Article 158 of the Civil Code of the Russian Federation. Transaction form (current version)
1. The form of the transaction, which is discussed in the commented article, is understood as the way of expressing the will of the parties to the transaction. The will can be expressed orally or in writing, and also manifested by performing implied actions, and the form of the transaction, accordingly, is divided into written (simple and notarial) and oral.
With a simple written form of a transaction, it is concluded by drawing up a document that sets out its contents in writing. This document must indicate the parties to the transaction; They (or their authorized persons) must sign the document.
The oral form of a transaction is, first of all, the exchange of certain spoken words, from which the desire to complete the transaction is clear.
It is possible both in direct communication and in a conversation on the phone or in another way of exchanging information without fixing it on any tangible medium.
An oral form of a transaction is allowed only when it is expressly provided for by law.
2. Transactions for which the law allows an oral form of execution can be concluded through so-called implied actions, i.e. behavior of a person, from which his will to complete a transaction is clear. The parties resort to conclusive actions only when there is no need to agree on any conditions and the law, and the essence of the transaction allows the use of this method of execution. An example of conclusive actions is the purchase of goods through vending machines.
Unfortunately, the legislator did not clarify the question of whether a transaction made through implied actions is an independent type of transaction form or whether it is a type of oral transaction form. As you know, there is no single point of view on this matter. In paragraph 2 of Art. 158 of the Civil Code reproduces the previously existing provision that a transaction that can be concluded orally is considered completed in the case when his will to complete the transaction is clear from the behavior of the person.
In addition, the issues that arose in connection with the development of technological progress remained unattended. Thus, the authors ignored issues related to such unnamed forms of transactions as expression of will using SMS messages, transactions made on the Internet without the use of an electronic digital signature (when it is enough to just click the computer mouse to express the will to complete a transaction ).
Finally, nothing is said about the expression of will through sign language used in communication by people who are hard of hearing or have limited speech abilities. In other words, nothing is said about whether it is possible to talk about a special form of oral expression of will.
3. Silence as a way of expressing will means, as a general rule, a person’s refusal to complete a transaction. However, in cases directly provided for by law or agreement of the parties, silence is recognized as an expression of the will of a person to complete a transaction. An example is clause 2 of Art. 621 Civil Code, Art. 999 Civil Code, clause 2, art. 1153 Civil Code.
Comment source:
“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"
S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019
Sentence 158 part 3 paragraph “d”
The Golovinsky District Court of Moscow, with the participation of lawyer A.L. Kazakov, who defended the interests of the defendant, rendered a verdict under Art. 158 h. 3 p. "g". Circumstances of the case: Client of lawyer A.L. Kazakov. committed theft from a bank account, causing significant damage to the victim, namely: he, working as a taxi driver, and being in the cabin of a taxi car, discovered the mobile phone “iPhone 6 ES” belonging to the victim, left without proper supervision, in the case of which there was a bank card in the name the victim had a large amount of money in her account. After that, he, realizing that the owner of the said property was not in the car and his actions would remain unnoticed by others, secretly stole the victim’s iPhone 6 ES mobile phone with a bank card, appropriating them for himself, after which, realizing that he had the opportunity to cash out funds available on the bank card, using a previously stolen SIM card and his personal mobile phone, changed the PIN code of the bank card to his name, and then proceeded to the ATM, where, using the stolen bank card, he secretly stole funds from the victim’s account, having cashed them and appropriated them for himself, after which he fled the scene of the crime with the stolen property and disposed of the stolen property at his own discretion, thereby causing significant material damage to the victim. The defendant agreed with the charges against him, voluntarily and after consultation with lawyer A.L. Kazakov. filing a petition for a verdict without a trial, realizing the nature and consequences of such a petition, which was granted by the court, with the consent of the public prosecutor and the victim. Having studied the case materials and assessing the results of the court hearing with the participation of the parties, the court came to the conclusion that the defendant’s actions should be qualified under paragraph “g” of Part 3 of Article 158 of the Criminal Code of the Russian Federation. When imposing the punishment, the court took into account as mitigating circumstances, full admission of guilt and repentance for the deed, voluntary compensation for harm caused by the crime, the presence of a young child on the defendant, aggravating circumstances were not established by the court, and the court also took into account age, health and information about of his person, who has no previous convictions, provides assistance to his mother and common-law wife, who suffer from chronic diseases, and passed a sentence under Art. 158 part 3 paragraph “d”, sentencing the defendant to imprisonment for a term of 1 (one) year, to be served in a general regime correctional colony. Count pretrial detention into the term of serving the sentence at the rate of one day for one and a half days of serving the sentence in a general regime correctional colony, taking into account the provisions provided for in Part 3.3 of Article 72 of the Criminal Code of the Russian Federation.
Second commentary to Art. 146 of the Criminal Code of the Russian Federation
1. The object of the crime is social relations, interests related to the implementation of the constitutional provision on the protection of intellectual property (Article 44 of the Constitution of the Russian Federation).
Part 1 art. 146 of the Criminal Code provides for liability for misappropriation of authorship (plagiarism), if this act caused major damage to the author or other copyright holder.
Copyright regulates relations arising in connection with the creation and use of works of science, literature and art. Related (copyright) rights regulate relations arising in connection with the creation and use of phonograms, performances, productions, and broadcasts of broadcasting or cable broadcasting organizations. Author is an individual whose creative work created a work.
The main regulatory act regulating the content of copyright and related rights is part four of the Civil Code of the Russian Federation.
The objects of copyright are: works of science, literature and art that are the result of creative activity, regardless of the purpose and merit of the work, as well as the method of its expression. The following are not objects of copyright: official documents (laws, judicial documents), as well as their official translations; state symbols and signs (flags, coats of arms, orders, banknotes and other symbols and signs); works of folk art, reports of events and facts of an informational nature.
2. The objective side of the crime is characterized by:
1) action (attribution of authorship);
2) consequence (causing major damage to the author or other copyright holder);
3) the causal relationship between the specified action and consequence.
3. Assignment of copyright may consist of releasing someone else’s work under one’s own name (plagiarism), using works of other authors in one’s own works without citing them, releasing a work created jointly with other authors without indicating co-authors, etc.
Criminal liability under Part 1 of Art. 146 of the Criminal Code of the Russian Federation occurs only if the violation of copyright and related rights caused major damage (otherwise we can only talk about civil liability).
4. The subject of the crime is a person who has reached the age of 16 years.
5. The subjective side is characterized by direct intent.
6. Part 2 art. 146 of the Criminal Code provides for liability for the illegal use of objects of copyright or related rights, as well as the acquisition, storage, transportation of counterfeit copies of works or phonograms for sales purposes, committed on a large scale (its concept is disclosed in the note to this article of the Criminal Code). Illegal use of copyrighted objects includes their use without the consent of the author (for example, publication, reproduction and distribution of a work; making any changes to both the work itself and its title).
7. The circulation of counterfeit goods means the unauthorized use (counterfeiting) of trademarks known on the market, which misleads buyers and infringes on the interests of the trademark owner.
Common types of document theft
Document theft can be divided into two categories:
- theft for further use for personal gain, which, as a rule, is associated with fraudulent actions qualified under Article 159 of the Criminal Code of the Russian Federation;
- theft in order to prevent the use of these securities by their owner to delay the occurrence of any events.
The most frequently kidnapped are:
- personal documents containing personal data of a specific person - passport, birth certificate, pension certificate, etc. Article 325 of the Criminal Code of the Russian Federation provides for a more severe punishment for their theft;
- documents of title for objects of movable and immovable property - vehicle passport, agreements on transactions with housing and real estate, cash receipts and warranty cards confirming the fact of acquisition of things, etc.;
- accounting documents of legal entities and individual entrepreneurs - invoices, statements, acceptance certificates, etc.
Accounting acts
Accounting documents are usually stolen in order to:
- the counterparty did not have any officially established conditions for the completed or ongoing transaction - these are, as a rule, contracts, additional agreements to them, etc.
- the counterparty did not have confirmation of the transfer of goods, performance of work, provision of services, as well as the quantity and quality of goods, works, services - these are transfer acceptance certificates, invoices, protocols of multilateral commissions, etc.;
- the counterparty did not have confirmation of the transfer of funds in situations where an organization or individual entrepreneur works on a cash basis - receipts, acts, etc.;
- the counterparty received penalties due to untimely submission of the necessary documentation to the tax and supervisory authorities - this could be financial statements, articles of association, accounts, cash books.
Theft of documents for a PTS car
Car documents, as a rule, are stolen along with purses, women's handbags, and the cars themselves in which they find themselves. However, there are times when papers become the target of a thief. They can only be used for their intended purpose together with a stolen car. In most cases, thieves use the PTS, the vehicle registration certificate, to extort money from the owner. In some cases, particularly brazen blackmailers can be prosecuted under Article 163 of the Criminal Code of the Russian Federation, after first obtaining an assessment of the situation from a lawyer.
Theft of documents for an apartment
The theft of documents for an apartment always gives rise to the expectation of fraudulent actions with real estate (for example, criminals can carry out a false transaction to rent out a home that is not theirs). Such a deal will, of course, be challenged in the future by virtue of Article 166 of the Civil Code of the Russian Federation, but this will require time and corresponding expenses.
Note!
The fact that criminals have someone else’s housing title papers gives them the opportunity to take advantage of the lack of professionalism of government employees to receive any social benefits.
Procedure in case of passport theft
If a passport is stolen, the article of the Criminal Code of the Russian Federation is the same - 325th. Have you found yourself in a similar situation when an attacker stole your document right on the street or tricked you into giving it up voluntarily, and then disappeared? You definitely need to contact law enforcement agencies and restore the document as soon as possible. Otherwise, you will be left without the most important document and will not be able to take any actions. And what’s even worse is that you yourself will fall under criminal liability under the article “illegal residence on the territory of the Russian Federation”
- Therefore, first of all, go to the nearest police station and write a statement about the theft of documents. Otherwise, you will have to pay a fine for losing your passport, and you will not be able to punish the criminal.
- Then immediately go to the Federal Migration Service at your place of residence and attach a certificate confirming the fact that the document was stolen. Law enforcement agencies should give you one. Don't forget to take with you a police certificate confirming the theft.
How to recover a stolen passport?
Since a passport is the main document of a citizen of the Russian Federation, if it is stolen, you must contact the authorized authorities.
In order for you to be issued a new document, you need to write a statement to the police and, with the received certificate, go to the FMS department. In this case, you will not have to pay a fine for losing your passport. In addition to this, you will need to attach several more documents: photographs, proof of payment of the state fee and other personal documents that you will be told about.
By the way, a copy of a foreign passport can speed up the process of issuing a new document, so if you have one, be sure to take it with you as an identity document.
By law, you must be issued a passport within two months. But this is too long a time for a person to live without a passport. Therefore, immediately after contacting the authorities, you must be issued a temporary document replacing a passport.
The document is similar to a passport, where information about the citizen is indicated on the inside, and on the outside there is the inscription “Temporary identity card of a citizen of the Russian Federation.” It also contains a photograph and signature of the person. In addition, the last page indicates the reason for issuing the document and its validity period.
In what cases can you avoid liability for document theft?
There are comments to the article. Thus, according to Article 325 of the Criminal Code of the Russian Federation with commentaries, the public danger of theft is a violation of the order of official document flow in the company, as well as the rights of citizens mentioned in these documents. Any document conferring rights and obligations, or releasing them, issued by an authorized person or organization is considered official. Therefore, judicial practice does not consider papers, for example, test purchase acts, which were not drawn up by an official, as official.
Also read: Plenum on theft, robbery and robbery
IMPORTANT: The document thief will not be found guilty if:
- the documents were not used for personal gain, but were returned to their rightful owner voluntarily;
- the criminal himself came to the police station, admitted to committing the crime and handed over the stolen documents intact, without any damage;
- the kidnapper himself contacted the victim, voluntarily gave the documents to the owner and reached a peace agreement with him.
