According to the law, any citizen has certain rights (property, civil, social, etc.) that cannot be violated or alienated. However, in practice, it often happens that some other person violates human rights in some way (for example, does not pay back money borrowed). In such a situation, human rights must be restored to normalize the situation.
However, the protection of rights must be carried out in accordance with the law, and incorrect independent protection of rights can be regarded as arbitrariness under Art. 330 of the Criminal Code of the Russian Federation. But what specific actions can be regarded as arbitrariness under the Criminal Code of the Russian Federation? What punishment does a person face for such an offense? And what is the judicial practice regarding these cases? Below we will find out in detail the answers to these questions.
Code of Administrative Offenses of the Russian Federation: arbitrariness
In the Code of Administrative Offenses of the Russian Federation, arbitrariness is interpreted as the unauthorized exercise of one’s supposed or actual right in defiance of the order that was established by federal law or other legal acts of the country. At the same time, there is no fact of causing significant harm to ordinary citizens or organizations.
This offense is punishable by a fine, the amount of which depends on who committed it. If this is an official, then the amount of the penalty will vary from 300 to 500 rubles, if an ordinary citizen - from 100 to 300 rubles.
The elements of an administrative offense will be present only if it does not entail the onset of the consequences specified in the Criminal Code of the Russian Federation.
Where to file a complaint?
There are frequent cases of so-called abuse of power. As a rule, arbitrariness is created by the highest authorities, and lower authorities cannot do anything about it. However, this raises an important question: they can’t or they still don’t want to? The whole point is that any person has every right to complain to a higher authority for arbitrariness. But how to do that?
The profile structure is selected. If we are talking, for example, about a school, then you need to complain to the Department of Education, or even to the Ministry. If we are talking about an arbitration court, then the complaint is filed with the Supreme Court.
Arbitrariness is indeed a largely unfinished and problematic article, but still effective. This is exactly what should be taken into account.
Arbitrariness: Art. 330 of the Criminal Code of the Russian Federation
The criminal legislation of our country interprets the concept of arbitrariness as the unauthorized implementation of any actions committed in violation of the order established by laws or other regulatory requirements, the legality of which is disputed by a citizen or organization if serious harm is caused to them. If there is a simple offense, the person guilty of this criminal act will face punishment in the form of:
- a fine in the amount of up to 80,000 rubles. or in the amount of other income, salary for a period of up to six months;
- compulsory work for up to 480 hours;
- up to 2 years of correctional labor;
- arrest up to 6 months
The second part of the studied norm of criminal law specifies the characteristics of the qualifying element, namely: violence or the threat of its use to the victim. In this case, the sentence under Art. 330 of the Criminal Code of the Russian Federation implies arrest for up to six months or imprisonment for up to 5 years.
Arbitrage practice
The experience accumulated in the field of studying these cases of arbitrariness speaks quite clearly - mistakes are very common when determining the qualifications of such actions.
The main object of any article of the law, and especially Article 330, is the protection of the interests of citizens or organizations in any situations where they have suffered significant harm.
For example, if the case concerns the illegal construction of a new house. According to the law, it must be demolished, but what should those people who have already purchased apartments in it do? This crime already shows the nature of arbitrariness, because The developer, with his building, violates construction standards and creates a threat to the lives of citizens who are already “lucky” to pay their hard-earned money for new housing. Therefore, such self-construction also falls under our article.
However, in judicial practice there are cases that look like arbitrariness, but in fact are, for example, ordinary theft. For example, a certain citizen stole a mobile phone from the breast pocket of another, thereby motivating the victim to pay off an old debt. On the one hand, this is a typical abuse of power under the law with damage to the injured party. On the other hand, putting aside the background that motivates this citizen, this is the most ordinary theft, which is based on personal motives.
Characteristics of the objective side
The objective side of a criminal act that falls under Art. 330 of the Criminal Code of the Russian Federation, should be characterized by three characteristics.
- An act of a socially dangerous nature in the form of active actions.
- Consequences of the action taken.
- The presence of a cause-and-effect relationship between the first and second points.
In this case, the actions of the person found guilty must have the following mandatory characteristics:
- they are committed contrary to the order that was established by law and other legal acts, and arbitrarily, that is, according to his own will;
- the legality of these actions must be challenged by a citizen (individual or legal entity) or organization.
Thus, the offender must ignore the requirements established by the rules of law and regulating the interests of persons, both individuals and legal entities. He commits actions of a criminal nature to satisfy exclusively his own interests, without taking into account the opinions of others.
Also the objective side of the composition under Art. 330 of the Criminal Code of the Russian Federation is characterized by one main feature - the presence of consequences. They are expressed in the form of significant harm that was caused by the committed actions to a person (legal, physical). The degree of harm is of an evaluative nature and is determined taking into account the circumstances of each specific case. It can be physical, property, organizational, etc.
The composition of this criminal act is defined as material, that is, it is recognized as committed from the moment the consequences qualify as dangerous to society.
Subject and subjective side
Having studied Art. 330 of the Criminal Code of the Russian Federation with comments, one can understand the nature of the subject of this crime and its subjective side. The latter is expressed in the form of intentional guilt. The guilty person is fully aware of what he is doing and how dangerous it is. The criminal foresees the likelihood of consequences and causing significant harm and wants to cause them or consciously allows them to occur or is indifferent to this.
The subject of this crime (arbitrariness) is a sane person (individual) who has reached the age of 16 at the time of its commission.
In the second part of Art. 330 of the Criminal Code of the Russian Federation, as a qualifying feature of a crime (arbitrariness), provides for the method of its commission, which can be expressed in violence or the threat of its use in relation to the victim. What should we understand by this?
Use of violence
Criminal law regards violence as actions involving physical pressure on the victim. They can be expressed in beatings, infliction of physical pain, torture, restriction of freedom, binding, as well as harm to health - moderate or mild. As you can see, the issue of qualifying an act is quite complex. If, in particular, grievous harm or death was caused to the victim’s health during arbitrariness, then it will be carried out in combination, namely in conjunction with Articles 111, 105 of the Criminal Code of the Russian Federation, respectively.
Use of threat of violence
Judicial practice under Art. 330 of the Criminal Code of the Russian Federation shows that arbitrariness is often accompanied by threats to the victim about the use of violence. This should be understood as an expression by the perpetrator of the intentions of the possibility of using any physical violence against them, including murder or grievous harm. The threat must be as realistic and believable as possible.
Examples of arbitrariness
There are plenty of examples of self-government in all areas of our lives.
The most important thing is to follow the rule of three “yes”:
- Moral or material damage was caused.
- The material side of the crime was examined.
- The offender acted intentionally.
Extremely interesting under Article 330 was the case of four citizens, let’s call them A., B., V. and G. Late in the evening, citizens A. and B., taking a sawn-off shotgun with them and putting on masks, broke into V.’s apartment. Threatening him with this with a pistol, they forced him to issue valuable bonds in the amount of more than 7,000 rubles, and also to sign a check in the amount of about 15,000 rubles, in order to cash it tomorrow, when V. came to the bank, and the bandits would be waiting for him around the corner.
When V.’s wife, citizen G., returned home, the victim told her about the theft that had just occurred and they went together to write a statement to the police. Later, citizens A. and B. were detained, but during interrogation they admitted that citizen G. herself, the wife of the victim, ordered this theft. At the inquiry, she repented of her act, explaining that she and V. had inherited from her mother bonds for this amount and for which a check had been issued. Citizen V. did not want to share his money and securities with his wife in an amicable way, so she took such an adventure.
In this case, the case of burglary smoothly flowed into Article 330 of arbitrariness in relation to citizen G., since formally, according to the law, the victim’s wife has the full right to use these funds, and attackers A. and B. became not criminals, and accomplices, accordingly, a different punishment was provided for them.
Or another incident that occurred at an enterprise, when the deputy director of an organization arbitrarily wrote out a certain amount for himself from the enterprise’s budget and spent it on his unscheduled vacation for himself and his wife to travel abroad. The amount was small - about thirty thousand rubles, but moral damage was caused to the company's image, not to mention the material side of the matter. This crime was also classified under Article 330 of the Criminal Code of the Russian Federation: Arbitrariness.
Comments on the article
The few criminal law norms with a material composition include arbitrariness (Article 330 of the Criminal Code of the Russian Federation). Judicial practice suggests that a crime will be considered committed only if certain consequences occur - causing significant harm to the victim. It can have a material or moral expression, etc. The degree of materiality is assessed by the court at the time of the commission of the criminal act.
Let's consider an example from judicial practice. A certain citizen was convicted under the first norm under consideration of the Criminal Code of the Russian Federation. Significant harm, according to the court, was expressed in the fact that he provided loans to his employees and himself, violating the established rules and thereby causing damage to the enterprise in the amount of 65,000 rubles, thereby damaging its reputation. When considering the protest in the case, the regional court considered the arguments of the first instance court to be untenable, finding that the specified amount for the limited liability company, which he led, was small, and the reputation was damaged as a result of other circumstances. The case was eventually dropped for lack of evidence of a crime.
Subject under Art. 330 of the Criminal Code of the Russian Federation (as amended in 2011) recognizes a sane person who has reached 16 years of age. That is, it is general. If arbitrariness is committed by an official or employee of private detective services, private security organizations, then their actions must be qualified under other articles, namely Articles 285, 286, 201, 203 of the Criminal Code.
In addition, some actions that fall under the category of “arbitrariness” themselves constitute separate crimes provided for by the Criminal Code of the Russian Federation. For example, violation of privacy, home, refusal to provide information to a citizen, etc.
When qualifying, we should not forget about distinguishing an act punishable under the provisions of the Criminal Code of the Russian Federation from an administrative offense on the following grounds: the absence of significant damage, violence or the threat of its use.
Other examples
Judicial practice contains many cases of arbitrariness. The most striking of them are, of course, exceeding the established self-defense, illegal repayment of debts, unauthorized buildings and their demolition. The last case, by the way, deserves special attention. The whole point is that only the court can make a decision on the demolition of unauthorized construction (this has already been discussed above). However, such decisions are often made by local governments, without coordinating their decision with anyone. Article 330 of the Criminal Code of the Russian Federation in the new edition considers this as real arbitrariness.
Distinction from other compounds
The composition of self-government is quite complex and has its own qualifications. It is important to distinguish it from other criminal acts, most often from extortion and theft. Unlike them, arbitrariness does not have as its goal the seizure of someone else's property. The guilty person demands the transfer or confiscates property that belongs to him or to which he has certain rights. This is the fundamental difference between this composition and extortion and theft. In them, the main goal is someone else's property or the right to it.
