Commentary to Art. 301 of the Criminal Code of the Russian Federation
1. The object of the crime is the normal activities of the court, prosecutor’s office, and investigative bodies, ensuring the inviolability of the person against unjustified attacks. An additional object is the personal freedom of the victim, as well as other interests and benefits of the individual (for example, honor, health, material interests).
2. The objective side consists of obviously illegal detention, detention or detention.
The law establishes separate liability for illegal detention and for taking into custody or detention, providing for them in different parts of Art. 301 based on the social danger of the acts.
Detention as a measure of procedural coercion is applied to a person suspected of committing a crime in order to promptly solve the crime and expose the culprit. It is possible in cases and on the grounds that are exhaustively provided for in the Code of Criminal Procedure of the Russian Federation.
3. Detention carried out in the absence of the grounds specified in the law or in violation of at least one of the restrictive conditions will be illegal. A detention carried out in gross violation of the procedure established by law for applying this measure of criminal procedural coercion (for example, without drawing up a protocol, without indicating in it the time of detention or the time of its preparation) falls under the characteristics of the commented article.
4. Detention is the most severe preventive measure, and its legality is determined both by the general conditions relating to all measures of procedural coercion, and by the rules directly regulating the use of this particular measure.
The use of preventive measures is possible only when there are sufficient grounds to believe that the person against whom the proceedings are being conducted may: hide from the inquiry, investigation or trial; continue to engage in criminal activity; threaten a witness, other participants in criminal proceedings, destroy evidence, or otherwise obstruct the proceedings in a criminal case. If there is no at least one of the above three grounds, then the use of any preventive measure, including detention, is impossible.
As a preventive measure, detention may be used in cases of crimes for which the law provides for punishment in the form of imprisonment for a term of more than two years, and in exceptional cases - in cases of crimes for which punishment is provided in the form of imprisonment and up to two years.
The criminal procedure legislation regulates the procedure for detention. Detention must be lawful and justified. At the same time, its legality should be understood as compliance with the norms of criminal procedural legislation regulating the procedure for applying the specified preventive measure and extending its validity period, and validity - the presence in the criminal case materials of information that confirms the need to use detention as a preventive measure.
Thus, detention is considered illegal if: a) there are no grounds for this specified in the law; b) the rules and procedure for selecting this preventive measure are violated. Specifically, this may be expressed in the detention of a person accused of committing a crime, the punishment for which does not include imprisonment; in the absence of a court ruling, etc.
5. The criminal procedural legislation defines the terms of detention, the violation of which forms an independent type of the crime in question, specified in Part 2 of Art. 301.
6. Unlawful arrest, detention or detention has a formal crime. They should be considered completed from the moment the actions listed in the law are completed.
7. The subjective side of the crime is characterized by direct intent. The law does not contain motives and goals as mandatory features of the crime in question. They can be different: careerism, revenge, self-interest, other motives.
8. The subject of a crime is a justice official who has the right to detain or take into custody. Responsibility for illegal detention can only be borne by employees of the inquiry bodies or investigators, and for illegal detention and detention - by judges.
9. For illegal detention, officials of pre-trial detention centers are liable in accordance with the provisions of Chapter. 30 CC.
10. The law (Part 3 of Article 301 of the Criminal Code) specifies one qualifying feature - the occurrence of grave consequences. This sign is evaluative. When resolving the issue, it is necessary to proceed from the circumstances of a particular criminal case. Serious consequences, for example, may include suicide of the victim or an attempt on his life, mental illness or other harm to health, difficult financial situation of the family, etc.
Comments on Article 301 of the Civil Code of the Russian Federation, judicial practice of application
Article 301 of the Civil Code of the Russian Federation establishes the right of the owner to reclaim his property from someone else’s illegal possession, i.e. the right to bring a vindication claim.
vindication claim is a claim of a non-owner against a non-owner who owns has become widespread .
Thus, the claim of a non-possessing owner against an illegally possessing non-owner for the seizure of a thing (object of ownership) in kind is recognized as vindication.
The subject of the right to vindication (the plaintiff in the claim) is the non-owner (or other title holder). A person who has filed a claim in court to recover his property from someone else’s illegal possession must prove his ownership of the property in the possession of the defendant.
A vindication claim is brought when the plaintiff is simultaneously deprived of the rights to own, use and dispose of a thing, but retains the title of owner.
The subject of the right to vindication can be not only the owner of the thing, but also another title owner, for example, the subject of the right of economic management, operational management, tenant, custodian, etc. (see comments to Article 305 of the Civil Code of the Russian Federation).
The defendant in a vindication claim is the person whose property is actually in illegal (untitled) possession. An unlawful owner is a person who is in possession of a thing against the will of the owner, as opposed to a legal owner who is in possession of a thing according to the will of the owner.
A claim for reclaiming property brought against a person in whose illegal possession this property was, but who does not have it at the time of consideration of the case in court, cannot be satisfied.
What is title ownership? Legal ownership is based on some legal basis called "title"; hence the second name - “ title ownership ”. Other possession is considered illegal or untitled. Untitled possession occurs in relation to a stolen thing, an appropriated find, i.e. most often in relation to property that has been removed from the owner’s possession against his will.
For example, not only the owner who has arbitrarily appropriated property (stolen, appropriated a find, stray cattle, etc.) should be considered illegal, but also the one who acquired an item from a person not authorized to dispose of it. However, it is not necessary that the actions of the illegal owner be culpable. It is sufficient that the possession be objectively illegal.
A defendant who must transfer a thing to the plaintiff under any obligation is not recognized as a non-title owner This applies both to cases where the defendant still remains the owner (for example, in case of failure to fulfill the obligation to transfer the property to the plaintiff), and to cases where the defendant received possession of the thing from the owner (for example, under a lease agreement) and continues to own it after termination of the contract. In these cases, the plaintiff must defend his violated right with obligatory (relative) claims.
Thus, the grounds for a vindication claim are:
- violation of the plaintiff’s rights to own (and therefore use and dispose of) property belonging to him;
- finding the requested item in the actual possession of the defendant;
- lack of title to the thing claimed by the defendant.
A vindication claim is brought against an individually defined or individualized generic thing. If the identity of the thing cannot be established, the vindication claim will not be satisfied.
If property is destroyed , the owner has no right to demand its return. He may sue for damages.
The vindication claim is subject to the general statute of limitations (Article 196 of the Civil Code of the Russian Federation). In accordance with paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, this period begins to run not from the moment when the owner lost the property, but from the moment when the owner learned or should have learned about which specific person is in possession of the sought property.
Russian judicial practice is based on the inadmissibility of competition of claims . A dispute about the return of property arising from contractual relations or relations related to the application of the consequences of the invalidity of a transaction is subject to resolution in accordance with the legislation governing these relations (clause 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 d. “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”).
Claiming documentary securities . By virtue of paragraph 1 of Article 147.1 of the Civil Code of the Russian Federation, the demand for documentary securities from an illegal owner is carried out according to the rules of the Civil Code of the Russian Federation on the recovery of things from someone else’s illegal possession (Articles 301 - 303 of the Civil Code of the Russian Federation) with the features provided for by the said article” (clause 42 of the Resolution of the Plenum of the Supreme Court RF dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”).
Explanations of the Plenum of the Supreme Court of the Russian Federation
In paragraphs 32, 34-36, 42 Resolutions of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights” contain the following explanations :
The defendant in a claim for recovery of property is its actual owner
When applying Article 301 of the Civil Code of the Russian Federation, courts should keep in mind that the owner has the right to reclaim his property from the person who actually has it in illegal possession. A claim for reclaiming property brought against a person in whose illegal possession this property was, but who does not have it at the time of consideration of the case in court, cannot be satisfied.
If during the trial of a claim for the recovery of property from someone else’s illegal possession, the disputed property was transferred by the defendant to another person for temporary possession, the court, according to the rules of paragraph two of part 3 of Article 40 of the Code of Civil Procedure of the Russian Federation or part 2 of Article 46 of the Code of Arbitration Procedure of the Russian Federation, involves such a person as a co-defendant.
In the case when, during the trial of a claim for the recovery of property from someone else’s illegal possession, the disputed property was alienated by the defendant to another person, and also transferred into the possession of this person, the court in accordance with part 1 of Article 41 of the Code of Civil Procedure of the Russian Federation or parts 1, 2 of Article 47 The Arbitration Procedure Code of the Russian Federation allows for the replacement of an improper defendant with a proper one. In this case, the alienator is involved in the case as a third party who does not make independent claims regarding the subject of the dispute, on the side of the defendant (Article 43 of the Civil Procedure Code of the Russian Federation, Article 51 of the Arbitration Procedure Code of the Russian Federation).
Claiming property according to the rules of Articles 301, 302 of the Civil Code of the Russian Federation is possible in the absence of contractual relations
A dispute over the return of property arising from contractual relations or relations related to the application of the consequences of the invalidity of a transaction must be resolved in accordance with the legislation governing these relations.
In cases where there are no contractual relations between persons or relations related to the consequences of the invalidity of the transaction, the dispute over the return of property to the owner is subject to resolution according to the rules of Articles 301, 302 of the Civil Code of the Russian Federation.
If the owner demands the return of his property from the possession of a person who illegally took possession of it, such a claim is subject to consideration according to the rules of Articles 301, 302 of the Civil Code of the Russian Federation, and not according to the rules of Chapter 59 of the Civil Code of the Russian Federation.
Reclamation of property by the owner in case of unlawful alienation
If property was acquired from a person who did not have the right to alienate it, the owner has the right to file a claim to recover the property from the unlawful possession of the acquirer (Articles 301, 302 of the Civil Code of the Russian Federation). When in such a situation a claim is brought to invalidate transactions for the alienation of property, the court, when considering the case, should keep in mind the rules established by Articles 301, 302 of the Civil Code of the Russian Federation.
The plaintiff must prove his ownership of the claimed property
In accordance with Article 301 of the Civil Code of the Russian Federation, a person who has filed a claim in court to recover his property from someone else’s illegal possession must prove his ownership of the property in the possession of the defendant.
The right of ownership of movable property is proven with the help of any evidence provided for by procedural legislation confirming the emergence of this right by the plaintiff.
Proof of ownership of real estate is an extract from the Unified State Register. In the absence of state registration, ownership is proven using any evidence provided for by procedural legislation confirming the emergence of this right by the plaintiff.
The fact that real estate is included in the register of state or municipal property, as well as the fact that the property is on a person’s balance sheet, do not in themselves constitute evidence of ownership or legal possession.
Application of Articles 301, 302 of the Civil Code of the Russian Federation when restoring the right to a share in common property
When considering disputes about the restoration of the right to a share in common shared property, the courts must take into account the following.
If a share in the right of common shared ownership was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and should not have known, the person who lost the share has the right to demand restoration of the right to it, provided that this share was lost by him against his will. When considering such a requirement by analogy with the law, Articles 301 and 302 of the Civil Code of the Russian Federation are subject to application. This requirement is subject to the general limitation period provided for in Article 196 of the Civil Code of the Russian Federation.
Review of the practice of the Supreme Court of the Russian Federation
Reclamation of residential premises in accordance with claims of authorities
“Review of judicial practice in cases related to the reclaiming of residential premises from bona fide purchasers, on claims of state bodies and local governments” (approved by the Presidium of the Supreme Court of the Russian Federation on 10/01/2014)
