The Supreme Court made it easier for judges to dismiss fraud cases

The Supreme Court dealt with economic crimes

Today the Plenum of the Supreme Court of the Russian Federation adopted the Resolution “On judicial practice in cases of fraud, misappropriation and embezzlement.” Let us remind you that the draft document was considered on November 14, but it was sent for revision, as a result of which minor editorial and technical corrections were made to the text. In addition, the resolution was supplemented by paragraph 34, indicating that if the actions of a person during fraud, embezzlement or embezzlement, although formally containing signs of the specified crime, but due to their insignificance did not pose a public danger, then the court should terminate the criminal case on the basis of Part 2 of Art. . 14 of the Criminal Code of the Russian Federation.

Earlier, the lawyer of the Moscow AP, Valery Sarkisov, noted that since the adoption of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 No. 51 “On judicial practice in cases of fraud, misappropriation and embezzlement,” criminal legislation has changed, new forms and types of fraud have arisen, Thefts using electronic means of payment became widespread, questions arose related to the qualification of acts, as well as the distinction between fraud and related offenses, which required clarification from the highest judicial body.

The expert also noted that the new clarifications for the first time pay attention to the issues of qualification of certain types of fraud under Art. 159.1, 159.2, 159.3, 159.5 and 159.6 of the Criminal Code of the Russian Federation, which appeared after the adoption of the previous resolution of the Supreme Court of the Russian Federation. He added that the issue of ensuring uniformity in the practice of applying these provisions has been long overdue, so certainty in their interpretation is especially significant.

It is worth noting that the Plenum of the RF Armed Forces approved the second version of clause 5 of the resolution, indicating that if the subject of the crime in fraud is non-cash funds, including electronic funds, then within the meaning of the provisions of clause 1 of the notes to Art. 158 of the Criminal Code of the Russian Federation and Art. 128 of the Civil Code of the Russian Federation, what was done should be considered as theft of someone else’s property. Such a crime should be considered completed from the moment of withdrawal of funds from the bank account of their owner or electronic funds, as a result of which damage was caused to the owner of these funds.

Earlier, regarding the question of when the fraud ended, Mikhail Kiriyenko, a partner at Kovalev, Ryazantsev and Partners, noted that such wording is categorically unacceptable. This approach, according to the expert, contradicts the concept of theft, since seizure itself does not make it possible to use and dispose of someone else’s property. He explained: “It seems that this is an option for operational services. If this approach remains, it will be a change in the criminal law norm through the interpretation of the RF Armed Forces, which is both unreasonable and increases the punitive component of Art. 159 of the Criminal Code of the Russian Federation.”

Managing partner of Zabeida and Partners, Alexander Zabeida, pointed out in this regard that, most likely, the decree refers to cryptocurrencies by electronic money. Since the legal nature of this type of property currently has no legal definition, cryptocurrency is difficult to classify as electronic money. According to the lawyer, from a criminal point of view it can be attributed rather to another type of property or the right to such property.

The lawyer also noted that the crypto wallet has no territorial connection. “It represents part of the encrypted key. This key provides the ability to manage cryptocurrency, information about which is available in the distributed registry, and therefore any information about a transaction, for example, transferring cryptocurrency to another wallet, appears simultaneously on all computers that embed data about the transaction in the block chain, the expert explained. “There are many places where the crime was committed in this case.”

At the same time, Valery Sarkisov pointed out that the draft resolution adopted today does not contain the position of the Plenum of the RF Armed Forces regarding how exactly actions in relation to non-cash funds should be qualified. Pointing out that they are thefts, the Court does not say anything about which article of the Criminal Code of the Russian Federation they should be classified under, despite the fact that practice has developed a relatively uniform approach to resolving this issue.

Clause 6 of the resolution, proposed in the draft in two versions, was also defined. In accordance with the adopted document, the place where the crime ended in cases where the subject of fraud was non-cash funds must be considered the location of the bank (its branch) or other organization in which the owner of the funds opened a bank account or kept records of electronic funds without opening accounts. Based on this, the courts must decide the issue of territorial jurisdiction of a criminal case.

Characteristics of crimes

Embezzlement and embezzlement are two forms of theft of entrusted property. The legislator defines property as property that the offender could dispose of, manage on the basis of an agreement, or a special assignment of a state or public organization.

Appropriation is when a person turns the property entrusted to him for his own benefit without obtaining the consent of the owner.

Embezzlement is the illegal actions of a person who has used up the property entrusted to him or transferred it to third parties without the permission of the owner. For example, waste of maternity capital, survivor's pension, guardianship contributions. In case of embezzlement and misappropriation, as in fraud, the court establishes the presence of intent.

The object of the crime in these categories of crimes is property relations. During embezzlement and embezzlement, the criminal had someone else's property, in relation to which he acquired certain powers based on:

• civil contracts - rent, transportation, storage;
• labor or service relations;
• special powers.

Property is considered to be entrusted to a person or to be in his lawful possession or control if at the time of the encroachment it was vested with any of the specified powers.

Legal possession means that the person who then stole the property was given the owner of the property the authority to manage and dispose of it. A legal entity or an individual can entrust their property to a citizen. If the person transferring the property is not the owner, he will not be considered entrusted.

If another person unlawfully disposed of the fate of the property, then the act will be qualified as secret theft under Art. 158 of the Criminal Code of the Russian Federation. Appropriation is different from theft - the guilty party acquires rights to property legally without taking it from the owner.

There are two ways that criminals take when embezzling and appropriating property:

• committing an action - for example, the perpetrator uses property transferred to him for storage;
• inaction - for example, a person who owns entrusted property informed the owner about the destruction of the property in a fire.

Both of these crimes have a material composition:

• misappropriation - the crime is considered completed from the moment when the rights to own the entrusted property transferred to the guilty person, who began enriching himself in his own favor;
• embezzlement is considered completed at the moment of illegal withdrawal of the entrusted property.

The subjects of crimes of embezzlement and embezzlement are citizens who:

• have reached the age of majority;
• are financially responsible persons;
• received stolen property for temporary management, disposal on the basis of a document.

The court needs evidence of the direct intent and selfish purpose of the subject of misappropriation or embezzlement. Direct intent consists of causing property damage to the victim to achieve a selfish goal, the intention to use someone else's property for personal purposes, deriving financial gain from it.

If these crimes are organized by a group of citizens, the perpetrators are persons who have the characteristics of special subjects. They bear criminal liability under Art. Art. 33 and 160 of the Criminal Code of the Russian Federation, and act as accomplices, organizers or instigators.

How is appropriation different from embezzlement?

In case of appropriation, the culprit owns, and in case of embezzlement, he uses the property entrusted to him for the benefit of spending, alienation, and consumption. Each case must be investigated to determine intent. In this case, the following circumstances are assessed:

• attempts to hide actions through forgery or other means;
• the possibility of returning property to the owner;
• other specific actions of the guilty person.

Some lawyers interpret embezzlement as the next action after the appropriation of entrusted property. They are guided by the fact that in order to begin to turn the property into their favor, the culprit must make a decision not to return the property to the owner. But judicial practice does not use this approach, otherwise the same theft would have two ending points: with appropriation and embezzlement.

In both types of theft, the property is in the possession of the perpetrator at the end of the crime. He has the ability to dispose of property, and when the embezzlement is completed, he sells it. Unlawful seizure of property occurs during lawful possession without interruption.

Protecting the victim from theft, robbery and robbery will be simplified

Changes were also made to the resolution of the Plenum of the Supreme Court No. 17 of June 29, 2010 “On the practice of application by courts of norms regulating the participation of the victim in criminal proceedings.” The main novelty is related to the regulation of the period for recognizing a person as a victim. If previously an investigator or inquiry officer could make a decision recognizing a citizen as a victim a long time after the initiation of a criminal case, sometimes after a month or even several months, now the investigator (inquirer) must do this immediately after the initiation of a criminal case or after receiving information about the victim from a crime to a person (if there is no information about him at the time of initiation of a criminal case). To substantiate its requirement, the Plenum of the Supreme Court of the Russian Federation indicated that the legal status of a person as a victim is established based on his actual situation and is only procedurally formalized by a resolution, but is not formed by it. Thus, recognizing a person as a victim and vesting him with the corresponding rights should no longer depend on the discretion of the investigator or interrogating officer. In case of violation, the Supreme Court indicates that there are all grounds for appealing the actions of the investigator in accordance with Art. 124 or 125 of the Code of Criminal Procedure of the Russian Federation.

This means that a person who has suffered from a crime will be able to earlier become a participant in the process to exercise their rights granted by the Code of Criminal Procedure of the Russian Federation.

Criminal lawyer

The Plenum of the Supreme Court of the Russian Federation Decree of December 27, 2002 N 29 on judicial practice in cases of theft, robbery and robbery (as amended by the decisions of the Plenum of the Supreme Court of the Russian Federation dated 06.02.2007 N 7, dated 23.12.2010 N 31)

In order to ensure the correct application of the legislation on criminal liability for theft, robbery and robbery and in connection with issues that have arisen in judicial practice, the Plenum of the Supreme Court of the Russian Federation decides to give the following clarifications to the courts:
1. When considering cases of theft, robbery and robbery, which are the most common crimes against property, the courts should keep in mind that, in accordance with the law, theft is understood as the illegal gratuitous seizure and (or) conversion of someone else's property in favor of the perpetrator or other persons, committed for mercenary purposes, causing damage to the owner or other holder of this property.

In each such case, the courts must examine the available evidence in order to correctly legally qualify the actions of persons guilty of committing these crimes, to avoid mistakes associated with misinterpretation of the concepts of secret and open theft of other people's property, as well as when assessing the circumstances provided for as signs of a crime, aggravating punishment.

2. The actions of a person who has committed 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, should be qualified as secret theft of someone else’s property (theft). In cases where these persons saw that a theft was being committed, but the perpetrator, based on the surrounding situation, believed that he was acting secretly, the act was also a secret theft of someone else's property.

3. Open theft of someone else’s property, provided for in Article 161 of the Criminal Code of the Russian Federation (robbery), is such a theft that is committed in the presence of the owner or other owner of the property or in full view of strangers, when the person committing this crime is aware that those present at the time understand the illegal nature of his actions, regardless of whether they took measures to suppress these actions or not.

4. If a person present during the illegal seizure of someone else’s property does not realize the illegality of these actions or is a close relative of the perpetrator, who therefore expects that during the seizure of property he will not encounter opposition from the said person, the act should be qualified as theft of someone else’s property. property. If the listed persons took measures to suppress the theft of other people’s property (for example, they demanded to stop these illegal actions), then the responsibility of the perpetrator for the act comes under Article 161 of the Criminal Code of the Russian Federation.

5. If, during the commission of theft, the actions of the culprit are discovered by the owner or other owner of the property or other persons, but the culprit, realizing this, continues to commit illegal seizure of property or its retention, the act should be qualified as robbery, and in the case of the use of violence dangerous to life or health, or the threat of such violence - like robbery.

6. Theft and robbery are considered completed if the property is confiscated and the culprit has a real opportunity to use it or dispose of it at his own discretion (for example, turn the stolen property into his own favor or for the benefit of other persons, dispose of it for personal gain in another way). Robbery is considered completed from the moment of an attack for the purpose of stealing someone else's property, committed with the use of violence dangerous to life or health, or with the threat of such violence.

7. Unlawful actions aimed at taking possession of someone else’s property not for mercenary purposes, but, for example, for the purpose of its temporary use with subsequent return to the owner or in connection with the alleged right to this property, do not constitute theft or robbery. Depending on the circumstances of the case, such actions, if there are grounds for it, are subject to qualification under Article 330 of the Criminal Code of the Russian Federation or other articles of the Criminal Code of the Russian Federation.

In cases where the illegal seizure of property was committed as a result of hooliganism, rape or other criminal acts, it is necessary to establish for what purpose the person seized this property.

If a person pursued a selfish goal, what he did, depending on the method of acquiring property, should be classified collectively as a corresponding crime against property and hooliganism, rape or another crime.

8. If the organizer, instigator or accomplice did not directly participate in the theft of someone else’s property, the crime committed by the perpetrator cannot be qualified as committed by a group of persons by prior conspiracy. In these cases, by virtue of part three of Article 34 of the Criminal Code of the Russian Federation, the actions of the organizer, instigator or accomplice should be qualified with reference to Article 33 of the Criminal Code of the Russian Federation.

9. When qualifying the actions of the perpetrators as the theft of someone else’s property by a group of persons by prior conspiracy, the court should find out whether such a conspiracy of accomplices took place before the start of actions directly aimed at theft of someone else’s property, whether an agreement was reached on the distribution of roles in order to carry out the criminal intent, and also what specific actions were committed by each perpetrator and other accomplices of the crime. The verdict must evaluate the evidence regarding each perpetrator of the crime committed and other accomplices (organizers, instigators, accomplices).

10. Based on the meaning of part two of Article 35 of the Criminal Code of the Russian Federation, criminal liability for theft, robbery or robbery committed by a group of persons by prior conspiracy also occurs in cases where, according to a preliminary agreement between the accomplices, one of them directly seizes property. If other participants, in accordance with the distribution of roles, committed concerted actions aimed at providing direct assistance to the perpetrator in committing a crime (for example, the person did not enter the home, but participated in breaking doors, locks, bars, took out the stolen property by prior agreement, secured other accomplices from the possible detection of the crime being committed), what they did is co-perpetration and, by virtue of part two of Article 34 of the Criminal Code of the Russian Federation, does not require additional qualifications under Article 33 of the Criminal Code of the Russian Federation.

The actions of a person who was not directly involved in the theft of someone else's property, but who contributed to the commission of this crime with advice, instructions, or who promised in advance to hide traces of the crime, to remove obstacles not related to providing assistance to the direct perpetrators of the crime, to sell the stolen property, etc., should be qualified as complicity in the act in the form of complicity with reference to part five of Article 33 of the Criminal Code of the Russian Federation.

11. When qualifying the actions of two or more persons who stole someone else’s property by theft, robbery or robbery by a group of persons by prior conspiracy or an organized group, the courts should keep in mind that in cases where a person who was not in the conspiracy, during the commission of a crime other persons took part in its commission, such a person should bear criminal liability only for specific actions committed by him personally.

12. Paragraph - Deleted. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 23, 2010 N 31)

If a person has committed theft, robbery or robbery through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances, his actions (in the absence of other qualifying criteria) should be qualified in the first parts of Articles 158, 161 or 162 of the Criminal Code of the Russian Federation as actions the direct perpetrator of the crime (part two of Article 33 of the Criminal Code of the Russian Federation).

Considering that the law does not provide a qualifying sign for the commission of theft, robbery or robbery by a group of persons without prior conspiracy, what was done in such cases should be qualified (in the absence of other qualifying signs specified in the dispositions of the relevant articles of the Criminal Code of the Russian Federation) under part one of article 158, part the first article 161 or part one of article 162 of the Criminal Code of the Russian Federation. When rendering a verdict, the court, if there are grounds for this, provided for in part one of Article 35 of the Criminal Code of the Russian Federation, has the right to recognize the commission of a crime as part of a group of persons without prior conspiracy as an aggravating circumstance, with reference to paragraph “c” of part one of Article 63 of the Criminal Code of the Russian Federation. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

13. A person who organized a crime or incited a participant in a crime who is obviously not subject to criminal liability to commit theft, robbery or robbery, in accordance with part two of Article 33 of the Criminal Code of the Russian Federation, bears criminal liability as the perpetrator of the crime. If there are grounds for this, provided for by law, the actions of the specified person must be additionally qualified under Article 150 of the Criminal Code of the Russian Federation.

14. If the intent of the perpetrators who committed a robbery by a group of persons by prior conspiracy included the use of weapons or objects used as weapons, all participants in the crime committed are also liable under paragraph “d” of part two of Article 162 of the Criminal Code of the Russian Federation as co-principals in that case , when weapons and other objects were used by one of them.

In cases where a group of persons previously agreed to commit the theft of someone else’s property, but one of the co-perpetrators went beyond the scope of the agreement, committing actions that are subject to legal assessment as robbery or robbery, what they did should be qualified under the relevant paragraphs and parts of Article 161, 162 of the Criminal Code of the Russian Federation.

15. When qualifying theft, robbery or robbery, respectively, under paragraph “a” of part four of Article 158 or according to paragraph “a” of part three of Article 161 or according to paragraph “a” of part three of Article 162 of the Criminal Code of the Russian Federation, courts should keep in mind that the commission of one Of these crimes, an organized group is recognized in cases where it involved a stable group of persons who had united in advance to commit one or more crimes (part three of Article 35 of the Criminal Code of the Russian Federation).

Unlike a group of people who have agreed in advance to jointly commit a crime, an organized group is characterized, in particular, by stability, the presence in its composition of an organizer (leader) and a pre-developed plan for joint criminal activity, the distribution of functions between group members in preparing to commit a crime and carrying out criminal intent.

The stability of an organized group can be evidenced not only by the long period of its existence, the repeated commission of crimes by group members, but also by their technical equipment, the duration of preparation of even one crime, as well as other circumstances (for example, special training of members of an organized group to enter a storage facility to seize money (currency) or other material assets).

If these crimes are recognized as committed by an organized group, the actions of all accomplices, regardless of their role in the crime, are subject to qualification as co-perpetrators without reference to Article 33 of the Criminal Code of the Russian Federation.

If a person incited another person or group of persons to create an organized group to commit specific crimes, but did not directly participate in the selection of its participants, planning and preparation for committing crimes (crimes) or in their implementation, his actions should be qualified as complicity in the commission of an organized crime. group of crimes with reference to part four of article 33 of the Criminal Code of the Russian Federation.

16. The articles of the Special Part of the Criminal Code of the Russian Federation do not provide for the commission of two or more thefts, robberies and robberies as a circumstance entailing a more severe punishment. According to Article 17 of the Criminal Code of the Russian Federation, in case of a combination of crimes, a person bears criminal liability for each crime committed under the relevant article or part of an article of the Criminal Code of the Russian Federation, punishment is assigned separately for each crime committed. In this case, the final punishment in accordance with parts two and three of Article 69 of the Criminal Code of the Russian Federation cannot exceed more than half the maximum term or amount of punishment provided for the most serious crime committed.

Continuing theft, consisting of a number of identical criminal acts committed by taking someone else’s property from the same source, united by a single intent and collectively constituting a single crime, should be distinguished from a set of crimes. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

17. Paragraph - Deleted. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

Paragraph - Deleted. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

In the case of theft, robbery or robbery under aggravating circumstances, provided for by several parts of Articles 158, 161 or 162 of the Criminal Code of the Russian Federation, the actions of the perpetrator, in the absence of a real set of crimes, are subject to qualification only under that part of the specified articles of the Criminal Code of the Russian Federation, which provides for a more severe punishment . In this case, the descriptive part of the sentence must contain all the qualifying features of the act.

18. Illegal entry into a home, premises or other storage facility should be understood as an unlawful secret or open intrusion into them for the purpose of committing theft, robbery or robbery. Penetration into the specified buildings or structures can also be carried out when the culprit removes stolen items without entering the corresponding premises.

When qualifying the actions of a person who has committed theft, robbery or robbery on the basis of “illegal entry into a home,” courts should be guided by the note to Article 139 of the Criminal Code of the Russian Federation, which explains the concept of “dwelling,” and Note 3 to Article 158 of the Criminal Code of the Russian Federation, which explains the concepts "room" and "storage".

19. When deciding whether the actions of a person who committed theft, robbery or robbery contain signs of illegal entry into a home, premises or other storage facility, the courts need to find out for what purpose the culprit was in the premises (dwelling, storage facility), as well as when the intent arose to take possession of someone else's property. If a person was there lawfully, without any criminal intent, but then committed theft, robbery or robbery, this sign is absent in his actions.

This qualifying feature is also absent in cases where the person ended up in a home, premises or other storage facility with the consent of the victim or persons under whose protection the property was located, due to family relationships, acquaintance, or was in the sales area of ​​a store, office and other premises open for visiting by citizens.

If a person is found guilty of stealing someone else's property by illegally entering a home, additional qualifications under Article 139 of the Criminal Code of the Russian Federation are not required, since such an illegal action is a qualifying sign of theft, robbery or robbery.

20. If a person, while committing theft, robbery or robbery, illegally entered a home, premises or other storage facility by breaking doors, locks, bars, etc., what he did must be qualified under the relevant paragraphs and parts of Articles 158, 161 or 162 of the Criminal Code RF and additional qualifications under Article 167 of the Criminal Code of the Russian Federation are not required, since the deliberate destruction of the specified property of the victim in these cases was a method of committing theft under aggravating circumstances.

If, during the commission of theft, robbery or robbery, the property of the victim was intentionally destroyed or damaged, which was not the subject of theft (for example, furniture, household appliances and other things), the act should, if there are grounds for it, be additionally qualified under Article 167 of the Criminal Code of the Russian Federation.

If, during the theft of oil, petroleum products and gas from an oil pipeline, petroleum product pipeline, gas pipeline by cutting into pipelines, they are destroyed, damaged or rendered unusable for use, as well as technologically related objects, structures, communications, automation, alarm systems, which entailed or could entail a disruption of their normal work, then the act is subject to qualification according to the totality of crimes provided for in paragraph “b” of part 3 of Article 158 and Article 215.3 of the Criminal Code of the Russian Federation. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 23, 2010 N 31)

21. Violence that is not dangerous to life or health (clause “d” of part two of Article 161 of the Criminal Code of the Russian Federation) should be understood as beatings or other violent acts associated with causing physical pain to the victim or restricting his freedom (tying hands, using handcuffs , leaving indoors, etc.).

Violence dangerous to life or health (Article 162 of the Criminal Code of the Russian Federation) should be understood as violence that entailed the infliction of grave and moderate harm to the health of the victim, as well as the infliction of minor harm to health, causing a short-term health disorder or a minor permanent loss of general ability to work.

According to the first part of Article 162 of the Criminal Code of the Russian Federation, it is necessary to qualify an attack with the aim of taking possession of property, committed with the use of violence dangerous to life or health, which, although it did not cause harm to the health of the victim, however, at the time of use created a real danger to his life or health.

The use of violence during a robbery attack, as a result of which the victim is intentionally inflicted with light or moderate harm to health, is covered by robbery and does not require additional qualifications under Articles 115 or 112 of the Criminal Code of the Russian Federation. In these cases, the offense is qualified under part one of Article 162 of the Criminal Code of the Russian Federation, if there are no aggravating circumstances provided for by part two or three of this article.

If, during a robbery with the aim of taking possession of someone else's property, the victim was inflicted with grievous harm to health, which resulted in his death due to negligence, the offense should be classified as a set of crimes - under paragraph "c" of part four of Article 162 and part four of Article 111 of the Criminal Code of the Russian Federation . (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

In cases where the seizure of property is associated with a threat of violence that is of an uncertain nature, the question of recognizing the person’s actions as robbery or robbery must be decided taking into account all the circumstances of the case: the place and time of the crime, the number of attackers, the nature of the objects with which they threatened the victim , subjective perception of a threat, the commission of any specific demonstrative actions indicating the attackers’ intention to use physical violence, etc.

If, during the theft of someone else’s property, a violent restriction of freedom is applied to the victim, the issue of recognizing the person’s actions as robbery or robbery must be decided taking into account the nature and degree of danger of these actions to life or health, as well as the consequences that have occurred or could occur (for example, leaving a tied victim in a cold room, depriving him of the opportunity to seek help).

22. If a person commits murder of the victim during a robbery, what he has done should be qualified under paragraph “h” of part two of Article 105 of the Criminal Code of the Russian Federation, as well as according to paragraph “c” of part four of Article 162 of the Criminal Code of the Russian Federation. If there are other aggravating circumstances in the actions of the person guilty of robbery (for example, robbery committed by a group of persons by prior conspiracy, with illegal entry into a home, with the use of weapons, etc.), these signs of the objective side of robbery must be indicated in the descriptive part of the sentence . (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

23. When qualifying the actions of the perpetrator under part two of Article 162 of the Criminal Code of the Russian Federation, the courts should, in accordance with the Federal Law of November 13, 1996 “On Weapons” and on the basis of an expert opinion, establish whether the object used in the attack is a weapon intended to kill living or other goals. If there are grounds for this, provided for by the Law, the actions of such a person must be additionally qualified under Article 222 of the Criminal Code of the Russian Federation. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

Objects used as weapons should be understood as objects that could cause bodily harm to the victim that are dangerous to life or health (a penknife or kitchen knife, a razor, a crowbar, a baton, an ax, a flare gun, etc.), as well as objects , intended for temporary destruction of a target (for example, mechanical sprayers, aerosol and other devices equipped with tear and irritant substances).

If a person only demonstrated a weapon or threatened with a obviously unusable or unloaded weapon or an imitation weapon, for example a dummy pistol, a toy dagger, etc., without intending to use these objects to cause bodily harm dangerous to life or health, his actions (in the absence of other aggravating circumstances), taking into account the specific circumstances of the case, should be classified as robbery, liability for which is provided for in part one of Article 162 of the Criminal Code of the Russian Federation, or as robbery if the victim understood that he was being threatened with an unusable or unloaded weapon or an imitation weapon.

In cases where, in order to steal someone else's property, a potent, poisonous or intoxicating substance dangerous to life or health is introduced into the victim's body against his will or by deception in order to bring the victim into a helpless state, the act must be qualified as robbery. If, for the same purpose, a substance that does not pose a threat to life or health is introduced into the victim’s body, the act must be classified, depending on the consequences, as robbery combined with violence. The properties and nature of the action of substances used in the commission of these crimes can, if necessary, be established with the help of an appropriate specialist or by expert means.

The actions of a person who committed an attack for the purpose of stealing someone else's property using dogs or other animals that pose a danger to human life or health, or with the threat of using such violence, must be qualified taking into account the specific circumstances of the case under part two of Article 162 of the Criminal Code of the Russian Federation. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

24. When qualifying the actions of a person who committed theft on the basis of causing significant damage to a citizen, the courts should, guided by Note 2 to Article 158 of the Criminal Code of the Russian Federation, take into account the property status of the victim, the value of the stolen property and its significance for the victim, the amount of wages, pensions, whether the victim has dependents, the total income of family members with whom he runs a joint household, etc. In this case, the damage caused to a citizen cannot be less than the amount established by the note to Article 158 of the Criminal Code of the Russian Federation.

If the damage caused as a result of the theft does not exceed the specified amount or the damage did not occur due to circumstances beyond the control of the perpetrator, the act may be classified as attempted theft causing significant damage to a citizen, provided that the intent of the perpetrator was aimed at stealing property in a significant amount . (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 23, 2010 N 31)

25. The commission of several thefts of someone else’s property, the total value of which exceeds two hundred and fifty thousand rubles, and in an especially large amount - one million rubles, should be qualified as theft on a large scale, if these thefts were committed in one way and under circumstances indicating an intention to commit theft in large or especially large. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

When deciding on the qualification of the actions of persons who have committed theft of someone else's property as part of a group of persons by prior conspiracy or an organized group on the basis of “causing significant damage to a citizen” or on the basis of “on a large scale” or “on an especially large scale”, one should proceed from the total cost kidnapped by all members of the criminal group. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

If the person who committed the robbery or assault caused significant damage to the victim by stealing property, the value of which, by virtue of paragraph 4 of the note to Article 158 of the Criminal Code of the Russian Federation, is not large or especially large, committed in the absence of other aggravating circumstances specified in parts two and three and fourth articles 161 and 162 of the Criminal Code of the Russian Federation, should be qualified accordingly in the first parts of these articles. However, in cases where the person who committed robbery or assault had the goal of taking possession of property on a large or especially large scale, but actually took possession of property whose value does not exceed two hundred and fifty thousand rubles or one million rubles, his actions must be qualified according to part three of article 30 of the Criminal Code of the Russian Federation and paragraph “d” of part two of article 161 or under paragraph “b” of part three of article 161 as attempted robbery committed on a large scale or on an especially large scale, or under part three of article 162 or under paragraph “ b" part four of Article 162 of the Criminal Code of the Russian Federation as complete robbery committed on a large scale or for the purpose of seizing property on an especially large scale. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

When determining the amount of stolen property, one should proceed from its actual value at the time the crime was committed. In the absence of information about the price, the value of the stolen property can be established on the basis of expert opinions.

The special historical, scientific, artistic or cultural value of stolen objects or documents (Article 164 of the Criminal Code of the Russian Federation) (regardless of the method of theft) is determined on the basis of an expert opinion, taking into account not only their value in monetary terms, but also their significance for history, science, art or culture. (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

26. In connection with the adoption of this Resolution, Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 22, 1966 No. 31 “On judicial practice in cases of robbery and robbery” (with subsequent amendments and additions), as well as paragraphs 4, 7, shall be declared invalid , 8, 9 and 10 Resolution of the Plenum of the Supreme Court of the Russian Federation of April 25, 1995 No. 5 “On some issues of the application by courts of legislation on liability for crimes against property.” (as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/06/2007 N 7)

Chairman of the Supreme Court of the Russian Federation V.M. LEBEDEV

Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. DEMIDOV

The Plenum of the Supreme Court of the Russian Federation gave new clarifications on cases of fraud, misappropriation and embezzlement

The Plenum of the Supreme Court of Russia on November 30, 2017 adopted Resolution No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement.”

The Resolution contains new clarifications, including in connection with the inclusion of new articles in the Criminal Code of the Russian Federation providing for liability for fraud in the field of lending, when receiving payments, fraud using payment cards, in the field of insurance and computer information.

The resolution contains a number of changes relating to issues, qualifications and investigation of crimes related to crimes related to theft of property through deception or abuse of trust.

Thus, in paragraph 5, an explanation appeared, according to which, if the subject of a fraud crime is non-cash funds, including electronic funds, then such a crime should be considered completed from the moment the funds are withdrawn from the bank account of their owner or electronic funds, as a result of which damage was caused to the owner of these funds.

Thus, the question of the place where crimes of this category were committed is resolved. In accordance with previous explanations, the place where the crime was committed was considered the place where the current account was opened, where the funds were received, which often led to lengthy procedural checks, as well as the adoption of repeated decisions to send these messages to other regions, which prevented the timely adoption of procedural decisions to initiate criminal cases.

Paragraph 9 indicates the need to qualify criminal actions under Part 4 of Article 159 of the Criminal Code of the Russian Federation if, as a result of fraud, a citizen was deprived of the right to residential premises, regardless of whether this residential premises was the only one of the victim and (or) whether it was used by the victim for his own residence .

The resolution introduced provisions indicating that fraud associated with deliberate failure to fulfill contractual obligations in the field of business activity is recognized as a criminal offense if this act resulted in damage to an individual entrepreneur or commercial organization in the amount of ten thousand rubles or more.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2007 N 51 was declared invalid.