ST 181 of the Criminal Code of the Russian Federation.
1. Unauthorized production, sale or use, as well as counterfeiting of a state hallmark, committed out of mercenary or other personal interest, is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by correctional labor for a term of up to two years, or forced labor for a term of up to three years, or imprisonment for a term of up to three years.
2. The same acts committed by an organized group are punishable by a fine in the amount of two 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 eighteen months to three years, or by forced labor for a term of up to five years, or imprisonment for the same period.
Commentary to Art. 181 Criminal Code
1. The subject of a crime, depending on the form of the criminal act, can be either a real or a fake state hallmark. The item of manufacture is a false hallmark, the fake is a real assay hallmark, which is modified, the item of sale and use is both types of assay hallmarks.
State hallmarks for mechanical marking of products are manufactured by the Goznak Mint of the Ministry of Finance of the Russian Federation, electrode hallmarks for electric spark marking are produced by the Central State Inspectorate on orders from the Chamber. Brands must strictly comply with approved uniform samples and technical specifications.
2. Making a hallmark - the complete independent illegal creation of an assay hallmark or the unauthorized restoration of an assay hallmark that has become unusable. Sale - any form of unauthorized alienation of a genuine or counterfeit hallmark to another person. The use of an hallmark should be illegal, and it does not matter whether or not the hallmark corresponds to the actual value of the metal from which the product is made. Forgery of a state hallmark is the falsification of a genuine hallmark by partially changing its details.
3. Illegal production, sale or use, as well as counterfeiting of the state hallmark with subsequent deception of the victim and theft of someone else’s property should be qualified under the totality of Art. 181 and 159 of the Criminal Code.
4. According to the totality of crimes, Art. 171 and 181 of the Criminal Code qualify the actions of a person whose illegal business activity was associated with the illegal production, use, sale or counterfeit of a state hallmark.
Commentary on Article 181
1. The state hallmark is a sign of establishing a single sample, certifying the content of precious metal in a product. Hallmarking is an assay-technological operation of applying a state hallmark imprint to jewelry and other household products, the content of precious metals in which has been previously verified according to approved methods.
2. According to the Regulations on the hallmarking and marking of products made of precious metals in the Russian Federation, approved by Decree of the President of the Russian Federation of October 2, 1992 N 1152 (Vedomosti RF, 1992, N 41, Art. 2284), all jewelry and other jewelry manufactured on the territory of the Russian Federation household products made of precious metals intended for sale or fulfillment according to orders, as well as exported abroad, must comply with the standards established by this Regulation and be branded with a state hallmark.
3. The marking of products made of precious metals with the state hallmark and related actions (testing, sampling, control analyses, etc.) are carried out by territorial state inspectorates of assay supervision. The rules for hallmarking, the procedure for carrying out related work, state hallmark marks, testing methods, sampling and analysis are established by the federal body for precious metals and precious stones.
4. Unauthorized production, sale or use, counterfeiting of the state hallmark replaces the state certificate of quality of a product made of precious metal at the discretion of the guilty person, pursuing selfish or other personal goals. In this case, the hallmark may be genuine, but its production, sale or use was not authorized in the manner prescribed by law, or it may be counterfeit. In both cases, criminal liability arises under Art. 181 of this Code.
5. The subjective side of the crime is characterized by direct intent.
Scientific and practical commentary:
1. According to Art. 13 of the Federal Law of March 26, 1998 N 41-FZ “On Precious Metals and Precious Stones” <1> federal assay supervision is carried out in order to protect the rights of consumers of jewelry and other household products made of precious metals and precious stones, the rights of manufacturers of these products from unfair competition , as well as in order to protect the interests of the state (see also Decree of the Government of the Russian Federation of June 18, 1999 N 643 “On the procedure for testing and branding products made of precious metals” <2>). ——————————— <1> NW RF. 1998. N 13. Art. 1463. <2> NW RF. 1999. N 27. Art. 3359.
Assay supervision is carried out by the Russian State Assay Chamber through territorial state inspections, which, in particular, carry out the state hallmark stamping of all jewelry and other household products made from precious metals of domestic production and the specified products imported into the territory of the Russian Federation for sale.
The rules for hallmarking, the procedure for carrying out related work, and the signs of state hallmarks are established by the Ministry of Finance of the Russian Federation (see Instructions for the implementation of assay supervision, approved by Order of Roskomdragmet dated June 23, 1995 N 182). 2. The objective side can be expressed in the commission of at least one of the following actions: a) unauthorized production of a state hallmark; b) unauthorized sale of the state hallmark; c) unauthorized use of the state hallmark; d) falsification of the state hallmark. State hallmarks for mechanical marking of products are produced by the Mint of the State Mark of the Ministry of Finance of the Russian Federation; stamps-electrodes for electric spark branding - by the Central State Inspectorate on orders from the Assay Office. The hallmarks must strictly comply with the approved uniform samples and technical specifications (clause 12.1 of the Instructions for Assay Supervision). Manufacture must be understood as both the complete independent unauthorized creation of an assay mark, and the unauthorized correction of a hallmark that has become unusable. Sale - any form of unauthorized transfer of a genuine government hallmark to another person for use and disposal as one’s own. The use of a brand is considered to be its use for branding products. It does not matter whether or not the stamp applied corresponds to the actual value of the metal from which the product is made. It is important that the use of the mark was unauthorized. Forgery of a state hallmark means falsification of a genuine hallmark by partially changing its details. The corpus delicti is constructed as a formal crime and does not provide for any consequences. 3. The subject of a crime can be either an employee of the Assay Office or the Mint, or anyone, including a private person, who has reached the age of 16 years. 4. The crime is committed intentionally, necessarily with one of the motives specified in the law: selfish or other personal interest. 5. In cases where a state hallmark produced by an entity without authorization is then sold or used by the subject, the act shall be considered as a single crime. On the contrary, if a subject, having unauthorizedly produced a state hallmark, then unauthorized sells, uses or counterfeits another hallmark, the person’s actions form a set of crimes. 6. On the concept of an organized group and the characteristics of the classification of crimes committed by it, see the commentary to Art. 35. 7. Unauthorized production, sale or use, as well as counterfeiting of state hallmarks with subsequent deception of the victim and theft of someone else’s property should be classified collectively as a violation of the rules for the production and use of state hallmarks and fraud (complicity in fraud). 8. If there are signs of abuse of power, a violation of the rules for the production and use of state hallmarks, committed by an official of the Russian State Assay Office or the Goznak Mint, is qualified under the totality of Art. Art. 181 and 285 of the Criminal Code. 9. If illegal business activity involves unauthorized production, sale or use, as well as counterfeiting of the state hallmark, the actions of the person must be classified as a set of crimes provided for in Art. 171 and art. 181 CC.
Second commentary to Art. 181 of the Criminal Code of the Russian Federation
1. Item: state hallmarks. Their concept is given in the Federal Law of March 26, 1998 No. 41-FZ “On Precious Metals and Precious Stones” (hereinafter referred to as the Law of 1998), in Art. 1: state hallmark - a sign of an established form, which is placed by a government agency authorized in accordance with this Federal Law on jewelry and other products made of precious metals and certifies their hallmark.
State hallmarks, their elements, as well as technical characteristics of the elements of state hallmarks are approved by the Ministry of Finance of the Russian Federation. Elements of state hallmarks are the forms and signs of state hallmarks, as well as codes of state assay inspection inspections (clause 9 of the Rules for testing, analysis and hallmarking of jewelry and other products made of precious metals, approved by Decree of the Government of the Russian Federation dated May 6, 2016 No. 394 “On testing, analysis and marking of jewelry and other products made of precious metals"; hereinafter referred to as the Rules).
The merit of the alloy from which precious metal products are made is determined by the fineness (Article 1 of the 1998 law: fineness is the number of mass fractions of a chemically pure precious metal per 1 thousand mass fractions of the precious metal alloy). The following standards have been established in the Russian Federation: platinum - 950, 900, 850, 585; gold - 999th, 958th, 916th, 875th, 750th, 585th, 583rd, 500th, 375th; silver - 999th, 960th, 925th, 875th, 830th, 800th; palladium - 850th and 500th (see List of samples of precious metals, approved by the above-mentioned resolution of 05/06/2016).
2. The objective side includes:
1) unauthorized production of a state hallmark;
2) its unauthorized sale;
3) its unauthorized use;
4) counterfeiting the state hallmark.
3. The crime is completed at the moment the act is committed.
4. The subjective side is characterized by direct intent and selfish or other personal interest.
5. The subject may be a person who has reached the age of 16 years. A person specially authorized to store or work with the hallmark (assay maker) may also sell, use or falsify a state hallmark.
6. Criminal liability is toughened if the act was committed by an organized group (Part 2 of Article 181 of the Criminal Code).
Article 181. Violation of the rules for the production and use of state hallmarks
Determination of the Constitutional Court of the Russian Federation dated June 30, 2020 N 1424-O The special rule enshrined in part one.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation, according to which detention as a preventive measure in the absence of the circumstances specified in paragraphs 1 - 4 of part one of the same article, cannot be applied against a suspect or accused of committing crimes provided for in parts one through four of Article 159, Articles 159.1 - 159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, if these crimes were committed by an individual entrepreneur in connection with his entrepreneurial activity and (or) management of property belonging to him, used for the purposes of entrepreneurial activity, or if these crimes are committed by a member of the management body of a commercial organization in connection with the exercise of his powers to manage the organization or in connection with the commercial organization’s implementation of entrepreneurial or other economic activities, and also parts five - seven of article 159, articles 171, 171.1, 171.3 - 172.3, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4 and 190 - 199.4 of the Criminal Code of the Russian Federation, is an additional guarantee of the constitutional right to freedom and personal integrity (rulings of the Constitutional Court of the Russian Federation dated February 24, 2011 N 250-О-О, dated November 20, 2014 N 2637-О, etc.).
Determination of the Constitutional Court of the Russian Federation dated July 23, 2020 N 1863-O
According to part one.1 of article 108 of the Code of Criminal Procedure of the Russian Federation, detention as a preventive measure in the absence of the circumstances specified in paragraphs 1 - 4 of part one of the same article cannot be applied to a suspect or accused of committing crimes provided for in parts one - fourth article 159, articles 159.1 - 159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, if these crimes were committed by an individual entrepreneur in connection with his business activities and (or) management of property belonging to him, used for business purposes, or if these crimes were committed by a member of the management body of a commercial organization in connection with the exercise of powers by him to manage the organization or in connection with the implementation by a commercial organization of entrepreneurial or other economic activities, as well as parts five - seven of Article 159, Articles 171, 171.1, 171.3 - 172.3, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4 and 190 - 199.4 of the Criminal Code of the Russian Federation. This special norm of the criminal procedural law is an additional guarantee of the constitutional right to freedom and personal integrity (rulings of the Constitutional Court of the Russian Federation of February 24, 2011 N 250-О-О, of November 20, 2014 N 2637-О, etc.).
Determination of the Constitutional Court of the Russian Federation dated February 26, 2021 N 328-O
The special rule enshrined in part one.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation, according to which detention as a preventive measure in the absence of the circumstances specified in paragraphs 1 - 4 of part one of the same article, cannot be applied to a suspect or accused of committing crimes provided for in parts one to four of Article 159, Articles 159.1 - 159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, if these crimes were committed by an individual entrepreneur in connection with his business activities and (or) management of property owned by him and used for the purposes of entrepreneurial activity, or if these crimes were committed by a member of the management body of a commercial organization in connection with the exercise of powers by him to manage the organization or in connection with the implementation by a commercial organization of entrepreneurial or other economic activities, as well as parts five to seven of Article 159, Articles 171, 171.1 171.3 - 172.3, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4 and 190 - 199.4 of the Criminal Code of the Russian Federation, is an additional guarantee of the constitutional right to freedom and personal integrity (determination of the Constitutional Court of the Russian Federation of February 24, 2011, 2011 year N 250-О-О, dated November 20, 2014 N 2637-О, etc.).
Determination of the Constitutional Court of the Russian Federation dated March 25, 2021 N 383-O
According to part one.1 of article 108 of this Code, detention as a preventive measure in the absence of the circumstances specified in paragraphs 1 - 4 of part one of the same article cannot be applied to a suspect or accused of committing crimes provided for in parts one - fourth article 159, articles 159.1 - 159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, if these crimes were committed by an individual entrepreneur in connection with his business activities and (or) management of property belonging to him, used for business purposes, or if these crimes were committed by a member of the management body of a commercial organization in connection with the exercise of powers by him to manage the organization or in connection with the implementation by a commercial organization of entrepreneurial or other economic activities, as well as parts five - seven of Article 159, Articles 171, 171.1, 171.3 - 172.3, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4 and 190 - 199.4 of the Criminal Code of the Russian Federation. This special norm of the criminal procedural law is an additional guarantee of the constitutional right to freedom and personal integrity (rulings of the Constitutional Court of the Russian Federation of February 24, 2011 N 250-О-О, of November 20, 2014 N 2637-О, etc.).
Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 11, 2020 N 7
This norm establishes a ban on the use of a preventive measure in the form of detention in the absence of the circumstances specified in paragraphs 1 - 4 of part 1 of Article 108 of the Code of Criminal Procedure of the Russian Federation in relation to a suspect or accused of committing crimes provided for in parts 5 - 7 of Article 159, Articles 171 , 171.1, 171.3 - 172.3, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4, 190 - 199.4 of the Criminal Code of the Russian Federation, without any other conditions, and in relation to a suspect or accused of committing crimes provided for in parts 1 - 4 of Article 159, Articles 159.1 - 159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, - provided that these crimes were committed by an individual entrepreneur in connection with his business activities and (or) management of property owned by him, used for the purposes of entrepreneurial activity, or if these crimes were committed by a member of the management body of a commercial organization in connection with the exercise of his powers to manage the organization or in connection with the implementation of entrepreneurial or other economic activities by a commercial organization.
