ST 238 of the Criminal Code of the Russian Federation.
1. Production, storage or transportation for marketing purposes or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers, as well as unlawful issuance or use of an official document certifying the compliance of these goods, works or services with safety requirements - shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to three hundred and sixty hours, or by restriction of freedom for a term of up to two years, or by forced labor for a term of up to two years, or imprisonment for the same term.
2. The same acts, if they: a) were committed by a group of persons by prior conspiracy or by an organized group; b) committed in relation to goods, works or services intended for children under six years of age; c) caused by negligence the infliction of serious harm to health or the death of a person - shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, or imprisonment for a term of up to six years with a fine in the amount of up to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to three years, or without it.
3. Acts provided for in parts one or two of this article, resulting through negligence in the death of two or more persons, are punishable by forced labor for a term of up to five years or imprisonment for a term of up to ten years.
Commentary to Art. 238 of the Criminal Code
1. The safety of the items listed in the disposition means that the consumer does not have a risk to life and health when using them; the absence of circumstances that could make the work and services hazardous to property, the environment, etc. A necessary condition for most goods, services, and products is certification and labeling in the manner prescribed by law, in order to avoid causing negative consequences associated with the use of low-quality goods, services, and products.
2. The objective side of the crime is characterized by the commission of one of the alternative actions specified in the law.
3. A mandatory feature of the production, storage or transportation of the items specified in the article is the presence of a sales purpose.
4. The subject of the crime, both general and special (persons whose duties include issuing documents confirming the quality and safety of goods, products, services, etc.).
Another comment on Art. 238 of the Criminal Code of the Russian Federation
1. The subject of the crime is: a) goods (for example, food products, industrial products), products (for example, electricity, gas), works (for example, construction, installation work) and services (for example, medical, transport services) that do not comply consumer life or health safety requirements; b) official documents certifying the compliance of goods, works or services with safety requirements (for example, declaration of conformity, certificate of conformity, mark of conformity).
2. The objective side of the crime is characterized by the commission of one of the actions specified in the law. The content of a number of them generally coincides with similar features of the compositions of Art. Art. 228 and 228.1 of the Criminal Code of the Russian Federation.
Unlawful issuance of an official document certifying the compliance of goods, works or services with safety requirements means its provision to the manufacturer of goods, works and services without certification or the provision of a false official document to these persons. The unlawful use of the specified document consists of providing it to consumers (for example, by hanging it in the office).
3. A mandatory subjective feature of the production, storage and transportation of goods and products is the purpose of their subsequent sale.
4. The subject of the unlawful issuance of an official document certifying the compliance of goods, works and services with safety requirements is an employee of the body that carries out the certification of these goods, works or services.
Second commentary to Art. 238 of the Criminal Code of the Russian Federation
1. The direct object of the crime is public health in terms of the safe use of goods and services that meet the requirements for the safety of life and health of consumers.
2. The commented article 238 of the Criminal Code of the Russian Federation establishes liability for two crimes that differ in the subject and objective side of the crime: illegal actions in the field of circulation of goods, performance of work and provision of services, as well as illegal actions in the field of certification of goods, work and services.
3. The subject of illegal circulation of goods, performance of work or provision of services are goods and products, as well as work and services that do not meet the requirements for the safety of life or health of consumers (see Article 7 of the Law of the Russian Federation “On the Protection of Consumer Rights” of February 7, 1992 .)
Food products and industrial products, including their components, the use of which under normal conditions endangers the life or health of the consumer, should be recognized as goods that do not meet safety requirements.
Products that do not meet safety requirements are water in the central water supply system, fuel and other types of energy, as well as material assets that are not goods intended for the consumer, posing a danger to the life or health of the consumer.
Work that does not meet safety requirements means construction, installation and other work performed at the consumer’s request, in the process or as a result of which the life or health of the consumer is endangered.
Services that do not meet safety requirements should be understood as the provision of medical, cultural, transport and other services, the use of which poses a danger to the life or health of the consumer.
4. The objective side of a crime involving goods and products that do not meet life or health safety requirements lies in their production, storage, transportation or sale. The content of these actions is disclosed in the comments to Articles 228 and 228.1 of the Criminal Code.
5. Illegal trafficking of goods and products that do not meet safety requirements for the life or health of consumers is recognized as a completed crime from the moment of committing any of the actions specified in the disposition.
6. The subjective side is characterized by direct intent. In the production, storage or transportation of these goods and products, a mandatory feature of the subjective side of the crime is a special purpose - the purpose of selling these goods or products.
7. The subject of illegal actions to document the safe properties of goods, products, works or services is an official document certifying the compliance of these goods, products, works or services with safety requirements.
8. In accordance with paragraph 4 of Art. 7 of the Law of the Russian Federation “On the Protection of Consumer Rights” - all goods (work, services) for which laws or standards establish requirements that ensure the safety of life, consumer health and environmental protection and the prevention of harm to consumer property, as well as means ensuring the safety of life and consumer health are subject to mandatory certification in the prescribed manner. Art. 6 of the Law of the Russian Federation “On Certification of Products and Services” dated June 10, 1993 (as amended by the Federal Law dated December 27, 1995) establishes that a certificate or mark of conformity is issued for goods (work and services) subject to mandatory certification.
9. A certificate of conformity is a document issued according to the rules of the certification system to confirm compliance of certified products with established requirements.
10. A mark of conformity is a mark registered in the manner established by the State Standard of the Russian Federation, which, according to the rules established in this certification system, confirms the compliance of the products marked with it with the established requirements.
11. The objective side of the crime, which has as its subject an official document certifying the compliance of the specified goods, works or services with safety requirements, is characterized by the unlawful issuance or unlawful use of such a document.
12. Illegal issuance of a certificate of conformity means its provision to the manufacturer of goods, work or services either without certification or contrary to its results, which actually revealed non-compliance of goods, products, works or services with safety requirements.
13. Illegal use of a certificate of conformity means that the manufacturer of goods or products or the producer of works (services) without legal grounds presents a certificate of conformity obtained illegally (hangs it up in the office, presents it to business partners, etc.).
14. The subjective side of the unlawful issuance and misuse of an official document certifying the compliance of the offered goods, products, works or services with safety requirements is characterized by direct intent.
15. The subject of production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers, as well as the subject of unlawful use of an official document certifying the compliance of goods, works or services with safety requirements, can be any a person upon reaching the age of 16 years, acting as the owner or manager of a commercial organization (regardless of the form of ownership and legal form), an individual entrepreneur and even a person not registered as an individual entrepreneur (but such a person cannot be the subject of the misuse of official document certifying the compliance of goods, works or services with safety requirements).
16. The subject of the unlawful issuance of an official document certifying the compliance of the proposed goods, works or services with safety requirements can only be an employee of the body that carries out the certification of these goods, works or services.
17. If the actions of an official who unlawfully issued an official document confirming the compliance of goods, products, works or services with safety requirements resulted in a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, then such require additional qualification under Art. 285 of the Criminal Code of Russia.
18. Qualified types of the crime in question (Part 2) are associated with its commission:
— a group of persons by prior conspiracy or an organized group (clause “a”, part 2);
- in relation to goods, works or services intended for children under six years of age (clause “c”);
- with the infliction of serious harm to health or death of one person through negligence (clause “d”).
19. A particularly qualified type of this crime (Part 3) is characterized by causing consequences through negligence in the form of the death of two or more persons.
Commentary on Article 238 of the Criminal Code of the Russian Federation
1. A consumer is a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services) exclusively for personal (household) needs not related to making a profit.
The safety of a product (work, service) is a property under normal conditions of their use, storage, transportation, disposal or other use (consumption), as well as the safety of the process of manufacturing a product, performing work, or providing a service.
2. On the production, storage, transportation and sale of goods and products, see the commentary to Art. 171.1 CC.
Work that does not meet safety requirements is construction, installation, restoration and other work carried out at the request of the consumer, in the process or as a result of which the life or health of the consumer is put at real risk; services that do not meet safety requirements are medical, sanitary-epidemiological, household, transport and other services, the use of which creates a real danger to the life or health of the consumer.
3. For goods (work and services) subject to mandatory certification, a certificate or mark of conformity is issued (Article 2 of the Federal Law of December 27, 2002 N 184-FZ “On Technical Regulation” <1>).
——————————— <1> NW RF. 2002. N 52 (part I). Art. 5140.
Certificate of conformity is a document certifying the compliance of an object with the requirements of technical regulations, provisions of standards, codes of practice or terms of contracts; mark of conformity is a designation used to inform purchasers about the compliance of the certification object with the requirements of a voluntary certification system or a national standard.
4. Illegal issuance of a certificate of conformity means its illegal provision to a manufacturer of goods, work or services without certification or contrary to its negative results; its misuse is characterized by the offender using a certificate obtained illegally.
5. The crime is considered completed from the moment of completion of any of the acts specified in the law.
6. The subjective side of the crime is characterized only by direct intent.
7. The subject of the crime is a person who is the owner or manager of a commercial organization, an individual entrepreneur and has reached the age of 16 years; for the unlawful issuance of an official document certifying the compliance of the specified goods, works or services with safety requirements, the employee of the body carrying out the certification of these goods, works or services is responsible.
8. Qualified and especially qualified types of the crime in question are indicated respectively in parts 2 and 3 of the commented article.
