Article 188 of the Criminal Code of the Russian Federation with Commentary 2022: latest changes and amendments, judicial practice

Article 188 of the Labor Code is devoted to the principles of reimbursement of costs to an employee when using his property in the interests of the employer.
She concludes with Chapter 28 on safeguards for employees in special situations. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ

Full text of the article, guides, additional information - in ConsultantPlus

Commentary on Article 188 of the Criminal Code of the Russian Federation

On judicial practice in cases of smuggling, see Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 2008 No. 6.

By Resolution of the Constitutional Court of the Russian Federation dated May 27, 2008 N 8-P, the normative provision of part one of Article 188 was recognized as inconsistent with the Constitution of the Russian Federation to the extent that it allows - in conjunction with the note to Article 169 of this document - when bringing criminal liability for smuggling, committed by moving across the customs border of the Russian Federation undeclared or falsely declared foreign currency and (or) the currency of the Russian Federation in large quantities, i.e. exceeding the equivalent of 250,000 rubles, recognize it as such based on the entire amount transferred, including that part that the law allows to be imported into the Russian Federation without a written declaration. The normative provision of part one of Article 188 - to the extent that by Decree of the Constitutional Court of the Russian Federation of May 27, 2008 N 8-P it is recognized as inconsistent with the Constitution of the Russian Federation - loses force and is not subject to application, and decisions of courts and other bodies based on it are subject to revision in accordance with part two of Article 54 of the Constitution of the Russian Federation. In accordance with Part 3 of Article 79 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ, acts or their individual provisions recognized as unconstitutional lose force.

1. Smuggling, that is, the movement on a large scale across the customs border of the Russian Federation of goods or other items, except for those specified in part two of this article, committed in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification, or associated with non-declaration or false declaration - is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by imprisonment for a term of up to five years. (as amended by Federal Law dated December 8, 2003 N 162-FZ)

2. Movement across the customs border of the Russian Federation of narcotic drugs, psychotropic substances, their analogues, tools and equipment that are under special control and used for the production and manufacture of narcotic drugs and psychotropic substances, potent, poisonous, poisonous, explosive, radioactive substances, radiation sources , nuclear materials, firearms, explosive devices, ammunition, weapons of mass destruction, their delivery vehicles, other weapons, other military equipment, as well as materials and equipment that can be used in the creation of weapons of mass destruction, their delivery vehicles, other weapons, other military equipment, in respect of which special rules have been established for movement across the customs border of the Russian Federation, strategically important raw materials or cultural values, in respect of which special rules have been established for movement across the customs border of the Russian Federation, if this act was committed in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification or is associated with non-declaration or false declaration, - (as amended by Federal laws dated 05/07/2002 N 50-FZ, dated 12/06/2007 N 335-FZ) is punishable by imprisonment for a term of three to seven years with 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 five years or without it and with restriction of freedom for a period of up to one year or without it. (as amended by Federal Laws dated December 8, 2003 N 162-FZ, dated December 27, 2009 N 377-FZ)

3. The acts provided for in parts one or two of this article, committed: a) have become invalid. — Federal Law of December 8, 2003 N 162-FZ; b) by an official using his official position; c) with the use of violence against a person exercising customs control - shall be punishable by imprisonment for a term of five to ten years with 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 five years, or without it and with restriction of freedom for a period of up to one and a half years or without it. (as amended by Federal Laws dated December 8, 2003 N 162-FZ, dated December 27, 2009 N 377-FZ)

4. Acts provided for in parts one, two or three of this article, committed by an organized group, are punishable by imprisonment for a term of seven to twelve years with 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 five years or without it and with or without restriction of freedom for a term of up to two years. (as amended by Federal Laws dated December 8, 2003 N 162-FZ, dated December 27, 2009 N 377-FZ) The note is no longer valid. — Federal Law of December 8, 2003 N 162-FZ.

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Article 188. Smuggling
1. Smuggling, that is, the movement on a large scale across the customs border of the Russian Federation of goods or other items, except for those specified in part two of this article, committed in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification, or associated with non-declaration or false declaration - is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to two years, or by imprisonment for a term of up to five years (as amended by Federal Law dated 08.12. 2003 No. 162-FZ)
. 2. Movement across the customs border of the Russian Federation of narcotic drugs, psychotropic, potent, poisonous, poisonous, explosive, radioactive substances, radiation sources, nuclear materials, firearms, explosive devices, ammunition, weapons of mass destruction, means of delivery, other weapons, other military equipment, as well as materials and equipment that can be used in the creation of weapons of mass destruction, means of delivery, other weapons, other military equipment, in respect of which special rules have been established for the movement across the customs border of the Russian Federation, strategically important raw materials or cultural property , in respect of which special rules have been established for movement across the customs border of the Russian Federation, if this act was committed in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification or is associated with non-declaration or false declaration
(as amended by Federal Law dated May 7, 2002 No. 50-FZ)
, - is punishable by imprisonment for a term of three to seven 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 five years.
(as amended by Federal Law dated December 8, 2003 No. 162-FZ)
. 3. The acts provided for in parts one or two of this article, committed: a) have become invalid. — Federal Law of December 8, 2003 No. 162-FZ; b) by an official using his official position; c) with the use of violence against a person exercising customs control - shall be punishable by imprisonment for a term of five 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 five years.
(as amended by Federal Law dated December 8, 2003 No. 162-FZ)
. 4. Acts provided for in parts one, two or three of this article, committed by an organized group, are punishable by imprisonment for a term of seven to twelve years with 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 five years or no
(as amended by Federal Law dated December 8, 2003 No. 162-FZ)
.

The note is no longer valid. — Federal Law of December 8, 2003 No. 162-FZ.

Comm. Verin V.P.

1. Smuggling encroaches on the monopoly of foreign trade of the state with all the ensuing negative consequences for the economy of the Russian Federation. 2. Smuggling consists of the illegal movement of goods or other items across the customs border of the Russian Federation. 3. The customs border of the Russian Federation in accordance with Article 2 of the Customs Code is determined by the boundaries of the customs territory of structures over which the Russian Federation exercises jurisdiction in accordance with the legislation of the Russian Federation, as well as the territories of special economic zones. 4. The customs territory of the Russian Federation consists of the land territory of the Russian Federation, territorial and internal waters and the airspace above them. 5. Objective side

crime is expressed in the movement of goods or other items across the customs border of the Russian Federation.
6. Movement
across the customs border means the import into the customs territory of the Russian Federation or the export from it by any means of goods or other items.
7. The movement is carried out: in addition to or with concealment from customs control; with fraudulent use of documents or means of customs identification; may involve non-declaration or false declaration. 8. A prerequisite for criminal liability is the movement of goods and other items in large quantities, with the exception of goods and items listed in Part 2 of the commented article. For criminal liability to arise in the latter case, it does not matter in what size goods or other items are moved. 9. The concept of large size is contained in the note. to Article 169 of the Criminal Code. 10. Concealment
of transported goods or other items from customs control means their concealment and the use of hiding places.
11. Fraudulent use of documents or means of customs identification
is expressed in the presentation to customs authorities of falsified seals, stamps, markings, invalid documents containing false information, forged documents, etc.
12. Non-declaration or false declaration
occurs if, during customs clearance, the necessary information is not provided or false information about the goods or other items being transported is provided.
13. When classifying objects as cultural property, one should be guided by the Law of the Russian Federation of April 15, 1993 No. 4804-1 “On the export and import of cultural property”1 {Vedomosti of the Russian Federation.
1993. No. 20. Art. 718.} .
14. On the procedure for import (export) of narcotic drugs, potent and toxic substances into the Russian Federation, as well as determining their nomenclature and import (export) quotas, see Decree of the Government of the Russian Federation dated 03.08.1996 No. 930 “On approval of the nomenclature of narcotic drugs, potent and toxic substances, which are subject to the procedure for import into and export from the Russian Federation, approved by Decree of the Government of the Russian Federation of March 16, 1996 No. 278, as well as quotas for the import (export) of narcotic drugs” (as amended on July 31, 1998 )2 {NW RF.
1996. No. 34. Art. 4122; 1998. No. 32. Art. 3909.} .
15. The qualifying features
of Part 3 of the commented article are: a) an official who used his official position;
b) the use of violence against a person exercising customs control. 16. According to paragraph “b” of part 3 of the commented article, officials who commit smuggling using their official position are understood to be officials of the customs authorities of the Russian Federation, whose responsibilities include exercising control functions over the implementation of the requirements of customs legislation, as well as customs specialists registration, serving in the customs authorities. 17. The subjects
of the crime in question may be other persons specified in the notes. to Art. 285 of the Criminal Code, if they committed smuggling using their official position. 18. Violence towards a person exercising customs control (clause “c” of part 3 of the commented article) should not contain an independent crime. It can be expressed in mental violence, beatings, blows, resistance, etc. 19. Criminal liability for smuggling begins at the age of 16. 20. The subjective side of the crime is characterized by direct intent.

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December 7, 2011 N 420-FZ

RUSSIAN FEDERATION FEDERAL LAW

ON AMENDMENTS TO THE CRIMINAL CODE OF THE RUSSIAN FEDERATION AND SEPARATE LEGISLATIVE ACTS OF THE RUSSIAN FEDERATION

Adopted by the State Duma on November 17, 2011 Approved by the Federation Council on November 29, 2011

(extract)

Article 1 Introduce into the Criminal Code of the Russian Federation (Collection of Legislation of the Russian Federation ... the following changes: ... 107) Article 188 to be declared invalid;

…

Article 8 1. This Federal Law comes into force on the date of its official publication. 2. Provisions of the Criminal Code of the Russian Federation (as amended by this Federal Law), the Criminal Executive Code of the Russian Federation (as amended by this Federal Law), the Criminal Procedure Code of the Russian Federation (as amended by this Federal Law) regarding house arrest, deferment of serving a sentence convicts recognized as drug addicts, apply from January 1, 2012. 3. The provisions of the Criminal Code of the Russian Federation (as amended by this Federal Law), the Criminal Executive Code of the Russian Federation (as amended by this Federal Law) regarding forced labor are applied from January 1, 2013. 4. The provisions of paragraph “c” of part two of Article 229.1 of the Criminal Code of the Russian Federation (as amended by this Federal Law) apply from January 1, 2013. 5. The provisions of part two of Article 151 of the Criminal Procedure Code of the Russian Federation (as amended by this Federal Law) regarding the jurisdiction of crimes provided for in Articles 194, 201 and 204 of the Criminal Code of the Russian Federation, apply to criminal cases initiated after January 1, 2012. President of the Russian Federation D. MEDVEDEV Moscow, Kremlin December 7, 2011 N 420-FZ

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REFERENCE:

Article 188 of the Criminal Code of the Russian Federation. Smuggling 1. Smuggling, that is, the movement on a large scale across the customs border of the Russian Federation of goods or other items, except for those specified in part two of this article, committed in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification, or associated with non-declaration or false declaration, -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by imprisonment for a term of up to five years.

2. Movement across the customs border of the Russian Federation of narcotic drugs, psychotropic substances, their analogues, plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances, tools and equipment that are under special control and used for the production and manufacturing of narcotic drugs and psychotropic substances, potent, poisonous, toxic, explosive, radioactive substances, radiation sources, nuclear materials, firearms, explosive devices, ammunition, weapons of mass destruction, means of delivery, other weapons, other military equipment, as well as materials and equipment that can be used in the creation of weapons of mass destruction, means of their delivery, other weapons, other military equipment, in respect of which special rules have been established for the movement across the customs border of the Russian Federation, strategically important raw materials or cultural values, in respect of which special rules have been established rules for moving across the customs border of the Russian Federation, if this act was committed in addition to or with concealment from customs control or with the fraudulent use of documents or means of customs identification or is associated with non-declaration or false declaration -

shall be punishable by imprisonment for a term of three to seven 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 five years and with or without restriction of freedom for a term of up to one year.

==================================

The provision of part one of Article 188 in conjunction with part 1 of article 16.2 and part 2 of article 27.11 of the Code of Administrative Offenses of the Russian Federation is recognized as inconsistent with the Constitution of the Russian Federation to the extent that this provision in the system of current legal regulation allows for assessing the value of goods moved by an individual across the customs border of the Russian Federation and intended for personal use, in order to determine the presence of a crime (smuggling) or an administrative offense (non-declaration of goods), as well as to calculate the amount of an administrative fine, use its market value on the territory of the Russian Federation and include in the cost of the goods for these purposes the cost of everything being moved goods, including that part of it that is allowed to be imported without written declaration and payment of customs duties and taxes (Resolution of the Constitutional Court of the Russian Federation of July 13, 2010 N 15-P). In accordance with Part 3 of Article 79 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ, acts or their individual provisions recognized as unconstitutional lose force.

==================================

By Resolution of the Constitutional Court of the Russian Federation dated May 27, 2008 N 8-P, the normative provision of part one of Article 188 was recognized as inconsistent with the Constitution of the Russian Federation to the extent that it allows - in conjunction with the note to Article 169 of this document - when bringing criminal liability for smuggling, committed by moving across the customs border of the Russian Federation undeclared or falsely declared foreign currency and (or) the currency of the Russian Federation in large quantities, i.e. exceeding the equivalent of 250,000 rubles, recognize it as such based on the entire amount transferred, including that part that the law allows to be imported into the Russian Federation without a written declaration. The normative provision of part one of Article 188 - to the extent that by Decree of the Constitutional Court of the Russian Federation of May 27, 2008 N 8-P it is recognized as inconsistent with the Constitution of the Russian Federation - loses force and is not subject to application, and decisions of courts and other bodies based on it are subject to revision in accordance with part two of Article 54 of the Constitution of the Russian Federation (in accordance with Federal Law dated 04/07/2010 N 60-FZ, a large amount is an amount exceeding one million five hundred thousand rubles). In accordance with Part 3 of Article 79 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ, acts or their individual provisions recognized as unconstitutional lose force.

Cigarette smuggling from Belarus

The main flow of smuggled cigarettes comes from this neighboring country. This is due to simplified conditions for crossing the Belarusian-Russian border.

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Smugglers hide cigarettes in hiding places in cars, including tires and car body cavities. Another method is to throw packages of cigarettes onto moving freight trains.

Sometimes cigarettes from Belarus are imported without excise stamps at all, in other cases - with counterfeit documents of this type. The demand for cheap smuggled tobacco products gives rise to the massive nature of such crimes.

To combat them, it is necessary to change government policy in the sphere of regulating the cigarette trade in Russia so as to reduce the cost of this product within the country and deprive smugglers of their main competitive advantage.

Smuggling of alcohol and tobacco products

For the illegal transportation of alcohol and cigarettes across the border of the Russian Federation, administrative and criminal liability is provided. A criminal case will be opened for smuggling in the amount of 250 thousand rubles (a significant amount according to the Criminal Code of the Russian Federation).

Article 200.2 of the Criminal Code of the Russian Federation provides for the following sanctions for this:

A fine in the amount of 300 thousand - 1 million rubles or in the amount of salary for 1-3 years.
Forced labor for 5 years.
Imprisonment for the same period.

If the offender uses his official position for the purpose of smuggling, he will be punished with imprisonment for 3-7 years with a possible additional fine of one million rubles.

For an organized criminal group, the term of imprisonment increases to 7-12 years, and the fine amounts to 2 million.

Criminal liability for smuggling in 2020

Article 226.1 for smuggling of drugs, weapons and military equipment, cultural property, wild animals and strategically important goods provides for the following types of punishment:

Imprisonment for 3-7 years with an additional fine of 1 million rubles.
Imprisonment for the same period with withdrawal of income for 5 years. Confiscation of income is applied as an additional penalty at the discretion of the court.

If the smuggler uses his official position or uses violence against a customs or border control officer, the prison term will increase to 5-10 years. The amount of the additional fine will remain the same.

The commission of this crime by a group of persons by prior conspiracy is punishable by imprisonment for 7-12 years with an additional fine of one million rubles.

Article 226.1 of the Criminal Code of the Russian Federation defines the conditions under which criminal liability arises. These include:

Illegal movement of goods in large quantities (worth more than 100 thousand rubles).
Transportation of wild animals that are listed in the Red Book of the Russian Federation or are protected by international documents.
Smugglers moved cultural property worth more than 100 thousand rubles.

Cultural assets are any items that have cultural and property value that is significant for the country, as well as having a historical and aesthetic impact on its citizens.

Responsibility for smuggling drugs and steroids

For illegal transportation of narcotic drugs across the border under Article 226.1 of the Criminal Code of the Russian Federation, the perpetrator faces imprisonment for 3-7 years with or without an additional fine of 1 million rubles.

For an organized group, imprisonment will be imposed for 5-10 years with a fine of one million rubles.

It must be taken into account that steroids are classified as highly toxic drugs. They can impair the functioning of the nervous system, causing hallucinations, problems with thinking and behavioral disturbances.

The list of the Russian Ministry of Health Committee on Narcotic Drugs Control includes chloroform, aminazine, theophedrine, clonidine and other steroids.

Criminal legal aspects of smuggling

Smuggling is any movement of goods across the border in violation of customs legislation.

Previously, liability for this was provided for under Article 188 of the Criminal Code, and in some cases administrative liability. Now there is no Article 188 in the Criminal Code of the Russian Federation. Instead, several legal norms for specific types of smuggling were introduced into the code:

Article 200.1 for cash smuggling.
Article 200.2 for smuggling alcohol and cigarettes.
Article 226.1 for smuggling weapons, potent substances, resources, cultural property and wild animals.
Article 229.1 for smuggling equipment, as well as drugs and psychotropic drugs.

Thus, smuggling activities are classified not in general, but based on specific aspects of the crime.

Smuggling (Article 188 of the Criminal Code)

Article 188 of the Criminal Code contains elements of two independent offenses of smuggling, differing in the subject of the offense.

The subject of the crime under Part 1 of Art. 188 of the Criminal Code are goods and other items in free civil circulation. In accordance with Art. 128 of the Civil Code of the Russian Federation, such items are any things, including money, foreign currency, securities, vehicles, jewelry, raw materials and materials that are not strategic, pets, etc. Goods and items not intended for production or other commercial activities may move freely across the customs border subject to established rules regarding the quantity and value of these goods, the procedure for their clearance and payment of customs duties and customs fees in accordance with the norms of the Customs Code of the Russian Federation. The movement of goods and items for production or other commercial activities is regulated by federal laws dated December 8, 2003 and April 14, 1998 “On measures to protect the economic interests of the Russian Federation when carrying out foreign trade in goods”[101].

Part 2 Art. 188 of the Criminal Code establishes liability for the illegal movement across the customs border of items withdrawn from civil circulation or having limited circulation, for which special rules for movement across the customs border have been established. The law lists the following items: narcotic drugs, psychotropic, potent, poisonous, poisonous, explosive, radioactive substances, radiation sources, nuclear materials, firearms, explosive devices, ammunition, weapons of mass destruction, means of delivery, other weapons, other military equipment, materials and equipment that can be used to create weapons of mass destruction, their means of delivery, other weapons, other military equipment, as well as strategically important raw materials or cultural values.

The objective side of the crime provided for in Part 1 of Art. 188 of the Criminal Code, is characterized by actions expressed in the illegal movement of goods and items across the customs border in large quantities. The law names six ways of illegal movement: a) in addition to customs control;

b) with concealment from customs control; c) with fraudulent use of documents; d) with deception

use of customs identification means; e) associated with non-declaration; e)

associated with false declaration.

Moving across the customs border means: a) importation into the customs territory; b) export of goods and vehicles from the customs territory; c) delivery by mail; d) use of pipeline transport; e) use of power lines. Not all methods of movement are associated with physical crossing of the customs border (subparagraph 7, paragraph 1, article 11, articles 291, 310 and 314 of the Customs Code of the Russian Federation). The law determines the place where the crime was committed - the customs border.

The customs border is considered to be the limits of the customs territory of the Russian Federation, the perimeters of free customs zones and free warehouses (clause 4 of article 2 of the Customs Code of the Russian Federation). The customs territory of the Russian Federation includes the land territory of the Russian Federation, territorial and internal waters, the airspace above them, artificial islands, installations and structures on them located in the exclusive economic zone or on the continental shelf of the Russian Federation (clauses 1-3 of Article 2 of the Customs Code of the Russian Federation ). Free customs zones and free warehouses located outside the customs territory of Russia may be located on the territory of the Russian Federation. Thus, the concepts of the State border of the Russian Federation and the customs border of the Russian Federation coincide. Import of goods and other items means the actual movement of items across the customs border before their release by customs authorities (subclause 8, clause 1, article 11 of the Customs Code of the Russian Federation), export of items means filing a customs declaration and performing other actions with these items before they actually cross the customs borders (subclause 9, clause 1, article 11 of the Customs Code of the Russian Federation). Such actions are recognized as: a) entry (entry) of an individual leaving Russia into the customs control zone; b) delivery of goods to transport organizations;

c) delivery of international postal items to postal organizations for sending abroad

customs territory of the Russian Federation; d) actions of a person directly aimed at

actual crossing of the customs border by goods and other items outside the designated places

(Subclause 9, Clause 1, Article 11 of the Customs Code of the Russian Federation).

Illegal movement indicates that the movement of goods and other items across the customs border is carried out in violation of the procedure established by the Customs Code of the Russian Federation (subclause 10, clause 1, article 11). Article 188 of the Criminal Code provides for several methods of illegal movement across the customs border.

Movement outside of customs control means the movement of goods and vehicles outside customs posts, outside the time established for clearance. Customs control includes a set of measures carried out by the customs authorities of the Russian Federation in order to ensure compliance with the customs legislation of the Russian Federation (subclause 19, paragraph 1, article 11 of the Customs Code of the Russian Federation). Customs control is carried out by customs authorities: the Federal Customs Service of the Russian Federation, regional customs departments of the Russian Federation, customs of the Russian Federation and customs posts of the Russian Federation.

Moving concealed from customs control means using hiding places and other methods that make it difficult to detect objects. Hiding places are devices or storage facilities created for the purpose of hiding goods or other items (double bottoms in suitcases, holes in the heels of shoes, in the handles of umbrellas, etc.). The use of various containers in vehicles (in car wheels, in handrails), rooms (in train vestibules), as well as natural recesses on the body (nose, ear) reveals the concept of a method that makes it difficult to detect an object.

Moving with fraudulent use of documents involves submitting to the customs authority counterfeit or invalid documents obtained illegally, as well as those relating to other goods or vehicles. This refers to documents issued by the customs authority (invoices, baggage receipts, acts of unloading of goods, etc.) or issued with their participation (licenses and certificates).

Moving with the fraudulent use of customs identification means that those means with which customs authorities mark goods or items that allow them to be individualized, as well as used to prevent hacking, seizure or investment of any items, turned out to be counterfeit or marked in violation of the established rules Means of identification are: seals, seals, stamps, digital or letter markings, taking samples and specimens, the use of drawings, drawing up scale images, photographs, videos, illustrations and other means that allow the identification of goods and objects (Article 83 of the Customs Code of the Russian Federation).

Movement with non-declaration of goods and other items moved across the customs border means failure to declare in the established form in the customs declaration about items moved across the customs border.

Moving with false declaration means that the transported items are declared, but under different names. For example, the movement of finished products under the guise of materials for their manufacture, products made of precious metals under the guise of costume jewelry, metal under the guise of scrap metal[102].

A mandatory sign of the objective side of the crime provided for in Part 1 of Art. 188 of the Criminal Code, is large in size. Large size, in accordance with the note to Art. 169 of the Criminal Code, the value of transported goods or items exceeding 250 thousand rubles is recognized. Illegal movement of goods and other items across the customs border for a smaller amount entails administrative liability (Articles 16.1 and 16.2 of the Code of Administrative Offenses of the Russian Federation).

The corpus delicti is formal in design. The moment of completion of the crime has its own characteristics when importing and exporting objects: when importing, the crime is recognized as completed from the moment the objects are moved across the customs border, when exporting - from the moment the objects are imported into the customs control zone or when submitting a customs declaration and performing other actions with the intention of removing these objects from Russian Federation, as evidenced by the information specified in the customs declaration.

The subjective side of the crime is characterized by direct intent. The person realizes that he is illegally moving goods or other items across the customs border by using one of the methods specified in the law, and wants to carry out these actions. Goals and motives may be different. They do not affect qualifications.

The subject of the crime is a person who has reached the age of 16 years.

Signs of the direct object and subjective side of the crime provided for in Part 2 of Art. 188 of the Criminal Code, coincide completely with similar signs of the first type of smuggling, and the signs of the objective side also partially coincide. The crime can be committed in the same ways as smuggling, provided for in Part 1 of Art. 188 of the Criminal Code. There is only no sign of a large size of contraband, which is explained by the specifics of the second type of contraband items. Illegal movement of items listed in Part 2 of Art. 188 of the Criminal Code, not only violates the established procedure for foreign economic activity and customs control rules, but can pose a threat to public safety (when importing drugs, weapons), economic security (when exporting strategic raw materials). Therefore, the movement of these items across the customs border, even in small quantities, forms signs of smuggling.

The subject of a crime can be, in addition to private individuals, officials of government bodies and organizations, persons performing managerial functions in commercial organizations, as well as individual entrepreneurs holding licenses to carry out foreign trade activities.

Part 3 Art. 188 of the Criminal Code contains two qualifying circumstances: a) smuggling committed by an official using his official position; b) smuggling committed with the use of violence against the person exercising customs control. The first aggravating circumstance refers to cases where smuggling is committed by an official using his official position - a customs officer or a person exempt from certain forms of customs control. In accordance with Art. 366 of the Customs Code of the Russian Federation, the forms of customs control are: verification of documents and information, oral questioning, obtaining explanations, customs inspection of goods and vehicles, personal inspection and some others. The personal luggage of the President of the Russian Federation, including those who have terminated their powers, and members of his family accompanying him are not subject to customs inspection. The personal luggage of members of the Federation Council, deputies of the State Duma, and judges is also not subject to inspection if these persons cross the State Border of the Russian Federation in connection with the performance of their deputy or official duties (Article 386 of the Customs Code of the Russian Federation).

Committing a crime with the use of violence against a person exercising customs control is expressed in the use of beatings and bodily injuries of varying severity. Smuggling associated with the deprivation of life of a customs officer must be classified according to the totality of crimes: under paragraph “b” of Part 3 of Art. 188 and paragraph “b”, part 2, art. 105 of the Criminal Code.

Part 4 art. 188 of the Criminal Code provides for liability for smuggling under Parts 1, 2 and 3 of the article in question, if it was committed by an organized group. The concept of an organized group is given in Part 3 of Art. 35 of the Criminal Code. The group may include ordinary citizens, as well as officials of executive authorities, law enforcement agencies, and customs services.

Article 188 of the Criminal Code contains elements of two independent offenses of smuggling, differing in the subject of the offense.

b) with concealment from customs control; c) with fraudulent use of documents; d) with deception

use of customs identification means; e) associated with non-declaration; e)

associated with false declaration.

c) delivery of international postal items to postal organizations for sending abroad

customs territory of the Russian Federation; d) actions of a person directly aimed at

actual crossing of the customs border by goods and other items outside the designated places

(Subclause 9, Clause 1, Article 11 of the Customs Code of the Russian Federation).

The subject of the crime is a person who has reached the age of 16 years.

Contents of Art. 188 TK

The article in question consists of one paragraph. It states that when an employee uses personal property for work purposes, he is entitled to compensation. To receive these funds, use must be subject to the following conditions:

in the interests of the employer;
with the consent or knowledge of the employer.

Examples of compensation are provided separately. Thus, wear and tear is compensated for the use of the following types of property:

tools;
motor transport;
equipment and other technical means;
materials.

Additionally, it is indicated that the employee is paid other costs associated with such use of personal property.

The amount of payments is determined by a written agreement concluded between the parties.

The considered article generally describes the employer’s obligation to compensate the employee for the costs associated with the use of personal property for the purpose of carrying out the main work activity. Specific parameters of compensation are established in an individual format, using a special agreement.