ST 341 of the Criminal Code of the Russian Federation.
1. Violation of the rules for performing border service by a person who is part of a border patrol or performing other duties of the border service, if this act resulted in harm to the interests of the security of the state, -
shall be punishable by restriction in military service for a term of up to two years or imprisonment for a term of up to three years.
2. The same act, which entailed grave consequences, -
is punishable by imprisonment for a term of up to five years.
3. Violation of the rules for performing border service due to a careless or dishonest attitude towards them, resulting in grave consequences, -
shall be punishable by restriction in military service for a term of up to two years or imprisonment for a term of up to two years.
Commentary to Art. 341 Criminal Code
1. The objective side is a violation of the rules of border service. A mandatory feature of the composition is socially dangerous consequences, consisting of causing harm to the security interests of the state.
The composition is designed as a composition of real danger, therefore the act will be considered completed from the moment the threat of the specified consequences arises.
2. The subject of this encroachment is a military serviceman who is part of a border guard detachment or performs other duties of the border service.
3. Grave consequences (Part 2) include loss of life, penetration of foreign intelligence agents, weapons, etc. across the state border.
4. In part 3, the subjective side is characterized by negligence in the form of frivolity or negligence.
Second commentary to Art. 341 of the Criminal Code of the Russian Federation
1. The crime encroaches on the security of the State Border of Russia and is expressed in violation of the established procedure for performing border service. The procedure for this service is regulated by the Law of the Russian Federation “On the State Border” and other regulations.
2. Part 1 art. 341 applies if a violation of the rules for performing border service has resulted or could have resulted in harm to the interests of the security of the state. Harm can be expressed in weakening the security of the State Border, causing harm to the population by external encroachments, etc. The possibility of harm is characterized by the fact that as a result of the violation, real preconditions are created for the occurrence of the specified consequences, which can occur if there is an encroachment on the border.
In parts 2 and 3, the crossing of the border by a spy or saboteur, the passage of large quantities of contraband or weapons, etc. should be recognized as grave consequences.
The subject of the crime is a soldier who is part of a border guard unit or performing other duties of the border service. A person performing other duties of the border service is a military personnel who is not part of the border patrol, but participates in solving tasks for protecting the State Border.
3. The subjective side of the crime provided for in parts 1 and 2 is characterized by an intentional form of guilt. Part 3 provides for negligence in relation to violations and consequences.
Commentary on Article 341 of the Labor Code of the Russian Federation
Turning to Art. 341 of the Labor Code at the present time, it is necessary to take into account that the Federal Law of July 27, 2010 N 205-FZ has introduced some clarifications and additions to the regulation of relevant issues.
First of all, it is important to pay attention to the difference in the titles of Art. 341 Labor Code and Art. 10 of the said Federal Law, according to which the new name can be formulated: “Grounds for termination of work of a diplomatic service employee in a foreign office of the Ministry of Foreign Affairs of the Russian Federation.”
The legal concept of “diplomatic service officer” is revealed, as noted above, in paragraph 3 of Art. 1 of the Federal Law of July 27, 2010 N 205-FZ.
A distinctive feature of the service-labor legal relations of diplomatic employees assigned to state federal service in foreign institutions is their urgent nature, determined by the duration of the fixed-term service contract - up to three years, after which it can be renewed for a new term.
In exceptional cases, by decision of the employer's representative, the term of work of a diplomatic service employee at a foreign establishment of the Russian Foreign Ministry may be extended without his consent for a period of up to six months beyond the period established in the contract, subject to appropriate changes being made to it (see Part 3 of Article 9 Federal Law of July 27, 2010 N 205-FZ).
According to Art. 10 of this Federal Law, the work of a diplomatic service employee may be terminated early on the grounds listed in clauses 1 - 7, part 2 of this article, which may or may not be related to the fault of the diplomatic employee. A special basis for early termination of the work of a diplomatic worker is provided for in Part 3 of Art. 10 of this Law. It is connected with the official necessity of early termination of work of a diplomatic worker holding a position in the federal state civil service of the “managers” category at a foreign agency of the Russian Foreign Ministry. Such work may be terminated by decision of the Minister of Foreign Affairs of the Russian Federation before the expiration of the period established when sending an employee to a foreign establishment of the Russian Foreign Ministry.
There are two procedures for dismissal on the specified grounds:
a) dismissal of diplomatic service employees with whom, in accordance with Part 1 of Art. 9 of the Federal Law of July 27, 2010 N 205-FZ, a fixed-term service contract was concluded, carried out in accordance with clause 1, part 1, art. 33 of the Federal Law “On the State Civil Service of the Russian Federation” by agreement of the parties to the service contract;
b) the dismissal of diplomatic service employees who were sent to work at a foreign establishment of the Russian Foreign Ministry is carried out in accordance with Part 2 of Art. 9 of the Federal Law of July 27, 2010 N 205-FZ. It can be carried out on the grounds provided for by the Federal Law “On the State Civil Service of the Russian Federation” or the Federal Law of July 27, 2010 N 205-FZ. The difference between them is associated with the legal facts that determined the emergence of service-labor relations abroad: a fixed-term service contract or the dispatch of a diplomatic service employee in accordance with Part 2 of Art. 9 of the Federal Law of July 27, 2010 N 205-FZ. In the second case, we are talking about sending a diplomatic service employee to work abroad, filling a position in the central office of the Russian Foreign Ministry or its territorial body. In such cases, changes must be made to the contract previously concluded with him regarding the period and conditions of his work at the foreign institution of the Russian Foreign Ministry. Upon completion of work there, the diplomatic service employee must be provided with the previous or equivalent position, and in its absence, another position with the consent of the employee. Therefore, dismissal is possible by agreement of the parties.
Unlike Art. 10 of the Federal Law of July 27, 2010 N 205-FZ, containing a list of grounds leading to the termination of the work of a diplomatic employee in a foreign office of the Russian Foreign Ministry, in Art. 11 of this Law lists the grounds for possible termination of a service contract with a diplomatic service employee at the initiative of a representative of the employer. Thus, if the presence of the grounds listed in Art. 10 is, of course, an objective reason for the termination of the service-labor relationship with the relevant employee, then in Art. 11 names the grounds that enable the employer’s representative, on his initiative, to terminate a service contract with a diplomatic service employee.
These differences may (possibly) lead to different legal consequences depending on the specific circumstances.
In Art. 11 identifies the following three grounds for dismissal at the initiative of the employer’s representative:
— refusal of a diplomatic worker, without good reason, to be sent, by decision of the employer’s representative, to work at a foreign establishment of the Russian Foreign Ministry on a rotation basis;
— non-compliance, during the period of work at a foreign establishment of the Russian Foreign Ministry, with the regime restrictions established by regulatory legal acts for foreign establishments of the Russian Foreign Ministry, or with the rules of residence in force at the relevant foreign establishment, with which the diplomatic service employee was familiarized in the prescribed manner;
- refusal, upon completion of work at a foreign institution of the Russian Foreign Ministry, from the position of the federal state civil service proposed for replacement in the manner established by the legislation of the Russian Federation.
These grounds for termination of a service contract reflect the objective need for their establishment and application to employees of the diplomatic service, which has its own specific characteristics associated with dismissal. They are manifested, in particular, in the possibility established by the Federal Law of July 27, 2010 N 205-FZ, at the initiative of the employer, to terminate a service contract with federal state civil servants, in addition to the grounds provided for in the Federal Law “On the State Civil Service of the Russian Federation”, and on the grounds , enshrined in Art. 11 of the Federal Law of July 27, 2010 N 205-FZ.
The practice obviously does not contradict the meaning of Art. 28 of the Labor Code, which recognizes the existence of peculiarities in the application of labor law norms to state civil servants engaged in various areas of official activity, including diplomatic ones. This article of the Labor Code is formulated, essentially, also taking into account the specific application of the rules on social partnership. However, further development of the legal regulation of service-labor relations in the diplomatic sphere does not exclude the possibility of establishing in the future the specifics of the application of norms on social partnership in the field of service-labor relations. A prerequisite for the possibility of developing such norms is the right of civil servants to membership in a trade union and participation in its activities, enshrined in federal legislation.
Consideration of individual service disputes. According to the Federal Law “On the State Civil Service of the Russian Federation,” an individual service dispute is an unresolved disagreement between a representative of the employer and a civil servant or a citizen entering the civil service or previously in the civil service regarding the application of laws and other regulatory legal acts on the civil service and service contract, which were reported to the body for the consideration of individual service disputes.
Bodies for consideration of individual service disputes. Individual service disputes (hereinafter referred to as service disputes) are considered by the following bodies for consideration of individual service disputes (hereinafter referred to as bodies for review of service disputes):
1) by the commission of a state body on official disputes;
2) by court.
The procedure for considering service disputes in the bodies for consideration of service disputes is regulated by the specified Federal Law and other federal laws, and the procedure for reviewing cases of service disputes in the courts is also determined by the civil procedural legislation of the Russian Federation.
The commission of a state body on service disputes (hereinafter referred to as the commission on service disputes) is formed by a decision of a representative of the employer from an equal number of representatives of the elected trade union body of this state body and a representative of the employer.
Representatives of the elected trade union body of a given state body are elected to the commission on service disputes at a conference of civil servants of the state body. Representatives of the employer's representative are appointed to the commission on service disputes by the specified representative of the relevant employer.
An official dispute is considered by the commission on official disputes if the civil servant, independently or with the participation of his representative, does not resolve disagreements during direct negotiations with the employer’s representative.
A civil servant or a citizen entering the civil service or previously serving in the civil service may apply to the commission on service disputes within three months from the day he learned or should have learned of a violation of his right.
If the specified period is missed for valid reasons, the commission on official disputes may restore this period and consider the official dispute on the merits.
The Commission on Service Disputes is obliged to consider the service dispute within 10 calendar days from the date of filing a written application.
The procedure for considering an official dispute by the commission on official disputes, as well as the procedure for making a decision by the commission on official disputes and its execution is regulated by federal law.
The decision of the commission on official disputes can be appealed by any of the parties to the court within 10 days from the date of delivery of a copy of the commission's decision. If the established deadline is missed for valid reasons, the court may restore this deadline and consider the official dispute on its merits.
The courts consider service disputes based on written applications from a civil servant or a citizen entering the civil service or previously serving in the civil service, a representative of an employer or a representative of an elected trade union body of a given state body, if at least one of them does not agree with the decision of the commission on service disputes or if a civil servant or a representative of the employer goes to court without applying to the commission on service disputes, as well as at the request of the prosecutor, if the decision of the commission on service disputes does not comply with federal laws or other regulatory legal acts of the Russian Federation.
Official disputes based on written statements are considered directly in the courts:
1) a civil servant or a citizen who was previously in the civil service - on reinstatement in a previously filled civil service position, regardless of the grounds for termination or termination of the service contract, release from the replaced civil service position, dismissal from the civil service, on changing the date of release from the replaced position civil service and the formulation of the reason for the said release, about transfer to another position in the civil service without the consent of the civil servant, about payment for the period of forced absence or about payment of the difference in salary during the performance of official duties for a lower-paid position in the civil service;
2) a representative of the employer - on compensation by civil servants for damage caused to a state body, unless otherwise provided by federal laws.
Service disputes are also dealt with directly in the courts:
1) about unlawful refusal to enter the civil service;
2) based on written statements from civil servants who believe that they have been discriminated against.
In cases of release from a replaced position in the civil service and dismissal from the civil service on grounds not provided for by the specified Federal Law, or in violation of the established procedure for release from a replaced position in the civil service and dismissal from the civil service, or in the event of an illegal transfer to another position in the civil service, the court has the right upon a written application of a civil servant, make a decision on monetary compensation for moral damage caused to him. The amount of compensation is determined by the court.
The timing of applying to the court for consideration of an official dispute and the procedure for exempting civil servants from legal costs, the procedure for making decisions on official disputes related to dismissal from a civil service position and dismissal from the civil service, transfer to another civil service position without the consent of the civil servant, the procedure satisfaction of monetary claims of civil servants, execution of decisions on reinstatement in a previously filled civil service position and restrictions on the reverse collection of amounts paid by decision of bodies for the consideration of service disputes are established by federal law.
