New edition of Art. 308 of the Criminal Code of the Russian Federation
Refusal of a witness or victim to testify or evasion of a victim from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing handwriting and other samples for comparative research -
shall be punishable by a fine in the amount of up to forty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three months, or by compulsory labor for a term of up to three hundred sixty hours, or by corrective labor for a term of up to one year, or by arrest for a term of up to three months.
Note. A person is not subject to criminal liability for refusing to testify against himself, his spouse or his close relatives.
Features of presentation
The source of factual data is the witness/victim's report given orally. This form ensures direct perception of outgoing information and reduces the likelihood of information distortion. A citizen has the right to present data in his own hand, but after they have been expressed orally. The information contained in various complaints, explanations, and statements is not considered evidence. This information can be used as a basis for summoning the subject for questioning.
Responsibility
The legislation provides for a number of articles, according to which penalties may be applied to a witness/victim for false information or refusal to provide information. This is Art. 307, 308 of the Criminal Code of the Russian Federation. In addition, liability for false denunciation is provided. It is established by Art. 306 of the Criminal Code. These rules are aimed at maintaining procedural order in the process of obtaining evidence. A citizen brought in for questioning as a witness or victim is warned of liability under Art. 306-308 of the Criminal Code of the Russian Federation. Any subject who knows anything about the circumstances of the incident can be called for a conversation.
Article 308.3 of the Civil Code of the Russian Federation. Protection of the creditor's rights under an obligation (current version)
1. Paragraph 1 of the commented article talks about the practical implementation of the principle of real fulfillment of an obligation, according to which the creditor has the right to demand fulfillment of the obligation in kind, or, in other words, to perform exactly the action that is provided for by the obligation or to refrain from a certain action. However, this norm is of a dispositive nature and otherwise may be provided for by the Civil Code, other laws or an agreement, or follow from the essence of the obligation.
In case of failure to fulfill this obligation, the creditor has the right to apply to the court with a corresponding demand, which has the right to award a sum of money (penalty) in his favor on the basis of paragraph 1 of Article 330 (see commentary thereto). However, the debtor, despite the court decision, may in this case not fulfill the obligation in kind. In such cases, the commented article allows the court to make a decision to collect from the debtor the so-called judicial penalty, the amount of which is based on the principles of fairness, proportionality and the inadmissibility of profiting from illegal or dishonest behavior (valuation concepts, see commentary to paragraph 4 of Art. 1).
In paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7 “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations” (as amended on February 7, 2017), the following is noted.
“Based on paragraph 1 of Article 308.3 of the Civil Code of the Russian Federation, in order to encourage the debtor to timely fulfill an obligation in kind, including the obligation to refrain from performing certain actions, as well as to execute a judicial act providing for the elimination of a violation of property rights not related to deprivation of possession ( Article 304 of the Civil Code of the Russian Federation), the court may award money in the event of failure to comply with the relevant judicial act in favor of the creditor-collector (hereinafter referred to as a judicial penalty).
Payment of a judicial penalty does not entail the termination of the main obligation, does not relieve the debtor from fulfilling it in kind, as well as from applying penalties for its non-fulfillment or improper fulfillment (clause 2 of Article 308.3 of the Civil Code of the Russian Federation).
The amount of the judicial penalty is not taken into account when determining the amount of losses caused by failure to fulfill an obligation in kind: such losses are subject to compensation in excess of the amount of the judicial penalty (clause 1 of Article 330, Article 394 of the Civil Code of the Russian Federation).
The accrual of interest on the amount of the judicial penalty provided for in Article 395 of the Civil Code of the Russian Federation is not allowed.”
2. Paragraph 2 of the commented article establishes that the exercise by the creditor of the protection of its rights in accordance with paragraph 1 of this article does not relieve the debtor from liability for non-fulfillment or improper fulfillment of the obligation. At the same time, a reference is made to Chapter 25 of the Civil Code, which talks about liability for violation of obligations.
Thus, the legislator considers the penalty mentioned above in paragraph 1 of the commented article in this case as an additional form of liability, which in no case relieves the faulty debtor from other forms of liability.
Comment source:
“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"
S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019
Art. 308 of the Criminal Code of the Russian Federation
Refusal of victims/witnesses to testify, evasion of victims from examination, examination in relation to them in cases where their consent is not required, or provision of handwriting samples/other materials for comparative research is punishable by law. Verdict Art. 308 of the Criminal Code of the Russian Federation may provide for:
- Fine up to 40 thousand rubles. or a penalty equal to 3 months’ salary/income.
- Up to 360 hours of compulsory work.
- Up to three months arrest.
- Up to a year corrected. works
The norm establishes an exception when a citizen is not held accountable. In particular, Art. 308 of the Criminal Code of the Russian Federation does not apply to the refusal of a subject to testify against his relatives or spouse, or himself. This exception is established in pursuance of Art. 51 of the Constitution.
Commentary on Article 308 of the Criminal Code of the Russian Federation
The main object of this crime is the interests of justice. An additional object is the rights and freedoms of man and citizen, the legitimate interests of individuals and legal entities.
The social danger of the crime in question lies in the fact that as a result of its commission, the administration of justice is hampered and obstacles are created to establishing the truth and a full, comprehensive and objective investigation of the case.
Unlike witnesses and victims, the suspect and the accused have the right not to testify.
Criminal liability has not been established for an expert’s refusal to give an opinion. The culprit may be brought to disciplinary liability (for example, by the expert institution where he works) or to civil liability (for example, an expert is an individual entrepreneur for failing to fulfill his obligations under a contract for the provision of paid services, Article 779 - 783 of the Civil Code of the Russian Federation).
Refusal of a victim or witness to testify in a case of an administrative offense in accordance with Art. Art. 25.2 and 25.6 of the Code of Administrative Offenses of the Russian Federation entails liability under Art. 17.7 of the Code of Administrative Offenses of the Russian Federation, due to which criminal liability for these actions is not provided for in the current criminal legislation.
According to the Code of Criminal Procedure of the Russian Federation (Articles 277 and 278), the Code of Civil Procedure of the Russian Federation (Article 176), and the Arbitration Procedure Code of the Russian Federation (Article 56), the witness and the victim are warned of criminal liability for refusing to testify. What do they sign, which is attached to the minutes of the court hearing?
The objective side of the crime is expressed in the refusal of a witness or victim to testify.
According to the construction of the objective side, the corpus delicti is formal. It can be committed either by action (direct oral or written refusal to testify) or by inaction (silence in response to an offer to testify). The crime is considered completed at the moment of commission of any of these acts, regardless of the consequences.
Further behavior of a person (for example, giving evidence in court after refusing to give it at the preliminary investigation) does not affect the qualification of the offense, but can be taken into account when individualizing responsibility (for example, when deciding on the application of Part 2 of Article 14 of the Criminal Code of the Russian Federation). Also, the fact that the person has previously given evidence does not indicate the absence of evidence.
If the reasons for the refusal were facts of physical or mental coercion to such refusal, then the issue of criminal liability of the witness or victim who refused to testify is decided based on the provisions of Art. 40 of the Criminal Code of the Russian Federation, which provides for the mentioned types of coercion as one of the circumstances excluding the criminality of an act. At the same time, the issue of initiating a criminal case under Art. 309 of the Criminal Code of the Russian Federation in relation to a person forcing a witness or victim to evade testifying.
As with the previous corpus delicti, the absence of a warning about criminal liability in the event of a witness or victim’s refusal to testify is one of the constructive features of the crime and excludes criminal liability. This conclusion, from our point of view, is confirmed by the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 No. 8 “On some issues of application by courts of the Constitution of the Russian Federation in the administration of justice” <1>, which states that when considering civil and In criminal cases, courts must take into account that, by virtue of Art. 51 of the Constitution of the Russian Federation, no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law; the said constitutional provision must be explained not only to the defendant, but also to his spouse or close relative before questioning this person as a witness or victim; otherwise, the testimony of such persons must be recognized by the court as obtained in violation of the law and cannot be evidence of the guilt of the accused (suspect). Thus, the Plenum of the Supreme Court of the Russian Federation associates non-compliance with the procedural requirement in question with the inadmissibility of evidence and the absence of a refusal to testify.
——————————— <1> Bulletin of the Supreme Court of the Russian Federation. 1996. N 1.
The evasion of the witness and the victim from appearing in court should be distinguished from refusal. This act entails not criminal, but procedural liability, which is exhaustively specified in Art. 111 of the Code of Criminal Procedure of the Russian Federation.
The note to the article states that refusal to testify against oneself, one's spouse or one's close relatives is not subject to criminal liability. This is in accordance with the provisions of Art. 51 of the Constitution of the Russian Federation.
It should be borne in mind that the RF IC in Part 2 of Art. 1 indicates that only marriages entered into at the civil registry office (registry office) are recognized. Consequently, only legally married persons are subject to this note and are not subject to criminal liability for refusing to testify against their spouse.
Part 2 Art. 51 of the Constitution of the Russian Federation states that federal law may establish other cases of exemption from the obligation to give testimony.
This provision of the Constitution was developed in Part 3 of Art. 56 Code of Criminal Procedure of the Russian Federation. The following are not subject to questioning as witnesses:
1) judge, juror - about the circumstances of the criminal case that became known to them in connection with participation in the proceedings in this criminal case;
2) the defender of the suspect, the accused - about the circumstances that became known to him in connection with participation in the criminal proceedings;
3) lawyer - about the circumstances that became known to him in connection with the provision of legal assistance;
4) the clergyman - about the circumstances that became known to him from confession <1>;
——————————— <1> The issue in paragraph 7 of Art. 3 of the Federal Law of September 26, 1997 N 125-FZ “On freedom of conscience and religious associations” (as amended) // SZ RF. 1997. N 39. Art. 4465.
5) a member of the Federation Council, a deputy of the State Duma without their consent - about the circumstances that became known to them in connection with the exercise of their powers.
The issue in Part 5 of Art. is resolved in a similar way. 56 of the Arbitration Procedure Code of the Russian Federation: judges and other persons involved in the administration of justice are not subject to questioning as witnesses about the circumstances that became known to them in connection with their participation in the consideration of the case, representatives in a civil and other case - about the circumstances that became known to them in in connection with the performance of the duties of representatives, as well as persons who, due to mental disabilities, are not able to correctly understand the facts and testify about them.
The corresponding provisions have been established in Part 3 of Art. 69 of the Code of Civil Procedure of the Russian Federation, where it is determined that the following are not subject to questioning as witnesses:
1) representatives in a civil case or defense attorneys in a criminal case, a case of an administrative offense - about the circumstances that became known to them in connection with the performance of the duties of a representative or defense attorney;
2) judges, jurors, people's or arbitration assessors - about issues that arose in the deliberation room in connection with the discussion of the circumstances of the case when making a court decision or sentence;
3) clergy of religious organizations that have undergone state registration - about the circumstances that became known to them from confession.
According to Part 4 of Art. 69 of the Code of Civil Procedure of the Russian Federation in addition to the persons listed in the note to Art. 308 of the Criminal Code of the Russian Federation (Part 1 of Article 51 of the Constitution of the Russian Federation), has the right to refuse to give testimony: deputies of legislative bodies - in relation to information that has become known to them in connection with the execution of deputy powers (clause 4), the Commissioner for Human Rights in the Russian Federation Federation - in relation to information that became known to him in connection with the performance of his duties (clause 5) <1>.
——————————— <1> A similar provision is contained in Part 2 of Art. 24 of the Federal Constitutional Law of February 26, 1997 N 1-FKZ “On the Commissioner for Human Rights in the Russian Federation” // SZ RF. 1997. N 9. Art. 1011.
It is necessary to note that these persons are exempt from liability precisely for refusing to testify, and not for giving false testimony. In the latter case, criminal liability under Art. 307 of the Criminal Code of the Russian Federation applies on a general basis.
The subjective side of this crime is characterized by direct intent, i.e. the person is aware that his testimony is important for a comprehensive and objective investigation of the case or its consideration in court, anticipates that his refusal to testify may interfere with this, but wishes to act in this way. The motives can be very different, including those indicated when considering Art. 307 of the Criminal Code of the Russian Federation. The reasons for refusal do not matter for the qualification of the offense, but are taken into account when assigning punishment.
The subject of a refusal to testify is a sane person who has reached the age of sixteen, who has been brought to participate in the case as a witness in accordance with the procedure established by law, or who has been recognized as a victim in the case (a special subject). Witnesses and victims under the age of sixteen cannot be held criminally liable.
Art. 308 of the Criminal Code of the Russian Federation with comments
The social danger of a crime, responsibility for which is established in the norm, is that the commission of this act does not allow or significantly complicates the adoption of a procedural decision that takes into account the actual circumstances of the case. Accordingly, it becomes difficult to ensure the protection of the interests and rights of citizens, organizations, the state and society.
Forms of manifestation
Objectively, the crime provided for in Art. 308 of the Criminal Code of the Russian Federation, may manifest itself in inaction. However, in some cases it may be preceded by the active action of a citizen. In particular, this may be the filing of a statement in which the citizen refuses to testify. The act established by Art. 308 of the Criminal Code of the Russian Federation, can also be expressed by the subject’s failure to appear for interrogation when called by an interrogator, court, or investigator. A citizen commits a crime by refusing both to give evidence in general about the case and to provide any specific information on a particular circumstance, citing the fact that he does not remember or does not know this or that information. If the subject conceals information about certain facts during the interrogation, then these actions are not qualified under Art. 308 of the Criminal Code of the Russian Federation, and in accordance with the rule providing for liability for providing knowingly false data.
Article 308. Parties to the obligation
Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 5, 2018 N 126P18 In accordance with Part 3 of Art. 308 of the Civil Code of the Russian Federation, an obligation does not create obligations for persons not participating in it as parties (for third parties). Consequently, neither the Administration of Petrozavodsk of the Republic of Karelia, nor the Karelian branch of Sberbank had legal grounds to demand that Alikhanov resell the disputed real estate to the latter.
Ruling of the Supreme Court of the Russian Federation dated January 11, 2017 N 305-ES16-18274 in case N A40-3113/16-26-21
By virtue of paragraph 14 of the resolution of July 18, 2014 N 50, the arbitration court, when considering the issue of approving a settlement agreement, examines the factual circumstances of the dispute and the arguments and evidence presented by the persons participating in the case, evaluates them only to the extent and insofar as this is necessary to establish compliance settlement agreement to the requirements of the law and the absence of violations of the rights and legitimate interests of other persons (Part 6 of Article 141 of the Arbitration Procedural Code of the Russian Federation), including studying the draft settlement agreement for the purpose of identifying conditions affecting the rights and legitimate interests of persons not participating in the case (with taking into account the provisions of paragraph 3 of Article 308 of the Civil Code of the Russian Federation).
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 17, 2017 N 4-КГ16-67
On the contrary, by virtue of paragraph 1 of Article 45 of the Family Code of the Russian Federation, which provides that for the obligations of one of the spouses, recovery can only be applied to the property of this spouse, each spouse is allowed to have their own obligations. Moreover, according to paragraph 3 of Article 308 of the Civil Code of the Russian Federation, the obligation does not create obligations for other persons not participating in it as parties (for third parties).
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 17, 2017 N 36-КГ16-26
By virtue of paragraph 3 of Article 308 of the Civil Code of the Russian Federation, an obligation, as a general rule, does not create obligations for persons not participating in it as parties (for third parties). Unless otherwise provided by law or agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right (clause 1 of Article 384 of the Civil Code of the Russian Federation).
Ruling of the Supreme Court of the Russian Federation dated January 24, 2017 N 305-ES16-19455 in case N A40-218744/2015
In adopting the appealed judicial acts, the courts, guided by the provisions of Articles 308, 309, 310, 393 of the Civil Code of the Russian Federation, proceeded from the absence of a cause-and-effect relationship between the defendant’s violation of the obligation to timely pay for the accepted goods and the need for the plaintiff to pay a commission to the factor. The courts indicated that the defendant was not a party to the factoring agreement and could not influence the amount of the commission.
Ruling of the Supreme Court of the Russian Federation dated January 30, 2017 N 303-ES16-15619 in case N A37-1604/2015
Referring to the provisions of Articles 210, 308 of the Civil Code of the Russian Federation and the Review of judicial practice of the Supreme Court of the Russian Federation No. 2, approved by the Presidium of the Supreme Court of the Russian Federation on June 26, 2015, the applicant believes that in this case the owner of the disputed non-residential premises is the municipal entity "City of Magadan" , whose powers in relation to the management of real estate are exercised by the committee, is responsible for paying for the heat supply service actually rendered.
Ruling of the Supreme Court of the Russian Federation dated 02.02.2017 N 309-ES16-19708 in case N A76-3061/2015
When accepting the appealed judicial acts, the courts, guided by the provisions of Articles 307, 308, 393, 1064, 624, 665 of the Civil Code of the Russian Federation, Articles 2, 11, 13, 19 of the Federal Law of October 29, 1998 N 164-FZ “On Financial Leases ( leasing)", the explanations set out in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 N "On certain issues related to the buyout lease agreement", having examined and assessed in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation the evidence presented in the case materials, including the results of the forensic examination, rejected the initial claim and partially satisfied the counterclaim.
Ruling of the Supreme Court of the Russian Federation dated February 13, 2017 N 308-ES16-19257 in case N A32-42078/2015
The courts, based on the assessment of the evidence presented in the case materials according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, guided by Articles 308, 313, 1102 of the Civil Code of the Russian Federation, the provisions of the Federal Law of March 26, 2003 N 35-FZ “On Electric Power Industry”, Technological Rules connection of power receiving devices of electrical energy consumers, electrical energy production facilities, as well as electrical grid facilities belonging to network organizations and other persons to electrical networks, approved by Decree of the Government of the Russian Federation dated December 27, 2004 N 861, came to the conclusion that there are no grounds for satisfaction a claim based on the lack of evidence of unjust enrichment on the part of the company at the expense of the company.
Ruling of the Supreme Court of the Russian Federation dated February 15, 2017 N 305-ES16-20305 in case N A40-137634/2015
Refusing to satisfy the claim, the court of first instance, with whose conclusions the courts of appeal and the district agreed, having examined and assessed the evidence presented in the case according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, guided by Articles 307, 308, 420, 425 of the Civil Code of the Russian Federation, proceeded from the fact that the plaintiff was not a party to the construction contract; the said contract did not impose any obligations on him, including the supply and/or payment for equipment. The work under the construction contract was entrusted to the Mospromstroy company, which completed the work in full and paid for the results of the work by the defendant. Under the above circumstances, the court came to the conclusion that the airport had no outstanding obligations to the plaintiff.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated February 20, 2017 in case No. 303-ES16-14807, A37-1715/2015
By virtue of paragraph 3 of Article 308 of the Civil Code of the Russian Federation, the obligation does not create obligations for persons not participating in it as parties (for third parties). The borrower's obligation to bear the costs of utilities for the premises, stipulated by the terms of the free use agreement concluded between the committee and the organization of disabled people dated May 20, 2003 N 1 and arising from the provisions of Article 695 of the Civil Code of the Russian Federation, is established in relations with the committee, and not with the provider of utilities or resource supply organizations that are not a party to the specified agreement.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated March 1, 2017 N 303-ES16-15619 in case N A37-1604/2015
By virtue of paragraph 3 of Article 308 of the Civil Code of the Russian Federation, the obligation does not create obligations for persons not participating in it as parties (for third parties). The borrower’s obligation to bear the costs of utility services for the premises, provided for by the terms of the free use agreement concluded between the committee and the religious organization dated May 14, 2012 N 162 and arising from the provisions of Article 695 of the Civil Code of the Russian Federation, is established in relations with the committee, and not with the resource supplying organization, which are not a party to this agreement.
Subjective part
The guilt of a subject who refuses to provide information known to him is expressed in the form of direct intent. The citizen understands that when summoned for questioning, he is obliged to attend and give truthful testimony. However, the person does not want to do this, thereby breaking the law. The motive may be the desire to avoid providing assistance to law enforcement agencies and the judiciary. A citizen may refuse to testify, wanting to help the guilty person avoid responsibility, fearing retaliation from the subject to whom the information he provided may be unprofitable, and for other reasons.
Exceptions
In accordance with the provisions of Part 1 of Article 51 of the Constitution, it is not allowed to force a citizen to testify against loved ones, himself or his husband/wife. The circle of relatives in respect of whom this rule applies is determined by paragraph 4 of Article 5 of the Code of Criminal Procedure. A note to the norm excludes liability for these citizens for refusing to testify. In addition, the legislation provides for the obligation to maintain professional secrecy by entities that practice law. Art. 308 of the Criminal Code of the Russian Federation does not apply to defense attorneys who refuse to provide information that became known to them in the process of citizens turning to them for legal assistance or during its direct provision. Also exempt from liability are clergy who are obliged to maintain the secret of confession, jurors, judges, State Duma deputies, members of the Federation Council, officials endowed with representative and diplomatic immunity, who must ensure the confidentiality of information they receive in connection with the exercise of their powers.
Commentary to Art. 308 Civil Code of the Russian Federation
1. The plurality of persons in an obligation can be on the side of the creditor (active plurality) and on the side of the debtor (passive plurality). There is also mixed plurality: in an obligation there are several creditors (multiplicity on the side of the creditor) and several debtors (multiplicity on the side of the debtor).
If there are multiple persons, the obligation may be shared or joint.
2. In addition to the debtor and the creditor, other entities - third parties - may also participate in the obligation. Thus, as a general rule, the debtor can assign the fulfillment of an obligation to a third party, and the creditor is obliged to accept such fulfillment (clause 1 of Article 313 of the Civil Code of the Russian Federation). There are obligations in favor of third parties (for example, a bank deposit in favor of a third party - Article 842 of the Civil Code of the Russian Federation). As a general rule, an obligation cannot create obligations for third parties.
