Article 160 of the Criminal Code of the Russian Federation Misappropriation or embezzlement of property, liability for misappropriation of funds

ST 160 of the Criminal Code of the Russian Federation.

1. Embezzlement or embezzlement, that is, theft of someone else's property entrusted to the guilty person, is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a period of up to two hundred and forty hours, or correctional labor for a term of up to six months, or restriction of liberty for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for the same term.

2. The same acts committed by a group of persons by prior conspiracy, as well as causing significant damage to a citizen, are 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 compulsory labor for a term up to three hundred sixty hours, or correctional labor for a term of up to one year, or forced labor for a term of up to five years with or without restriction of freedom for a term of up to one year, or imprisonment for a term of up to five years with restriction of freedom for a term of up to one year or without it.

3. The same acts committed by a person using his official position, as well as on a large scale, are punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to three years, or deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or forced labor for a term of up to five years with or without restriction of freedom for a term of up to one and a half years, or imprisonment for a term of up to six years with a fine of up to ten thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one month or without it and with or without restriction of freedom for a period of up to one and a half years.

4. Acts provided for in parts one, two or three of this article, committed by an organized group or on an especially large scale, are punishable by imprisonment for a term of up to ten years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the person convicted of a period of up to three years or without it and with restriction of freedom for a period of up to two years or without it.

Composition of the crime and qualifying characteristics

The corpus delicti under Art. 160 of the Criminal Code of the Russian Federation (misappropriation or embezzlement of someone else’s property) occurs under certain circumstances. According to Part 1. Art. 160 these circumstances are:

• act (theft of someone else's property entrusted to the perpetrator);
• subject (kidnapper);
• object (property entrusted to the thief).

The essence of these circumstances is revealed in the relevant legislative and regulatory acts:

• theft in the Criminal Code of the Russian Federation is an illegal gratuitous seizure and/or circulation of someone else's property in favor of the culprit (other persons) committed for self-interest, which caused damage to the owner or another possessor (Note 1 to Article 158 of the Criminal Code of the Russian Federation);
• “entrusted” means property in respect of which the culprit, by virtue of official duties, contractual relations or special instructions from a state or public organization, exercises certain powers to dispose, manage, store and other actions with the property. Such powers can be transferred by the owner of the property to another person (persons) under contract agreements, leases, commissions and other grounds (“Methodological recommendations for identifying and suppressing crimes ...”, approved by Order of the Director of the FSSP dated April 15, 2013 No. 04-4).

These circumstances are general qualifying features of such acts as misappropriation and embezzlement. Both acts are committed for self-interest, illegally, against the will of the owner. The difference between them is as follows (clause 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2017 No. 48):

• appropriation is the use by the culprit of the property entrusted to him for his own benefit;
• embezzlement is an act that implies that the culprit has spent the property entrusted to him by consuming, spending, or transferring it to another person(s).

Simply put, when property is misappropriated, the culprit uses it, but when it is embezzled, it is lost for one reason or another.

Second commentary to Art. 160 of the Criminal Code of the Russian Federation

1. This article deals with two independent forms of theft, united by common characteristics of the subject and method of committing the crime. The peculiarity of these forms of theft is that their objective side does not include two actions: seizure of property and its circulation in favor of the offender or other persons, but only the latter, since it is already in the lawful possession of the offender and he has no need to seize it.

2. Misappropriation means the illegal conversion of someone else's property entrusted to the guilty person for his benefit without equivalent compensation. The embezzled property has not yet been alienated or consumed; it is in the possession of the culprit, who began to use it for selfish purposes.

3. Embezzlement is the illegal and gratuitous expenditure (for example, through personal consumption) or alienation (for example, through sale, transfer on credit or to pay off a debt, etc.) of someone else's property entrusted to the perpetrator, without proper compensation. It is recognized as a completed crime from the moment of actual expenditure or alienation of the entrusted property (clauses 18–19 of the resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 No. 51).

4. The subject of both considered forms of theft is special - a person to whom the stolen property is entrusted to exercise the powers of disposal, management, delivery, use or storage determined by law, contract, official position of the perpetrator or special assignment (clause 18 of the same resolution).

5. Signs of qualified elements of embezzlement or embezzlement (Part 2 of Article 160 of the Criminal Code), as well as especially qualified types of these forms of theft (Parts 3 and Part 4 of Article 160 of the Criminal Code) have the same content as in fraud.

The difference between embezzlement and theft

In addition to Art. 160 the seizure of someone else's property is also spelled out in other articles of Chapter. 21 of the Criminal Code of the Russian Federation, dedicated to crimes against property, including Art. 158 "Theft". According to Part 1 of Art. 158 theft is the secret appropriation (stealing) of someone else's property. In accordance with the provisions of paragraph 2 of the Resolution of the Plenum of the Supreme Court dated December 27, 2002 No. 29, theft should be understood as the actions of a person who has committed an illegal seizure of property in the absence of the owner (another owner, unauthorized persons) or in their presence, but unnoticed by them.

The key difference between such acts as appropriation and retention of someone else's property, as well as its embezzlement and theft, is that the former are carried out in relation to entrusted property.

Thus, the embezzlement of an enterprise’s funds or the appropriation of state property by a person to whom it was entrusted and who had access to it will be qualified under Art. 160 of the Criminal Code of the Russian Federation, regardless of whether it was committed secretly or openly. If the culprit committed theft of property that was not entrusted to him, then he will “go” under Article 158 (if the theft was secret) or other articles of Chapter. 21 of the Criminal Code of the Russian Federation, for example, fraud (Article 159).

Procedure for returning your property

Having established that the property is in someone else's use, the owner can take various actions to protect his interests. To bring to criminal liability, an application for appropriation of someone else's property is written, which indicates the following facts:

• information about the person who should be in possession of movable or immovable property;
• the circumstances of its transfer to another person for a certain period;
• evidence of illegality of presence;
• a description of the actions that the legal owner took to return his property;
• a request to verify the illegality of actions and bring them to justice according to the norms of the Criminal Code of the Russian Federation.

Note!

Each received application is subject to verification, the results of which will be notified to the applicant in writing. If the criminal offense is not confirmed, the applicant will be advised of other ways to protect interests.

If signs of a criminal act are established during the inspection, the owner will be recognized as a victim. Further investigation will be carried out by law enforcement agencies, and during the criminal case, property may be seized as evidence. At the end of the criminal process, it will be transferred to the rightful owner, and as part of a civil lawsuit, you can seek compensation for damages and lost profits.

If there are no signs of a criminal act, the statement of claim is sent to the court according to the general rules of the Code of Civil Procedure of the Russian Federation. Cases are heard in a court of general jurisdiction, and during the process, the disputed property may be seized. If the violator has already managed to register ownership of real estate, the entry in the state register of the Unified State Register of Real Estate is canceled, after which a similar right will again arise for the legal owner.

If damage is caused to property during the period of illegal possession, it is fully compensated at the expense of the culprit. To do this, a calculation of the losses incurred or expenses necessary to restore the previous state of objects, things or objects is submitted to the court. Its forced removal from someone else's possession will occur on the basis of a writ of execution through the bailiff service.

If you need the help of a lawyer in a case of misappropriation of someone else's property, contact our experienced lawyers for help.

What is the punishment for misappropriation and embezzlement?

Punishment for appropriation of someone else's property, misappropriation of funds, embezzlement of entrusted property is determined by the circumstances under which the crime was committed. For misappropriation and embezzlement of someone else's property under Art. 160 of the Criminal Code of the Russian Federation, the culprit faces:

• for an ordinary act (without aggravating circumstances) from a fine of up to 120 thousand rubles or in the amount of the culprit’s income for a period of up to 1 year before imprisonment for up to 2 years (part 1);
• for an act committed by a group of persons or by prior conspiracy, as well as in a significant amount from a fine to 300 thousand rubles or in the amount of the income of the culprit for a period of up to 2 years before imprisonment for up to 5 years plus restriction of freedom for up to 1 year or without it (part 2);
• for an act committed using an official position, as well as in a large amount from a fine of 100 thousand to 500 thousand rubles or in the amount of the income of the culprit for the period from 1 year to 3 years before imprisonment up to 6 years plus a fine up to 10 thousand rubles or in the amount of the culprit’s income for a period of up to 1 month or without it, plus restriction of freedom for up to 1.5 years or without it (Part 3);
• for the act provided for in Parts 1-3 of Art. 160, committed by an organized group, as well as embezzlement or embezzlement of property on an especially large scale, imprisonment for up to 10 years plus a fine of up to 1 million rubles or in the amount of the culprit’s income for a period of up to 3 years or without it, plus restriction of freedom for up to 2 years. x years or without it (part 4).

Let us present the quantitative parameters of the amount of theft, which are regulated by the provisions of Art. 158 of the Criminal Code of the Russian Federation:

• significant - from 5 thousand rubles;
• large – from 250 thousand rubles;
• especially large – from 1 million rubles.

The statute of limitations under Article 160 of the Criminal Code of the Russian Federation depends on the maximum penalty (Article 78 of the Criminal Code of the Russian Federation) and is (Article 15 of the Criminal Code of the Russian Federation):

• 2 years according to part 1;
• 6 years according to part 2;
• 10 years for parts 3 and 4.

The jurisdiction of criminal cases of misappropriation and embezzlement of property is regulated by the Code of Criminal Procedure of the Russian Federation. According to clause 3, part 2, art. 151 of the Code of Criminal Procedure of the Russian Federation preliminary investigation of crimes under Art. 160 of the Criminal Code of the Russian Federation, conducted by investigators from internal affairs bodies. In addition, according to Part 5 of Art. 151 of the Code of Criminal Procedure of the Russian Federation, preliminary investigations in cases of this category can be conducted by investigators from the authorities that identified these crimes.

The prosecution’s argument that the defendant’s intent to steal someone else’s property through fraud is seen in the fact that the defendant had the opportunity to return to the victim the money received as a loan from the latter, but did not return it, was refuted by the court by the fact that the failure of the debtor to fulfill obligations under a civil contract provides only civil liability.

The fact of the defendant’s alienation of property belonging to him, signs of his fictitious or deliberate bankruptcy, and the defendant’s repeated change of place of residence do not indicate the presence of fraud in the defendant’s actions and do not relate to the subject of proof in a criminal case.

Long-term financial relationships, in which the creditor lent money to the defendant, do not indicate the defendant’s direct intent to steal and abuse of the victim’s trust.

The fact of the transfer of funds to the victims of the defendant, as well as the latter’s ability to repay the debt within the period established by the loan agreement, in the absence of evidence of intent to steal these funds before their transfer, cannot indicate the fraudulent actions of the defendant.

The person is acquitted of the charge of committing a crime under Part 4 of Art. 159 of the Criminal Code of the Russian Federation, on the basis of the absence of this crime in his actions.

The preliminary investigation authorities accuse L. of committing fraud, that is, the theft of someone else’s property through abuse of trust, committed on an especially large scale, namely that he, guided by a selfish motive, for the purpose of illegal enrichment, having the intent to steal someone else’s property on an especially large scale through abuse of trust, at a time not established by the investigation, but no later than November 24, 2010, guided by the criminal motivation described above, being in a place not established by the investigation, he developed a criminal plan, choosing funds as the object of his future criminal attacks, previously belonging to his acquaintance A. So, L., having information that A. has a significant amount of money, assumed, using a trusting relationship with the latter, which arose as a result of long-term friendly relations, as well as previously existing conflict-free financial relations with him, then there is, abusing the trust of the latter, to ask A. for a loan of money for business development, while knowingly not intending to subsequently take actions to return the money received as a loan, indicating at the same time in order to make his actions convincing and misleading A. indicative return period. Further, having convinced A. to transfer funds to him, continuing to abuse A.’s trust, L. intended to receive these funds from him, while assuring A. of their subsequent return, but subsequently, having the financial ability to return the debt, do not return the funds , and will dispose of the funds stolen in this way at his own discretion. At the same time, L. admitted that in order to give the legitimacy of his actions and mislead A., if necessary, he would write a promissory note for the amount of money received from A. In addition, L., in order to avoid property penalties as a result of A.’s actions, when contacting law enforcement agencies, which could be applied to property belonging to him, assumed in this case to make transactions to alienate this property in favor of third parties.

Thus, realizing his criminal intentions aimed at stealing funds on an especially large scale belonging to A., acting in accordance with a previously developed criminal plan, L. during the period no earlier than January 1, 2010 and no later than November 24, 2010, the exact the time was not established by the investigation, being in a place not established by the investigation, using a trusting relationship with A. that arose as a result of long-term friendly relations, as well as previously existing conflict-free financial relations with him, assuming that, given his positive financial reputation, A. will agree to have financial relationship with him, asked A. to borrow money to invest in business, to which the latter agreed. As a result, between L. and A., during the specified period of time, a joint agreement was reached on the transfer of funds by the latter to the former with their subsequent return. At the same time, L. obviously did not intend to return this amount of money to A., but had the goal of stealing it and disposing of it at his own discretion.

Further, acting in continuation of the implementation of his criminal intentions aimed at stealing funds belonging to A., L., abusing A.’s trust, received funds from A. on November 24, 2010, obliging to return the said amount of funds by November 24 2012, having written, in order to convince his actions and give them a legal appearance, a receipt for the receipt of the specified amount of money. L. subsequently disposed of the funds stolen in this way, under circumstances not established by the investigation, at his own discretion.

Further, acting in continuation of the implementation of his criminal intentions aimed at stealing funds belonging to A., L., abusing A.’s trust, on September 6, 2011 received money from A., pledging to return them, writing in order to convince his actions and giving them the legal appearance of a receipt for the receipt of the specified amount of funds. L. subsequently disposed of the funds stolen in this way, under circumstances not established by the investigation, at his own discretion.

Subsequently, L. did not partially or fully return the funds, having the financial ability to do so, since according to research certificate No. 96 dated December 24, 2022, for the period from August 11, 2011 to May 22, 2014, he received temporary financial assistance from the founder as a return cash.

At the same time, in fulfillment of his criminal intent in terms of concealing property that could be used to recover the amount of debt in favor of A., L., on the basis of a gift agreement dated September 10, 2015, re-registered his ownership of a land plot with an area of ​​1490 m² to his mother F., which was registered in her name on September 22, 2015.

Also, in fulfillment of his criminal intent in terms of concealing property that could be used to collect the amount of debt in favor of A., L., on the basis of a gift agreement dated September 10, 2015, re-registered his ownership of a residential building with an area of ​​484 m² to his mother F ., which was registered in her name on September 22, 2015.

Thus, L. is accused by the preliminary investigation authorities of stealing funds belonging to A. on an especially large scale through abuse of trust.

The court, on the basis of the examined evidence presented by the prosecution, came to the conclusion that the conclusions of the preliminary investigation about the proof of L.’s guilt in committing fraud by abuse of A.’s trust are probabilistic in nature and do not meet the requirements of admissibility, since they are based not on evidence, but on assumptions, not being means of proof.

The court's analysis of the evidence in the case allowed us to come to the conclusion that the prosecution did not present indisputable evidence clearly indicating that the defendant L. committed fraud against A., as well as indicating that he intentionally stole property the victim gained his trust and, abusing this trust, took possession of the latter’s funds, since all of the above evidence presented by the prosecution, including the testimony of the victim, prosecution and defense witnesses, as well as expert opinions, the victim’s statement, physical evidence, a study of financial and economic activities the defendant and his companies and other documents do not incriminate L. of committing the act accused of him, but only indicate that during the period of time indicated by the victim and witnesses, a loan agreement was concluded and implemented between A. and L., which provided for only one condition - return the specified amount no later than November 24, 2012. Upon the deadline for the return of these funds, A., until contacting law enforcement agencies on June 8, 2016, did not report the theft of funds committed from him, but exercised his right to judicial protection in civil proceedings, on the basis of the specified loan agreement with L. dated 24 October 2011, having applied in 2015 to the Kuzminsky District Court of Moscow with a claim against L. to collect the debt on the receipt.

By the decision of the Kuzminsky District Court of Moscow dated October 12, 2015, which entered into legal force on March 22, 2016, A.’s claims against L. for the recovery of funds under the loan agreement were satisfied.

Further, A., exercising his right to protection in civil proceedings in accordance with the requirements of Art. 395 of the Civil Code of the Russian Federation, filed a claim with the Kuzminsky District Court of Moscow against L. for the recovery of interest from the latter for the use of other people’s funds for the last three years before the date of filing the claim in court. By the decision of the Kuzminsky District Court of May 25, 2016, these demands of the victim were also satisfied.

In addition, from the decision of the Arbitration Court of the Moscow Region dated March 23, 2022, it follows that A. appealed to the arbitration court with an application to declare L. insolvent (bankrupt) and the ruling of the Moscow Arbitration Court dated June 3, 2016, this application was accepted for proceedings, the case was subsequently transferred to the Arbitration Court of the Moscow Region for jurisdiction and by the decision of the Arbitration Court of the Moscow Region dated September 8, 2017, a bankruptcy procedure was introduced in relation to the debtor L. - restructuring of the citizen’s debts. By the indicated decision of the Arbitration Court of the Moscow Region dated March 23, 2022, L. was declared insolvent (bankrupt) and a bankruptcy procedure for a citizen was introduced in relation to him - the sale of property. Based on the ruling of the Arbitration Court of the Moscow Region dated March 13, 2019, the period for the sale of property was extended until September 19, 2022, A.’s monetary claims were included in the third priority of creditors.

The preliminary investigation authorities did not provide sufficient and convincing evidence that L., receiving funds from A., did not intend to fulfill his obligations related to the conditions for transferring to him the funds specified in the receipt, and that he had intent to steal the victim's money.

According to the testimony of the victim A., the money was taken by the defendant to develop the business, and the loan agreement was secured by the guarantee of the second participant in the company D., against whom the victim does not bring charges of fraud, since he did not lose trust in him until the death of the latter. In addition, L. periodically over a long period of time borrowed money from him for various personal needs of his family, while the loans were never formalized and L. fulfilled his obligations, regularly returning these loans to A. himself or through employees of his company. A. also confirmed that L. has always been a conscientious borrower.

The defense witnesses questioned at the trial confirmed the fact that at one time or another they were personally present and saw how L. met with A. and transferred significant amounts of cash into his hands.

Assessing all the above testimonies of defense witnesses, the court believes that they do not confirm the fact that L. returned the amount of debt to the victim under the loan agreement dated November 24, 2011, since none of the defense witnesses indicates that the money was returned specifically under the specified agreement, and documents, confirming L.’s fulfillment of obligations under this agreement was not presented, however, the testimony of defense witnesses confirms the existence of a long-term financial relationship between A. and L., within the framework of which A. lent money to the defendant, including at interest for business development, that is, he wanted to receive income from the funds invested in the defendant’s business, which was profitable until a certain time.

The prosecution's arguments that L. knew in advance that he was not going to repay the money are not supported by anything; there is no evidence that L. had a criminal intent to steal money when receiving loans, nor was there any evidence presented that the intent was not to repay the funds received arose from L. before they were received.

In accordance with paragraph 3 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2017 No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement,” abuse of trust in fraud consists of using, for personal gain, a trust relationship with the owner of property or another person authorized make decisions on the transfer of this property to third parties. Trust can be conditioned by various circumstances, for example, the official position of a person or his personal relationship with the victim. Abuse of trust also occurs in cases where a person assumes obligations when he obviously has no intention of fulfilling them for the purpose of gratuitously using someone else’s property for his own benefit or for the benefit of third parties or acquiring the right to it. However, the court did not establish such circumstances indicating that L. obviously did not intend to repay the debt and, having received the funds, disposed of them at his own discretion.

An analysis of certificates and extracts from the Unified State Legal Entity allows the court to conclude that during the period of receiving funds from A. under the loan agreement dated November 24, 2011, he conducted active financial and economic activities and deposited large sums of money into company accounts. This evidence from the prosecution does not refute L.’s testimony that the funds received from A. were used by him to develop his business. These circumstances contradict the conclusions of the investigation about the use by L. of the funds received from A. under the loan agreement dated November 24, 2011 at his own discretion, as well as the fact that, by accepting obligations to use the funds received as a loan for business development and return subsequently, these funds with interest, L. obviously did not intend to fulfill them, with the goal of turning these funds into his favor free of charge.

The prosecution's assertion that the receipt for receipt of funds from A. and the loan agreement with the latter were drawn up by L. in fulfillment of his criminal intentions aimed at stealing funds belonging to A., in order to convince his actions and give them a lawful appearance, contradict the requirements of Art. 808 of the Civil Code of the Russian Federation, which stipulates that a loan agreement between citizens must be concluded in writing, if its amount exceeds ten thousand rubles, a receipt from the borrower or another document certifying the transfer of a certain amount of money to him by the lender may be presented in confirmation of the loan agreement and its terms or a certain number of things. Drawing up A. and. L. of these documents does not indicate the intention of the parties to avoid liability for their obligations.

The fact that L. completed transactions in September 2015 for the alienation of two residential buildings, two plots of land and an apartment owned by him does not indicate the presence in L.’s actions of a crime (fraud) committed in the period from January 1, 2010 to January 14 2011, and cannot indicate that the defendant had criminal intent to steal property received from the victim in 2011. The conclusions of the investigation that these actions were committed by L. in order to avoid property penalties from A. when contacting law enforcement agencies, which could have been applied to property belonging to L., also do not correspond to reality, since A. only contacted law enforcement agencies 8 June 2016, and do not indicate the presence of fraud in the defendant’s actions.

The prosecution's argument that the defendant's intent to steal other people's property through fraud is seen in the fact that L. had the opportunity to return the money received from the latter as a loan, since, according to certificates on the study of financial and economic documents of a closed joint-stock company, the defendant received as the return of borrowed funds from a closed joint-stock company in the amount of several million rubles, but did not repay A.’s debt, in the opinion of the court, is not justified, since L.’s failure to fulfill obligations under a civil contract, which was established during the trial, provides for civil liability (Articles 395, 405 of the Civil Code of the Russian Federation), implemented through the decision of the Kuzminsky District Court of Moscow dated October 12, 2015, by which funds were recovered from the borrower in favor of A., on whose initiative the bankruptcy procedure of L was subsequently initiated . in the Arbitration Court of the Moscow Region and the procedure for the sale of the debtor’s property is currently underway, as well as by the decision of the Kuzminsky District Court of Moscow dated May 25, 2016, A.’s claims were satisfied and a penalty was collected from L. for the use of other people’s funds.

In connection with the above, analyzing all the above evidence, the court comes to the conclusion that all relationships between the defendant and the victim related to the loan agreement dated November 24, 2011 are exclusively of a civil nature and the existence of a civil transaction between L. and A. is excluded theft of funds through breach of trust.

Due to the fact that, by virtue of Art. 15 of the Code of Criminal Procedure of the Russian Federation, the court is not a criminal prosecution body and cannot act on the side of the prosecution or defense, but creates the necessary conditions for the parties to fulfill their procedural duties and exercises the rights granted to them, the court has taken all measures provided for by law to summon to court hearings the persons specified in list of those subject to subpoena, and the court believes that all possibilities for obtaining and providing evidence by the parties have been exhausted.

In accordance with Part 1 of Art. 14 of the Criminal Code of the Russian Federation, a crime is recognized as a socially dangerous act committed guilty of guilt, prohibited by the Criminal Code of the Russian Federation under threat of punishment.

Disposition part 4 art. 159 of the Criminal Code of the Russian Federation establishes liability, among other things, for theft by a person of someone else’s property through abuse of trust on an especially large scale. At the same time, the established circumstances of L. receiving money from the victim A., the goals and motives of his actions allow the court to come to the conclusion that there were no signs of fraud in the defendant’s actions. The court, based on the results of an examination of all the evidence presented by the parties, established that the funds were received by L. from the victim in the course of a civil transaction concluded between them, on the basis of a loan agreement concluded between them, the consequences of non-fulfillment of which were resolved by making decisions by the Kuzminsky District Court of Moscow , by which funds and interest for the use of funds were recovered from L., as well as by the decision of the Arbitration Court of the Moscow Region, which declared L. bankrupt and introduced bankruptcy proceedings.

The court believes that, in accordance with Art. 302 of the Code of Criminal Procedure of the Russian Federation, a conviction cannot be based on assumptions, and all doubts about the guilt of the accused that cannot be eliminated are interpreted in his favor, as provided for in Art. 49 of the Constitution of the Russian Federation and Art. 14 of the Code of Criminal Procedure of the Russian Federation on the presumption of innocence.

Due to the fact that during the judicial investigation, on the basis of the examined evidence, it was not reliably established that in L.’s actions there was a crime under Part 4 of Art. 159 of the Criminal Code of the Russian Federation, that is, fraud, namely theft by abuse of trust of A. of funds in an especially large amount belonging to the latter, L. is subject to acquittal on charges of committing a crime under Part 4 of Art. 159 of the Criminal Code of the Russian Federation, on the basis of the absence of this crime in his actions.

The Judicial Collegium for Criminal Cases of the Second Court of Cassation, in a cassation ruling dated May 19, 2020, indicated that in accordance with the legal position of the Constitutional Court of the Russian Federation, set out in the ruling dated January 29, 2009 No. 61-O-O, criminal liability for fraud , committed under the guise of a lawful civil transaction, is possible only if it is proven that, in concluding such a transaction, the person acted intentionally, pursuing the goal of stealing property or acquiring the right to someone else’s property. In this case, the criminal intent of the person is included in the subject of proof in a criminal case.

Having checked and assessed the evidence collected in the case, the court of first instance came to a reasonable conclusion that the prosecution’s arguments about L.’s criminal intent to steal A.’s money before receiving it under the loan agreement dated October 24, 2011 during the judicial investigation were not found confirmation and, in essence, are based on assumptions that, by virtue of Part 4 of Art. 14 of the Code of Criminal Procedure of the Russian Federation exclude the decision in the case of a guilty verdict.

The fact of transferring funds to A. to the acquitted person, as well as the latter’s ability to repay the debt within the period established by the loan agreement, were not refuted by the court, however, these circumstances themselves, in the absence of evidence of intent to steal these funds before their transfer, cannot indicate fraudulent actions acquitted.

Other circumstances referred to by the author of the complaint (L.’s execution of transactions for the alienation of property belonging to him, signs of his fictitious or deliberate bankruptcy, repeated changes of the justified place of residence) are not related to the act of which L. was accused, which took place in 2010 —2011.

Verdict of the Cheryomushkinsky District Court of Moscow dated October 14, 2019 in case No. 1-358/19.

Arbitrage practice

In 2022, 5,745 verdicts were issued under Article 160 of the Criminal Code of the Russian Federation on misappropriation and embezzlement of property, of which:

• 1,842 for part 1;
• 1,018 for part 2;
• 2,287 for part 3;
• 598 for part 4.

For comparison: in cases of “classic” theft (Article 158 of the Criminal Code of the Russian Federation) in 2020, more than 130,000 sentences were passed.

In judicial practice under Art. 160 there are often situations where appropriation and embezzlement “neighbor” each other. Thus, the culprit first appropriates the property entrusted to him, and after some time begins to sell it. In such cases, courts consider misappropriation and embezzlement as a single (“continued”) theft with a single intent.

Sometimes courts qualify an act under Art. 160, while other articles of the Criminal Code of the Russian Federation should be applied, in particular Art. 330 "Arbitrariness". Such misclassification arises in a situation where the person to whom the property has been entrusted temporarily borrows for his own purposes with the intention of returning it, that is, without the intent of its appropriation or embezzlement.

Concept and features of crimes

According to the Criminal Code of the Russian Federation, misappropriation is the illegal handling of objects entrusted to him by a criminal pursuing a selfish goal. A special feature of the crime is the use of trespass items against the will of their owner.

Embezzlement according to the Criminal Code of the Russian Federation is the illegal consumption, expenditure or transfer by a criminal of items entrusted to him. If appropriation is characterized as withholding, then embezzlement can be considered in a practical sense as withholding (for example, sale, donation, etc.).

The differences between the acts under consideration are presented in the table: