ST 326 of the Criminal Code of the Russian Federation.
1. Forgery or destruction of identification number, body number, chassis, engine, as well as forgery of the state registration plate of a vehicle for the purpose of operating or selling a vehicle, use of a knowingly counterfeit or counterfeit state registration plate for the purpose of committing a crime or facilitating its commission or concealment, as well as the sale of a vehicle with a knowingly counterfeit identification number, the number of the body, chassis, engine or with a knowingly counterfeit state registration plate, or the sale of a body, chassis, or engine with a knowingly counterfeit number - is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months, or compulsory work for a term of up to three hundred sixty hours, or correctional labor for a term of up to one year, 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 a term of up to two years the same period.
2. The same acts committed by a group of persons by prior conspiracy or by an organized group are punishable by compulsory labor for a term of up to four hundred eighty hours, or correctional labor for a term of up to two years, or restriction of freedom for a term of up to three years, or forced labor for a term of up to three years, or imprisonment for the same period.
Commentary to Art. 326 Criminal Code
1. Subject of the crime: a) genuine or fake vehicle identification number; b) genuine or fake body, chassis, engine numbers. Genuine numbers are assigned to the vehicle, its structural parts and assemblies by the manufacturer; c) a fake state registration plate that replaces a genuine sign - a number issued by the State Traffic Safety Inspectorate (see commentary to Article 325.1 of the Criminal Code).
2. The objective side is characterized by the commission of one or more of the actions specified in the law with the relevant objects.
Forgery of an identification number, number of parts and assemblies of a vehicle, state registration plate - changing them by etching, interrupting or other means, or applying (manufacturing) a completely fictitious number (sign).
Destruction of the identification number, number of parts and assemblies of a vehicle means their irreversible complete destruction.
The use of a fake registration plate consists of placing it on the vehicle body in place of the original one.
The sale of a vehicle with a fake identification number or the number of parts and assemblies, with a fake state registration plate, or the sale of a body, chassis, or engine with a fake number constitutes their sale or other final alienation, not necessarily of a compensated nature.
Actions included in the objective side, in particular the destruction of original license plates or signs that ensured the correct identification of the vehicle, its components and assemblies, may entail consequences, but the crime has a formal composition, and therefore ends at the time of the commission of these actions.
3. Qualification of individual actions involves the establishment of special purposes for their implementation: a) operation or sale of a vehicle (in case of falsification or destruction of the identification number, body number, chassis number, engine number, as well as forgery of the state registration plate of the vehicle); b) committing a crime or facilitating its commission or concealment (using a counterfeit or counterfeit state registration plate).
Article 326. Forgery or destruction of vehicle identification number
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 29, 2019 N 78-APU19-8SP - under Art. 326 part 2 of the Criminal Code of the Russian Federation - committed by an organized group during the period from October 18, 2015 to December 4, 2015, destruction of the identification number, body number, engine of a HYUNDAI Accent vehicle with an identification number ... for the purpose of operating the vehicle, using knowingly forged state registration plate "..." for the purpose of committing a crime and concealing it.
Determination of the Constitutional Court of the Russian Federation dated January 26, 2017 N 30-O
1. In his complaint to the Constitutional Court of the Russian Federation, citizen S.A. Bardyshev challenges the constitutionality of part one of Article 326 of the Criminal Code of the Russian Federation, which establishes criminal liability for the forgery or destruction of an identification number, body number, chassis, engine, as well as forgery of the state registration plate of a vehicle for the purpose of operating or selling a vehicle, the use of a knowingly counterfeit or counterfeit state registration plate for the purpose of committing a crime or facilitating its commission or concealment, as well as the sale of a vehicle with a knowingly counterfeit identification number, body, chassis, engine number or with a knowingly counterfeit state registration plate, or the sale of a body, chassis, engine with a knowingly counterfeit number.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated July 22, 2020 N 17P20
Bykovtsev V.G. acquitted of charges of committing crimes under Part 2 of Art. 326 of the Criminal Code of the Russian Federation and Part 2 of Art. 325 of the Criminal Code of the Russian Federation (as amended by Federal Law of December 8, 2003 N 162-FZ) - in the destruction of identification numbers of a car that belonged to Z. and the seizure of his important personal documents, on the basis of clause 3 of part 1 of art. 302, paragraph 2 of Art. 350 of the Code of Criminal Procedure of the Russian Federation due to the lack of corpus delicti in his actions.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated July 22, 2020 N 28P20
Prachev S.D. acquitted of charges of committing crimes under Part 2 of Art. 326 of the Criminal Code of the Russian Federation and Part 2 of Art. 325 of the Criminal Code of the Russian Federation (as amended by Federal Law of December 8, 2003 N 162-FZ) - in the destruction of identification numbers of a car that belonged to Z. and the seizure of his important personal documents, on the basis of clause 3 of part 1 of art. 302, paragraph 2 of Art. 350 of the Code of Criminal Procedure of the Russian Federation for the absence of corpus delicti in his actions.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 22, 2017 N 66-APU17-8sp
- 06/09/2008 under Part 1 of Art. 166, paragraph “a”, part 2, art. 166, part 2 art. 326, part 3, 5 art. of the Criminal Code of the Russian Federation to 4 years 6 months of imprisonment, released on July 29, 2011 on parole for 9 months 19 days,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 10, 2018 N 5-APU17-123sp
Contrary to the arguments of the appeals, the jurors were informed of the termination of the criminal case against all those convicted under Art. 326 part 2 of the Criminal Code of the Russian Federation, as well as on the exclusion of the Sardanovsky crime against the victim R from the charge. From the record of the court session it is clear that during the debates, the convicts and lawyers raised issues of admissibility of evidence, the procedure for obtaining it, information about the identity of the defendants.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 16, 2018 N 4-APU18-6SP
Lipovenko Igor Aleksandrovich, ... convicted by the Balashikha City Court of the Moscow Region on July 7, 2008 under Part 1 of Art. 326, paragraph “c”, part 2, art. 158 of the Criminal Code of the Russian Federation to 2 years in prison, released on April 16, 2010 after serving the sentence,
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 06.06.2018 N 44-UD18-15
Convicted by the Bereznikovsky City Court of the Perm Territory on March 16, 2007 for committing three crimes under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation, to 3 years 6 months of imprisonment for each; according to Part 1 of Art. 326 of the Criminal Code of the Russian Federation to 1 year of imprisonment; according to clause “b”, part 2, art. 228.1 of the Criminal Code of the Russian Federation to 6 years in prison; for committing three crimes provided for in paragraph “g” of Part 3 of Art. 228.1 of the Criminal Code of the Russian Federation, to 10 years in prison for each; for committing two crimes under Part 2 of Art. 228 of the Criminal Code of the Russian Federation, to 5 years in prison for each.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 24, 2019 N 13-APU19-4sp
Krylov A.V. acquitted under Art. 326 part 1 of the Criminal Code of the Russian Federation due to non-involvement in this crime. The sentence specifies the obligations and restrictions established by the convicted person while serving a sentence in the form of restriction of freedom. Having heard the report of judge A.S. Kolyshnitsyn, the explanations of the convicted A.V. Krylov, A.G. Tsapurin, lawyers Yu.M. Loginov, S.V. Popova, who supported the arguments of the appeals, the objections of prosecutor N.V. Savinov, who believed sentence left unchanged, Judicial Collegium
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 21, 2019 N 18-APU19-5sp
From the punishment imposed under Part 2 of Article 326 of the Criminal Code of the Russian Federation in the form of imprisonment for Shevchenko R.A. released due to the expiration of the statute of limitations. Term of punishment for Kornienko Yu.B., Pshenisnov I.V., Fogel M.V., Shevchenko R.A. calculated from June 27, 2022, the time spent in custody is included in the term of serving the sentence: Kornienko Yu.B. — from September 19, 2014; Pshenisnov I.V. — from August 22, 2014; Fogel M.V. — from December 12, 2014; Shevchenko R.A. - since August 20, 2014.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 26, 2019 N 13-APU19-2
Convicted under paragraphs “b”, “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation to 9 years 6 months of imprisonment; clause "z" part 2 art. 105 of the Criminal Code of the Russian Federation to 17 years in prison with restriction of freedom for 1 year; Part 1 Art. 222 of the Criminal Code of the Russian Federation - 2 years in prison; Part 1 Art. 326 of the Criminal Code of the Russian Federation (crime on the night of October 21, 2016) to 6 months of correctional labor with the deduction of 10% of wages to the state income; Part 1 Art. 326 of the Criminal Code of the Russian Federation (crime of October 31, 2016) - 6 months of correctional labor with the deduction of 10% of wages to the state income.
Second commentary to Art. 326 of the Criminal Code of the Russian Federation
1. The subject of this crime includes: identification number of the vehicle, number of the body, chassis, engine (indicated in the state registration certificate and technical passport of the vehicle); state registration plate of the vehicle.
2. Part 1 provides for liability for three acts that differ in the characteristics of the subject, objective and subjective aspects.
3. Forgery of identification number, body number, chassis number, engine number, state registration plate (Part 1 of Article 326 of the Criminal Code) - complete or partial change of individual digital or letter designations of the number. The destruction of the specified item is its liquidation.
4. The subjective side of this crime includes, in addition to direct intent, alternative goals: to commit a crime or facilitate its commission or conceal it.
5. Use of a knowingly counterfeit or forged state registration plate (see: commentary on Article 325.1 of the Criminal Code).
6. The subjective side of this act: the direct intent and purpose of committing a crime, concealing a crime or facilitating the commission of a crime.
7. Sales of a vehicle with obviously counterfeit license plates (identification number, body number, chassis number, engine number, state registration plate). Sales of body, chassis, engine with a deliberately fake number. Sales means release into circulation (permanent or temporary use). Sale is not only sale or donation, but also provision for use by proxy.
8. Subjective side - direct intent.
9. The subject of all listed crimes is a person who has reached the age of 16 years.
10. A qualifying feature is the commission of a crime by a group of persons by prior conspiracy or by an organized group (see: commentary on Article 35 of the Criminal Code of Russia).
The fact of falsification of license plates has been revealed: regulatory and legal aspect
Clause 3 of Article 15 of Law No. 196-FZ of December 10, 1995, which regulates the principles of road safety, clearly stipulates the need for state registration of vehicles. In this case, the owner must take care of timely receipt of proper documentation for the car.
A vehicle cannot be registered unless there is documentary evidence of its compliance with road safety requirements.
Ban on state registration
Paragraph 5 of clause 3 of the Rules for the state registration of cars in the State Traffic Safety Inspectorate, regulated by Order of the Ministry of Internal Affairs of the Russian Federation No. 399 of June 26, 2018, determines the impossibility of state registration of a car with fake, hidden or changed identification numbers.
A similar prohibition also applies to cases of falsification of documents presented for a car, or discrepancies between real data and documentary or registration information. You cannot register a vehicle with the official traffic police if it or its license plates are wanted.
However, a car with a changed license plate marking can still be registered with two exceptions:
- first, the marking of the car and its license plates has changed due to normal wear and tear (repairs, corrosion);
- second, the thieves changed (falsified) the license plates of the vehicle, but it was returned to the rightful owner.
Both exceptions apply if the car and its license plates can be identified (paragraph 5 of clause 3 of the State Registration Rules).
Paragraph 5 of paragraph 24 of the Administrative Regulations for the state registration of cars in the State Traffic Inspectorate, approved by Order of the Ministry of Internal Affairs of the Russian Federation No. 605 of 08/07/2013, clearly stipulates the grounds for refusal of state registration and possible exceptions associated with changing numbers. It should be noted that they are completely similar to the grounds and exceptions provided for in paragraph 5 of clause 3 of the above-mentioned State Registration Rules.
Is the injured buyer a bona fide purchaser?
If the buyer did not know that he was purchasing a car with altered license plates, he most likely will not be held criminally liable. Under such conditions, a criminal case will be initiated only on the fact of the crime itself.
If a criminal case has not been initiated against the owner of the car or has been dropped, this is not a basis for state registration of a vehicle with a fake passport (PTS) and altered license plates. Assigning victim status to a car owner is also not considered as a default basis for state registration of a car with a false license plate.
Many believe that the buyer, who was not aware and could not have known about the shortcomings of the purchased vehicle, is in this case a bona fide purchaser. It is often concluded that the buyer of a car with false (interrupted) license plates should not be subject to measures restricting the use of the car.
However, one cannot be guided by the relevant provisions of Article 302 of the Civil Code of the Russian Federation (Civil Code). After all, recognizing an individual buyer as a bona fide purchaser is an attempt to prevent the owner intending to reclaim the car. This rule applies to property relations, and traffic police authorities do not participate in these relations.
In other words, circumstances confirming the good faith of the purchase of the car will not be taken into account when assessing the legality of the traffic police’s refusal to state registration of vehicles with changed numbers.
Judicial practice on this issue received a proper assessment by the Presidium of the Supreme Court of the Russian Federation (SC). According to the Resolution of the Presidium of the Supreme Court dated September 27, 2006, the mere fact of a citizen purchasing a car does not oblige traffic police officers to register it and admit it to road traffic. In this case, you should be guided by the above-mentioned State Registration Rules.
Examination of a car with broken license plates and further actions
Guided by paragraph 49 of the Rules for State Registration of Vehicles, traffic police officers do not register vehicles with incorrect license plates, but detain them and transmit the necessary information to police officers.
Vehicles that have obvious signs of falsification of license plates or PTS are sent by traffic police officers for examination. The purpose of such an examination is to confirm or refute the facts of counterfeiting. If the assumption of a change in license plate markings is confirmed, State Traffic Inspectorate employees transfer all materials on the car to the police department for a procedural verdict. The investigator has the right to initiate a criminal case, guided by Article 326 of the Criminal Code of the Russian Federation (CC), if there are sufficient grounds.
Vehicles with altered license plates are confiscated according to the norms of the Code of Criminal Procedure, which is duly documented by the investigative agency. Such a car is considered material evidence (Article 81 of the Code of Criminal Procedure), and its storage is carried out in accordance with the requirements of Article 82 of the Code of Criminal Procedure. At the same time, subparagraph (b) of paragraph 1 of part 2 of Article 82 of the Code of Criminal Procedure of the Russian Federation provides for the possibility of returning this car to the owner (possessor), if this does not interfere with proof.
On the issue of errors in the qualification of acts under Article 326 of the Criminal Code of the Russian Federation
UDC 343.346.24
Magazine pages: 142-147
A.S. Lebedev,
Deputy Head of the Supervision Department of the State Traffic Safety Inspectorate of the Ministry of Internal Affairs for the Republic of Khakassia Russia, Abakan
The results of an analysis of investigative and judicial practice on the qualification of the actions of persons who falsify or destroy a vehicle identification number are considered. It has been established that errors in qualifying acts under Art. 326 of the Criminal Code of the Russian Federation are associated, firstly, with the blanket nature of the disposition of this article, secondly, with the lack of a uniform approach to the application of the norm, including the absence of a corresponding resolution of the Plenum of the Supreme Court of the Russian Federation, and thirdly, with poorly developed law enforcement practice. The author provides recommendations regarding the differentiation of Art. 326 of the Criminal Code of the Russian Federation with related elements of Art. 175 of the Criminal Code of the Russian Federation and the composition of Articles 158, 159, 161, 171, 174, 175 and 198 of the Criminal Code of the Russian Federation.
Key words: identification number, vehicle, fake, errors in qualification.
In the theory of criminal law, erroneous classification is understood as the establishment and consolidation in the relevant criminal procedural act of the identified act as part of a crime, which in fact does not cover this act [8, p. 18]. In every criminal case, only one correct solution to the question of qualification of the offense is possible, in accordance with the law; nevertheless, other decisions can only be erroneous [11, p. 44]. However, in practice there are facts of erroneous classification, including when qualifying acts under Art. 326 of the Criminal Code of the Russian Federation of 1996 (hereinafter referred to as the Criminal Code of the Russian Federation). Let us consider their reasons and provide recommendations for law enforcement practice to avoid such errors.
The main reasons for qualification errors are shortcomings in legislation and unprofessionalism of law enforcement officials [11, p. 44]. The subject of the law enforcement officer's error in the qualification of a criminal act is the person conducting the inquiry, the investigator, the prosecutor, the judge. A qualification error is committed only in connection with the establishment of a coincidence (compliance) of the actual signs of a socially dangerous act and the elements of a crime. The law enforcement officer’s mistake is expressed not only in a misconception regarding the qualification of the act, but also in his incorrect actions based on this misconception [12, p. 55].
25% of 263 respondents to the question: “What causes the problems of applying the legislation on liability for the forgery or destruction of a vehicle identification number?” - answered that the imperfection of the criminal legislation, 7.9% - the lack of explanations from the Supreme Court of the Russian Federation, 16.7% - the poorly developed judicial practice of applying Art. 326 of the Criminal Code of the Russian Federation, 33.1% - poorly developed practice of criminal police units in identifying persons who have committed crimes under Art. 326 of the Criminal Code of the Russian Federation, and only 0.3% of respondents answered that there were no problems.
Analysis of investigative and judicial practice of applying Art. 326 of the Criminal Code of the Russian Federation (288 criminal cases) showed that often investigative authorities and courts actions covered by Art. 326 of the Criminal Code of the Russian Federation, are qualified under Articles 158, 159, 161, 171, 174, 175 and even 198 of the Criminal Code of the Russian Federation.
Mistakes are made when qualifying acts under Art. 326 of the Criminal Code of the Russian Federation, associated with an error in the object and subject of the crime, the objective side of the crime, the subjective side of the crime and even the subject. Often errors are associated with the wrong choice of a specific article, which contains a complete description of the act committed.
Sometimes a law enforcement officer has to deal not only with organizational and tactical-criminalistic problems when investigating such acts, but also with difficulties associated with the entry of this legal norm into interaction with other articles of the crime, therefore, for their correct application, it is necessary to understand the content of the first and determine their relationship and the place in the system of the mechanism of criminal legal regulation, the scope of action.
The complexity of applying the norm is also due to the fact that the act may contain signs of several norms, since the elements of the crime provided for in Art. 326 of the Criminal Code of the Russian Federation, maybe with the elements of a crime under Art. 175 of the Criminal Code of the Russian Federation, on the one hand, coincide, on the other hand, differ in some respects.
Errors in the object, subject and objective side of falsifying or destroying a vehicle identification number are expressed in a misunderstanding of the essence of social relations protected by Art. 326 of the Criminal Code of the Russian Federation.
Thus, on March 29, 2005, in St. Petersburg, L. sold Z. a Chevrolet Niva car with a deliberately fake vehicle identification number and state registration plate. In return, Z. gave him a Mercedes Benz E200 car. 04/01/2005 L. in Petrozavodsk sold this car to P. for 300,000 rubles. The court qualified these actions of L. under Part 1 of Art. 174 of the Criminal Code of the Russian Federation as a transaction with property acquired by a person as a result of committing a crime [5]. This position of the judicial authorities is illogical, since the direct object of Art. 174 of the Criminal Code of the Russian Federation are social relations that arise regarding the implementation of business activities based on the law, while the direct object of Art. 326 of the Criminal Code of the Russian Federation recognizes the work of state bodies in the registration activities of vehicles, self-propelled vehicles and small and watercraft.
In addition, in the disposition of Art. 174 of the Criminal Code of the Russian Federation talks about “conducting financial transactions and other transactions with funds or other property acquired by a person as a result of committing a crime, in order to give legal form to the possession, use and disposal of these funds or other property.” As you can see, the subject has a special purpose, however, in the case of Art. 326 of the Criminal Code of the Russian Federation, a legal type of ownership, for example, of a vehicle with a fake identification number is not possible. Legal ownership of a vehicle means the possibility of its legal operation, realized through state registration, while state registration of vehicles with fake identification markings is not carried out [13].
In this regard, the decision in this case in a higher court seems logical. The court, considering this accusation to be erroneous, indicated that L.’s actions did not contain the elements of this crime. Selling a car with obviously fake license plates is not a property crime. The object of this crime is the established procedure for accounting and registration of vehicles. The amount received as a result of the sale of a car with a deliberately false license plate is not property acquired by a person as a result of committing a crime. As a result, L. was acquitted of the charge of committing a crime under Part 1 of Art. 174 of the Criminal Code of the Russian Federation, for lack of corpus delicti [4]. Thus, the court of first instance did not understand the type of social relations on which the encroachment qualified under Art. 326 of the Criminal Code of the Russian Federation. At the same time, the court, due to the likely difficulty of understanding the actions that can be performed on the objective side of Art. 326 of the Criminal Code of the Russian Federation, erroneously qualified the actions of L.
The following example from judicial practice shows that judges may be theoretically under-equipped. This is probably due to the fact that the number of acts provided for in Art. 326 of the Criminal Code of the Russian Federation, hundreds of times exceeds the number of cases considered in courts under Art. 326 of the Criminal Code of the Russian Federation, insufficiently developed practice is an indirect confirmation of this. Thus, on 10/08/2005 in Norilsk, S. stole a VAZ 21124 car. S. owned a damaged VAZ 21120 car. He destroyed the engine number on the stolen car, cutting out a fragment with the body number of the damaged vehicle, and installed it on the stolen car , after which he registered a stolen car with a fake body number and a destroyed engine number with the traffic police, then sold it. The court qualified the sale of the car under Part 2 of Art. 159 of the Criminal Code of the Russian Federation, since S. was misled regarding the legality of ownership of this car, previously stolen from another person [6]. This qualification of S.’s actions aimed at selling a vehicle is erroneous, since there is a special provision in Art. 326 of the Criminal Code of the Russian Federation, which provides for liability for the sale of a vehicle with a fake or destroyed vehicle identification number.
In addition, falsification or destruction of a vehicle identification number (Article 326 of the Criminal Code of the Russian Federation) is considered a completed crime from the moment when the identification number, body number, chassis number, engine number, state registration plate of the vehicle are falsified, i.e. distortions of their actual content. These actions serve as a means of giving legality to the stolen property and are part of an independent crime. Forgery of an identification number is not covered by theft, robbery, or fraud, since it in itself does not constitute deception or misrepresentation, as stated above.
Forgery of a vehicle identification number cannot be a sign of another crime and therefore always requires independent qualification. Taking into account the above, the final qualification, in our opinion, should be carried out according to Part 1 of Art. 326 of the Criminal Code of the Russian Federation, Part 3 of Art. 158 of the Criminal Code of the Russian Federation.
Similarly, mistakes are made when qualifying the theft of vehicles for the purpose of their subsequent sale without falsifying the identification number. Thus, in Omsk in 2001, five people entered into a preliminary conspiracy among themselves and created an organized group with the aim of committing thefts of late-model VAZ cars in Omsk. Following vehicle thefts, one member of the group forged vehicle identification numbers in order to sell the stolen vehicles. A total of four vehicles were stolen, two of which subsequently had vehicle identification numbers tampered with. The court indicated the following wording: the preliminary investigation authorities further qualified the actions of M., K., K., and A. under Part 2 of Art. 326 of the Criminal Code of the Russian Federation. The court finds that the actions of the defendants fully constitute the crime provided for in paragraphs “a”, “b” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation. According to Part 2 of Art. 326 of the Criminal Code of the Russian Federation, defendants M., K., K., and A. are subject to acquittal for lack of corpus delicti [7]. The Supreme Court of the Russian Federation, in our opinion, resolved a similar situation by Resolution of the Plenum of December 27, 2007 No. 51 “On judicial practice in cases of fraud, misappropriation and embezzlement”, according to paragraph 6 of which the theft of someone else’s property or the acquisition of the right to it by deception or abuse trust, committed using an official document forged by this person, granting rights or releasing from obligations, is qualified as a set of crimes provided for in Part 1 of Art. 327 of the Criminal Code of the Russian Federation and the corresponding part of Art. 159 of the Criminal Code of the Russian Federation. In the case considered, the theft of vehicles was committed with the subsequent use of falsification of the vehicle identification number to facilitate the sale of stolen property; accordingly, the court should have qualified such acts as a set of crimes provided for in Art. 158 of the Criminal Code of the Russian Federation and the corresponding part of Art. 326 of the Criminal Code of the Russian Federation.
Let us give another example of errors in the qualification of acts under Art. 326 of the Criminal Code of the Russian Federation on the objective side. In the period from June 1996 to December 1997, an organized group of seven people operated in Togliatti, purchasing stolen vehicles with altered identification numbers of vehicles and engines, falsifying documents and selling them in the Astrakhan and Saratov regions. During this period, they thus purchased and sold 73 cars. Investigative authorities qualified these actions under points “a”, “b” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation, Part 2 of Art. 326 of the Criminal Code of the Russian Federation, paragraphs “a”, “b”, part 3 of Art. 159 of the Criminal Code of the Russian Federation, Part 2 of Art. 327 of the Criminal Code of the Russian Federation, paragraph “a”, part 2 of Art. 171 of the Criminal Code of the Russian Federation, Part 3 of Art. 174 of the Criminal Code of the Russian Federation, Part 2 of Art. 198 of the Criminal Code of the Russian Federation. The court considered it necessary to acquit them of committing crimes provided for in paragraphs “a”, “b” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation, Part 2 of Art. 326 of the Criminal Code of the Russian Federation, paragraphs “a”, “b”, part 3 of Art. 159 of the Criminal Code of the Russian Federation, Part 2 of Art. 327 of the Criminal Code of the Russian Federation, paragraph “a”, part 2 of Art. 171 of the Criminal Code of the Russian Federation, Part 3 of Art. 174 of the Criminal Code of the Russian Federation, Part 2 of Art. 198 of the Criminal Code of the Russian Federation for the absence of corpus delicti in their actions. The court reclassified the act from theft to Part 3 of Art. 175 of the Criminal Code of the Russian Federation, since the defendants committed an unpromised acquisition and sale of property, obviously obtained by criminal means, in relation to a car, on a large scale by an organized group [2]. At the same time, it is not clear why the court excluded Part 2 of Art. 326 of the Criminal Code of the Russian Federation, refusing to classify the actions as the sale of a vehicle with fake identification numbers, and why the court did not consider qualifying their actions in the aggregate. The acquisition of vehicles obtained by criminal means is indeed covered by the disposition of Art. 175 of the Criminal Code of the Russian Federation. Investigative authorities regarding the qualification of the above-described actions under points “a”, “b” of Part 3 of Art. 159 of the Criminal Code of the Russian Federation, Part 2 of Art. 327 of the Criminal Code of the Russian Federation, paragraph “a”, part 2 of Art. 171 of the Criminal Code of the Russian Federation, Part 3 of Art. 174 of the Criminal Code of the Russian Federation, Part 2 of Art. 198 of the Criminal Code of the Russian Federation, apparently, have not fully understood the mechanism of causing harm by such acts.
Firstly, in paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 24, 2004 No. 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property acquired by criminal means” it is stated that in those cases when a person, with the goal of generating income, is engaged in illegal activities, liability for which is provided for by other articles of the Criminal Code of the Russian Federation (for example, the illegal manufacture of firearms, ammunition, the sale of narcotic drugs, psychotropic substances and their analogues), the offense committed by him is additionally qualified under Art. 171 of the Criminal Code of the Russian Federation does not require it. In this case we are talking specifically about illegal activity.
Secondly, paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 24, 2004 No. 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property acquired by criminal means” establishes that the sale of property that was obtained as a result of the commission of a crime (for example, theft) by other persons, does not form part of the legalization (laundering) of funds or other property (Article 174 of the Criminal Code of the Russian Federation), unless such property is given the appearance of being lawfully acquired. Depending on the specific circumstances of the case, these actions may contain elements of a crime providing for liability for theft (in the form of complicity), or a crime under Art. 175 of the Criminal Code of the Russian Federation. In this regard, we have already established that it is not possible to create the appearance of a lawful acquisition if the identification number on the purchased vehicle is then falsified.
Thirdly, qualification under Art. 198 of the Criminal Code of the Russian Federation is also excluded because paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes” states that the subject of the crime under Art. 198 of the Criminal Code of the Russian Federation, is an individual who has reached the age of sixteen (a citizen of the Russian Federation, a foreign citizen, a stateless person), who, in accordance with the legislation on taxes and fees, is charged with the responsibility for calculating and paying taxes and (or) fees to the appropriate budget, and also upon submission to the tax authorities of a tax declaration and other documents necessary for the implementation of tax control, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees. In particular, by virtue of Art. 11 of the Tax Code of the Russian Federation of 1998, this may be an individual entrepreneur registered in the prescribed manner and carrying out business activities without forming a legal entity, as well as a private notary, a lawyer who has established a law office, but these persons have not been registered as entrepreneurs.
There is an opinion in the literature according to which “in the situation of a non-promised sale of a vehicle, body, chassis or engine knowingly obtained by criminal means with counterfeit registration and registration numbers, an ideal set of crimes takes place, requiring qualification under two articles - 175 and 326 of the Criminal Code of the Russian Federation” [1, p. 168]. This statement is supported by A.A. Arkhipov in that to qualify the case under consideration according to one of the norms - Art. 175 or Art. 326 of the Criminal Code of the Russian Federation - it would be wrong, since such a qualification does not reflect the fact that what was actually done infringes on two different objects of criminal legal protection. As an additional argument, A.A. Arkhipov notes that among the property obtained by criminal means, which forms a qualifying feature of a crime under Art. 175 of the Criminal Code of the Russian Federation, the car is directly named [1, p. 168]. This conclusion, in his opinion, applies to the sale of a vehicle or its components with obviously counterfeit registration and registration numbers, committed with the simultaneous presence of signs of legalization, which is qualified under the totality of Articles 326 and 174 of the Criminal Code of the Russian Federation [1, p. 168]. An example from practice demonstrating the unfoundedness of such a conclusion is presented above.
Let us now dispel the fallacy of qualification under the totality of Articles 326 and 175 of the Criminal Code of the Russian Federation in the situation of the non-promised sale of a vehicle, body, chassis or engine with counterfeit registration and registration numbers that was obviously obtained by criminal means.
Let's analyze the composition of Art. 326 of the Criminal Code of the Russian Federation, adjacent to the composition of Art. 175 of the Criminal Code of the Russian Federation, regarding the sale of vehicles with a fake or destroyed identification number, when such a vehicle was obtained by criminal means. The legislator, when setting out the elements of crimes provided for in Articles 326 and Art. 175 of the Criminal Code of the Russian Federation, assumed that they would be adjacent. In general, the process of formation of special norms is associated not only with the fact that specific cases are distinguished from any general norm, but also with the fact that often the newly created special norm acquires additional features that characterize this type of crime much more fully than the general norm. so this new composition goes very significantly beyond its limits. In this case, the special norm acts as a complex formation and can already be distinguished from the previous general norm by a number of characteristics, as adjacent to it [11, p. 224].
Let's look at this with a specific example. In the city of Zaraysk, Moscow Region, V. and P. purchased a stolen VAZ 21093 car, forged identification markings and sold this car. The court qualified their actions as forgery under Part 2 of Art. 326 of the Criminal Code of the Russian Federation, upon sale - under points “a”, “b”, part 2 of Art. 175 of the Criminal Code of the Russian Federation [3]. In our opinion, counterfeiting and sale of a vehicle with fake identification numbers should be classified under Part 2 of Art. 326 of the Criminal Code of the Russian Federation, and the acquisition of a vehicle obtained by criminal means should be qualified under points “a”, “b” of Part 2 of Art. 175 of the Criminal Code of the Russian Federation.
At the same time, it is impossible to agree with the categorical characterization of the actions of V. and P. proposed by the court. It seems that the above act requires qualification as follows. Firstly, the elements of the crime provided for in Art. 175 of the Criminal Code of the Russian Federation, includes causing harm to social relations that ensure the legal transfer of ownership of property from one person to another [10, p. 167-172]. The corpus delicti under Art. 326 of the Criminal Code of the Russian Federation, is designed to protect public relations in the sphere of work of state bodies for the registration activities of vehicles, self-propelled vehicles and small and watercraft; it is the sale of a vehicle with a deliberately fake identification number that causes harm to these relations, since the vehicle is removed from the state registration of vehicles funds.
Secondly, such actions are prescribed in more detail by the legislator in the disposition of Art. 326 of the Criminal Code of the Russian Federation. In the case of Art. 175 of the Criminal Code of the Russian Federation, the subject of sale is a car, while criminal liability under Art. 326 of the Criminal Code of the Russian Federation occurs if the object is a vehicle, i.e. The legislator used a broader concept than a car.
Thirdly, from the point of view of subjective assessment, V. and P. realize that the vehicle was previously stolen, which, in our opinion, indicates that the act is subject to qualification under paragraphs “a” and “b” of Part 2 of Art. . 175 of the Criminal Code of the Russian Federation.
Fourthly, the position of A.A. Arkhipova is also unfounded because the classification of the sale of a vehicle or its components with obviously counterfeit registration and registration numbers in the aggregate contradicts the principle of non bis in idem, according to which one cannot be punished twice for the same act [9, p. 273].
In general, the implementation of criminal liability against persons who have committed forgery or destruction of a vehicle identification number is shrouded in problems in the qualification of acts under Art. 326 of the Criminal Code of the Russian Federation. Such problems are associated with the presence of a large number of blanket formulations in the presentation of the disposition, and the lack of uniformity in the scientific and law enforcement community on the issue of uniform application of the law. There is a need to issue a resolution of the Plenum of the Supreme Court of the Russian Federation on the application of Art. 326 of the Criminal Code of the Russian Federation, which requires highlighting problematic issues of qualification of acts under this norm, and providing recommendations to the courts on this issue.
Let us summarize that the corpus delicti under Art. 326 of the Criminal Code of the Russian Federation, there is something more than just a set of formal actions described in the disposition. It is not an auxiliary composition that allows you to supplement the final qualification palette when qualifying thefts. The composition is independent and is a legal alternative to Art. 175 of the Criminal Code of the Russian Federation. It is obvious that its importance and place in the system of criminal legal regulation is underestimated. Carrying out criminal acts provided for in Art. 326 of the Criminal Code of the Russian Federation, exclude the possibility of realizing the intent present when committing acts provided for in Articles 158, 159, 161, 171, 174, 175 and 198 of the Criminal Code of the Russian Federation.
Bibliography
1. Arkhipov A.A. Criminal liability for crimes related to falsification of registration and registration parameters of vehicles: Dis. ...cand. legal Sci. — Tyumen, 2011.
2. Archival materials of the Avtozavodsky Court of Tolyatti, Samara Region. Case No. 1-220/2000 dated July 17, 2000.
3. Archival materials of the Zaraisk City Court of the Moscow Region. Case No. 1-152/2005 dated 11/18/2005.
4. Archival materials of the Petrozavodsk City Court of the Republic of Karelia. Case No. 22-1248/2006 dated July 17, 2006.
5. Archival materials of the Petrozavodsk City Court of the Republic of Karelia. Case No. 1-419/2008.
6. Archival materials of the Talnakh permanent session of the Norilsk City Court of the Krasnoyarsk Territory. Case No. 1-54/2007 dated December 7, 2007.
7. Archival materials of the Central District Court of Omsk. Case No. 1-452/2002.
8. Blagov E.V. Qualification of crimes (theory and practice). - Yaroslavl, 2003.
9. Boytsov A.I. Crimes against property. - St. Petersburg, 2002.
10. Volotova E.O. Acquisition or sale of property known to have been obtained by criminal means // Current problems of Russian law. 2011. No. 3.
11. Kudryavtsev V.N. General theory of classification of crimes. 2nd ed. reworked and additional - M., 1999.
12. Kuznetsova N.F. Problems of qualification of crimes: Lectures on the special course “Fundamentals of qualification of crimes” / scientific. ed. V.N. Kudryavtsev. - M., 2007.
13. Sabitov R.A. Errors in the qualification of criminal acts // Bulletin of Chelyabinsk State University. Ser. 9 "Right". 2001. No. 2.
PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
DECISION of December 17, 2022 N 43
ABOUT SOME ISSUES OF JUDICIAL PRACTICE IN CASES OF CRIMES PROVIDED FOR BY ARTICLES 324 - 327.1 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION
In order to ensure uniform application by courts of legislation on liability for crimes provided for in Articles 324, 325, 325.1, 326, 327, 327.1 of the Criminal Code of the Russian Federation, as well as in connection with issues arising from the courts, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 The Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ “On the Supreme Court of the Russian Federation”, decides to give the following clarifications to the courts:
1. Draw the attention of the courts to the fact that official documents granting rights or releasing from obligations in Article 324 of the Criminal Code of the Russian Federation (hereinafter also referred to as the Criminal Code of the Russian Federation) and official documents in Part 1 of Article 325 of the Criminal Code of the Russian Federation mean such documents, including including electronic documents that are created, issued or certified in the manner prescribed by law or other regulatory act by federal government bodies, government bodies of constituent entities of the Russian Federation, local government bodies or authorized organizations or persons (educational, medical and other organizations, regardless of form of ownership, officials and persons performing management functions in commercial and non-profit organizations, examination, medical and other commissions, notaries, etc.) and certify legally significant facts.
At the same time, the subject of the crime provided for in Article 324 of the Criminal Code of the Russian Federation should include only official documents that can entail legal consequences in the form of the granting or deprivation of rights, the imposition of duties or release from them, changes in the scope of rights and obligations (for example, a certificate of incapacity for work is the basis for the appointment and payment of temporary disability benefits to the employee, a medical certificate on the absence of contraindications to driving vehicles gives the person the right to take an exam and obtain a driver’s license).
2. Important personal documents for the purposes of Part 2 of Article 325 of the Criminal Code of the Russian Federation may be recognized, in addition to a citizen’s passport (including a foreign, diplomatic or service passport), such official documents as a residence permit, military ID, driver’s license, pension certificate, a certificate of a labor veteran, a certificate of state registration of a civil status act, a certificate or diploma of education, a vehicle registration certificate, a vehicle passport and other documents belonging to a citizen that give him a certain legal status and are designed, as a rule, for their multiple and (or ) long-term use.
When deciding whether to recognize an official document as an important personal document, the court must take into account the nature of the fact certified by this document, the consequences for the citizen associated with his abduction, and other circumstances.
3. Courts must take into account that the subject of crimes provided for in Articles 324 and 325 of the Criminal Code of the Russian Federation includes only genuine official documents, including their duplicates, as well as genuine state awards of the Russian Federation, the RSFSR, the USSR, stamps, seals, excise stamps, special marks or marks of conformity protected from counterfeiting.
4. The subject of illegal actions provided for in parts 1 - 4 of Article 327 of the Criminal Code of the Russian Federation is a fake citizen’s passport, as well as identification and other official documents related to granting rights or exempting from duties. At the same time, for the purposes of Part 2 of Article 327 of the Criminal Code of the Russian Federation, such an identification may be recognized as a document intended to confirm the identity, position (status) of a person, the rights and powers granted to the person in accordance with the regulatory legal acts of the Russian Federation (for example, an official identification card of a law enforcement officer , granting the right to store and carry firearms and special means).
At the same time, within the meaning of Part 5 of Article 327 of the Criminal Code of the Russian Federation, knowingly forged documents include any counterfeit documents certifying legally significant facts, with the exception of counterfeit citizen’s passports, identification cards or other official documents that grant rights or relieve one from obligations (for example, counterfeit civil documents contract, vehicle diagnostic card).
5. In Article 324 of the Criminal Code of the Russian Federation, the illegal acquisition of official documents granting rights or exempting from duties, as well as state awards of the Russian Federation, the RSFSR, the USSR should be understood as the actions of a person committed by him in violation of the established procedure for the issuance, storage and other handling of such items , as a result of which they come into the possession of this person, including their purchase or illegal receipt at no cost from other persons.
The theft of state awards of the Russian Federation, RSFSR, USSR is one of the ways of their illegal acquisition and is qualified under Article 324 of the Criminal Code of the Russian Federation. In cases where, along with rewards, the guilty person steals other items that are someone else’s property, the act is classified as a set of crimes provided for in Article 324 and the corresponding article of the Special Part of the Criminal Code of the Russian Federation on criminal liability for crimes against property.
The illegal sale of items specified in Article 324 of the Criminal Code of the Russian Federation refers to the actions of a person violating the established procedure by transferring these items to other persons for a fee or free of charge.
6. Courts should keep in mind that liability for the theft of an official document such as a passport or other important personal document from a citizen is established by a special norm - part 2 of Article 325 of the Criminal Code of the Russian Federation. In this regard, theft, as well as the destruction, damage or concealment of a passport or other important personal document cannot be qualified under Part 1 of Article 325 of the Criminal Code of the Russian Federation.
7. Article 326 of the Criminal Code of the Russian Federation recognizes as a counterfeit of a state registration plate the manufacture of such a sign in violation of the procedure established by the legislation on technical regulation or the introduction of changes into a sign manufactured in the established manner that distort the symbols applied to it (for example, by extrusion, mechanical removal of the symbol (symbols) , erasures, touch-ups) and allowing a different interpretation of the state registration plate.
The use of a knowingly forged state registration plate includes, in particular, the installation on a vehicle for the purpose of committing a crime or facilitating the commission or concealment of a crime of a state registration plate manufactured in the prescribed manner, but different from that included in the registration documents of this vehicle (for example, issued on another vehicle), driving for the same purposes a vehicle with such a state registration plate installed on it.
8. Forgery of an official document granting rights or releasing from obligations, and falsification of a citizen’s passport or certificate granting rights or releasing from obligations, in parts 1 and 2 of Article 327 of the Criminal Code of the Russian Federation, respectively, are recognized as an illegal change of individual parts of such an authentic official document by erasure, additions, replacement of elements, etc., distorting its actual content, as well as the production of a new official document containing deliberately false information, including using genuine forms, seals, stamps. The documents specified in Article 327 of the Criminal Code of the Russian Federation are recognized as forged (including forged) if it is established that they contain the listed characteristics.
9. Finding a person guilty of using a knowingly forged certificate or other official document granting rights or releasing from obligations (Part 3 of Article 327 of the Criminal Code of the Russian Federation), the court must establish what rights he could have granted to this person or other persons or actually provided this forged document or from any duties he could be released or released (for example, presenting a fake education diploma, medical record for employment, presenting a fake driver’s license to a traffic police inspector to confirm the right to drive a vehicle and exemption from administrative liability).
10. In parts 3 and 5 of Article 327 of the Criminal Code of the Russian Federation, the use of a knowingly forged (forged) document means its presentation (and in the case of an electronic document - including through the use of information and telecommunication networks, including the Internet) on one’s own initiative or by request of authorized persons and bodies to the relevant institution or official, other authorized persons as genuine in order to obtain (confirm) the right, as well as release from the obligation.
The use by a person of his own original document that is invalid (for example, expired), or an original document belonging to another person, or the presentation of an original document similar to it instead of an appropriate document does not constitute a crime under Part 5 of Article 327 of the Criminal Code of the Russian Federation.
11. The use of a deliberately forged (forged) document specified in parts 3 and 5 of Article 327 of the Criminal Code of the Russian Federation is qualified as a completed crime from the moment it is presented for the purpose of obtaining rights or being relieved of obligations, regardless of the achievement of this goal. If a deliberately forged (forged) document presented by a person for the specified purpose was subsequently used to obtain rights or release from obligations during a certain period (for example, during employment and during subsequent work in an organization), then the statute of limitations for criminal offenses provided for in Article 78 of the Criminal Code of the Russian Federation prosecution for such a crime should be calculated from the moment of actual cessation of the use of a forged (forged) document, including as a result of the suppression of the act.
12. In cases where a person who has forged for the purpose of use a citizen’s passport, identity card or other official document granting rights or exempting from duties, as well as stamps, seals or forms, then carries out their storage, transportation for the purpose of use or use committed by him is covered by the elements of the crime provided for by parts 1 or 2 of Article 327 of the Criminal Code of the Russian Federation, and does not require additional qualifications under Part 3 of Article 327 of the Criminal Code of the Russian Federation.
If a person guilty of falsifying a citizen’s passport, identity card or other official document granting rights or releasing from obligations, for the purpose of producing such documents, acquired, stored, transported obviously counterfeit stamps, seals or forms made by another person, or used them to forge such documents, then these actions form a set of crimes provided for in Part 1 or 2 of Article 327 and Part 3 of Article 327 of the Criminal Code of the Russian Federation.
13. The commission of another crime by a person (for example, fraud, smuggling, illegal crossing of the State Border of the Russian Federation) using a citizen’s passport, identity card or other official document granting rights or relieving him of obligations, as well as stamps, seals or forms, forged by him, is qualified according to a set of crimes provided for in the relevant article of the Special Part of the Criminal Code of the Russian Federation and part 1 or 2 of Article 327 of the Criminal Code of the Russian Federation.
At the same time, an independent legal assessment under Part 3 or Part 5 of Article 327 of the Criminal Code of the Russian Federation does not require the actions of a person in cases where he uses knowingly forged documents, stamps, seals or forms made by another person to commit a crime, and their use is covered by the method of the crime committed (in case of theft of funds by the borrower submitting a forged document to a bank or other creditor - Article 159.1 of the Criminal Code of the Russian Federation; theft of funds or other property when receiving benefits, compensation, subsidies and other payments by submitting a forged document to the relevant authorities making decisions on these payments, - Article 159.2 of the Criminal Code of the Russian Federation; illegal movement across the customs border of funds, monetary instruments, alcoholic beverages, tobacco products, committed using a forged document, seal - Articles 200.1, 200.2 of the Criminal Code of the Russian Federation; illegal crossing of the State border of the Russian Federation with the presentation of a forged document - Article 322 of the Criminal Code of the Russian Federation; and etc.). At the same time, the acquisition, storage, transportation for the purpose of using for the commission of a crime of obviously counterfeit documents, stamps, seals or forms made by another person must be additionally qualified under Part 3 of Article 327 of the Criminal Code of the Russian Federation.
14. Forgery by a person of a citizen’s passport, identity card or other official document granting rights or exempting from duties, stamps, seals or forms, as well as the use of such deliberately counterfeit documents, stamps, seals or forms produced by another person, their storage, transportation, committed with for the purpose of concealing another crime or facilitating its commission (for example, when forgery and presentation of a forged document are used for the purpose of illegally gaining access to a home or storage facility to commit theft), are qualified under Part 4 of Article 327 of the Criminal Code of the Russian Federation.
15. To correctly qualify the acts provided for in Article 327.1 of the Criminal Code of the Russian Federation, courts must take into account that the objective side of the crimes provided for in parts 1, 3 and 5 of this article is the production for the purpose of sale or sale of counterfeit excise stamps, special stamps or marks of conformity , protected from counterfeiting, and the objective side of the crimes provided for in parts 2, 4 and 6 lies in the use of such items.
At the same time, under Part 4 or 6 of Article 327.1 of the Criminal Code of the Russian Federation, the actions of persons who used (by placing, sticking) knowingly counterfeit excise stamps or federal special stamps for labeling alcohol products, and knowingly counterfeit special (excise) stamps for labeling tobacco products can be qualified. .
16. Draw the attention of the courts to the fact that the acts provided for in Articles 324, 325, 325.1, 326, 327, 327.1 of the Criminal Code of the Russian Federation refer to crimes with an intentional form of guilt. In this regard, when deciding whether a person’s actions contain elements of such crimes as, for example, the acquisition, storage, transportation, sale, use of counterfeit official documents, stamps, seals, forms, sale of counterfeit state awards, sale or use of counterfeit excise stamps , special marks, marks of conformity protected from counterfeiting, the court must establish that the counterfeitness of these items was covered by the intent of this person.
17. In part 1 of article 325, articles 325.1, 326, parts 1 - 4 of article 327 and article 327.1 of the Criminal Code of the Russian Federation, the commission of an act with a specific purpose or motive is provided as a mandatory element of a crime. Taking this into account, the absence, for example, in the production of counterfeit official documents granting rights or exempting from duties, state awards, stamps, seals, forms for the purpose of their use, and in the production of counterfeit excise stamps, special stamps, marks of conformity protected from counterfeiting - sales purposes excludes the criminal liability of the person under the relevant article of the Criminal Code of the Russian Federation.
18. When making a legal assessment of the actions of a person who has committed violations in the areas of circulation of official and other documents, state awards, stamps, seals, forms, excise stamps, special stamps, marks of conformity, state registration of vehicles, the courts must proceed from the totality of factual circumstances of a particular case, and also take into account the provisions of Part 2 of Article 14 of the Criminal Code of the Russian Federation stating that an action (inaction), although formally containing signs of any act provided for by criminal law, but due to its insignificance does not pose a public danger, is not a crime.
When deciding whether an act is minor, one should take into account, in particular, the quantitative and qualitative characteristics of the subject of the crime, the motive and purpose that guided the accused (defendant), the circumstances that contributed to the commission of the act, etc.
19. Recommend that courts, when considering criminal cases of crimes under Articles 324 - 327.1 of the Criminal Code of the Russian Federation, identify the circumstances that contributed to their commission, violation of the rights and freedoms of citizens, as well as other violations of the law committed during the preliminary investigation or when considering a criminal case by a lower court , and in accordance with Part 4 of Article 29 of the Criminal Procedure Code of the Russian Federation, issue specific rulings (decisions), drawing the attention of relevant organizations and officials to these circumstances and facts of violations of the law, requiring the necessary measures to be taken to eliminate them.
Chairman of the Supreme Court of the Russian Federation V.M. LEBEDEV
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. MOMOTOV
