Anything can happen in life, and even a person who did not want to steal anything may be suspected of theft and even be prosecuted.
When visiting self-service stores and putting goods in special baskets, people can sometimes mechanically put the goods into the bag, or identify products that no longer fit in the basket. At the checkout, having forgotten to pay for such goods, the security guards swoop in and threaten to call the police, who will put the “thief” behind bars. Sometimes it doesn’t even help that a person is ready to pay for a forgotten item immediately on the spot.
Where is the truth in this situation? Is the buyer liable if he actually forgot the goods and had no intent to steal them?
This question is very controversial and ambiguous. Let's see what the law says on this matter.
Fast growing article
According to the sixth, most “heavy” part of Article 171.1, the seller of counterfeit cognac faces up to six years in prison. According to statistics from the Judicial Department of the Supreme Court, a maximum sentence is usually not assigned, but up to three years in prison for the production and sale of counterfeit alcohol can be quite possible.
Moreover, the number of people convicted under Article 171.1 has been growing rapidly in recent years: if in 2014 only 31 people were sentenced under it, in 2015 - already 69 people, and in 2016 in the first half of the year alone - 94 people. The most common punishment is a fine or suspended imprisonment, but there are also those who were given real sentences by the court, from several months to three years. In the first half of 2016, 14 people went to jail for selling excisable counterfeit goods, in 2015 - four people. The courts did not issue acquittals under Article 171.1.
The article on the illegal storage, acquisition and sale of unmarked or counterfeit goods has been repeatedly updated, rewritten and tightened. In 2010, there were only two parts, now there are six: the first two deal with responsibility for the storage and sale of non-food products without excise taxes, the third and fourth - food products, the fifth and sixth - alcohol and tobacco.
Despite the fact that not only the sale, but also the transportation and storage of non-excise or counterfeit goods is punishable, a simple buyer of “scorched” vodka does not face liability under Article 171.1: it occurs only when storing or selling products on a large scale. True, the “large size” for alcohol and tobacco products was significantly reduced in 2016 - to 100 thousand rubles.
Forgot to pay for the goods, they forced me to pay triple the amount
Good afternoon
In accordance with Article 23.1 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the consequences of violation by the seller of the deadline for transferring prepaid goods to the consumer
1. The purchase and sale agreement, which provides for the consumer’s obligation to pre-pay for the goods, must contain a condition on the period of transfer of the goods to the consumer.
2. If the seller, who received the amount of advance payment in the amount specified in the purchase and sale agreement, did not fulfill the obligation to transfer the goods to the consumer within the period established by such agreement, the consumer, at his choice, has the right to demand:
transfer of the paid goods within the new period established by him;
refund of the amount of advance payment for goods not transferred by the seller.
In this case, the consumer also has the right to demand full compensation for losses caused to him as a result of violation of the deadline for the transfer of prepaid goods established in the sales contract.
3. In case of violation of the deadline established by the purchase and sale agreement for the transfer of prepaid goods to the consumer, the seller shall pay him a penalty (penalty) for each day of delay in the amount of half a percent of the amount of prepayment for the goods.
The penalty (penalty) is collected from the day when, according to the purchase and sale agreement, the transfer of the goods to the consumer should have been carried out, until the day the goods are transferred to the consumer, or until the day the consumer’s demand for the return of the amount previously paid by him is satisfied.
The amount of the penalty (penalty) collected by the consumer cannot exceed the amount of advance payment for the goods.
4. The consumer’s demands for the return of the amount paid for the goods and for full compensation for losses are subject to satisfaction by the seller within ten days from the date of presentation of the corresponding demand.
5. The consumer’s requirements established by paragraph 2 of this article cannot be satisfied if the seller proves that the violation of the deadlines for transferring the prepaid goods to the consumer occurred due to force majeure or the fault of the consumer.
Submit a written complaint to the seller in which you demand one of the above requirements and a penalty for late delivery of the goods. In case of refusal, you should contact Rospotrebnadzor with a complaint. If you need help filing a claim, I can provide it. I would be grateful for your response [email protected]
Garage economy
Such changes in legislation have made it possible to hold even very small vodka producers accountable. For example, a 50-year-old resident of Pskov who bottled homemade vodka (diluted alcohol with flavor) in his garage. According to former customers who turned into witnesses in a criminal case, it has been possible to get hold of a bottle of counterfeit vodka in this garage since 2011. During the search, the Pskov resident found 583 bottles (he did not buy containers, but collected used ones from friends and trash heaps) and another 18 liters of unbottled “vodka.” In November 2016, the case was brought to court.
An entrepreneur of approximately the same level was detained in a garage bottling shop in the city of Kovrov, Vladimir Region: they found 800 bottles of various alcohol with labels of “elite” types of cognac, whiskey and vodka and 45 five-liter cans of alcohol. According to investigators, the organizer of the underground production sold alcohol at low prices to several grocery stores in the city. The total amount seized in the garage was estimated at was 175 thousand rubles; the suspect was charged with Part 5 of Article 171, under which he faces up to three years in prison. His fellow countryman, a 55-year-old resident of the city of Kirzhach, who was found with about a thousand bottles of “elite” alcohol, which he bottled himself, pasting on fake labels and excise stamps, could receive the same sentence.
However, along with single traders, organizers of larger-scale surrogate production are also accused under Article 171.1. A resident of the city of Michurinsk in the Tambov region, having hired migrants from Uzbekistan, bottled counterfeit vodka “Khortitsa” and “Talka”. In the underground workshop, police seized more than 10 thousand bottles of vodka, 1,620 liters of ethyl alcohol and counterfeit tax stamps. In total, eight criminal cases were opened in the Tambov region in 2016 under Article 171.1.
At the beginning of December this year, 25 thousand liters of illegal vodka, which was transported under the guise of sunflower oil, were removed from a train in Khabarovsk. In the Tula region, at the end of November, the police immediately closed two underground alcohol shops where twenty people worked; 68 thousand liters of alcohol and tens of thousands of bottles of wine, vodka and rum were seized. In Ust-Kut, Irkutsk region, 25 containers with counterfeit vodka, cognac and liqueurs were found in a warehouse - about 300 tons of alcohol in total. On a farm in Adygea there was a small underground workshop with a bottling line for alcoholic beverages with four workplaces.
Business - tobacco
Another type of product that is punishable for selling without labeling in Russia is cigarettes and other tobacco products. One of the latest such cases is an investigation in Kabardino-Balkaria, where more than a million packs of cigarettes without excise stamps were found in one of the warehouses in Nalchik.
This summer, in the capital's Zyuzino district, police discovered a warehouse of cigarettes without excise stamps. The entrepreneur, whom the Ministry of Internal Affairs reports call a “native of the Middle East,” first bought 11 tons of cigarettes, sold them and purchased another 27 tons, after which he was detained.
Selfish interest
Since October 1, 2016, sellers of natural fur coats will face criminal liability for the sale of unmarked goods. Electronic chips for fur coats were introduced in the summer, but Rospotrebnadzor and the Tax Service gave entrepreneurs these few months to have time to attach a plastic beacon label to each fur coat: green for those made in Russia, red for those imported from abroad. Using a QR code, any buyer can find out what kind of fur a fur coat is actually made from and where it was imported from.
There have been no reports of criminal cases against sellers or manufacturers of fur coats yet, but Rospotrebnadzor has been reporting seizures of fur products since mid-October. Department employees carried out raids on large shopping malls, Novocherkizovsky, Konkovo, and seized approximately 300 fur coats with a total value of 7 million rubles. In Murmansk, Rospotrebnadzor paralyzed the work of three stores, seizing fur products worth 24 million rubles. In Kaliningrad, 27 not the most expensive fur coats were under arrest: for a total amount of less than 700 thousand rubles.
Market analysts write that entrepreneurs are rapidly getting rid of “gray” (that is, imported or produced illegally) fur coats. The Russian Union of Entrepreneurs of Textile and Light Industry estimated that in the first three months of the labeling law, fur coats worth 10 billion rubles were sold - the same as in the entire 2015. At the same time, prices for fur goods fell by two to two and a half times.
What security guards are not allowed to do
Store security representatives often exceed their authority and commit unlawful acts against customers. If such a situation arises, in response to manipulation, remind the security guards and administration of the retail outlet the Law “On Private Detective and Security Activities in the Russian Federation” dated March 11, 1992 N 2487-I.
In accordance with this resolution, the following are considered illegal: a requirement to present documents or leave things in a storage room, a search of a citizen, a ban on photography and video recording. The security guard has the right only to politely voice his demands, but cannot insist on their fulfillment, even if this is provided for by the internal regulations of the store.
Disputes often arise regarding the legality of a security guard’s use of physical force. It should be remembered that the law allows the use of handcuffs, batons and force only for the purposes of self-defense and to detain the offender.
The article does not come alone
“Article 171.1 is constantly becoming tougher, because administrative liability does not stop counterfeit producers: what is a fine of several thousand or several tens of thousands of rubles for millions of turnovers from the sale of alcohol or fur products?” - says Legis Group lawyer Viktor Badyan, who has repeatedly represented the interests of those accused under this article in court.
The lawyer states that a large number of crimes falling under this article are related to illegal alcohol trafficking. “After the arrest of counterfeit products with fake excise stamps or without the necessary marking at all, they are examined, and additional articles may be charged - for example, Article 238, if traces of methanol or other dangerous substances that can cause poisoning are found.”
It was under Article 238 of the Criminal Code that the defendants in the case of Hawthorn poisoning in Irkutsk . As the press service of the Investigative Committee reported, the criminal case is being investigated under Part 3 of the article - production, storage, sale of goods and products that do not meet safety requirements, resulting in the death of two or more persons through negligence.
Article 238 of the Criminal Code provides for liability for the circulation of goods that do not meet safety standards. The maximum penalty is up to 10 years in prison (if someone died from a surrogate). In addition, charges may additionally be brought under Article 171 (illegal entrepreneurship, up to five years in prison) or Article 180 (illegal use of means of individualizing goods, up to six years). The latter is possible if, in addition to fake excise taxes, the accused attached labels of famous brands to bottles of “scorched” alcohol.
“There is a decision of the plenum of the Supreme Court, which provides for this possibility - to impute several articles at once, and law enforcement agencies widely use it,” says Badyan.
Reason for administrative punishment
Sometimes unpleasant situations arise when a buyer pays at the checkout and, while passing through the anti-theft system, suddenly hears a characteristic sound. When determining the reasons for the activation of the protective device, an unpaid item is discovered in a pocket, bag, cart, or in a child’s hands.
The person who stole the goods is to blame, and arguments like “forgot” or “it happened by chance” do not justify the offender, but the penalty depends on the value of the unpaid item.
The incident is considered theft if the price of the stolen goods is more than 1000 rubles, otherwise it is impossible to bring the buyer to criminal liability.
If the anti-theft system has responded to an item worth less than 1,000 rubles, there are two options for getting out of the situation: paying for the purchase retroactively or calling the police to bring the culprit to administrative responsibility. The first option depends solely on the will of the management of the retail outlet, and if such an offer is received, you should agree to it without hesitation. After payment, the buyer can leave the store; no further sanctions will follow.
If the administration nevertheless called the police, then a protocol is drawn up and the offender is prosecuted for petty theft of someone else’s property under Art. 7.27.1 Code of Administrative Offenses of the Russian Federation. Punishment under this article can be arrest for up to 15 days, up to 50 hours of compulsory labor, or a fine corresponding to five times the cost of the unpaid goods, but not less than 1,000 rubles.
