What does Article 158 Part 1 say: what constitutes theft

The concept of “theft” in criminal law means the illegal seizure or, in other words, theft of someone else’s property. Such actions are clearly recognized as illegal and directed against human interests. As a result, the injured person suffers material losses, which, in turn, can lead to moral suffering.

The theft can be committed either according to a pre-thought-out plan or without one. In fact, such precedents also happen when, for example, there was initially no intention to appropriate the value belonging to another person. However, let’s just say that an opportunity arose, and the citizen decided to take advantage of it, realizing that the act was characterized as illegal and would be punished.

In general, theft of someone else's property can perhaps be called the most common crime. And there are a lot of options here. The theft can be committed in the presence of the owner of the property or in his absence, by a group of people or by one person, and, as noted earlier, according to a pre-thought-out plan or without it.

It is not necessary that the perpetrator be a person who has already committed similar crimes. It is precisely in thefts that disadvantaged teenagers and young people, whose age is not much over 18, are often caught.

However, in any case, the responsibility for the secret and deliberate seizure of other people's property and other valuables will be very serious. In this case, the provisions of the Criminal Code come into force, because theft is considered a dangerous act and is interpreted as a crime.

What is theft under the law?

By law, theft is understood as the appropriation of someone else's property for subsequent use for one's own purposes, thereby violating the property rights of the victims. The basic concept of theft is contained in Article 158 part 1. As an aspect of property in this context, objects created through human activity are considered. They can have material value as well as spiritual content. If we look at the substantive aspect, where Article 158 Part 1 is of key importance, then such a concept as someone else’s property has its own characteristics:

• property objects that qualify as foreign must necessarily be tangible (that is, they can be picked up or touched);
• these items must be extracted from the reserves of nature with the help of human activity, have a value expression (these include not only real estate, but also cash, all types of securities);
• the person who steals the item must not be its owner. Ownership is confirmed by documents issued at the registration chamber upon acquisition of movable and immovable property. If we are talking about things, then the person who purchased them on his own has purchase receipts.

Article 158 part 1 of the Criminal Code of the Russian Federation establishes the correct understanding of citizens about the concepts and ownership of property.

Signs of theft

Theft of property is classified as theft only if the actions of the attacker reveal the corresponding signs. Moreover, there is a whole list of them.

The main sign of theft is the secrecy of the act. That is why the second name of such a crime is secret theft. In other words, actions are performed in such a way that the manipulations remain invisible. This is the difference between theft and the same robbery, when the actions of attackers cannot be hidden and consist in the open taking of someone else’s property.

Among other signs of illegal seizure of property, it is worth highlighting:

1. The illegality of the criminal's actions. This means that the attacker not only does not act as the owner of the stolen property, but does not have the legal rights to seize it and further use it.
2. Gratuitous theft. Theft involves the theft of any valuables without compensation for their value. Simply put, a person secretly seizes some property and does not in any way compensate for such a loss to its owner - does not transfer money or other property to him.
3. Selfish intentions. Theft is committed solely for the purpose of profit and material enrichment. That is, stolen valuables are turned in favor of their thief or another person who is not the owner.
4. Material damage caused to the rightful owner of the property.

And one more key point - theft is always committed with direct intent. In other words, the criminal is always aware that by his actions he is breaking the law and causing harm to the owner of the stolen valuables in the form of material damage. However, this does not stop the attacker, and he, one way or another, brings his plan to completion.

Also read: Urgent necessity in criminal law: what does it mean in simple words

As for the object of the crime, everything is very clear here - these are valuables belonging to third parties. The subject is a citizen who has committed an illegal act.

According to the law, a person who has reached 14 years of age can be recognized as such (paragraph 20 of the Criminal Code of the Russian Federation). Moreover, according to the results of the examination, the state of the criminal must be qualified as absolutely sane.

That is, at the time of the crime, a person must be aware of the nature of his actions and the fact that they are contrary to the law.

Procedure for detecting theft of funds

What to do if you notice the theft of funds from a company account? Can they be returned? In principle, this is possible if you use the services of a theft lawyer or follow the following procedure:

1. Contact the bank and notify them about what happened. It is best to use fast communication channels: hotline, online chat, etc. Inform the financial institution how much is missing, the time of payments (if they can be determined) and other details. If the company uses mobile banking or other similar systems, ask to temporarily block the account to prevent further loss of money.
2. Submit a written application to the bank with a request to suspend unwanted payments and return the funds to the account. To receive a refund, you will need an official document signed by the director of the company, which confirms the fact of theft. It must be transferred to the financial institution as early as possible, preferably on the day the loss is discovered or the next. Receipt of such a statement will initiate an internal investigation within the bank and will facilitate the return of funds.
3. Contact the police to report a crime. As in the case of a bank, the appeal must be submitted as quickly as possible, preferably within 24 hours after discovering the loss of funds. Remember that a hot pursuit investigation is always much more effective.
4. If you were able to identify the recipient of the payment and the bank where the funds were sent, it is worth contacting them as well. The application to the recipient's bank must contain a request to suspend the payment and conduct an audit, and the recipient must be required to return the payment. Remember that you can also go to court to recover unjust enrichment (and the receipt of the amount into the account without performing services will be such), so indicate this possibility in your appeal to the recipient.
5. Conduct an internal investigation to determine who is involved in the theft and how. It is often possible to identify the criminal’s accomplices or even direct thieves among the company’s employees: an electronic key to an account was stolen, a signature or seal was forged, a fictitious power of attorney was issued, etc. This measure, in addition to identifying unreliable employees, will help prevent similar situations in the future and increase the security of the company.

In the future, it is necessary to constantly monitor the progress of the criminal investigation. It is also important that law enforcement agencies officially recognize the company as the injured party; this will allow them to take part in court hearings and simplify the return of funds.

Features of determining punishment

In general, each case is always considered by the court extremely carefully and on an individual basis. This is due to the fact that the very fact of an unlawful act may be aggravated by any accompanying actions of the offender. Or, on the contrary, circumstances will indicate the need to mitigate the punishment.

Additionally, the characteristics of the attacker may also play a role. In particular, information about whether the person has previously been prosecuted under any charges is of interest. And, of course, the presiding judge takes into account the classification of the crime.

Namely:

1. the amount of damage caused - especially large, major (significant damage is considered an aggravating factor);
2. method of committing theft (for example, stealing from a bag or entering a home or other premises);
3. existence of a preliminary conspiracy;
4. creation of an organized group.

It is important to understand that the court will make a verdict only when all factors are known and considered. Therefore, the possibility of mitigating the punishment should not be ruled out.

When does criminal liability occur?

To initiate a criminal case, the amount of damage must exceed 2,500 rubles. In this case, the perpetrator will be punished under Part 1 of Article 158 of the Criminal Code of the Russian Federation:

• Fine up to 80 thousand rubles.
• Mandatory work up to 360 hours.
• Correctional labor for up to a year.
• Restriction of freedom or forced labor for up to 2 years.
• Arrest for up to 4 months.
• Imprisonment for up to 2 years.

In the case of aggravating circumstances, as well as a larger amount of damage, criminal liability will arise under other parts of Article 158.

Official website of local government bodies of the city of Nizhnevartovsk

Theft of funds from bank accounts has become widespread recently.

Clause “d” of Part 3 of Article 158 of the Criminal Code of the Russian Federation provides for liability for theft committed from a bank account, as well as in relation to electronic funds (in the absence of signs of a crime provided for in Article 159.3 of the Criminal Code of the Russian Federation - fraud using electronic means of payment).

The criminal law understands theft as the illegal gratuitous seizure and (or) conversion of someone else's property for the benefit of the perpetrator or other persons committed for personal gain and causing damage to the owner or other holder of this property.

The theft of someone else's property is recognized as secret when a person commits an illegal seizure of property in the absence of the owner or other owner of this property, or unauthorized persons, or although in their presence, but unnoticed by them.

By virtue of Article 15 of the Criminal Code of the Russian Federation, the crime provided for in paragraph “d” of Part 3 of Article 158 of the Criminal Code of the Russian Federation is classified as a serious crime. The maximum penalty for committing it is imprisonment for a term of up to 6 years with a fine of up to 80 thousand rubles or in the amount of wages or other income of the convicted person for a period of up to 6 months, or without it and with restriction of freedom for a term of up to 1.5 years or without it.

The sanction of Article 159.3 of the Criminal Code of the Russian Federation provides for liability for fraud using electronic means of payment. The crime under Part 1 of Art. 159.3 of the Criminal Code of the Russian Federation belongs to the category of crimes of minor gravity)

Qualified elements of fraud using electronic means of payment are: Part 2 of Art. 159.3 of the Criminal Code of the Russian Federation - refers to crimes of medium gravity, and Part 3, Part 4 of Art. 159.3 of the Criminal Code of the Russian Federation - serious crimes).

The given elements of crimes differ in the method of committing the crime.

Clause “d” of Part 3 of Article 158 of the Criminal Code of the Russian Federation provides for liability for the secret theft of funds from a bank account or electronic funds (for example, the guilty person secretly stole a bank card with a PIN code for it, after which he withdrew funds through a self-service device from the victim’s bank account).

Article 159.3 of the Criminal Code of the Russian Federation provides for liability in the event that a guilty person steals someone else’s property or acquires the right to someone else’s property through deception or abuse of trust, under the influence of which the owner of the property or another person transfers the property or the right to it to another person or does not prevent the seizure of this property or acquisition of the right to it by another person.

In accordance with the explanations of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2017 No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement” in cases where the theft of property was carried out using a counterfeit or belonging to another person credit, settlement or other payment card, by informing an authorized employee of a credit, trade or other organization of knowingly false information about the ownership of such a card by the specified person, the crime must be qualified as fraud.

In cases where a person has stolen non-cash funds, using the confidential information of the payment card holder necessary to gain access to them (for example, personal data of the owner, payment card data, control information, passwords), transferred to the attacker by the payment card holder himself under the influence of deception or abuse trust, the actions of the perpetrator are qualified as theft.

Increased liability for theft from a bank account, as well as electronic money, is associated with the increased use of information technology in the financial sector. It should be noted that the number of these illegal acts continues to increase continuously. The high degree of public danger of such illegal acts is confirmed by the specificity of the crimes, which can only be committed by persons with special knowledge and who use technical means specifically for criminal purposes, which leads to a violation of not only property rights, but also bank secrecy.

Aggravating circumstances

As you can already understand, the following factors can have a negative impact on the judge’s opinion:

1. preliminary conspiracy;
2. significant damage;
3. home penetration;
4. relapse;
5. committing theft during the execution of a suspended sentence.

In this case, theft is usually qualified under parts 2-4 of paragraph 158 of the Criminal Code. And here judges usually choose real imprisonment as a sanction (most often from 2 to 5 years). True, according to statistics, even under such circumstances there is a possibility of receiving a suspended sentence.

Responsibility for the secret seizure of other people's property involves several options for punishment. Moreover, if the act is qualified under part 1 of paragraph 158 of the Criminal Code, then, most likely, the sanctions will be very lenient. This could be a fine, forced or correctional labor, or a suspended sentence. But if there are some aggravating circumstances, then you shouldn’t count on concessions. In this case, the judge will impose a punishment associated with the actual loss of freedom.

In what situations may there be extenuating circumstances?

There are often cases when a person unknowingly committed a crime. He did it out of stupidity or simply without realizing his further guilt. In this case, the offender may be treated differently and the court will be interested in what consequences the person will bear for himself. But what happens when a person steals something for the first time?

The term will vary depending on many factors that may convince the court to mitigate certain circumstances.

Internet theft

The peculiarity of online theft is that this crime is often associated with another one – fraud. The most common option is the theft of money from bank accounts and cards.

If attackers hack them, it will be considered theft. If access to the cards is obtained from their owner as a result of deception, then this will be classified as fraud.

In case of theft from bank accounts, this will be classified as an aggravating circumstance. Therefore, regardless of the amount stolen, the culprit will be prosecuted.

Arbitrage practice

Based on judicial practice, which is formed through the study by the judicial authorities of the territorial units of the country of various situations related to the theft of funds and other people's property owned by citizens. Article 158 of the Criminal Code applies to all judicial bodies, even in the presence of internal regional regulations that work optimally. The court, which carries out the work of restoring justice and imposing penalties, cannot always immediately understand the current situation and is guided by an individual approach to each citizen. The main problematic issues when considering criminal proceedings, where theft under Article 158 is considered a key aspect, are:

• the ability to differentiate petty thefts from other minor thefts, qualify the crime properly, and correctly assign punishment;
• consideration of issues related to theft of large or especially large values;
• the process of determining the signs that characterize theft;
• bringing to responsibility due to repeated violation of the law, as well as a combination of several crimes related to theft in one process.

Also read: What is the liability for shoplifting?

Another problem is the lack of awareness of people about punishment; usually few citizens know what responsibility theft entails and what article stipulates for its commission. The solution to this issue can be considered preventive work with the population in terms of legal literacy.

Security measures to prevent theft

To prevent theft of funds from a bank account, the Bank must apply the following security measures:

• An organized system of personnel selection and operational control of the actions of Bank employees because criminals may have accomplices from among them;
• Double control of payment order verification, banking transaction confirmation system;
• Effective anti-virus protection of the entire information infrastructure of the Bank;
• Application of technical information security measures aimed at protecting against unauthorized access;
• Application of organizational measures to protect information, also aimed at preventing the theft of funds from a bank account, and countering social engineering aimed at Bank employees.

For individuals using the RBS service, measures to prevent theft of funds come down to:

• Non-disclosure of confidential, authentication information;
• Use only licensed software, as well as mandatory installation of software and OS updates to minimize the exploitation of vulnerabilities;
• Using advanced functions of the remote banking system, such as SMS-OTP/Push-OTP notifications;
• Regularly changing passwords for the remote banking system and devices used to work in the remote banking system;
• Limiting the software environment for using the remote banking system, for example, allocating a separate laptop for using only the remote banking system;
• Prompt blocking of access to the RBS system or to a bank card if there are suspicions of fraudsters’ actions, suspicious calls are received, SMS messages of suspicious content are received, the fact of loss of the device from which the RBS system or bank card was used has been established, or the fact of compromise has been established authentication data for the remote banking system, bank card.

For legal entities, all of the above information protection measures are relevant to prevent the theft of funds from a bank account, with the addition of the following:

• Using an effective CIPF, for example, an OTP token (issued at the Bank for a small fee);
• Use of personalized accounts for each RBS user;
• Setting restrictions on transactions;
• Double verification of payment orders;
• Using organizational measures to protect information, for example, at the end of a session with the remote banking system, the client must correctly shut down the work and remove the USB token.

Additional questions

When can you expect a mitigation of punishment?

Theft is often committed out of stupidity or due to a lack of awareness of the seriousness of the crime. In such cases, offenders are interested in what punishment they face the first time they commit a theft.

Here the outcome largely depends on factors that can convince the court of the need to soften sanctions measures.

Such circumstances are:

• the opinion of the injured party, expressed in a positive manner (a wish for a mitigation of the penalty or no complaints at all);
• presence of remorse on the part of the offender;
• compensation for damage caused to the injured person;
• assistance to the investigation;
• small amount of damage;
• absence of prior agreement.

All sorts of positive characteristics of the culprit can also help. For example, from the place of work, from neighbors and household members.

If the court is convinced that a person no longer wants to commit a crime, realizing that such an act poses a danger and causes harm to strangers, then the likelihood of receiving the minimum sentence under Part 1 of Article 158 of the Criminal Code will increase.

In general, people who commit theft for the first time and really repent of what they have done can well count on penalties or other favorable measures (forced labor, probation), but subject to compensation for the damage caused.

Is it possible to avoid punishment

After changes to the law in 2016, a list of conditions appeared under which the perpetrator can be punished only within the framework of the administrative code. These include:

• The crime was committed for the first time.
• Its action falls under Part 2 of Article 76.1 of the Criminal Code of the Russian Federation.
• He compensated the damage twice as much.

In other cases, it will not be possible to avoid criminal liability.

Criminal liability for minors

Criminal liability for theft is provided for by law when a teenager reaches 14 years of age (see the Criminal Code of the Russian Federation - Article 158 theft). However, until his sixteenth birthday, the amendments described in Art. 88 of the Criminal Code, according to which punishments are applied, but with the greatest lenience (according to judicial and legal practice, the characteristics of the law are considered). Typically, teenagers specialize in activities such as car theft.

How is the amount of damage calculated?

The commentary to the Criminal Code does not provide a detailed answer to the question presented; for this purpose, the Plenum of the RF Armed Forces issued a Resolution “On Judicial Practice on theft, robbery and robbery,” which contains recommendations for law enforcement officers in resolving such cases.

The following rules currently apply:

1. If we are talking about property, then the size is established based on the market value of the objects at the time the crime was committed. For example, if a TV purchased for 35,000 RUR is stolen, but at the time of the theft it cost 15,000 RUR, then the damage caused is equal to the last indicator;
2. When it becomes necessary to determine the value of property, it is advisable to invite an expert who can give an objective assessment. Based on the rendered conclusion, the issue of determining the amount of damage for initiating a criminal case is decided;
3. Damage subject to compensation is calculated not only on the basis of the value of the property, but also taking into account additional indexation. The level of inflation in the state is taken into account;
4. For items of historical, artistic or other value, a different procedure is provided. They are more valuable than modern household items. To establish the value, experts are necessarily invited to indicate not only the cost, but also the social value of the item. In practice, the theft of valuable exhibits in any case does not constitute insignificant damage to an individual, that is, a criminal case is always initiated;
5. If disputes and disagreements arise between the parties, the investigator may decide to bring in an outside expert to conduct an independent investigation.

In practice, investigators and other officials conducting cases are guided by the laid down principles, generally accepted provisions and rules. Not all enforcement rules are reflected in legislation.

Protection of the victim in case of theft from his bank card or account

As practice shows, despite compliance with all the above recommendations, the victim - the card holder often has to independently prove the fact of theft of funds from a bank account. Evidence may include witness statements, the behavior of the victim himself, recordings from video cameras and video recorders, etc. In addition, it is necessary to prove the fact that the injured party has stolen amounts, which can be confirmed by providing certificates from the place of work about income, a loan agreement, etc.

The very fact of initiating a criminal case already indicates that you are a bona fide user who does not abuse the right, and that illegal actions were actually committed against you. This type of crime falls into the category of minor and medium gravity. The qualification of the case depends on the specific circumstances of the incident. If the stolen funds are not returned by the bank, the injured party may, within the framework of a criminal case against the suspect, file a civil claim, which will be considered when the court pronounces a verdict. Based on the verdict, the victim receives a writ of execution to present it to the bailiff service for the purpose of forced recovery of stolen funds.

USEFUL : watch the VIDEO with advice from a criminal lawyer regarding protecting the victim from a crime and write your question in the comments of the video