Commentary to Art. 301 Criminal Code
1. The objective side of the crime is expressed in the form of obviously illegal actions of: a) detention (Part 1); b) arrest or detention (Part 2). According to the Code of Criminal Procedure of the Russian Federation, the detention of a suspect is a measure of procedural coercion applied by the body of inquiry, the inquiry officer, or the investigator for a period of no more than 48 hours from the moment of the actual detention of a person on suspicion of committing a crime. Detention as a preventive measure is applied by a court decision as a general rule in relation to a suspect or accused of committing crimes for which the criminal law provides for punishment in the form of imprisonment for a term of more than two years when it is impossible to apply another, milder preventive measure. The deliberate illegality of these actions lies in their application in the absence of the grounds provided for by the Code of Criminal Procedure of the Russian Federation (Articles 91, 108), in violation of the conditions established by it or the prescribed procedure (Articles 91, 92, 96, 97, 99, 100, 101, 108, 109 Code of Criminal Procedure of the Russian Federation). It is obviously illegal to detain a person without drawing up a protocol, to use detention in relation to a minor suspected of committing a crime of minor gravity, etc. The deliberate illegality of detention occurs when the period of detention is violated, it is extended by an inappropriate subject, in the absence of legal grounds and conditions for the application of this measure, or in violation of the established procedure (Article 109 of the Code of Criminal Procedure of the Russian Federation). It is obviously illegal for a court to consider a petition to extend the period of detention in the absence of the accused and his defense attorney, etc. Knowingly illegal detention, detention or detention, resulting in grave consequences (Part 3), form a qualified crime.
2. The crime (parts 1 and 2) is considered completed from the moment the relevant procedural decisions are made. Part 3 requires the onset of grave consequences. The concept of grave consequences is evaluative; they may consist of the victim’s illness, loss of his job, family breakdown, etc.
3. The subjective side is characterized by direct intent, implying the awareness that the arrest, detention or detention is illegal.
4. Special subject: investigator, person conducting the inquiry, head of the investigative body, head of the inquiry body, prosecutor (Part 1), judge, investigator, person conducting the inquiry, head of the investigative body, head of the inquiry body, prosecutor, head of the place of detention guards (part 2).
Article 301. Reclaiming property from someone else’s illegal possession
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 02/05/2019 N 308-ES15-12864 in case N A15-1976/2014 Having examined and assessed the presented evidence according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, guided by Articles , , 166, 168, 209, 301 , 302, 305 of the Civil Code of the Russian Federation (hereinafter - the Civil Code), articles 15, 20 - 24, 45, 60, 62 of the Land Code of the Russian Federation (hereinafter - the Land Code of the Russian Federation), the provisions of the Federal Law of October 25, 2001 N 137-FZ " On the entry into force of the Land Code of the Russian Federation" (hereinafter referred to as Law N 137-FZ) and the explanations set out in the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N / 22 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other real rights” (hereinafter referred to as Resolution No. 10/22), the courts, after the next consideration of the dispute, satisfied the stated requirements, coming to the conclusion that the local government body could not dispose of the disputed land plots, since the right of permanent (unlimited) use of the Company was not terminated in the manner prescribed by law; lease (sublease) agreements for land plots concluded by the Committee with individuals and the Company, as well as by the Company with an individual, are invalid (void) transactions from the moment of their completion, not entailing legal consequences.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 301-ES16-17937 in case N A79-3908/2014
When accepting the appealed judicial acts, the courts, guided by the provisions of Articles 301, 335 of the Civil Code of the Russian Federation, the explanations set out in paragraph 58 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N / 22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other real rights,” taking into account the circumstances established during the consideration of cases No. A79-6330/2013 and A79-335/2014, establishing that IP Spirin D.V. is the legal acquirer of the disputed property, since he was a bona fide mortgagee, to whom the property was transferred in accordance with the procedure established by law to pay off the debt, they reasonably did not see legal grounds for satisfying the institution’s requirements for the recovery of property and recognition of ownership.
Ruling of the Supreme Court of the Russian Federation dated January 11, 2017 N 305-ES16-18571 in case N A40-149512/15
Refusing to satisfy the stated claims, the courts are guided by the provisions of Article 301 of the Civil Code of the Russian Federation, the explanations set out in paragraphs 32, 36 of the joint resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N / 22 “On some issues related to the protection of property rights and other real rights,” having assessed the evidence presented in the case materials, we came to the conclusion that the plaintiff did not prove that the disputed property was in the possession of the defendant and that the said property belonged to the plaintiff.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 310-ES16-17836 in case N A09-1562/2012
Overturning the decision of the court of first instance regarding the refusal to satisfy the claims against A.M. Biryukov, L.G. Mikelyan, I.B. Milovanova, N.N. Shelkovnikova, M.V. Troshin, the Promtorgexport company, the company "Stroykomplekt", the company "Logistics and Transport", the company "Logistics and Transport XXI Century", the court of appeal, guided by the provisions of Article 301, paragraphs 1, 2 of Article 302 of the Civil Code of the Russian Federation, the explanations set out in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of 04/29/2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”, based on the plaintiff’s ownership of the disputed vehicles and the absence of evidence of their removal from the plaintiff’s possession at his will.
Ruling of the Supreme Court of the Russian Federation dated January 11, 2017 N 309-ES16-13732(2) in case N A71-83/2014
Satisfying the stated requirements partially, the courts of the first and appellate instances, having assessed the evidence presented according to the rules of Articles 65, 71 and 168 of the Arbitration Procedure Code of the Russian Federation and guided by the provisions of paragraph 1 of Article 61.2 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy) ”, Articles 167, 301 and 302 of the Civil Code of the Russian Federation, taking into account the explanations set out in paragraph 16 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 N “On some issues related to the application of Chapter III.1 of the Federal Law “On Insolvency ( bankruptcy)", proceeded from the fact that the contested transactions for the sale of real estate by the debtor LLC "Service" were completed during the annual period of suspicion (the date of their state registration falls within the specified period) with unequal counter-performance on the part of the buyer, in connection with which there are grounds for declaring them invalid.
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 304-ES16-16955 in case N A45-10467/2015
The claims of the Agribusiness Society in this case are stated on the basis of Articles 301, 302 of the Civil Code of the Russian Federation, and are motivated by the fact that the disputed property left the plaintiff’s possession against his will as a result of alienation transactions made by a person who does not have the right to alienate the property.
Ruling of the Supreme Court of the Russian Federation dated January 13, 2017 N 305-ES16-18580 in case N A41-14848/2016
According to the provisions of Article 301 of the Civil Code of the Russian Federation, the owner has the right to reclaim his property from someone else’s illegal possession. By virtue of paragraph 1 of Article 25 and paragraph 1 of Article 26 of the Land Code of the Russian Federation, rights to land plots provided for in Chapters III and IV of this Code arise on the grounds established by civil legislation, federal laws, and are subject to state registration in accordance with the Federal Law “On state registration of rights to real estate and transactions with it.”
Ruling of the Supreme Court of the Russian Federation dated January 17, 2017 N 306-ES16-18914 in case N A55-21008/2015
In accepting the judicial acts contested by the applicant, the courts were guided by the provisions of Articles 301, 305, 398 of the Civil Code of the Russian Federation, the explanations set out in paragraph 34 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N / 22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other real rights", paragraph 13 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 01/25/2013 N "On introducing additions to the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 11/17/2011 N “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on the lease agreement”, as well as the legal position set out in paragraph 9 of the Review of the practice of resolving disputes related to rent, approved by the Presidium of the Supreme Arbitration Court of the Russian Federation on January 11, 2002 N.
Ruling of the Supreme Court of the Russian Federation dated January 18, 2017 N 302-ES16-18956 in case N A33-18953/2015
Having assessed the evidence presented in the case materials according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, having established that the entrepreneur occupies premises with an area of 19.9 square meters. m and 85.6 sq. m without any legal grounds, the court, guided by Article 301 of the Civil Code of the Russian Federation, taking into account the explanations contained in paragraphs 32 and 36 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N / 22 “On certain issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”, satisfied the requirements in this part.
Ruling of the Supreme Court of the Russian Federation dated January 18, 2017 N 307-ES16-19396 in case N A21-9441/2014
The conclusions of the cassation court are based on the need to prove the existence of disputed property from the defendant against whom a claim for its recovery is filed, and the court’s conclusions comply with the provisions of Article 301 of the Civil Code of the Russian Federation, which provides that the owner has the right to reclaim his property from someone else’s illegal possession, that is, from actual possession of the defendant.
Ruling of the Supreme Court of the Russian Federation dated 01.02.2017 N 305-ES16-17046 in case N A40-122040/2014
The courts, based on a proper assessment of the evidence presented in the case materials according to the rules of Chapter 7 of the Arbitration Procedural Code of the Russian Federation, guided by Articles , , 301, 305, 307 - 310, 313, 330, 450 of the Civil Code of the Russian Federation, having established the fact of compliance by the Positron company » of their obligations under the disputed agreement in full, they rightfully refused to satisfy the claims.
Second commentary to Art. 301 of the Criminal Code of the Russian Federation
1. Detention carried out in the absence of the grounds specified in the Code of Criminal Procedure of the Russian Federation or in violation of at least one of the restrictive conditions is illegal. A detention carried out in gross violation of the procedure for its application established by law (for example, without drawing up a protocol, without indicating in it the time of detention or the time of its preparation) falls under the characteristics of the commented article.
2. Criminal procedural legislation regulates the grounds and procedure for detention. Detention must be lawful and justified. Legality should be understood as compliance with the norms of criminal procedural legislation regulating the procedure for applying the specified preventive measure and extending its validity period, and validity should be understood as the presence in the criminal case materials of information that confirms the need to use detention as a preventive measure.
Detention is considered illegal if:
a) there are no grounds for this specified in the law;
b) the rules and procedure for selecting this preventive measure are violated.
3. The criminal procedural legislation defines the terms of detention, the violation of which forms an independent type of the crime in question, specified in Part 2 of Art. 301 CC.
4. Crimes are considered completed from the moment the actions listed in the law are committed.
5. The subjective side is characterized by direct intent.
6. The subject of a crime is a justice official who has the right to detain or take into custody. Responsibility for illegal detention may be borne by investigators or investigators, and for illegal detention and detention - by judges.
7. In part 3 of Art. 301 of the Criminal Code specifies the qualifying feature - the onset of grave consequences. These may, for example, include the victim’s suicide or attempt on his life, mental illness or other harm to health, and the difficult financial situation of the family.
