Investigative and judicial practice encounters difficulties in qualifying and distinguishing crimes when different elements of crimes are characterized, on the one hand, by a number of common features, and on the other, by individual features that distinguish them.
In the theory of criminal law, such crimes are usually called adjacent. Related crimes related to fraud include the following articles of the Criminal Code of the Russian Federation:
- theft (Article 158);
- misappropriation or embezzlement (Article 160);
- robbery (Article 161);
- causing property damage by deception or abuse of trust (Article 165);
- illegal receipt of a loan (Article 176);
- abuses during the issuance of securities (Article 185);
- production or sale of counterfeit money or securities (Article 186);
- production or sale of counterfeit credit or payment cards and other payment documents (Article 187);
- unlawful actions in bankruptcy (Article 195);
- deliberate bankruptcy (196);
- fictitious bankruptcy (Article 197).
The presence of the listed specific objects, closely adjacent to the specific object of property relations and the norms set out in these articles, necessitates their differentiation from the elements of fraud. It is important to note that such a need arises in cases of confluence of certain typical features of the manifestation of, on the one hand, fraud, and on the other, related crimes.
On the issue of delimiting fraud and civil torts, it is obvious that the mechanism for committing crimes against property using abuse of trust has undergone significant changes in a market economy (the seizure of someone else's property is carried out under the guise of various types of contracts: orders, provision of services, purchase and sale and others). The basis for distinguishing fraud and civil tort is the “magnitude” (degree) of the social danger of this act, the existence of which indicates that it belongs to the category of crimes.
In turn, the degree of public danger is established on the basis of an analysis of the objective characteristics of the act, which indicate, first of all, the presence of intent (or lack thereof in the case of a civil tort) to commit a crime using deception or abuse of trust in case of failure to fulfill obligations arising from civil law. legal contracts. If a person undertakes an obligation, but does not fulfill it (due to any circumstances, without deliberate intent to violate this obligation), the act is qualified as a civil tort. If, in the same case, the person initially does not intend to fulfill these obligations, the act is qualified under Art. 159 of the Criminal Code of the Russian Federation.
What are the differences between related crimes?
Let us differentiate between related crimes. It is necessary to distinguish not every manifestation of fraud from any theft, but fraud, which is the theft of someone else’s property, committed through abuse of trust, from the so-called theft through the use of trust relationships. The distinction between these types of fraud and theft must be carried out while highlighting the objective side of the fraud. It is necessary to distinguish between theft and fraud, in the case when the theft is carried out by the perpetrator using deception, breach of trust, in order to gain access to property, and the seizure itself is carried out secretly. When qualifying an act as fraud, it is necessary that the perpetrator commits the seizure by deception or breach of trust.
The criteria for distinguishing fraud from misappropriation and embezzlement are characterized in the process of considering the subject, the objective side, the subject of fraud and such a qualifying feature as the commission of fraud by a person using his official position. The main difference between these compositions is that in case of embezzlement and embezzlement the property is entrusted to the culprit, but in case of fraud it is not entrusted; the culprit initially, as a rule, does not have access to it.
The question of distinguishing fraud from robbery may arise during the so-called “unauthorized search,” i.e., a search carried out by persons (or a person) who do not have the right to do so, but who introduce themselves to the person being searched as persons authorized to conduct a search and seizure, with for the purpose of seizing and converting the property of the person being searched for one’s own benefit or the benefit of other persons. Moreover, if the person being searched, having believed in the factually fictitious status and powers of the perpetrators (or the perpetrator), being deceived, voluntarily transfers property to them or does not oppose its seizure, then fraud is evident. When, despite the detection of deception by the person being searched, the perpetrators (or the perpetrator) confiscate the property and turn it into their own benefit or the benefit of other persons, i.e. commit open theft, then what they did constitutes robbery.
Distinguishing the offense of rape from related offenses
In this case, actual sexual intercourse is not required.
The subjective side of the crime is direct intent.
The subject of the crime is a person (both male and female) who has reached the age of 16 years. When forced to engage in acts of a sexual nature, there is no physical violence or threat of such violence. Art.
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134 of the Criminal Code of the Russian Federation – sexual intercourse and other actions of a sexual nature with a person under 16 years of age.
Examples of differences between related crimes
Fraud as theft differs from causing property damage by deception or abuse of trust in that the latter does not contain such a sign of the objective side of theft as the seizure and (or) conversion of someone else's property in favor of the perpetrator or other persons. In fraud, there is the seizure of someone else's property, as a constructive sign of theft. And in relation to Article 165 of the Criminal Code of the Russian Federation, there is a failure to contribute properly to the owner’s funds, the so-called “criminal economy”. When qualifying an act under Article 165 of the Criminal Code of the Russian Federation, there may also be not direct, real, material damage, but lost profit, which is interpreted as damage in the Criminal Code of the Russian Federation.
Let us differentiate between Article 159 and Article 176 of the Criminal Code of the Russian Federation (illegal receipt of a loan). The main difference between these crimes is the subjective side. In a situation where, before taking actions to obtain credit funds, the guilty person already knows that he will not repay the loan and receives it in order to take possession of it, Art. 159 of the Criminal Code of the Russian Federation. If the culprit, initially intending to repay the loan during the process, decided not to repay it due to any difficulties, then Art. 176 of the Criminal Code of the Russian Federation. It should be noted that establishing signs of bankruptcy excludes liability under Art. 176 of the Criminal Code of the Russian Federation.
Illegal use of a trademark (Article 180 of the Criminal Code of the Russian Federation) is a crime in the sphere of economic activity, in which there are no signs of seizure. In this case, there is a “shade” of deception and selfish motivation inherent in fraud. The main difference between these compositions is that in Art. 159 has an exemption, but Art. 180 does not.
Article 159 can be applied along with Article 181 (Violation of the rules for the manufacture and use of state hallmarks). In particular, a set of crimes can occur if an entity illegally uses the state hallmark, places it on products made of precious metals and distorts the hallmark towards underestimation. The public danger of fraud, such as theft, is expressed in the difference in value between the declared product and the real cost of the product.
Difference in articles with fraud
Fraud has similar characteristics to the crimes provided for in Art. 186 and art. 187 of the Criminal Code of the Russian Federation. They establish the conditions of liability for the production or sale of counterfeit money or securities and the production or sale of counterfeit credit or payment cards and other payment documents.
The differentiation of the listed crimes from fraud is carried out according to such criteria as the subject of the crime and the direction of intent. What was done is a crime, liability for which is provided for in Art. 186 or Art. 187 of the Criminal Code of the Russian Federation, in cases where, on the one hand, the subject of the crime is a counterfeit bank note of the Central Bank of the Russian Federation, a metal coin, a government or other security in the currency of the Russian Federation, foreign currency, a security in foreign currency, a credit or payment card or other payment document - have a high quality of manufacture and, on the other hand, the intent of the perpetrator covers a high degree of probability of not recognizing the counterfeit of this item by any recipient. If any of the listed items is of low quality counterfeit and the intention of the perpetrator is aimed at its one-time use based on the recipient’s visual defects or other features of the situation, then the exchange of such an item for property constitutes fraud.
Art. 159 of the Criminal Code of the Russian Federation on liability for fraud in the vast majority of cases is applied along with Art. 187 of the Criminal Code of the Russian Federation (Manufacture or sale of counterfeit credit or payment cards and other payment documents), if the culprit received funds from counterfeit credit or payment cards or other payment documents. In this case, the crimes provided for in Art. 186 and Art. 187 have differences in terms of their qualifications. If the culprit produces counterfeit money and, by paying with it, receives some kind of property benefit, then in this case only counterfeiting will take place, although a different situation may occur in relation to the manufacture and sale of counterfeit securities. If the culprit forged a credit or payment card and subsequently received funds from it, then Art. 187 and 159 of the Criminal Code of the Russian Federation.
Let us differentiate between Article 187 of the Criminal Code of the Russian Federation (Production or sale of counterfeit credit or payment cards and other payment documents) with Article 159 of the Criminal Code of the Russian Federation. The difference lies in the subject of the crime, the subject of Art. 187 of the Criminal Code of the Russian Federation are credit cards and other payment documents. Practice shows that Article 187 of the Criminal Code of the Russian Federation is never applied by itself (in the absence of totality). It is applied to the totality of crimes under Art. 158 or 159 of the Criminal Code of the Russian Federation. If the culprit received money through an ATM using a fake card, then along with Art. 187, Article 158 of the Criminal Code of the Russian Federation applies. If the culprit received money through a bank employee, accordingly, misleading him, then the act must be qualified according to the totality of crimes provided for in Articles 187 and 159 of the Criminal Code of the Russian Federation.
Art. 159 also correlates with Art. 187 of the Criminal Code of the Russian Federation in the event that the culprit counterfeits a credit or payment card and sells it under the guise of a real card (which allegedly can be used to receive funds), when in fact the card is a dummy. This situation is possible when criminals sell each other credit or payment cards for the purpose of their subsequent sale.
Fraud also borders on Art. 186 of the Criminal Code of the Russian Federation (Counterfeiting). So, if a guilty person makes a counterfeit of a banknote or security and sells these items, counting on gross deception of a limited circle of people, then in this case fraud will occur. The main difference between these compositions is the subject of the crimes. In order to qualify an act as counterfeiting, the item must have maximum similarity to the original in all details; if the culprit makes a crude counterfeit and expects to deceive a limited circle of people, then Article 159 of the Criminal Code of the Russian Federation must be applied. Article 186 of the Criminal Code of the Russian Federation most often does not establish additional liability for theft. With the exception of the sale of registered securities in a situation where the culprit forged a registered security and then received funds by cashing it out. In this case, the offense will be qualified in conjunction with Article 159 of the Criminal Code of the Russian Federation.
Deliberate bankruptcy (Article 196 of the Criminal Code of the Russian Federation) means the bankruptcy of a debtor through the fault of its founders or other persons, including the fault of the debtor’s manager, who have the right to give obligations for the debtor, or have the opportunity to otherwise determine his actions.
Common signs of bankruptcy are:
- Creation of insolvency.
- Increasing insolvency.
Insolvency is, based on the definition of insolvency (bankruptcy) contained in Art. 2 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”, the debtor’s inability to fully satisfy the demands of creditors due to monetary circumstances and (or) to fulfill the obligation to make mandatory payments. The creation of insolvency is the commission of an action or inaction that led a commercial organization or individual entrepreneur who was previously solvent to insolvency, and the increase in insolvency is the commission of an action or inaction that led a commercial organization or individual entrepreneur that had previously become insolvent to even greater insolvency. This crime is completed from the moment major damage is caused.
In this regard, the question of distinguishing fraud from these crimes arises when this special entity turns someone else’s property into its own favor or for the benefit of other persons through actions that constitute deception, described in the dispositions of Parts 1 and 2 of Art. 195, 196 or 197 of the Criminal Code of the Russian Federation. Such an act contains elements of fraud, which is theft, if someone else’s property is turned for the benefit of the perpetrator or other persons and the intent to turn this property for one’s own benefit or for the benefit of other persons arose before the commission of fraud, consisting of unlawful actions in bankruptcy, deliberate or fictitious bankruptcy .
When qualifying this act, the rule for qualifying crimes in competition between the part and the whole is sometimes applied. Moreover, part is the method, i.e. the actions described in the dispositions of Parts 1 and 2 of Art. 195, 196 or 197 of the Criminal Code of the Russian Federation, and in general - theft by fraud, liability for which is provided for in Art. 159 of the Criminal Code of the Russian Federation.
In all other cases, when fraud, which is theft, contains a crime under Part 1 or 2 of Art. 159 of the Criminal Code of the Russian Federation, and deception is expressed in deliberate or fictitious bankruptcy, the act should be classified according to the totality of crimes: Part 1 or 2 of Art. 159 and art. 196 or 197 of the Criminal Code of the Russian Federation. This is justified by the fact that the crimes of intentional or fictitious bankruptcy do not cover fraud, including that provided for in Parts 1 and 2 of Art. 159 of the Criminal Code of the Russian Federation, and the qualification of the offense is only under Part 2 of Art. 159 of the Criminal Code of the Russian Federation is excluded, since the additional punishment established in the sanctions of this norm in the form of a fine - punishable by a fine of up to three hundred thousand rubles - is less severe than the corresponding punishment provided for in the sanctions of Art. 196 and 197 of the Criminal Code of the Russian Federation - from two hundred thousand to five hundred thousand rubles. An attempt on the act in question is also qualified according to the totality of crimes: Art. 30, 196 or 197, as well as Part 1 or 2 of Art. 159 of the Criminal Code of the Russian Federation.
The social danger of the crime provided for in Article 196 of the Criminal Code of the Russian Federation lies in the fact that the subject deliberately brings the organization to bankruptcy (insolvency) provided there are no signs of theft. When committing fraud, a person, under the guise of a bankruptcy procedure, has a clearly defined goal of seizing other people's funds.
Fraud also borders on the crime of taking a bribe (Article 290 of the Criminal Code of the Russian Federation). If an official receives money as a bribe, but does not intend to fulfill what he promised (for example, due to the fact that he objectively cannot do it), then fraud will occur.
§ 2. delimitation of crimes
§ 2. delimitation of crimes
A necessary condition for the correct classification of a crime is a good knowledge of criminal law and, in particular, a clear understanding of the differences between the individual norms of the Special Part of the Criminal Code.
Indeed, to qualify a committed act, from several articles of the Criminal Code it is necessary, as a rule, to select only one. And from this it follows that you need to be able to accurately draw a line of demarcation between the various elements of crimes provided for by the Criminal Code. The difficulty here is that many elements of crimes are similar to each other and it is not immediately possible to determine by what criminal law norm the committed act should be qualified. If we compare all the crimes provided for in the Criminal Code, then based on the number of similar features between them, three main cases can be distinguished:
a) the compositions do not have a single common feature among themselves (except for the sanity of the subject of the crime). For example, for the offenses of causing death by negligence (Article 109) and theft of a vehicle (Article 166), all the characteristics of the object, objective, subjective side and subject (except for sanity) are different. The differentiation of such elements is not difficult, and it is not required in practical work, because the crime committed cannot be simultaneously attributed to such different criminal law norms;
b) the compositions have several common features. This ratio applies, for example, to the offenses of theft of another’s property (Article 158) and kidnapping (Article 126). The objects of these crimes are different: in the first case it is property, in the second it is personal freedom. The subjects match, including age. The method of action (kidnapping can be secret) and the form of guilt (intention) partially coincide. But then again there are differences: in the subject of the assault and in the subjective side (when a person is kidnapped, a selfish goal is not necessary). And in these cases, the differentiation of crimes is not difficult, since it can be carried out according to several criteria;
c) the compositions have all the common features, except one, which is demarcating. Thus, theft differs from robbery only in the method of action (secret or open theft). The object, subject, subject of the attack, the subjective side of all types of theft of other people's property, as is known, are the same.
It is precisely such cases that cause the greatest difficulties in classifying crimes. Such compounds are easy to mix, especially if the only distinguishing feature is not clearly defined.
An analysis of the current criminal legislation shows that the compositions of the latter variety are found quite often in it: for more than half of the provisions of the Criminal Code one, two or more related compositions can be specified. Approximately 30% of compositions differ from each other by two or three characteristics, and over 15% - by four or more. There are “unique” compounds for which it is difficult to specify related norms (for example, violation of veterinary rules - Article 249 or unlawful access to computer information - Article 272).
Let us now consider the basic methods of distinguishing crimes by individual elements of the crime.
Based on the object of the crime, the differentiation of offenses is primarily associated with determining the place of the corresponding offense in the system of the Special Part of the Criminal Code. As already noted, this system is built mainly on the object of the attack, and when the elements of crimes are located in different chapters, this indicates the difference in their objects.
However, this is not a solution to the issue of delimiting crimes that are provided for in the same section or chapter. You cannot differentiate them by their generic object. In order to judge their direct objects, it is necessary to turn to the subject of the criminal offense, which is mostly named in the disposition of the criminal law norm (for example, “other people's property”, “weapons”, etc.), as well as to the signs of the objective side of the composition - action and harmful consequences. For example, from the text of Art. 285 of the Criminal Code (abuse of official powers), which provides as harmful consequences “a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state,” it is not difficult to conclude that this crime encroaches on the normal activities of government bodies and the interests of state services. This will be the direct object of this crime.
Another difficulty in distinguishing by object of crime is due to the fact that some acts encroach not on one, but on several objects. For example, many transport crimes encroach not only on the safety of traffic and operation of transport (the main object), but also on the life and health of people (an additional object). And there are many similar crimes. In such cases, it is necessary to distinguish these crimes from those where the main object is the life and health of people (crimes against the person). But as soon as the objects coincide, there is a need to use other distinguishing features (for example, signs of the objective side).
The differentiation of crimes on the objective side is less complicated, mainly because the signs, actions (inaction) and harmful consequences are usually described in detail in the article of the Criminal Code. The coincidence of signs of action (inaction) in several compounds is still possible and it is not so rare, but in this case the difference in consequences “helps out”. As an example, we can point to three related crimes: intentional infliction of grievous harm to health (Article 111), intentional infliction of moderate harm to health (Article 112) and intentional infliction of minor harm to health (Article 115). The method of action (inaction) in all three cases can be the same; these compounds are distinguished only by the nature of the consequences, which is reflected in their names.
The differentiation of crimes based on the subject of the crime also does not present great difficulties. There are three dividing lines here: age (criminal liability begins at 14 or 16 years old), signs of a special subject and previous criminal record. Special subjects are typical for many crimes: these are officials, transport workers, entrepreneurs, law enforcement officers, military personnel, etc. The presence of a special subject often helps to correctly determine the object of the crime. For example, if a crime can, according to the Criminal Code, be committed only by a military serviceman, then it must be assumed that it infringes on the interests of military service.
As for the previous conviction, it is mentioned only in those parts of the articles of the Criminal Code where aggravating circumstances are provided. Therefore, this sign does not help to distinguish the main composition from related ones and can only serve as an auxiliary means of distinguishing criminal law norms.
The distinction based on the subjective side of the crime is quite complex. Signs of the subjective side are not always mentioned in the articles of the Special Part of the Criminal Code. In addition, some of them are optional (motive, purpose) and are not present in all specific manifestations of a particular act. It is no coincidence that most errors in the classification of crimes are associated precisely with incorrect definition of the signs of the subjective side.
The main distinguishing feature of the subjective side is the form of guilt (intention or negligence). Using this criterion, it is easy to distinguish many of those crimes that have the same objective signs and the same object, for example, intentional murder and deprivation of life by negligence, intentional and careless grievous bodily harm, etc.
It is clear that on this basis it is impossible to distinguish crimes in the commission of which any form of guilt is acceptable (for example, in many articles about violations of various rules). It should be noted that the new Criminal Code has significantly simplified the qualification of careless crimes, since in accordance with Art. 24 of the Criminal Code, this form of guilt is now directly indicated in the relevant articles. True, this requirement is not implemented in the Code consistently enough.
With the same intentional guilt, many crimes can be distinguished from each other according to the motive and (or) purpose of the offender. So, paragraph “b”, part 2 of Art. 105 provides for premeditated murder in connection with the victim’s performance of official activities or the performance of public duty. A Art. 277 establishes liability for an attack on the life of a statesman or public figure. What is the difference between these articles? First of all, in the object of a criminal attack: in case of murder it is a person’s life, in the second case - the constitutional system, the security of the state and also life. To differentiate, we must turn to the subjective side: in Art. 277 provides not only the intent to take life, but also the special purpose of the crime: the termination of state or other political activities of the victim - or a special motive: revenge for the said activity. If, other things being equal, this purpose or motive is established, Art. 277, not Art. 105 U K.
The differentiation of crimes does not necessarily have to be done in the sequence that we followed in the text. It can begin with any element of the composition, depending on such practical considerations as the availability of certain evidence in the case, the ease of establishing this particular characteristic in the first place, etc. It is important to emphasize the main thing: not a single element of the composition, not a single characteristic, can be forgotten , otherwise the distinction will be incomplete and therefore erroneous.
During the investigation and judicial consideration of a criminal case, the differentiation of crimes is not carried out in isolation from the establishment of the factual circumstances of the case. Both are combined in time, alternate and mutually influence each other. The differentiation of elements is not an end in itself, but a necessary stage in the qualification of a crime and the application of criminal law to the criminal.
