Art. 312 of the Criminal Code of the Russian Federation with comments

As Article 115 of the Code of Criminal Procedure establishes, in order to secure a claim or the alleged confiscation of valuables, the investigator must seize the property of the suspect/accused or persons responsible for their actions, as well as entities who have items obtained illegally. If necessary, an inventory of property is carried out by a bailiff.

Concealment, alienation (sale), embezzlement or illegal provision of property seized or subject to inventory is punishable by law. Punishments for the act are established by Art. 312 of the Criminal Code of the Russian Federation. The sanctions also apply to illegal transactions carried out by a bank employee or an employee of another credit institution in which accounts with seized funds are opened. Let us consider further the features of the application of Art. 312 of the Criminal Code of the Russian Federation with comments 2021

Qualifying composition

In paragraph 2 of Art. 312 of the Criminal Code of the Russian Federation (as amended) defines punishment for appropriation/concealment of valuables subject to confiscation on the basis of a court sentence, as well as for other evasion of the provisions of a sentence that has entered into force on the appointment of confiscation. For these acts the following are provided:

From 100 to 500 thousand rubles. a fine or recovery in the amount of the perpetrator’s income for 1-3 years.
Forced labor or imprisonment for up to three years.

In addition to imprisonment, a penalty of up to 80 thousand rubles may be imposed. or the amount of the offender’s income for six months.

Commentary to Art. 312 of the Criminal Code of the Russian Federation

The object of encroachment in the analyzed norm is relations related to ensuring the execution of a claim or possible confiscation of material assets.

Seized property, at the discretion of the investigator, can be transferred:

a representative of the local administration;
the owner of the property;
employee of a housing maintenance institution;
to another trustworthy entity.

At the same time, the responsibility for the proper storage of valuables against signature is explained to these persons. If necessary, seized property may be confiscated in accordance with the established procedure.

Commentary on Article 312.1 of the Labor Code of the Russian Federation

1. Chapter 49.1 was introduced into the Labor Code by Federal Law No. 60-FZ of April 5, 2013. The appearance of this chapter is due to the large-scale development of information technology and the emergence of a flexible form of employment that allows the performance of work duties “outside the office” using modern information and communication tools. Currently, so-called remote employment is becoming increasingly widespread.

The main advantages of this form of labor organization include: reduction of employer costs for organizing and maintaining workplaces; saving employee time and money due to the absence of transport problems; the ability to combine work responsibilities and home (family) needs of the employee.

2. Part 1 of the commented article contains a definition of the concept of “remote work” indicating two main characteristic features:

1) this is work outside the location of the employer - outside production or administrative premises, office, separate structural units (branches, representative offices, departments, workshops, departments), stationary workplaces, outside the territory or facility directly or indirectly under the control of the employer. Thus, the lack of control by the employer regarding the place of performance of the work function is a fundamental criterion for classifying an employee as a remote worker;

2) the work involves the use of public information and telecommunication networks for the employee to perform his work function and communicate with the employer. This sign indicates the limited possibility of using such an atypical form of employment as remote work, since it can only be done by workers in the intellectual sphere of activity, who need electronic equipment and software to perform their work function related to the use, processing, and transmission of information. Various types of specialists can work outside the employer’s location - programmers, designers, journalists, editors, proofreaders, lawyers, translators, accountants, auditors and other categories of workers engaged exclusively in mental work, the results of which are documented in electronic form. Persons engaged in the manufacture of any material products (products) cannot act as remote workers.

Remote workers should be distinguished from homeworkers, whose work is regulated by Ch. 49 TK. Unlike homeworkers, remote workers do not have a specific workplace; they can perform their work not only at home, but also in any other place where it is possible to use the Internet. The result of the work of homeworkers is the products they produce (Article 310 of the Labor Code); remote workers create an intellectual product that can be transmitted via electronic communication channels.

3. Persons who have entered into an employment contract for remote work are called remote workers. They are subject to labor legislation, but taking into account the features determined by the specific form of the labor process. One of the features is that documents traditional for labor relations can be drawn up and transmitted not on paper, but in electronic form. Electronic interaction between the employee and the employer is carried out in conditions of their territorial remoteness. If the employee lives in the same locality where the employer is located, he can, if necessary, personally submit and sign documents.

Electronic exchange of documents by virtue of the Labor Code can take place in the following cases: a) presentation of documents when concluding an employment contract in accordance with Art. 65; b) conclusion, amendment and termination of an employment contract (Articles 65, 72, 84.1); c) familiarization with the local regulations of the employer (Articles 22, 68); d) submission by the employee of a written application for the issuance of copies of documents related to work (Article 62); e) notification of the employee about changes in the terms of the employment contract determined by the parties (Article 74); f) notifying the employee about the start time of annual paid leave (Article 123); g) familiarization with the orders and instructions of the employer (Article 68, 84.1, 193); h) provision by the employee of an explanation at the request of the employer (Articles 193, 247); i) warning the employee about the upcoming termination of the employment contract in cases provided for by law (Articles 71, 79, 180); j) warning the employer about termination of the employment contract at the initiative of the employee (Article 80), etc.

Documentation is required to send an employee on a business trip. In accordance with clause 7 of the Regulations on the specifics of sending employees on business trips, approved. By Decree of the Government of the Russian Federation of October 13, 2008 N 749, the employee is issued a travel certificate confirming the duration of his stay on a business trip. Upon returning from a business trip, the employee is obliged to submit to the employer, within three working days, an advance report on the amounts spent in connection with the business trip, attaching a travel certificate with the appropriate notes on arrival and departure, documents on expenses associated with the business trip, as well as a report on the work performed on the business trip (Clause 26 of the Regulations). An employer's order to send an employee on a business trip, a travel certificate, an employee's advance report with supporting documents can be sent by exchanging electronic documents.

4. Since remote work involves electronic interaction between the employee and the employer (using the Internet), there is a special requirement for their electronic documents - they must be issued using an enhanced qualified electronic signature.

Electronic signature - information in electronic form that is attached to other information in electronic form (signed information) or is otherwise associated with such information and which is used to identify the person signing the information (Article 2 of the Federal Law of April 6, 2011 N 63 - Federal Law “On Electronic Signature”). An electronic signature is intended to identify the person who signed the electronic document and is a full replacement (analogue) of a handwritten signature in cases provided for by law.

In accordance with Art. 5 of the Federal Law “On Electronic Signatures”, an enhanced qualified electronic signature is characterized by the following features:

it is obtained as a result of cryptographic transformation of information using an electronic signature key;

it allows you to identify the person who signed the electronic document;

it allows you to detect the fact of making changes to an electronic document after its signing;

it is created using electronic signature tools;

the electronic signature verification key is specified in the qualified certificate;

To create and verify an electronic signature, electronic signature tools are used that have received confirmation of compliance with the requirements established in accordance with the Federal Law “On Electronic Signatures”.

An enhanced electronic signature must necessarily have an electronic signature verification key certificate, which is issued by an accredited certification center. When using enhanced electronic signatures, the employee and employer are obliged to ensure the confidentiality of electronic signature keys, in particular, to prevent the use of electronic signature keys belonging to them without their consent.

Information in electronic form signed with a qualified electronic signature is recognized as an electronic document equivalent to a paper document signed with a handwritten signature.

Another requirement for electronic document management is that the employer and the employee (the person applying for remote work) are required to confirm receipt of the electronic document from the other party. This obligation is also carried out electronically - by sending the sender of the document a notification of receipt of an electronic message within the period specified in the employment contract.

5. A remote worker has the right to compulsory social insurance benefits (temporary disability benefits, maternity benefits, one-time benefits for women registered in medical institutions in the early stages of pregnancy, monthly child care benefits, one-time birth benefits child). To receive benefits, a remote worker must send the employer original documents (certificate of incapacity for work, application for benefits, birth (adoption) certificate of the child being cared for, and its copy or an extract from the decision to establish guardianship over the child, birth (adoption) certificate , death) of the previous child (children) and its copy, a certificate from the place of work (service) of the mother (father, both parents) of the child stating that she (he, they) does not use parental leave and does not receive monthly benefits child care, a certificate of registration in the early stages of pregnancy, and other necessary documents provided for by Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” and the Order of the Ministry healthcare and social development of the Russian Federation dated December 23, 2009 N 1012n “On approval of the Procedure and conditions for the appointment and payment of state benefits to citizens with children”).

Documents for the assignment of benefits are sent by registered mail with notification.

Objective aspect

The objective part of the act can be expressed primarily in:

embezzlement;
alienation;
illegal transfer of valuables;
concealment of property.

The elements of the crime are also formed by the actions of an employee of a financial and credit structure related to illegal transactions with seized money.

Subject of encroachment

Within the meaning of the first paragraph of Art. 312 of the Criminal Code of the Russian Federation, this is property seized or subject to inventory, which is transferred for safekeeping. The legislation establishes a list of items that cannot be seized. Accordingly, the subject of the attack under Art. 312 of the Criminal Code of the Russian Federation cannot be the personal belongings of the suspect/accused or other persons specified in the disposition of the norm, since they cannot be included in the inventory or seized in accordance with the law.

Contents of Art. 312.9 TK

At the beginning it is stated that in situations of significant emergencies, an employee, at the initiative of the employer, can be transferred to a remote work format for the duration of emergency circumstances. Examples of emergency data are:

technological disaster;
industrial accident;
fire or other similar situations that pose a threat to the population (certain groups).

Such a transfer to a remote work format is also possible in a situation where the relevant decision is made by government structures at the federal or local level.

It is indicated that the employee is not required to consent to this transfer.

It is emphasized that the employer provides the following to an employee temporarily transferred to remote work:

programs;
data protection tools;
other equipment needed for work.

The employer also has the option of paying compensation to an employee if he uses or rents programs and the equipment he needs at his own expense. In this case, the employer reimburses the remote employee for expenses associated with their use, and also makes other payments aimed at reimbursing costs arising from the remote nature of the work. If necessary, the employer trains personnel temporarily transferred to remote employment in the use of programs and other tools that are recommended or provided to them.

It is emphasized that when employees are temporarily transferred to remote employment, the employer issues a corresponding local act. He coordinates this document with representatives of the trade union. The act contains:

the reason for the transfer to remote employment - from among those mentioned in Part 1 of Art. 312.9 TK;
list of employees temporarily involved in remote work;
the period during which employees will work remotely (it should not exceed the period of relevance of the circumstances that caused remote work);
principles of providing employees with the equipment and programs necessary for remote work, as well as the procedure for paying them the funds mentioned in Part 2 of Art. 312.9 TK;
principles of work of remote employees (work schedule, time for interaction with the employer), ways of organizing contacts between the parties (provided they are correctly identified), parameters for providing the employer with reporting on the results of work;
other provisions related to labor organization.

It is emphasized that the remote employee must be familiar with the specified local act, and in a way that allows him to verify the fact of receipt of this document.

It is indicated that when transferring an employee to remote employment in accordance with Art. 312.9 of the Labor Code does not require modernization of the employment contract. After the completion of the period of remote work (which should not exceed the period of relevance of the circumstances that gave rise to this format of employment), the employer provides the employee with the same work, and he is obliged to begin performing it.

It is emphasized that when transferring an employee to remote employment in accordance with Art. 312.9 of the Labor Code, it is subject to specialized guarantees provided for in Chapter. 49.1 TK. They cover:

labor protection;
providing the employee with equipment and programs at the expense of the employer;
principles for reimbursing an employee for expenses in a situation where he purchases (rents) equipment needed for work at his own expense;
parameters for compensating an employee for costs caused by remote work.

Situations where an employee cannot be transferred to remote work under Art. 312.9 TK. This may be due to:

the specifics of his work;
the employer’s inability to provide him with the equipment and programs required for remote work.

It is indicated that in these situations, the time during which the employee is inactive is considered idle time, independent of the employer and employee. Payment for this downtime is carried out on the basis of Part 2 of Art. 157 TK. A larger payment may be provided:

collective agreement;
agreement;
local act of the employer.

The article reviewed concludes Chapter. 49.1 of the Labor Code, dedicated to the nuances of the work of remote employees. It should be noted that many articles of this chapter have been introduced into the Labor Code since 2021 with the help of Federal Law No. 407 of 12/08/20.

Signs of the act

In the formulation of the crime under Art. 312 of the Criminal Code of the Russian Federation, there are alternative characteristics: alienation, concealment, embezzlement, illegal transfer of valuables.

In this case, alienation is considered as a type of illegal provision of property. The peculiarity of this action is the change in the legal fate of values. In turn, the concept of “illegal transfer” can be regarded as the provision of property without changing its legal fate (without changing the owner or possessor).

Embezzlement should be considered the expenditure or consumption of valuables subject to inventory or seizure on legal grounds by the entity to whom they were entrusted. If the actions of this person show signs of theft, they must be qualified not only under Art. 312 of the Criminal Code of the Russian Federation, but also according to the 160th norm of the Code. In other words, a set of acts takes place.

Concealment of property involves any actions related to concealing it from bodies authorized to carry out procedural acts.

The crime is recognized as completed at the moment of carrying out the illegal actions provided for by the norm in question.

Article 312. Fulfillment of an obligation to the proper person

Ruling of the Supreme Court of the Russian Federation dated 02.28.2019 N 305-ES18-22220 in case N A41-21692/2018 The courts, referring to these clarifications, did not take into account the provisions of the second paragraph of the said paragraph of the Plenum Resolution No. 54, which states that non-compliance by the assignor and assignee the specified requirement for state registration, as well as the form of assignment, does not entail negative consequences for the debtor who provided performance to the assignee on the basis of the appropriate written notification received from the assignor about the relevant assignment (Article 312 of the Civil Code of the Russian Federation).

Ruling of the Supreme Court of the Russian Federation dated March 15, 2019 N 305-ES18-26169 in case N A41-22325/2018

When accepting appealed judicial acts, the courts of the first and appellate instances, guided by the provisions of Articles 309, 310, 312, 382, 384, 385, 388, 389, 401 of the Civil Code of the Russian Federation, Federal Law of December 30, 2004 N 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation", having established a violation by the developer of the rights of a construction participant to timely transfer the object, and therefore the construction participant refused to further fulfill the agreement for shared participation in construction, came to the conclusion about the existence of grounds for collecting interest from the defendant for the use of funds, the right to collect which the participant in shared construction voluntarily transferred to the plaintiff.

Ruling of the Supreme Court of the Russian Federation dated November 26, 2019 N 305-ES19-20940 in case N A41-69466/2018

In resolving the dispute, the courts were guided by the provisions of Articles 312, 382, 395, 1102, 1105 of the Civil Code of the Russian Federation and proceeded from the fact that by the decision of the Lopatinsky District Court of the Penza Region dated May 28, 2018, the disputed amount of debt was recovered from the institution in favor of the proper creditor - Mugin A. S., in connection with which they came to the conclusion that there were grounds to satisfy the claim.

Ruling of the Supreme Court of the Russian Federation dated December 9, 2019 N 310-ES19-22732 in case N A62-10372/2017

In satisfying the claim, the courts were guided by Articles 182, 183, 307, 312, 330, 332, 539, 541, 543, 544 of the Civil Code of the Russian Federation, Federal Law of March 26, 2003 N 35-FZ “On Electric Power Industry”, Basic provisions for the functioning of retail markets electrical energy, approved by Decree of the Government of the Russian Federation dated 04.05.2012 N 442, and, having examined and assessed the evidence presented in the case according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that there are no grounds for releasing the defendant (consumer) from the obligation to pay without accounting consumed electricity due to the detected activation of the anti-magnetic seal installed on the meter body.

Ruling of the Supreme Court of the Russian Federation dated January 14, 2019 N 305-ES18-22437 in case N A41-72981/2017

Rejecting the company's argument that the assignment agreement, on the basis of which the plaintiff was given the right of a participant in shared construction to demand payment of a penalty for violating the deadline for transfer of a shared construction project, was not registered in the manner prescribed by law, the courts were guided by Article 312 of the Civil Code of the Russian Federation, the legal position set out in paragraph 14 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120 “Review of the practice of application by arbitration courts of the provisions of Chapter 24 of the Civil Code of the Russian Federation”, with explanations given in paragraphs 2, 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction.” The corresponding position is reflected in the ruling of the Supreme Court of the Russian Federation dated December 24, 2018 N 305-ES18-15666.

Ruling of the Supreme Court of the Russian Federation dated January 28, 2019 No. 310-KG18-24361 in case No. A14-24822/2017

The courts of the first and appellate instances, having examined and assessed, according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented in the case materials, guided by Articles 198, 200, 201 of the Arbitration Procedure Code of the Russian Federation, Articles 125, 312 of the Civil Code of the Russian Federation, Articles 62, 160.1 of the Budget Code of the Russian Federation, Article 10.1 of the Land Code of the Russian Federation, paragraph 2 of paragraph 2 of Article 3.3, paragraph 4 of Article 2 of the Federal Law of October 25, 2001 N 137-FZ “On the entry into force of the Land Code of the Russian Federation”, part 1.2 of Article 17 of the Federal Law of October 6, 2003 N 131 -FZ “On the general principles of local government in the Russian Federation”, Law of the Voronezh region dated December 30, 2014 N 217-OZ “On the redistribution of certain powers of local government bodies of the urban district of the city of Voronezh and executive bodies of state power of the Voronezh region”, by order of the Government of the Voronezh region dated 01.12.2014 N 974 “On changing the chief administrator of income received from the use of land plots, state ownership of which is not delimited, located within the boundaries of the urban district of the city of Voronezh”, clauses 3.1.20, 5.49 of the Regulations on the Department of Property and Land Relations of the Voronezh Region , approved by Decree of the Government of the Voronezh Region dated 05/08/2009 N 365, clauses 1.5, 2.2.9, 2.2.10 of the Regulations on the Department of Property and Land Relations of the Administration of the Voronezh City District, approved by the decision of the Voronezh City Duma dated 09/26/2012 N 940-III, decision of the Voronezh City Duma dated December 21, 2016 N 437-IV “On the budget of the Voronezh urban district for 2021 and for the planning period 2021 and 2021”, the explanations set out in paragraph 18 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 22, 2016 N “ On some issues of application of the general provisions of the Civil Code of the Russian Federation on obligations and their fulfillment”, establishing that the inaction of management challenged by the entrepreneur (failure to file claims for the collection of rent for land plots, state ownership of which is not demarcated) does not violate the rights and legitimate interests of the applicant in the field of entrepreneurial activity, came to the conclusion that there were no grounds to satisfy the entrepreneur’s requirements.

Ruling of the Supreme Court of the Russian Federation dated April 4, 2019 N 305-ES19-2568 in case N A41-106882/17

Having assessed the evidence presented in the case file according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, having established that the construction project was transferred to the construction participant in violation of the deadline, recognizing the period from July 1, 2016 to November 27, 2016 as the period of missing the deadline, the court, guided by Article 6 of the Federal Law dated December 30, 2004 N 214-FZ “On participation in shared construction of apartment buildings and other real estate objects”, Articles 309, 312, 329, 382, 384, 385 of the Civil Code of the Russian Federation and clarifications contained in paragraphs 1 and 70 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation” and in paragraphs 2, 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction", in paragraph 14 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120 "Review of the practice of application by arbitration courts of the provisions of Chapter 24 of the Civil Code of the Russian Federation", came to the conclusion that the requirements of the entrepreneur as a new creditor to whom the construction participant voluntarily transferred his rights, and satisfied the requirements in part, reducing the amount of the penalty to be collected on the basis of Article 333 of the Civil Code of the Russian Federation.

Ruling of the Supreme Court of the Russian Federation dated April 8, 2019 N 304-ES19-3022 in case N A70-4253/2018

Having assessed the evidence presented in the case materials according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, taking into account the judicial act in case No. A70-2408/2017 that entered into legal force, establishing the fact of delivery of goods under the contract on December 16, 2016, determining the period of delay from November 30. 2016 to 12/15/2016, and also that the penalty accrued by the plaintiff does not exceed five percent of the contract price, the courts of first and appellate instances, guided by Articles 309, 310, 312, 314, 329, 330, 506, 766 of the Civil Code of the Russian Federation, part 6.1 Article 34 of the Federal Law dated 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, Decree of the Government of the Russian Federation dated 03/14/2016 N 190 “On the cases and procedure for provision by the customer in 2021 deferment of payment of penalties (fines, penalties) and (or) the write-off of accrued amounts of penalties (fines, penalties),” came to the conclusion that there were grounds for the customer to write off the amount of the penalty and rejected the claim for its recovery.

Ruling of the Supreme Court of the Russian Federation dated April 25, 2019 N 304-ES18-7937 in case N A81-1840/2017

Having assessed the evidence presented in its totality and mutual connection according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, including the explanations of O.G. Yarullin, selected by the senior investigator of the Investigation Department for the city of Labytnangi, the Investigative Directorate of the Investigative Committee of Russia for the Yamal-Nenets Autonomous Okrug, having established the fact of the transfer of petroleum products (diesel) to the defendant fuel) for storage in accordance with invoices dated 05/14/2014, 05/28/2014, 05/30/2014, which were accepted by the defendant and which are subsequently according to invoices dated 08/17/2014, 02/03/2015, 02/10/2015, 12/29/2015, dated 03/11/2016 were returned to the plaintiff (the said invoices were signed by O.G. Yarullin, who acted on behalf of the defendant on the basis of a power of attorney issued to him), while the balance of diesel fuel not returned (retained) by the defendant amounted to 14,647 cubic meters. m or 12.303 tons, guided by the provisions of Articles 161, 182, 312, 314, 330, 395, 886, 887, 889, 900, 901, 902, 1102, 1105, 1107 of the Civil Code of the Russian Federation, the courts came to the conclusion that there were grounds for recovery of the cost of unreturned fuel. When collecting interest for the use of someone else's money, the courts determined the period of use from the moment the defendant refused to comply with the plaintiff's demand for the return of fuel, namely, from March 10, 2017.

Ruling of the Supreme Court of the Russian Federation dated May 13, 2019 N 304-ES19-5108 in case N A45-19440/2017

Having assessed the evidence presented in its totality and mutual connection according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, having established the circumstances related to the execution of the supply contract dated 02.02.2016 between the plaintiff - supplier and the defendant - buyer and the contract dated 02.02.2016 between the defendant - subcontractor and a third party - the contractor, taking into account the terms of payment provided for in the said agreements, including the provisions on advance payment of work under the work contract, assessing the defendant’s actions related to the fulfillment of obligations under the work contract, the defendant’s failure to take timely and sufficient actions aimed at receiving from a third party funds not paid under the work contract within a reasonable time, lack of evidence that the defendant has taken measures to properly fulfill its obligation to the plaintiff, guided by the provisions of Articles 157, 307, 309, 310, 312, 314, 327.1, 421, 486, 506, 516 of the Civil Code Code of the Russian Federation, the appellate court came to the conclusion that there were grounds to satisfy the claim.

Ruling of the Supreme Court of the Russian Federation dated 06/07/2019 N 302-ES19-8611 in case N A19-29177/2017

Satisfying the demands of the GreenFood company for the return of advance payment for undelivered goods under the contract, the courts of the first and appellate instances were guided by the terms of the supply contract, articles 309, 310, 312, 454, 487, 506, 510, 516 of the Civil Code of the Russian Federation, articles 65, 71 Arbitration Procedural Code of the Russian Federation and proceeded from the lack of proof of the delivery by the trading house of the goods paid for by the GreenFood company and the transfer of the goods to the authorized representative of the plaintiff.

Characteristics of the guilty person

The subject of the encroachment is a special person to whom the valuables, subject to inventory or seizure, are transferred for storage. This means that the citizen:

vested with the authority to store and own valuables;
is responsible for the safety of property, which, in turn, implies a ban on its consumption, expenditure, transfer to other persons without the consent of the competent authorities;
is obliged to present items at the request of law enforcement agencies or bodies executing a sentence/court decision.

Judicial practice under Article 312 of the Criminal Code of the Russian Federation

Ruling of the Supreme Court of the Russian Federation dated February 19, 2020 N 309-ES19-28273 in case N A76-43898/2018
When refusing to satisfy the stated demands, the courts were guided by Articles 198, 200, 201 of the Arbitration Procedural Code, the provisions of the Federal Law dated October 2, 2007 N 229- Federal Law “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings) and proceeded from the following: the seizure of the disputed vehicles from the debtor was carried out in the presence of witnesses, as well as a representative of the debtor; the seizure process is documented by the corresponding act of seizure (inventory of property); the act contains a note warning the custodian of criminal liability under Article 312 of the Criminal Code of the Russian Federation for illegal actions in relation to property seized and entrusted with storage; before seizure, the vehicles were inspected, which is confirmed by vehicle appearance and inspection cards, as well as photographs; the assessment of seized property is approximate.

Determination of the Constitutional Court of the Russian Federation dated December 20, 2018 N 3396-O

Along with this, the federal legislator established, in part one of Article 312 of the Criminal Code of the Russian Federation, criminal liability for embezzlement, alienation, concealment or illegal transfer of property subject to inventory or arrest, committed by the person to whom this property was entrusted, as well as the performance by an employee of a credit institution of banking transactions with money funds (deposits) that have been seized.

Ruling of the Supreme Court of the Russian Federation dated February 16, 2021 N 302-ES20-23914 in case N A33-34404/2017

By the decision of the investigator of the bailiff department, it was refused to initiate a criminal case under Article 312 of the Criminal Code of the Russian Federation against P.S. Filipov. Believing that as a result of the illegal inaction of officials of the bailiff service, expressed in the failure to take measures to preserve the seized property and timely transfer it to auction, the opportunity to collect debt from the debtor under the loan agreement was lost, the company filed a present claim with the arbitration court.

Ruling of the Supreme Court of the Russian Federation dated August 30, 2021 N 301-ES21-14380 in case N A17-6425/2020

The bailiff, having assessed the conditions of keeping the cattle on the premises of the company at the time of the arrest (07/22/2020), taking into account the presence on the part of the entrepreneur of a petition to transfer the seized property to him for storage (with the attachment of thanks, certificates, certificates from the Kineshma regional control station with animal diseases), appointed IP V.A. Lakomkin, the owner of the cattle, as the responsible custodian, warning him of criminal liability under Article 312 of the Criminal Code of the Russian Federation, which does not contradict the requirements of Law No. 229-FZ.

Nuances

In judicial practice under Art. 312 of the Criminal Code of the Russian Federation, when considering cases, the following circumstances are taken into account:

The physical transfer of valuables to a responsible citizen is not considered a mandatory factor for establishing the presence of an offense provided for by the first part of the 312th norm.
The person to whom the property seized or subject to inventory belongs is not excluded from the list of subjects of the crime, since the items can be entrusted to him.

Subjective part of the act

The offense referred to in the first part of Article 312 is committed by the perpetrator with direct intent.

He knows that the valuables have been seized or included in the inventory, transferred to him for safekeeping, and he must provide them at the request of authorized employees.

At the same time, the subject understands that he is illegally hiding, spending, consuming, or providing property, which, in turn, prevents compensation for damage, achieving the goals of justice or confiscation of items. The perpetrator, aware of these consequences, desires their occurrence.