ST 159.2 of the Criminal Code of the Russian Federation.
1. Fraud in receiving payments, that is, theft of funds or other property when receiving benefits, compensation, subsidies and other social payments established by laws and other regulatory legal acts, by providing knowingly false and (or) unreliable information, as well as by omission about facts entailing the termination of these payments -
shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a term of up to three hundred and sixty hours, or by corrective labor for a term of up to one year, or by restriction of liberty for a term of up to two years, or forced labor for up to two years, or arrest for up to four months.
2. The same act committed by a group of persons by prior conspiracy, -
shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by forced labor for a term of up to five years. with restriction of freedom for a term of up to one year or without it, or imprisonment for a term of up to four years with restriction of freedom for a term of up to one year or without it.
3. Acts provided for in parts one or two of this article, committed by a person using his official position, as well as on a large scale, -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years with or without restriction of freedom for a term of up to two years, or imprisonment for a term of up to six years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months or without it and with restriction of freedom for a term of up to one and a half years or without it.
4. Acts provided for in parts one or three of this article, committed by an organized group or on an especially large scale, -
shall be punishable by imprisonment for a term of up to ten years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to three years and with or without restriction of freedom for a term of up to two years.
Commentary to Art. 159.2 of the Criminal Code
1. The corpus delicti is characterized by a special method of committing a crime - deception by presenting knowingly false and (or) unreliable information, which results in the assignment to a person of benefits, compensation, subsidies and other social payments established by laws and other regulatory legal acts (acts of the Russian Federation, its subjects or municipalities) or by keeping silent about facts leading to the termination of these payments.
2. Fraud when receiving payments established by local regulations (including those adopted by state, municipal institutions and (or) carried out at the expense of state or local budgets), as well as decisions of individual individuals, enterprises, institutions and organizations (for example, registered scholarships), should be qualified under Art. 159 of the Criminal Code.
3. Other social payments are all payments: a) made on a non-refundable basis at the expense of the federal budget, budgets of the constituent entities of the Federation, local budgets, budgets of extra-budgetary funds (including if funds from these budgets are provided to make payments directly to the paying organization or are compensated from the budget); b) not conditional on the provision of any property to the recipient of the payment or the performance of work (provision of services) (gratuitous payments). These payments can be either compensatory in nature (aimed at preventing or mitigating negative consequences for a person and his family members upon the occurrence of certain socially significant circumstances, as well as maintaining an acceptable level of their material and social well-being), or incentive in nature (for example, funds maternity capital). Other social payments include, for example, a labor pension in its insurance part, a social pension, and maternity capital funds.
The subject of the crime also includes property provided free of charge or at a reduced price (for example, medicines, vehicles, technical means of rehabilitation, vouchers), provided that it meets the criteria of irrevocability, budget and unconditionality. In such cases, the subject of the crime must receive a monetary value in the court verdict.
Tax refunds made within the framework of tax legislation (for example, property and social tax deductions) do not apply to social payments. The act, if there are grounds for it, must be qualified under Art. 159 of the Criminal Code (if there is a refund of previously paid tax in the form of a deduction) or under Art. 198 of the Criminal Code (if the deduction is obtained in the form of a reduction in the tax payable).
4. Silence about the facts leading to the termination of payments assumes that if the condition for receiving benefits, compensation, subsidies and other social payments is the preservation of any condition of the person (for example, low income, poor health, living in a certain area, hazardous working conditions ), then with a change in this state and the appearance of a person’s statutory obligation to notify the relevant government body, local government body, other institution responsible for the appointment and payment of social benefits, the person who has not fulfilled such an obligation within the period established by regulatory legal acts, thereby is silent about the facts leading to the termination of these payments. If the period for notification is not legally fixed, the person is assumed to be obliged to notify before the next payment.
Accordingly, the moment of the end of a crime in this type should be recognized as the first receipt of funds or other property as a social payment after the occurrence of facts with which the termination of these payments is associated in the law or other regulatory legal act. In itself, violation of the deadline for notification cannot be considered a criminal offense, including in the form of preparation for the crime in question or an attempt to commit it, since notification can be made at any time before the illegal payment is made.
In this case, the person must be aware of the occurrence of facts with which the law or other regulatory legal act relates to the termination of social payments, and that he has an obligation to report the occurrence of facts with which the law or other regulatory legal act relates to the termination of these payments.
If payments to a person are assigned and made illegally (albeit without his request for their assignment), which he knows about, the act done in the event of a person’s silence about the illegality of the payment and its acceptance is subject to qualification under Art. 159 of the Criminal Code.
5. The subject is general, i.e. any person who, by providing knowingly false and (or) unreliable information, achieved the receipt of funds or other property in the form of benefits, compensation, subsidies and other social payments established by laws and other regulatory legal acts, and not only the person who is entitled to receive appropriate payments subject to the conditions established by law. In the case when a legally (or even illegally) assigned social payment is received by an outsider through deception or abuse of trust (for example, by impersonating another person), the latter’s actions should be qualified under Art. 159 of the Criminal Code.
Let's consider the composition of simple fraud when receiving payments
- Objective side: theft of funds or other property when receiving benefits, subsidies, compensation and other payments established by current legislation, by providing false documents or concealing facts that entail the completion of these payments. Accordingly, a crime can be committed in the form of an act or omission. The amount of stolen funds is more than 1 thousand rubles.
- Object: relations of state or municipal property. An additional object is public relations in the field of social security.
- Subjective side: only direct intent, the goal is selfish.
- Subject: a sane individual who has reached the age of 16 years.
Also read: About judicial practice in cases of fraud, misappropriation and embezzlement
The main problem in qualifying an act under Article 159.2 of the Criminal Code of the Russian Federation is the concept of social payments. They should be understood as social protection measures provided for by law, provided from budgets of different levels on a free and irrevocable basis, to mitigate any negative consequences for citizens or maintain a certain level of financial well-being.
Second commentary to Art. 159.2 of the Criminal Code of the Russian Federation
1. The subject of the crime in question is funds or other property provided to a person upon receipt of benefits, compensation, subsidies or other payments established by laws and other regulatory legal acts. Payments in the sense of the commented norm include temporary disability benefits, unemployment benefits, child benefits, one-time benefits for the birth of a child, etc., as well as subsidies and other social payments.
2. The objective side consists of providing knowingly false and (or) unreliable information for the purpose of illegally receiving social benefits, or concealing facts that prevent the provision or justify the termination of these payments (for example, providing a fake certificate of family income in order to receive a subsidy for housing ;
provision of a fake certificate of incapacity for work to the territorial body of the Social Insurance Fund of the Russian Federation in order to receive benefits for temporary disability, etc.). The crime is completed from the moment of taking possession of the items specified in Art. 159.2 of the Criminal Code with social payments.
3. The subjective side of the crime is characterized by direct intent and selfish purpose.
4. The subject of the crime is a person who has reached the age of 16 years.
5. A qualified type of crime is characterized by its commission by a group of persons by prior conspiracy.
6. A particularly qualified type of fraud when receiving payments is when it is committed by the perpetrator using his official position, as well as on a large scale (i.e. in an amount over 250 thousand rubles - Note 4 to Article 158 of the Criminal Code).
7. According to Part 4 of Art. 159.1 of the Criminal Code qualifies fraud in the receipt of payments committed by an organized group or on a particularly large scale (i.e. for an amount exceeding 1 million rubles - Note 4 to Article 158 of the Criminal Code).
Preventive measure
If a citizen is suspected or accused of a crime specified in Art. 159, part 3, the investigator/interrogator can choose any option from Art. 98 Code of Criminal Procedure. As a rule, in relation to such persons a measure is taken in the form of:
- Signs not to leave.
- Arrest (domestic).
- Collateral.
- Detention.
- Personal guarantee.
The decision to take a citizen into custody, apply a measure in the form of bail or house arrest is made exclusively in court. Taking a subscription or personal guarantee is carried out during preliminary work by authorized persons (inquirer/investigator).
Also read: What to do if you are accused of fraud
Third commentary to Article 159.2 of the Criminal Code of the Russian Federation
1. Relatively often, judicial investigative practice is faced with the illegal fraudulent receipt by citizens of state pensions in increased amounts, various benefits and other one-time or regular payments, often with the assistance of officials who, for these purposes, issue fictitious documents to the direct perpetrator of the fraud - certificates of employment length of service, work in the Far North, the average salary for a certain period of time, the presence of children, etc. The highest courts have clarified that the deliberate illegal receipt by a citizen of public funds as pensions, benefits and other payments as a result of deception or abuse of trust is subject to qualification as theft of property by fraud. Such actions were qualified under Art. 159 of the Criminal Code. However, to eliminate errors and disagreements in the area of receiving benefits, compensation, subsidies and other social payments, the Criminal Code was supplemented with a commented article on liability for fraud of this type.
2. The main feature lies in the subject of the crime, which includes funds or other property as benefits, compensation, subsidies and other social payments established by laws and other regulatory legal acts (for example, Federal Law of December 31, 2002 N 190-FZ “On the provision of compulsory social insurance benefits to citizens working in organizations and individual entrepreneurs applying special tax regimes, and certain other categories of citizens”, Federal Law of December 22, 2005 N 180-FZ “On certain issues of calculation and payment of benefits for temporary disability, pregnancy and childbirth and the amount of insurance coverage for compulsory social insurance against accidents at work and occupational diseases in 2006", Moscow Government Decree of November 1, 2011 N 514-PP "On establishing the amount of certain social payments for certain categories of citizens for 2012”, etc.). Laws and other regulations must be in force and valid.
3. Theft from the objective side is characterized by action (taking possession of the objects of a crime by presenting knowingly false and (or) unreliable information) or inaction (concealment about facts leading to the termination of these payments).
4. With this type of fraud, the perpetrators often use fake documents. If an official issues counterfeit documents in a conspiracy, then he is liable for a set of crimes for complicity in such fraud and for official forgery. In similar and other cases, for the purpose of subsequent theft of property using a forged document, the citizen himself can forge the latter. As is known, such actions, regardless of the purpose of using the counterfeit in the future, including for theft of property, form an independent crime under Art. 327 of the Criminal Code of Russia. If, according to such a forged document, its executor subsequently fraudulently steals property assets, the act, forming a real combination of two independent crimes, must be qualified under Art. Art. 327 and 159.2 of the Criminal Code. A different situation arises if the fraudster only uses a document that he knew was previously forged by another person. As you know, Part 3 of Art. 327 of the Criminal Code of the Russian Federation provides for liability for the use of a forged document by a person who did not take part in its forgery. If such use occurs in the process of committing fraud as a form of deception, there is a perfect set of comparable crimes. Taking into account the fact that the use of a forged document is one of the types of deception, the act should be qualified only under Art. 159.2 of the Criminal Code. Fraud associated with forgery and the use of false documents should be distinguished from cases of applying for a job on the basis of a false diploma and receiving the corresponding salary for performing duties in a position that the person did not have the right to occupy. For example, A. presented a fake diploma of higher medical education, was appointed to the position of chief physician of a sanatorium and successfully performed his duties for a certain time. In this case, there is no element of theft, since there is no gratuitous receipt of public funds. It is a different matter when documents are falsified and used that give the right to receive increased wages or a percentage increase in salary. Such documents include, for example, diplomas of candidate and doctor of sciences, certificates of associate professor and professor, certificates of work experience in the Far North or equivalent areas, length of service as a doctor, teacher, in underground work, etc., on the basis of which the employee, in accordance with the law, receives higher wages or a percentage increase to the official salary. Such actions, being partially gratuitous and selfish, meet all the signs of theft. However, its size is not the entire amount of money received, but only that part of it that is equal to the percentage increase or the difference between regular and increased wages, for example, the official salaries of a teacher at a state university who does not have an academic degree and a candidate of sciences.
5. Qualifying and specially qualifying characteristics are similar to those specified in Art.
159.1. The exception is large and especially large sizes, which, by virtue of the note to Art. 159.1 of the Criminal Code corresponds to large and especially large-scale theft specified in the note to Art. 158 of the Criminal Code. ‹ Article 159.1. Fraud in the field of lendingTop Article 159.3. Fraud using electronic means of payment ›
Consultation and legal assistance from a lawyer under Article 159 of the Criminal Code
For those suspected and accused of committing a crime under Article 159 of the Criminal Code of the Russian Federation “Fraud,” lawyer Alexey Viktorovich Andreev offers a full range of legal assistance necessary to protect their rights and legitimate interests at all stages of criminal proceedings:
- legal advice on issues of criminal prosecution for fraud and building a defense against charges under Article 159 of the Criminal Code of the Russian Federation;
- representation of the rights and legitimate interests of the client during a pre-investigation check of messages and materials about a crime under Article 159 of the Criminal Code of the Russian Federation;
- protection of suspects and accused in criminal cases of fraud under Article 159 of the Criminal Code at the stage of preliminary investigation (preliminary investigation, inquiry);
- protection of the rights and legitimate interests of defendants in cases of fraud in the court of first instance, when considering a criminal case on the merits;
- protection of the rights and legitimate interests of clients in cases of crimes under Article 159 of the Criminal Code of the Russian Federation in the courts of appeal, cassation and supervisory instances.
