Harm in jurisprudence means the deprivation of a right or its impairment. The harm considered in civil and criminal law is slightly different. While in criminal law harm is most often considered damage caused to human life or health, in the Civil Code of the Russian Federation it is more common to cause damage to property.
Damage to property can be divided into 2 categories:
- destruction (its result is the complete rendering of the thing unusable);
- damage (when the item can be used for its intended purpose only after repair or other correction).
Damage to someone else's property is regulated by the administrative, criminal and civil legislation of the Russian Federation.
Administrative responsibility
A person who damages someone else's property may be subject to administrative or criminal penalties depending on the value of the damaged item. Administrative liability occurs when the damage is estimated at up to 5,000 rubles. For example it could be:
- scratch on the car;
- broken window glass;
- torn clothes or shoes;
- broken dishes in a cafe, etc.
The cost of damage is determined by an expert based on the evidence collected in the case: testimony of the victim, the owner of the property, witnesses, documents for the damaged item and a study of the market value of similar items.
The main condition for the onset of administrative liability, as in the case of damage to property under the Criminal Code of the Russian Federation, is the presence of intent in the actions of the offender. That is, if a glass falls from a table in a restaurant due to a careless movement, they will not be held administratively liable, but if the dishes are deliberately broken by a drunken visitor in a fit of anger, he will have to not only reimburse its cost, but also be punished.
A person who causes damage to property in the amount of up to 5 thousand rubles may be punished with an administrative fine in the amount of 300 to 500 rubles.
If the cost of damage is estimated by an expert to be higher than the stated amount, then the offender faces criminal liability. It is worth noting: licensed expert organizations have the right to assess the amount of damage caused to property. The injured person can turn to them either independently or by appointment of the court. The expert will determine the market value of the object (vehicle, real estate, other expensive goods) at the time of damage, taking into account the possibility of restoration.
An audit will not replace an inventory
Internal control is carried out not only by the management bodies of the economic entity, but also by the audit commission (auditor) of the economic entity (clause 18.1 of Information No. PZ-11/2013).
In a corporate organization, the election of an audit commission (auditor) falls within the exclusive competence of the highest body of such an organization (Part 2 of Article 65.3 of the Civil Code of the Russian Federation).
From the perspective of labor legislation, an economic entity is an employer. Article 20 of the Labor Code of the Russian Federation defines an employer as an individual or legal entity that has entered into an employment relationship with an employee.
In cases provided for by federal laws, another entity entitled to enter into employment contracts may act as an employer. But the audit commission (auditor) does not have the authority to conclude employment contracts. Thus, in an LLC, the auditor is considered a body of the company and is elected exclusively by the general meeting of its participants. A person performing the functions of the sole executive body of a company cannot be a member of the audit commission of the company or an auditor (clause 6 of Article 32, subclause 5 of clause 2 of Article 33 of Law No. 14-FZ).
Based on Article 47 of Law No. 14-FZ, the auditor of the company has the right at any time to conduct inspections of the financial and economic activities of the company and have access to all documentation relating to the activities of the company. At the request of the auditor, the director of the company, as well as employees of the company, are obliged to give the necessary explanations orally or in writing.
note
Shortage is the physical absence of cash and material resources, including goods and fixed assets, identified as a result of control procedures, audits, and inventory (clause 172, section 2 “GOST R 51303-2013. National standard of the Russian Federation. Trade. Terms and definitions” , approved by order of Rosstandart dated August 28, 2013 No. 582-st).
Thus, shortages can also be identified as a result of an audit. However, the auditor does not have the right to take any action to recover damages from employees. Article 247 of the Labor Code of the Russian Federation vests the corresponding powers only with the employer. It reads:
- before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence;
- To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.
Let us add on our own: such specialists can be members of the audit commission.
So, it is unlawful to equate an audit with an inventory, although the Ministry of Finance of Russia in its letter dated February 13, 2009 No. 03-03-06/4/4 did not see any difference between these activities. True, the letter is devoted to tax legal relations. Meanwhile, in the tax sphere, paragraph 1 of Article 11 of the Tax Code applies, by virtue of which the concepts and terms of civil and other branches of legislation of the Russian Federation should be applied in the meaning in which they are used in these branches of legislation, unless otherwise specifically provided for by this code.
As a result, we believe: following an audit that reveals a shortage, the manager is obliged to schedule an unscheduled inventory of the same assets.
Criminal liability
In criminal law, liability for intentional damage to property is provided for in Article 167 of the Criminal Code. Let's consider the features of bringing to criminal liability under this article.
Corpus delicti
The object of the crime is the right of ownership of things, which is guaranteed to every citizen by the Constitution. The subject of the crime, that is, the immediate things that the offender encroaches on, can be:
- movable property (any thing from a pen to a luxury car, with the exception of various documents, for the destruction of which there are separate articles in the Criminal Code);
- real estate;
- animals (damage to someone else’s pet also falls under the article on cruelty to animals - details here).
The main condition for bringing a person to justice for causing damage to property under Article 167 of the Criminal Code of the Russian Federation is causing significant damage to the victim. According to the law, the significance of the damage is determined in each specific case by the investigative and judicial authorities, depending on the financial situation of the victim, but under any circumstances, the total amount of damage caused for criminal liability cannot be less than 5,000 rubles.
The objective side of the crime is expressed in any actions of the offender aimed at causing damage to property.
Only persons who were 14 years old at the time of committing illegal actions can be brought to criminal liability under this article.
In order for the offender to be punished under Article 167 of the Criminal Code, it is necessary to prove that he acted with intent, that is, he intentionally wanted to destroy property. It is worth noting that the Criminal Code also provides for liability for causing damage to property through negligence (Article 168), but for this the amount of damage must be more than 250 thousand rubles.
Can improvements made be considered property damage? For example, improving rented housing. Yes, if the owner has not given his consent to such actions, then they can be regarded as damage to someone else’s property. And, therefore, you can apply for compensation for material damage caused.
The article of the Criminal Code on causing damage to property contains 2 parts. The second part differs from the first in objective and subjective aspects.
According to the second part of Article 167 of the Criminal Code, punishment is provided if property damage occurred by arson under the Criminal Code of the Russian Federation, explosion or other method dangerous to the life and health of many people, or if the consequence was the death of a person or other serious consequences.
From the subjective side, the second part provides for damage to property with a hooligan motive.
Punishment
The first part of Article 167 provides for a wide range of penalties:
- fine up to 40,000 rubles;
- public Works;
- correctional work;
- arrest up to 3 months;
- imprisonment up to 2 years.
The second part provides for only 2 types of punishment:
- forced labor for up to 5 years;
- imprisonment for the same period.
Find out what to do in case of property damage from the video below.
How does voluntary compensation work?
When the amount of damage is greater than the employee's average monthly earnings (and this usually happens in situations where there is an agreement on full liability), the employee who admits his guilt may agree to voluntarily compensate him in full or in part. Due to the significance of the amount, the parties draw up a document indicating this intention, containing a schedule of planned payments.
It is also possible to compensate for damage by replacing the damaged property with a new one or repairing the damaged property.
What is material damage
Material harm is an act committed towards the victim, which led to damage to his property. Actions can be carried out purposefully or through negligence. The fact of causing harm is confirmed by documents (inspection reports, expert opinions) and witness testimony. Damage is compensated if its value can be proven. But there are two cases when compensation is not paid (Article 1073 of the Civil Code):
- there is evidence that the plaintiff’s actions caused the losses;
- The cause of damage is force majeure circumstances - fire, earthquake, etc.
Comments by the RF Armed Forces
Separate paragraphs of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2022 N 48 are devoted to the issues of resolving practical problems related to the qualification of actions that fall or do not fall under the scope of Article 165 of the Criminal Code of the Russian Federation.
The key provision of the Resolution is enshrined in paragraph 22 and is devoted to the issues of delimitation of Articles 159 and 165 of the Criminal Code of the Russian Federation.
- The Plenum of the Supreme Court of the Russian Federation notes that when committing a crime prohibited by Article 165 of the Criminal Code of the Russian Federation, there are no signs of theft. This means that there are no illegal seizures and circulation of property that does not belong to a person, which are committed for mercenary purposes.
- Also, when qualifying, it is necessary to pay attention to what kind of damage was caused to the owner. So, for example, damage caused, which represents lost profits, that is, the income that the victim could have received, but did not receive due to the commission of a crime against him, then we are talking about the subject of the crime prohibited by Article 165 of the Criminal Code of the Russian Federation.
When will an employer go to court?
An employer may need to go to court if:
- he missed the deadline (1 month) during which he could take measures to independently recover losses from the employee;
- the employee refused to compensate for the damage voluntarily;
- the employee, who partially compensated for the losses voluntarily in accordance with the agreement concluded about this, quit and stopped making payments.
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The employer is given no more than 1 year from the date of discovery of the damage to make such an appeal (Article 392 of the Labor Code of the Russian Federation).
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
How to determine the amount of damage caused
When determining the amount of compensation, the following circumstances are taken into account:
- inventory value of property;
- period of delay in execution. For example, when calculating arrears of alimony, each day of delay is taken into account. If the deadline for the provision of services is violated, penalties will be charged for each day of delay;
- expenses incurred by the victim;
- amounts indicated in the experts' report.
Important! Damage can be calculated, but lost profits are a hypothetical concept. The Supreme Court explained that the amount is determined based on the costs that the creditor would have incurred in the event of fulfillment of the obligation (Plenum Resolution No. 6/8).
Collection cases
Here are some loss situations:
- provision of poor quality services;
- Commission of crime;
- traffic accident;
- negligent omission.
Separately, the law stipulates cases of harm in the workplace:
- an employee with whom a liability agreement has been signed;
- causing harm with intent;
- causing losses by an employee who is intoxicated;
- committing an administrative offense.
There are only two forms of payment of compensation - cash and in kind. Victims are most often interested in receiving monetary compensation.
Varieties
The circumstances of harm and types of losses vary. To receive compensation, you need to correctly qualify the act. There are several ways to distinguish between material damage:
- Depending on the circumstances and method of infliction. For example, if losses are caused during the execution of a contract, then the procedure for paying compensation is determined by its terms. When damage occurs outside the contract, the compensation mechanism defined in Chapter 59 of the Civil Code is activated.
- According to the object of damage. The property of a citizen or organization may be damaged.
- By the subject who caused the harm. The state, a source of increased danger, a minor and other entities can cause harm.
The victim has the opportunity to choose where to send the claim: in the territory where the defendant is located or in the place where the harm was caused.
How to act correctly
To compensate for the damage caused, follow the steps below:
- Collect evidence.
- File a claim.
- Pay the state fee.
- File a lawsuit.
- Be present during the hearing of the case.
- Get a court decision.
It is not always possible to recover exactly the compensation that the plaintiff expects.
The court takes into account the property status of the defendant and the presence of dependents. For example, the harm-doer’s health has deteriorated and he has filed for disability. As a result, income decreased, which means there is a basis for applying for a reduction in the amount of compensation. By the way, only individuals can ask for a reduction in compensation taking into account their financial situation. individuals, organizations do not have such an opportunity. Compensation for damage is the elimination of negative consequences from the impact on the property or person of the person who caused the damage. To receive compensation, you must prove the following circumstances:
- fact of damage;
- size;
- the presence of the offender’s guilt;
- connection between the offender’s actions and negative consequences. The causer of the damage is considered to be at fault unless he proves otherwise.
Often, along with material damage, moral damage is caused. For example, in the event of an accident, damage can be caused not only to property, but also to human health. The victim is forced to spend money on medicines and doctors, and remains unemployed for some time. Along with material damage, you can apply for compensation for moral damage.
