Art. 165 of the Criminal Code of the Russian Federation with comments, judicial practice

1. Causing property damage to the owner or other possessor of property by deception or abuse of trust in the absence of signs of theft, committed on a large scale, -

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 forced labor for a term of up to two years with or without restriction of freedom for a term of up to one year, or by imprisonment for a term of up to two years. years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months or without it and with restriction of freedom for a period of up to one year or without it.

2. The act provided for in part one of this article:

a) committed by a group of persons by prior conspiracy or by an organized group;

b) causing particularly large damage, -

shall be punishable by forced labor for a term of up to five years, with or without restriction of liberty for a term of up to two years, or by imprisonment for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months, or without it and with or without restriction of freedom for a term of up to two years.

Article 164. Theft of items of special value
Article 166. Wrongful seizure of a car or other vehicle without the purpose of theft

The essence of the problem

Every citizen has the legal right to dispose of his property at his own discretion. This fully applies to both any owner and the direct owner. But sometimes the actions of other persons, committed through abuse of trust or direct deception, cause property damage to a citizen. Issues related to such situations are considered by Art. 165 of the Criminal Code of the Russian Federation. Moreover, such actions are characterized by two circumstances:

Absence of any obvious signs of theft. That is, we are not talking about theft here. The offender did not steal the property. He disposed of it in his own interests, while depriving the owner of his legal right.
The damage was committed on a large scale. As a result of unlawful actions of third parties, the owner did not receive a certain part of the possible income from his property. Here we can rather talk about lost profits.

This is exactly how this crime is described in Part 1 of Art. 165 of the Criminal Code of the Russian Federation. An example of such a violation could be:

unauthorized access to the Internet by using someone else's login or password;
unauthorized check-in of guests by a hotel employee without appropriate registration;
evasion of mandatory payment for electricity and others.

Part 2 of this article deals with the same violation, but under more serious circumstances:

a) the actions were committed by an organized group or several persons by prior conspiracy;

b) the damage caused is assessed as particularly large.

Offenses committed in this way will be subject to legal punishment.

Types of crimes

From the wording of the article it is clear that it will be valid if the Supreme Court determines that there has been a loss of benefit, and not of the values themselves. That is, it is important to establish the absence of fraudulent actions so that the attacker is not considered a fraudster, otherwise liability will come under a different article.

Examples when the article has a legal basis are the following offenses:

Concluding a deal supposedly free of charge.
Connecting to the Internet by using someone else's data.
Consumption of unaccounted electricity.
Use of trusted equipment for personal purposes.
Misappropriation of money due to the use of trust.
Evasion of mandatory payments.
Credit relations.
Relations between guardians and wards with health problems and early childhood.

The most striking example is the lending sector: a person who intends to deceive the bank provides false information or gives the bank grounds to incorrectly judge his financial situation. For example: a citizen requests a new loan, assuring the bank that he is able to pay a certain amount per month. But as a result of the breakdown of agreements, debt arises, which brings the bank the loss of its property, namely the money issued as a loan, as well as lost additional benefits expressed in the payment of interest. Thus, the bank is damaged under Article 165, but this damage will be taken into account if the damage caused has an estimated amount within the large or especially large amount.

An example would be the theft of electricity by breaking a seal or otherwise connecting to a power source without notifying the owner. In this case, the consumer of the product, not intending to pay for the resource consumed, deceives the owner, resulting in a consequence in the form of lost benefits.

Debt collection

Vivid examples of the situation discussed in Art. 165 of the Criminal Code of the Russian Federation, there are cases related to the collection of overdue debts. Banks, when issuing consumer loans, often face a problem when citizens, for one reason or another, refuse to make required payments on time. That is, they, abusing the trust of management, cause property damage to the organization in the form of an unpaid amount. In this case, the management of the financial company has two options:

Take the debtor to court.
Collect debt using collection firms.

Oddly enough, many choose the second option. In this case, specialists take on the work and, through reminders and threats, try to force the debtor to fulfill their previously assumed obligations. In fact, their actions are quite fair. True, if they occur within the framework of the law. Sometimes collectors in their “messages” mention various articles of the Criminal Code of the Russian Federation (159, 165). But the last of them is hardly applicable here. Do not forget that it deals exclusively with large amounts of damage. And it, in accordance with paragraph 4 of part 4 of Article 158 of the Criminal Code of the Russian Federation, must exceed two hundred thousand rubles. If the amount of a citizen’s debt does not reach the specified amount, then this article is not applicable to him.

Corpus delicti

Art. will help to fully clarify all the circumstances related to the problem of property damage. 165 of the Criminal Code of the Russian Federation. It will be much easier to do this with comments. They clearly describe the subjective and objective signs that characterize this act as a crime:

The subject of such an offense may be persons who have reached the age of sixteen. Employees of companies who commit such offenses using their official position are not included here. They will be held accountable to the law under a completely different article.
The subjective side is determined by guilt in the form of a selfish goal or direct intent. The perpetrators are well aware that, in essence, they are using someone else’s property. And such actions are considered socially dangerous.
The object here will be relations that relate to property.
The objective side will be the extraction of material benefits through deliberate deception or gross abuse of trust.
Any property acts as an object. Moreover, its owner can be not only a private person, but also an organization (including a state-owned one) or a commercial enterprise.

If all the above signs are present, then we can conclude that this is indeed a selfish crime against property.

Commentary to Art. 165 of the Criminal Code of the Russian Federation

The object of this crime is similar to the main object of extortion; this crime can also be classified as an attack on property as a whole - the amount of property rights and interests of participants in civil transactions protected by law.

The law identifies the owner or other owner of the property as the victim. From this we can conclude that the subject of the crime is property in the sense of a thing. Actually this is not true. There is no subject to this crime; any person who has suffered damage can be recognized as a victim, even if he does not act as the owner or owner of the property, but as a participant in an obligatory relationship, a producer of work or a performer of services.

The objective side of a crime is expressed in the action, consequence, causal connection between them and alternative methods of committing a crime (deception or breach of trust).

This crime is similar in method to fraud, embezzlement and embezzlement and differs from them in the absence of individual elements of these crimes. For example, Art. 165 of the Criminal Code of the Russian Federation is applied in the absence of the subject of theft, as well as in a situation where the damage is caused not in the form of loss of property, but in the form of lost income (lost profits).

The signs of an act are not specified in the law; it can be any action or inaction that causes property damage.

Property damage can be expressed in any losses, including lost profits (lost income).

Methods of committing a crime: deception or breach of trust. Unlike fraud, both methods have independent meaning.

Deception is understood in the same way as in fraud. Unlike fraud, the damage is not associated with the loss of property and its transfer to the criminal. Yes, Art. 165 of the Criminal Code of the Russian Federation applies to evasion by fraud from payment for electricity, other utilities, telephone services, transport and any other work and services. For example, if a person uses the services of a beauty salon and then disappears without paying, all the signs of this crime are present (unless the act is considered minor). In practice, deception in committing this crime is understood very broadly. If a person, for example, makes technical changes to the telephone network that allow him to conduct unpaid long-distance or international telephone conversations, the act is qualified precisely under Art. 165 of the Criminal Code of the Russian Federation. It does not matter whether the damage is caused directly to the communications organization or whether the calls are made at the expense of one of its clients.

“Infliction of property damage through deception or abuse of trust in the absence of signs of theft should be distinguished from fraud (Article 165 of the Criminal Code of the Russian Federation). In the latter case, there are no, in their entirety or separately, such obligatory signs of fraud as illegal, gratuitous final confiscation and (or) conversion of someone else’s property for the benefit of the perpetrator or for the benefit of other persons, committed for mercenary purposes. When deciding whether a person’s actions contain corpus delicti, liability for which is provided for in Article 165 of the Criminal Code of the Russian Federation, the court must establish whether the owner or other owner of the property suffered real material damage or damage in the form of lost profits, that is, lost income that this person would have received under normal conditions of civil circulation if his right had not been violated by deception or abuse of trust" (clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 No. 51 "On judicial practice in cases of fraud, misappropriation and waste").

Does not constitute a crime under Art. 165 of the Criminal Code of the Russian Federation, evasion of taxes, fees and customs duties in the absence of a large amount required for tax crimes. The rules on tax crimes are special in relation to the article in question of the Criminal Code of the Russian Federation. Having defined the line of criminality in these norms by indicating a large scale of evasion, the legislator thereby decriminalized tax evasion that does not reach a large scale.

The theft of tickets and other signs committed by a person for the purpose of using it as a means of payment for transport services must be qualified under Art. Art. 325, 30 and 165 of the Criminal Code of the Russian Federation as theft of forms and preparation to cause property damage by deception, and in cases of their actual use - for a set of crimes provided for in Art. 325 and 165 of the Criminal Code of the Russian Federation (clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 23, 1980 No. 6 “On the practice of application by the courts of the Russian Federation of legislation when considering cases of theft in transport”).

Breach of trust as a method of committing this crime is closer to a method of embezzlement and embezzlement than to a method of fraud. Not every breach of trust can be understood as a method necessary for the existence of a crime under Art. 165 of the Criminal Code of the Russian Federation. In particular, trust within the framework of credit relations is not enough to qualify the offense under this article. Failure to repay a debt, even intentionally, is not a crime; it is a matter of dispute in civil proceedings. There may be good reasons for not repaying a debt. It is not the failure to fulfill a civil obligation as such that is criminal, but the theft of other people’s money, committed by deception in the intention of fulfilling the obligation, but this crime is not qualified under Art. 165, and according to Art. 159 of the Criminal Code of the Russian Federation.

The breach of trust characteristic of the crime in question is only possible within the framework of a fiduciary relationship. These are relationships based on trust (civil or labor), by virtue of which a person acquires powers over someone else’s property and is obliged to act in good faith (bona fide) in the interests of others. Breach of trust in relation to Art. 165 of the Criminal Code of the Russian Federation, therefore, should be understood as abuse of powers over someone else’s property or actual capabilities arising from these powers.

Causing property damage through abuse of trust is qualified under Art. 165 of the Criminal Code of the Russian Federation in the absence of signs of misappropriation and embezzlement (Article 160 of the Criminal Code of the Russian Federation), abuse of authority (Article 201 of the Criminal Code of the Russian Federation) and abuse of official powers (Article 285 of the Criminal Code of the Russian Federation). This rule is subject to application, for example, in the case of abuse of the powers and capabilities of an attorney (for example, a bribed representative in an arbitration process abandoned the claim), a guardian (for example, a guardian allowed his relative to rent out the property of the ward and appropriate the income from this), as well as employees who are trusted, but do not fall into the category of officials and managers in commercial organizations (for example, a train conductor or bus driver transports stowaways, pocketing fares).

The corpus delicti is material. The crime will be completed from the moment the consequences in the form of property damage occur.

The subjective side of a crime is characterized by guilt only in the form of direct intent, when the perpetrator is aware of the social danger of his act, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence. The issue of selfish purpose is resolved ambiguously. The law does not specify selfish purpose as an element of a crime. Before the revolution of 1917, the legislator proceeded from the fact that a selfish goal is not a mandatory sign of abuse of trust. For example, a criminal may pursue the goal of causing harm to a ward. In modern legal literature, this crime is usually classified as a selfish crime against property. In practice there are also no cases of application of Art. 165 of the Criminal Code of the Russian Federation in the absence of a selfish goal.

The general subject of the crime is a sane person who has reached the age of sixteen.

Qualifying criteria: group of persons by prior conspiracy, large size (Part 2 of Article 165 of the Criminal Code of the Russian Federation); organized group, especially large damage (Part 3 of Article 165 of the Criminal Code of the Russian Federation).

A group of persons by prior conspiracy and an organized group are understood in the same way as in the case of theft. Large and especially large amounts of damage are calculated according to the same rules as for theft, taking into account the fact that it is not the cost of the stolen property that is taken into account, but losses in full.

Evolution of the rule of law

In the old version, Article 165 of the Criminal Code of Russia did not provide for a large amount of property damage caused. Moreover, the cases related to it were not theft. But, taking into account the real state of affairs in the country and the practice of offenses, it was decided to tighten this indicator. In Art. 165 of the new edition of the Criminal Code of the Russian Federation stipulates that the commission of this crime must be on a large scale.

Now it includes only those crimes, the damage from which amounted to over 250 thousand rubles. They are similar in nature to fraud. The only difference is that in the crime in question there is no direct seizure of someone else’s property. It still remains with the owner, but does not bring him the expected income. In essence, the culprit makes illegal profit for himself at the expense of someone else’s property, which has not yet reached the direct owner. Proving this can sometimes be difficult. Therefore, such a crime is recognized as committed only when the fact of direct damage is recorded.

Fair punishment

For such a crime against property, the perpetrators must be punished.

Sentence under Art. 165 of the Criminal Code of the Russian Federation provides:

1. For part 1:

a fine of up to three hundred thousand rubles or in the amount of the citizen’s total income for a period of up to 2 years;
forced labor for the same period with possible restriction of freedom for up to 1 year or without it;
imprisonment for up to two years and a fine of up to 80 thousand rubles or in the amount of total income for a period of up to six months (or without it) with restriction of freedom for up to 1 year (or without it).

2. For part 2:

forced labor for up to 5 years with possible restriction of freedom for up to two years;
imprisonment for up to five years with a fine of up to 80 thousand rubles or in the amount of the citizen’s total income for a period of up to 6 months (or without it), as well as with restriction of freedom for up to 2 years (or without it).

The amount of punishment is determined by the court depending on the severity of the offender’s guilt. In this case, the fact of direct intent and the offender’s full awareness of his illegal acts must be taken into account.

A comment

The comments to this legislative act state that any citizen who has reached the age of 16 and who:

previously immigrated;
is a national of another country;
is a citizen of the country.

If a crime was committed on the territory of Russia or against a Russian citizen or organization, then he will be prosecuted under this article.

According to the statute of limitations, the law can be used in a delayed case if the crime has not been solved earlier.

Depending on the severity characteristics, the offender may be subject to criminal liability if the corresponding decision on the person’s guilt is made by the Plenum within no more than 6 years from the date of the crime.

Special cases

Recently, there have often been situations where citizens have to answer before the law for their actions under Art. 165 of the Criminal Code of the Russian Federation. Judicial practice knows many different examples of such actions:

exploitation of other people's things without the consent of the owner;
abuse of guardians when carrying out transactions in the interests of their ward;
failure to make mandatory payments (utilities or other services);
transportation by responsible persons of passengers or luggage without payment.

However, in each of these cases the main features of the crime must be clearly present. If desired, a good lawyer can always find a loophole and reclassify it to a less serious crime, the punishment for which will be lighter.

In addition, in recent years, conflict situations have very often arisen between consumers and sellers of services. As a rule, they are resolved in civil court. Here, written evidence plays an important role and must be collected by both parties. Quite a wide judicial practice has also developed in relation to apartment scams. Employers, trusting the owners, were sometimes negligent in documenting the transaction. As a result, they found themselves victims of deception. Moreover, it was sometimes impossible to prove the opposite.

Arbitrage practice

In practice, there are enough cases in which guilt has been established.

Citizen Starikova acted as a buyer and purchased an apartment from her friend Tarasov. When writing the text of the purchase and sale agreement, citizen Starikova and Tarasov indicated that the apartment was transferred into the ownership of the buyer free of charge, although in fact the funds were transferred to the seller in full. In this regard, there was a violation of the rights to the property of Starikova’s husband, since he was the owner of half the amount for housing.

The court saw a conspiracy between the buyer and the seller, and also found a violation of the law, expressed in the loss of rights to the property of Starikova’s husband, and came to the conclusion that the punishment should be determined under Article 165 part 2 and imposed the penalty:

In the form of 2 years of correctional labor for both perpetrators.
He imposed a fine of 80 thousand rubles. for each of them.

The injured husband of the convicted person retains the right to recognize the right to the actual purchased value, and the seller’s relatives retain the right to challenge the transaction.