Theft: the subject and object of the crime according to the Criminal Code of the Russian Federation

The Criminal Code of the Russian Federation gives the concept of theft. These are illegal secret actions aimed at seizing someone else's property. The crime is being investigated under Art. 158 of the Criminal Code of the Russian Federation, art. 158.1 of the Criminal Code of the Russian Federation and 7.27 of the Code of Administrative Offenses of the Russian Federation, depending on the composition and circumstances. In the case of robbery, causing harm to health, robbery and theft involving death, the offense is considered under other articles of the Criminal Code of the Russian Federation.

The punishment depends on aggravating and mitigating circumstances under Art. 61 of the Criminal Code of the Russian Federation and Art. 63 of the Criminal Code of the Russian Federation, including the state of mind of the accused at the time of the commission of the crime. To understand the law and legally defend your rights in court, you should use the services of competent lawyers from our company. You can consult remotely or in person.

Theft subject of the crime

Responsibility rests with persons aged 14 years and older (Article 20 of the Criminal Code of the Russian Federation). Only a citizen who has committed an act upon reaching the legal age and is able to account for his own actions can be held liable in a criminal case.

This determines the main legal characteristics of the subject of theft:

Sanity is the mental state of a citizen and the level of socio-psychological development. A person performs actions consciously, understanding their danger to others, guided by his own ideas and plans. In the case of mental defects, criminal liability is not excluded, but can be replaced by compulsory medical treatment of the patient, if this fact is confirmed and proven;
Age: 14 years old on the date of the theft.

In the latter case, age begins to be calculated from the next day after the birthday according to local time (from 00:00).

What should you do after discovering theft?

When establishing the fact of theft, it is necessary to submit an application to the internal affairs body (clauses 8, 9 of the Instructions on the procedure for receiving, registering and resolving in the territorial bodies of the Ministry of Internal Affairs of the Russian Federation statements and reports of crimes, administrative offenses, incidents, approved by the Order Ministry of Internal Affairs of Russia dated August 29, 2014 No. 736).

After this, you need to conduct an inventory of the property (Part 3, Article 11 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, clause 27 of the Regulations on Accounting and Financial Reporting in the Russian Federation, approved by Order of the Ministry of Finance Russia dated July 29, 1998 No. 34n). The need for an inventory is also indicated by the Ministry of Finance (letter dated December 25, 2015 No. 07-01-12/76134). The rules for conducting an inventory are established by Order of the Ministry of Finance of June 13, 1995 No. 49 “On approval of the Guidelines for the inventory of property and financial obligations”, paragraph 1.5 of which also refers to the obligation to conduct an inventory when a fact of theft is detected.

Subject of the crime of theft

The subject of the crime committed at the time of the theft is the property of a stranger. Property values are understood as a set of things and objects of the external world that are useful in the economic and economic sphere.

The subject of the attack is characterized by certain characteristics:

number and quantity;
color, shape;
volume, weight equivalent and other technical characteristics.

Based on the note to Art. 158 of the Criminal Code of the Russian Federation, the subject of theft differs from the object in material properties and matter:

an item is a material value stolen from a specific storage facility, be it a trouser pocket, a wallet or a storage container;
according to its physical properties, this substance can have a solid, liquid and gaseous structure, and be an animate/inanimate part of the whole;
The item also has a definition based on price value, since resources that do not have a pronounced measure of the investment of human labor cannot be the target of theft and other theft. For example, natural resources in the form of air and other intangible goods. In turn, forestry, fish, animals raised in specially designated reservoirs or reserves are the subject of encroachment and are determined by the value of human labor in monetary and other equivalents.

One of the mandatory elements for determining the signs of theft of an item is its consumer value - its usefulness in meeting human needs. Money - for spending on needs, technical means - for the comfort of everyday life, clothing - an aesthetic and constant necessity, jewelry - luxury items, car accessories - for the convenience and safety of traffic, and so on.

Note!
If the value of the property is insignificant, or the act could not lead to great damage, bringing the accused to criminal liability is unacceptable. If elements of robbery and physical violence are present, the case is considered under Art. 161 of the Criminal Code of the Russian Federation, Art. 162 of the Criminal Code of the Russian Federation.

What is not the subject of theft?

The following are not considered property value:

household waste disposed of in a landfill/garbage dump;
things that have no economic or business value;
ideas, views and thoughts of a person.

It should be remembered that the presumption of innocence (Article 14 of the Code of Criminal Procedure of the Russian Federation) applies to all articles of the Criminal Code of the Russian Federation and the Civil Code of the Russian Federation, excluding a conviction until the guilt is fully proven and the suspect agrees with the accusation. Any double accusation must be assessed in favor of the accused, and assumptions and arguments cannot appear in the case as obvious facts confirming guilt.

In the event of an unfounded accusation or in any other situation, it is better to use the services of an experienced lawyer, who has a number of important powers during the preliminary investigation and in court.

Income tax

According to subparagraph 5 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation, losses from theft, the perpetrators of which have not been identified, are equated to non-operating expenses. In this case, the fact that there are no perpetrators must be documented by an authorized government body.

As the Ministry of Finance points out, losses from the theft of money can be taken into account as expenses for corporate income tax purposes only if there are no perpetrators and there is a document confirming their absence, issued by an authorized government body. There is no other procedure for accounting for losses in case of theft of money, except for that established in Chapter 25 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated February 2, 2017 No. 03-03-06/2/5348, dated May 29, 2015 No. 03-03- 06/1/31130, dated April 20, 2015 No. 03-03-06/1/22369).

note

At the same time, according to the Ministry of Finance, subparagraph 5 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation does not contain any indication of which documents, confirmed by an authorized authority, can certify the absence of culprits in the theft of material assets, thereby the company is not limited to the issue of confirming the legality accounting for relevant expenses (letters dated December 8, 2017 No. 03-03-06/1/81919, dated October 6, 2022 No. 03-03-06/1/65418).

The Constitutional Court of the Russian Federation also agrees with this (Decision No. 1543-O dated September 24, 2012). And according to the Federal Antimonopoly Service of the Moscow District, this document, for example, can be a certificate issued by an authorized official of the Department of Internal Affairs, according to which the perpetrators of the theft have not been identified (Resolution of October 8, 2012 in case No. A40-15384/12-99-73).

The Supreme Arbitration Court, in Decision No. VAS-13048/13 of December 4, 2013, came to the conclusion that the shortage identified during the inventory process in self-service organizations cannot be attributed to the perpetrators due to the impossibility of identifying them. Therefore, it is possible to take into account losses from theft even in the absence of a resolution to suspend the preliminary investigation or a resolution to terminate the criminal case. Similar arguments are set out in the Resolution of the Arbitration Court of the North-Western District dated February 4, 2015 No. F07-9223/2014 in case No. A42-6851/2013.

Regarding income tax, if the perpetrators are identified, the Ministry of Finance provided clarification in letter dated March 7, 2022 No. 03-03-06/2/14611. Thus, the amounts of losses from theft that are subject to recovery from the perpetrators on the basis of a court decision must be included in non-operating income, while the company has the right to recognize the cost of lost property as non-operating expenses if these expenses comply with the conditions of paragraph 1 of Article 252 of the Tax Code of the Russian Federation.

Also, in the event of receiving insurance compensation, the company recognizes non-operating income in the form of amounts received to compensate for the loss, as well as non-operating expenses in the amount of the cost of lost property if these expenses comply with the conditions of paragraph 1 of Article 252 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated February 20, 2017 No. 03-03-06/1/9693).

What characterizes theft from the objective side?

According to an objective assessment of the corpus delicti under Art. 158 of the Criminal Code of the Russian Federation, theft is characterized as a set of illegal actions of a deliberate nature aimed at seizing property for one’s own benefit or for third parties. Objective signs of theft:

the actions are illegal;
the subject of the attack is subjected to gratuitous theft without subsequent return to the owner;
the act is carried out secretly for the owner or in the presence of third parties who are not aware of the fact of theft;
it is someone else’s property that is not the property of the accused that is confiscated;
there are adverse consequences of the crime for the owner of the property.

To distinguish theft under Art. 158 of the Criminal Code of the Russian Federation against robbery and assault, the following factors are taken into account:

the theft occurs secretly;
physical force is not used against the owner or other interested party acting for defense.

The fact of theft according to the Criminal Code of the Russian Federation occurs when the amount of damage is at least 1000 (in some cases - 2500) rubles. If the crime is committed on a smaller scale, then the case takes on an administrative nature under Art. 7.27 Code of Administrative Offenses of the Russian Federation.

Is there always an investigation?

As stated above, when establishing the fact of theft, it is necessary to take an inventory. After this, the investigative authorities must initiate a criminal case and conduct an investigation into this fact. But, as practice shows, criminal cases are not always initiated. Thus, investigative authorities issue decisions to refuse to initiate cases if the amount of the shortage was formed from undocumented thefts committed by an indefinite number of persons (for example, buyers in trading floors) at an unspecified time and there is no objective possibility of searching for this data.

As noted by the Supreme Arbitration Court of the Russian Federation in Decision No. VAS-13048/13 dated December 4, 2013, police officers did not see any grounds for initiating criminal cases, since there was no specific information and data indicating the commission of a crime (the time, extent of theft, number of facts were not established , it is impossible to distinguish shortages from each other regarding their theft by one person or several). The requirement to initiate a criminal case, during the investigation of which the perpetrators cannot be identified, is excessive, and the condition for the existence of a resolution to terminate the preliminary investigation is impossible.

Consequences

The theft of a citizen's personal valuables is classified depending on the circumstances of the crime and the amount of damage caused. According to the first part of Art. 158 of the Criminal Code of the Russian Federation (secret theft of someone else’s property) provides for:

penalties up to 80 thousand rubles;
compulsory work up to 360 hours;
correctional labor for up to 1 year;
forced labor, restriction and imprisonment for up to 2 years;
arrest up to 4 months.

According to Part 2, Part 3, Part 4 Art. 158 of the Criminal Code of the Russian Federation in the case of a crime committed by a group of persons by prior conspiracy or with penetration into someone else’s home and causing serious damage, the accused bears the following punishment:

fine up to 1 million rubles;
restriction of freedom for up to 2 years;
imprisonment for up to 10 years.

For minors, other penalties are provided in accordance with Art. 88 of the Criminal Code of the Russian Federation:

½ of the term under the article for a grave and especially grave crime, but no more than 6 years for adolescents under 16 years of age and no more than 10 years for offenders aged 16 to 18 years;
for theft and other crimes of medium or light severity, imprisonment is assigned only if the offense is repeated. If guilt is proven for the first time, then the preventive measure is established in the form of a suspended fine or forced labor;
according to Art. 96 of the Criminal Code of the Russian Federation, preventive measures for minors can be applied to persons from 18 to 20 years old, which is decided by the court based on the nature of the crime and the identity of the offender.

More detailed information on each case can be obtained from a competent lawyer by asking a question through the company’s website or by phone. The lawyer will analyze the case materials, correctly classify the crime and protect your rights.

Theft (Article 158 of the Criminal Code of the Russian Federation). Criteria for secrecy. Distinguishing theft from related crimes.

Theft is the secret theft of someone else's property.

A generic object is a set of social relations in the economic sphere.

A species object is a set of social relations that ensure ownership or other legal rights to own, use, and dispose of property.

The direct object is the right of ownership or other rights.

Subject – movable and immovable property (which is not connected to the earth (space ships, plantings)

The objective side of theft is the secret seizure of someone else's property. Theft in relation to theft is understood as the secret non-violent seizure of someone else's property. The question of whether the theft is secret must be decided on the basis of a subjective criterion, i.e. based on the perception of the situation of theft by the perpetrator himself.

Theft should be classified as theft in the following cases:

1) Seizure of property in the absence of the victim or third parties.

2) Confiscation of property in the presence of the victim, but unnoticed by him (the victim is intoxicated, unconscious, asleep, or the victim is not aware of the nature of the actions that are being committed against him, for example, pickpocketing).

3) Seizure of property in the presence of third parties who actually observe the seizure, but do not realize the social danger of this act.

4) Seizure of property in the presence of a close relative who is aware of the wrongfulness of the act, but does not expect wrongfulness on the part of the perpetrator. The theft is considered completed from the moment the property is confiscated and the perpetrator has a real opportunity to dispose of the stolen property at his own discretion.

By design, the elements of theft are material, because its objective side, as a mandatory feature, includes a socially dangerous consequence in the form of property damage. The subject of the crime is a sane individual who has reached 14 years of age. The subjective side of theft is characterized by guilt in the form of direct intent and selfish motive and pursues the goal of illegally obtaining property benefits.

Qualified types of theft (Part 2 of Article 158 of the Criminal Code) are characterized by its commission:

a) by a group of persons by prior conspiracy; (the number of co-perpetrators is 2 or more persons; a preliminary agreement between the accomplices before the attempted theft. Theft committed by a group of persons without prior conspiracy is qualified under Part 1 of Article 158 of the Criminal Code, however, the court has the right to recognize a group method of committing a crime as an aggravating circumstance (para. 3 clause 12 of the Supreme Court's PP “On judicial practice in cases of theft.

Features in the method of withdrawal. Secret seizure has 2 criteria:

1. Objective - means that the person actually acts unnoticed by other persons;

There may be options here:

1) the seizure occurs in the absence of the owner, legal owner, or unauthorized persons;

2) the seizure occurs in the presence of the above-mentioned persons, but unnoticed by them.

3) seizure is possible in the presence of the above-mentioned persons, noticeable, obvious to them, but they do not create a criminal illegal nature of the actions of the perpetrator (for example, stealing things at a station);

4) property is confiscated in the presence of other persons, it is obvious to them, but they do not want to interfere with the confiscation because they approve of it.

2. Subjective – means the mental attitude of the criminal during the seizure process, i.e. he wants to act secretly and unnoticed by the owner or third parties;

When there is a conflict between objective and subjective criteria, preference is given to the subjective criterion. If the person himself believed that he was acting secretly, but in fact the process of confiscation of property was observed by someone, then the action of the perpetrator is classified as theft.

The secrecy of the seizure arises due to the current situation, but in some cases it is created or ensured by criminals deliberately. Since the method is a mandatory sign of the objective party, the persons ensuring the secrecy of the seizure are recognized as co-perpetrators of the crime committed.

Theft is a non-violent crime. This means that property is confiscated against the will of the victim. In cases where the actions of the culprit began as theft, but were then discovered by the owner or third parties, but the process of seizure continued, there is a escalation of the theft into robbery or robbery, respectively.

If violence was used after the theft was committed in order to avoid arrest, then there is no escalation. The actions of the perpetrator are classified as theft and a crime against the person.

The elements of theft are material; the crime is over when the property is confiscated and the offender has the opportunity to dispose of it.

The subjective side is characterized by direct intent. The goal is selfish (the desire to extract benefits, advantages for oneself or third parties).

Subject is a sane individual who has reached the age of 14.

1. Distinguishing theft from fraud:

- in case of theft, the subject of theft can only be property; in case of fraud - both property and the right to property;

- in case of theft, property is confiscated from the victim against his will, i.e. secretly; in case of fraud, the owner himself transfers the property to the criminal, having been misled by him, as a result of deception or abuse of trust;

- in case of fraud, the property must be transferred to the criminal by a legally capable person whose actions to dispose of the property are legally significant;

If, by deception or misappropriation of trust, the property of an incapacitated or partially capable person is taken over, then there is theft, not fraud.

- in case of fraud, a person transfers property to a criminal to exercise any legal powers: possession, use, disposal.

If the owner himself transfers the property to the criminal, not to fulfill powers, but to perform any technical functions, and this property is confiscated, then there is theft, not fraud. Elements of deception can be present not only in fraud, but also in theft: but if in fraud, deception is a way of taking property, then in theft, deception is aimed at gaining access to property, which is subsequently seized secretly.

2. Distinguishing theft from misappropriation and embezzlement (Article 160 of the Criminal Code)

The difference occurs according to the characteristics of the subject. The subject of misappropriation and embezzlement is the person to whom the property is entrusted legally (employment contract, civil law contract, etc.), and the perpetrator uses these powers. In case of theft, the subject is a person who has nothing to do with the stolen property; in some cases, he simply has access to property due to his official position.

3. Distinguishing theft from robbery (Article 161 of the Criminal Code);

We take the method of extraction as the basis for delimitation. In case of theft - secret, in case of robbery - open seizure. Subjective factors are also taken into account.

4. Delineation of theft from Art. 166 of the Criminal Code (wrongful seizure of a car or other vehicle without the purpose of theft;

— the main difference is that theft is theft; Art. 166 of the Criminal Code - other crime against property;

- in case of theft, property is confiscated for mercenary purposes; in case of hijacking, the goal is either not selfish at all; if it is selfish, then it is satisfied in a different way than with theft.

Qualified types of theft:

1. item “a” part 2 art. 158 of the Criminal Code – theft committed by a group of persons by prior conspiracy;

The group must have common characteristics of participation, i.e. 2 or more persons who are subjects of a crime. Moreover, in form it should only be co-perpetrator, when at least 2 persons perform the objective side of the crime. The complexity of complicity does not form this qualifying feature.

In case of theft, both types of co-execution are possible: with parallel co-execution, all group members perform the objective side in full or in part in parallel in time and space; with sequential co-execution, the objective side of the theft is divided into several stages and each of the accomplices performs his own stage. An agreement is recognized as preliminary when it is achieved before the objective party begins to execute.

P. “a” part 2 art. 158 of the Criminal Code occurs when the conspiracy of a group of persons is of an elementary nature, i.e. a group is formed to commit one crime, after which it disbands.

2. item “b” part 2 art. 158 of the Criminal Code - theft committed with illegal entry into a premises or other storage facility;

Penetration can be accomplished in two ways:

1) intrusion into premises secretly or openly, with or without overcoming obstacles, using deception;

2) using various devices: when the culprit removes stolen objects without entering the premises or storage (magnets, fishing rods, hooks, trained animals, etc.)

“ premises ” is understood as a structure or structure, regardless of the form of ownership, intended for the temporary residence of people or the placement of material assets for production or other official purposes. These can be: administrative, industrial premises, retail stores, educational premises.

“ Storage ” refers to utility premises separated from residential buildings, areas of territory, and other structures intended for permanent or temporary storage of valuables. These include: devices, places that are designed, specially adapted, equipped, for permanent or temporary storage of material assets and for these purposes are equipped with any devices that prevent penetration into them (seals, fences, bars, etc., which impede access to inventory items).

Storage facilities include certain places, including those in the open air (areas of territory), if they meet the following criteria:

— specially designated for permanent or temporary storage of material assets (parking areas; cattle pens, etc.);

- equipped with a fence or technical means or provided with other security in order to preserve this property.

The sign of allocating an area for storing valuables allows you to delimit the storage from other areas of the territory, which, although protected, functionally have a different purpose.

Thefts committed from open platforms do not contain a sign of penetration (if the platforms were not guarded).

3. p. “c” part 2 art. 158 of the Criminal Code - theft committed with causing significant damage to a citizen;

Only an individual acts as a victim. A significant amount is an amount of at least 2.5 thousand rubles.

3. paragraph “d” part 2 art. 158 of the Criminal Code - theft committed from clothes, bags or other hand luggage that were with the victim;

Clothing is a set of artificial accessories for a person that clothe his body; it includes: underwear, a dress covering it and outerwear worn over the dress, as well as hats, gloves, shoes, etc.

A bag is a product made of fabric, leather and other materials in the form of a small bag, usually with handles, used for carrying something. They can be ladies', household, sports, school, sanitary, hunting, etc.

Carry-on luggage is a briefcase, backpacks, suitcases, cases, suitcases, backpacks, packages, boxes and other means intended for manual carrying, transportation and storage of objects and various non-bulky things.

Consequently, the subject in this case can only be movable property that can be moved with the help of human muscle power.

At the time of seizure, the property must be inside a bag or other carry-on luggage, or in clothing. The theft of items located on top of clothing cannot be classified according to this criterion.

An important sign when qualifying is the presence of clothing and hand luggage with the victim, i.e. in its physical possession or in the field of view of the victim (on the body, on the arm, on the chair, i.e. in the sphere of actual control over this property).

4. paragraph “a” part 3 art. 158 of the Criminal Code - theft committed with illegal entry into a home;

Art. 139.approx. UK: housing - an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence, as well as other premises or buildings not included in the housing stock, but intended for temporary residence.

5. item “b” part 3 art. 158 of the Criminal Code - theft committed from an oil pipeline, oil product pipeline, gas pipeline;

A pipeline is a complex of structures consisting of a linear part, pumping, compressor, distribution, measuring, and reservoir stations and is intended for transporting liquid and gaseous substances.

6. paragraph “c”, part 3, art. 158 of the Criminal Code – theft committed on a large scale,

Large size is the value of property exceeding 250 thousand rubles.

7. paragraph “a” part 4 art. 158 of the Criminal Code – theft committed by an organized group;

Art. 35 of the Criminal Code.

8. paragraph “b” part 4 art. 158 of the Criminal Code - theft committed on an especially large scale -

An especially large amount is defined as the value of property exceeding one million rubles.