by a group of persons, a group of persons by prior conspiracy or an organized group;
- b) using weapons;
- c) causing grave or moderate harm to health or other grave consequences, -
shall be punishable by imprisonment for a term of up to eight years.
Second commentary to Art. 333 of the Criminal Code of the Russian Federation
1. Resistance consists of preventing a superior or other person from fulfilling the duties assigned to him in military service (for example, resisting a patrol officer when detaining a soldier who is violating public order, etc.).
2. Coercion refers to actions aimed at forcing, coercing a boss or other person to violate official duties (for example, illegally granting short-term leave, etc.).
3. To complete the crime, it is not required that, as a result of resistance, the boss (another person) was deprived of the opportunity to fulfill the duties assigned to him in the service, and if forced, violated these duties.
4. The liability of a subordinate under Article 333 is excluded if the violence was a defensive reaction against unlawful violence on the part of the superior.
5. From the subjective side, resistance and coercion are committed with direct intent.
6. According to Part 1 of Art. 333 classifies resistance or coercion to violation of military service obligations, associated with the threat of using any type of violence against the victim, as well as associated with physical violence in the form of beatings, causing minor harm to the health of a superior or another person, etc.
7. In paragraph “c” of Part 2 of Art. 333 refers to resistance or coercion associated with the infliction of grave or moderate harm to health or other grave consequences.
8. Intentional infliction of grievous harm to health under aggravating circumstances (parts 2 and 3 of Article 111) is recognized as a more serious crime, resistance or coercion associated with causing grievous harm to the health of a superior or another person, in addition to part 2 of Art. 333 are additionally qualified under Art. 111 of the Criminal Code.
9. Other grave consequences in paragraph “c” of Part 2 may include, for example, disruption of a combat mission or other important task, causing death by negligence to a superior or other person performing military service duties, etc.
10. The use of weapons (clause “b”, part 2) means the actual use of them for physical or mental influence on a superior or other person performing military service duties.
11. On the concepts of a group of persons, a group of persons by prior conspiracy and an organized group, see the commentary to Art. 35.
Article 333 of the Civil Code of the Russian Federation and how to deal with it
Recently represented a client in the Khoroshevsky Court of Moscow.
A trivial situation: the client invested 21 million wooden rubles under an equity participation agreement (DPA) in the construction of a house and, accordingly, his future apartment. So I lived in the sweet anticipation of moving to a rented house with my wife and child.
The deadline (September 30, 2022) is approaching, but the apartment is not ready for rent. This is a common thing in modern Russian realities. My wife and child are in tears, the client is coming to me.
I am writing a complaint to the developer - everything is as it should be, they say, the penalty has accumulated, gentlemen (at that time some measly 300 thousand), please pay voluntarily, do not lead to the sin of filing a claim in court. They responded: we will pay, but not in full.
Oh you...
I am preparing and filing a lawsuit. The court accepts the claim and schedules the case for consideration at the end of May. I calmly increase the claims (plus five hundred thousand) for the date of consideration of the case in court, send the petition to the defendant and to the court.
On the specified date we come to sue the client - the judge is ill. The substitute judge postpones until mid-July.
I calmly increase the price of the claim for mid-July. Penalties accumulate to almost 2 million der. At the same time, I am supplementing the claim with a demand to reimburse the expenses of the plaintiff, my principal, for renting housing in anticipation of moving to a new apartment - some 300 thousand full Russian rubles. I am enclosing the lease agreement, payments - everything is in order.
We come to sue. I’m asking the waiters in the corridor: is there anyone from the developer (such and such company)? Everyone is silent.
I whisper to the principal: “It looks like no one came from the defendant!”
He responded: “Is it possible to consider it without it?”
- And how! I will say more, the court will not apply the nasty article 333 of the Civil Code! This means that we will be able to recover the full amount of the claim. Without a motion from the defendant, the court will not be able to reduce the penalty!
- Wow! - the trustee whispers dreamily in response...
... At the appointed time, a gloomy man in a black vest that reaches the floor comes out of the courtroom and, casting an unkind glance, loudly asks:
- The plaintiff is so-and-so, the defendant is so-and-so.
- Let's go, it's us!
We go into the hall. And then, as if out of nowhere, a nondescript woman appears - the defendant’s lawyer.
(Oh, it fell through! - a sad thought comes).
Of course, the lawyer aunt filed a petition to apply Article 333 of the Civil Code of the Russian Federation. Here is this article for the reader inexperienced in the topic: Civil Code of the Russian Federation Article 333. Reduction of penalties
1. If the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty. If the obligation is violated by a person carrying out entrepreneurial activities, the court has the right to reduce the penalty, subject to the debtor's application for such a reduction.
2. A reduction of the penalty determined by the contract and payable by the person carrying out entrepreneurial activities is allowed in exceptional cases if it is proven that the collection of the penalty in the amount stipulated by the contract may lead to the creditor receiving an unjustified benefit.
I objected as best I could, they say, Your Honor, there are no exceptional circumstances in the case, they say, claims of defrauded shareholders against unscrupulous developers who feel at ease knowing that a court under this article will significantly reduce the penalty, and so far this practice has not will be changed in favor of the defrauded shareholders, the claims will continue to pile up in the courts, they say, 1,900 thousand rubles of claims are a drop compared to the twenty million that my principal paid in good faith to the developer in the hope of receiving a brand new apartment within the period established by the contract, they say, The law clearly establishes the limits of the developer’s liability if he fails to meet the deadline for handing over the apartment to the shareholder.
These are the boundaries for the reader who is far from the topic:
In accordance with Article 6 of the Federal Law of December 30, 2004 N 214-FZ “On participation in shared-equity construction of apartment buildings...”
1. The developer is obliged to transfer the shared construction object to the participant in shared construction no later than the period specified in the contract;
2. In case of violation of the deadline stipulated by the contract for transferring the shared construction object to the participant in shared construction, the developer shall pay the participant in shared construction a penalty (penalty) in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, valid on the day of fulfillment of the obligation, from the contract price for each day of delay. If the participant in shared construction is a citizen, the penalty (fines) is paid by the developer in double amount.
In accordance with clause 5 of Article 13 of the Law “On Protection of Consumer Rights”, consumer demands for payment of penalties (penalties) provided for by law must be satisfied by the seller on a voluntary basis.
According to Article 22 of the Law of the Russian Federation “On the Protection of Consumer Rights”, consumer claims for compensation for losses are subject to satisfaction by the seller within ten days from the date of presentation of the corresponding demand.
In accordance with clause 6. Article 13 of the Law “On the Protection of Consumer Rights”, the court collects from the seller for failure to voluntarily satisfy the consumer’s requirements a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer.
Moral injury. In this case, it is not necessary to prove it to the plaintiff. Compensation for moral damage by the court is carried out regardless of compensation for property damage and losses incurred by the consumer (Article 15 of the Law of the Russian Federation “On the Protection of Consumer Rights”, Articles 151, 1099 and 1101 of the Civil Code of the Russian Federation).
As a result, the court made a decision to recover nearly a million rubles from the developer in favor of my client, including 10 thousand in moral damages.
“That’s enough for furniture in your new apartment,” he joked with the client, “more than 12 thousand dollars, you’ll furnish the whole apartment.”
The developer's representative in court swore that my client would move into a new apartment next week.
The client was pleased. I'm not very good. The courts apply this Article 333 automatically, keeping in mind one simple thought: they would not change the decision on appeal (for this you can get an ata from the chairman of the court). Otherwise, the defendant will not complain to the appeal, and the plaintiff is unlikely to.
Article 333. Reduction of penalties
“Review of the practice of the Constitutional Court of the Russian Federation for 2017” 35. By Resolution No. 23-P of October 6, 2022, the Constitutional Court assessed the constitutionality of the provisions of paragraph 2 of Article 115 of the Family Code of the Russian Federation and paragraph 1 of Article 333 of the Civil Code of the Russian Federation. The contested provisions were the subject of consideration insofar as on their basis the issue of the possibility of reducing the penalty payable in the event of debt formation due to the fault of the person obliged to pay alimony by court decision is resolved.
Determination of the Constitutional Court of the Russian Federation dated September 27, 2018 N 28-PRP
1. By ruling No. 655-O dated March 27, 2022, the Constitutional Court of the Russian Federation refused to accept for consideration the complaint of citizen L.V. Uvarova for violation of her constitutional rights by paragraph 1 of Article 333 of the Civil Code of the Russian Federation, since she did not meet the requirements of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, according to which a complaint to the Constitutional Court of the Russian Federation is considered admissible.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 307-ES16-18080 in case N A66-5715/2015
In the cassation appeal, the applicant asks to cancel the appealed judicial acts and send the case for a new trial to the court of first instance in a different judicial composition. In support of the complaint, the applicant points out that the courts did not apply Article 333 of the Civil Code of the Russian Federation, which is subject to application. According to the applicant, the court violated the defendant’s right to have the case considered by the court within whose jurisdiction it was assigned. He also believes that the court violated the rules for assessing evidence.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 310-ES16-17792 in case N A84-1862/2015
When considering this dispute, the courts were guided by the provisions of the Federal Constitutional Law of March 21, 2014 N 6-FKZ “On the admission of the Republic of Crimea to the Russian Federation and the formation of new entities within the Russian Federation - the Republic of Crimea and the federal city of Sevastopol”, Articles 309, 310, 330 , 332, 333, 401, 522, 539, 544 of the Civil Code of the Russian Federation, provisions of the Housing Code of the Russian Federation, Federal Law dated 03.26.2003 N 35-FZ “On Electric Power Industry”, Rules for the provision of utility services, approved by the Decree of the Government of the Russian Federation dated 23.05 .2006 N 307, Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated 05/06/2011 N 354, Decree of the Government of the Russian Federation dated 08/11/2014 N 792 “On the specifics of applying the legislation of the Russian Federation in in the electric power industry in the territories of the Republic of Crimea and the city of Sevastopol”, by Decree of the Government of the city of Sevastopol dated December 30, 2014 N 680 “On approval of fees for the maintenance and repair of residential premises”.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 301-ES16-17512 in case N A79-3883/2015
In this case, the courts proceeded from the following: the developer violated the deadline for transferring the apartment to the participant in shared construction (individual), and therefore, in accordance with Part 2 of Article 6 of Law No. 214-FZ, he was subject to liability in the form of a penalty; the participant in shared construction has ceded his right to demand recovery of the penalty to the Company, therefore the penalty for the period from 01/01/2014 to 04/29/2014 (taking into account the exception of the day of transfer of the object) is subject to recovery from the Company in favor of the Company; since the Company did not provide evidence that the penalty was disproportionate to the consequences of breach of obligation, there are no grounds for reducing the amount of the penalty in accordance with Article 333 of the Civil Code of the Russian Federation; at the time of concluding the assignment agreement, the equity participation agreement ceased to be valid by the execution of the agreement and the signing of the acceptance and transfer certificate of the property dated April 30, 2014 and, accordingly, there was no longer an encumbrance subject to state registration; in this case, the penalty is not related to the rights to real estate and transactions with it, which excludes state registration of such an assignment agreement.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 309-ES16-17509 in case N A76-22373/2015
Having assessed, according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, the presented evidence in its entirety, guided by Articles 309, 310, 329, 330, 331, 333, 702, 763 of the Civil Code of the Russian Federation, taking into account the terms of the contract defining the customer’s liability for late performance obligations (clause 7.2), the period of violation by the contractor of the deadlines for fulfilling the obligation and the consequences of these violations, as well as the accrual of a disputed penalty on the total amount of the contract without taking into account the proper fulfillment of part of the obligations, the courts of the first and appellate instances came to the conclusion that the penalty withheld by the defendant was disproportionate to the consequences of the violation of the obligation. Having considered it legitimate for the defendant to withhold a penalty in the amount of 16,701 rubles. 57 kopecks, the courts recovered the remaining difference from him in favor of the plaintiff.
Ruling of the Supreme Court of the Russian Federation dated January 09, 2017 N 305-ES16-15588 in case N A40-186498/2015
When accepting the appealed judicial acts, the courts, guided by the provisions of 309, 310, 330 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), examined and assessed in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation the evidence presented in the case materials, establishing the fact of improper fulfillment by the defendant of the obligation to make rental payments , the presence in the contract of a condition on the accrual of a penalty for failure to pay rent payments on time, the claim was recognized as justified. The amount of the penalty to be collected was reduced in accordance with Article 333 of the Civil Code of the Russian Federation at the request of the defendant to RUB 334,927. 98 kop.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 305-ES16-18086 in case N A40-231603/2015
Having examined and assessed, in accordance with the provisions of Article 71 of the Arbitration Procedural Code of the Russian Federation, the evidence available in the case, having established the defendant’s improper fulfillment of obligations to make rental payments, guided by the provisions of paragraph 1 of Article 196, Article 199, Articles 200, 309, 310, 314, 333, 614 of the Civil Code of the Russian Federation, the Procedure for determining the amount of rent, conditions and terms for its payment for the use of land plots, state ownership of which is not delimited, located on the territory of the Samara region, approved by Decree of the Government of the Samara region dated 06.08.2008 N 308, the courts of the first and The appellate authorities came to the conclusion that there were grounds for partial satisfaction of the stated claims.
Ruling of the Supreme Court of the Russian Federation dated January 09, 2017 N 308-ES16-18041 in case N A53-10220/2014
At the same time, the courts did not see any grounds for reducing the penalty in accordance with Article 333 of the Civil Code of the Russian Federation in view of the institution’s statement in the court of first instance about its significant reduction. The courts did not commit procedural violations, which are an absolute basis for the cancellation of judicial acts. A reference to other judicial acts does not confirm the validity of the arguments specified in the complaint, since they were adopted under different factual circumstances.
Ruling of the Supreme Court of the Russian Federation dated January 10, 2017 N 305-ES16-18907 in case N A40-159452/2015
Satisfying the claim of MAN Financial Services LLC, the courts, guided by the provisions of Articles 328, 393, 665 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), Articles 15, 17, 21, 22, 26, 28 of the Federal Law of October 29, 1998 N 164 -FZ “On financial lease (leasing)”, with explanations contained in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 N “On certain issues related to the buyout leasing agreement”, having examined and assessed in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation presented in The evidence in the case materials, including leasing, surety and insurance agreements, was based on confirmation of the existence of losses in the amount claimed for recovery. The courts checked and recognized the calculation of the penalty as correct, finding no basis for applying Article 333 of the Civil Code of the Russian Federation.
Ruling of the Supreme Court of the Russian Federation dated January 11, 2017 N 305-ES16-18265 in case N A40-3528/2016
When accepting the appealed judicial acts, the courts, guided by Articles 330, 333 of the Civil Code of the Russian Federation and the provisions of the contract, proceeded from the fact of delay in delivery of products and the disproportion of the amount of the penalty to the consequences of violation of the obligation, and therefore satisfied the stated requirements taking into account the one-time discount rate of the Bank of Russia in force during the period of the offense.
Article 333 of the Code of Criminal Procedure of the Russian Federation. Rights of jurors (current version)
1. During a judicial investigation, jurors, including alternates, have an equal right with the presiding judge to participate in the investigation of all the circumstances of the case, to participate in investigative actions, including asking questions to the interrogated persons through the presiding judge, to examine material evidence, and to familiarize themselves with documents . Questions are presented by the jurors in writing and submitted to the presiding officer through the foreman. These questions are formulated by the presiding officer and can be dismissed by him as not relevant to the charge. The jury's questions must be entered into the minutes of the trial. It should be taken into account that in accordance with Part 3 of Art. 275, the court asks questions to the defendant only after he has been questioned by the parties, and according to Part 3 of Art. 278 The first to ask questions of the witness is the party at whose request he was summoned to the court hearing. The judge asks questions to the witness after he has been questioned by the parties.
2. Having the right to take notes and use them when preparing answers to questions posed to the jury in the deliberation room, jurors cannot have books with them, including texts of laws, as well as any written manuals.
3. Jurors may communicate with the presiding judge regarding the circumstances of the criminal case under consideration only within the framework of the court session established by law. If, for example, the presiding officer entered into a quiet conversation with one of the jurors, detaining him when the rest of the jurors had already gone to their room, this may be regarded as a violation of the obligation provided for in paragraph 3 of part 2 of this article. The question arises: does the presiding officer have the right, if necessary (for example, to check the orders he has made; if there is a suspicion that the jury has violated their duties; in the event of a sudden illness of one of the jurors, etc.) to enter the jury room during a break in the trial ? It seems that he can do this only by first warning the parties or, in their absence at the moment, by announcing the fact of such contact when the court session resumes. At the same time, the reasons and circumstances that forced him to do this should be entered into the minutes of the court session.
4. Jurors do not have the right to collect information on a criminal case outside the court session (go out to familiarize themselves with the scene of the incident, talk with witnesses, study the media in order to find out details about this case, etc.). However, even during the court hearing, they can receive relevant information only in established procedural forms. For example, questions that a juror attempted to ask a witness after the witness had given evidence are unacceptable. The prohibition on jurors from non-procedurally obtaining information begins to apply only from the moment they assume the performance of their duties. It is not a violation of this rule if the jury inadvertently received information from which he had no opportunity to avoid (transmitting it on radio or television, etc.).
5. The accidental handing over to the presiding judge of the jury, along with the answers to the questions posed, also of a sheet with the answers given by him opposite the names of each of the jurors, can, in our opinion, be considered as a violation of the secrecy of deliberations and voting of the jury. If, at the same time, the answers of specific jurors were marked in such a way that this allows for different interpretations (crosses, etc.), it cannot be regarded as a disclosure of this secret.
6. Based on Art. 117 in cases of failure by participants in criminal proceedings to fulfill the procedural duties provided for by this Code, a monetary penalty may be imposed on them. In accordance with Part 3 of Art. 333 for failure to appear in court without a good reason, a juror may be subject to a monetary penalty in the manner established by Art. 118, according to which, if a violation is committed during a court session, then the penalty is imposed by the court in the court session where this violation was established, about which a ruling or court order is issued (Definition of the Investigative Committee according to the Criminal Code of the Armed Forces of the Russian Federation No. 1-011/03 in the case Beletsky).
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
