ST 341 of the Criminal Code of the Russian Federation.
1. Violation of the rules for performing border service by a person who is part of a border patrol or performing other duties of the border service, if this act resulted in harm to the interests of the security of the state, -
shall be punishable by restriction in military service for a term of up to two years or imprisonment for a term of up to three years.
2. The same act, which entailed grave consequences, -
is punishable by imprisonment for a term of up to five years.
3. Violation of the rules for performing border service due to a careless or dishonest attitude towards them, resulting in grave consequences, -
shall be punishable by restriction in military service for a term of up to two years or imprisonment for a term of up to two years.
Commentary to Art. 341 Criminal Code
1. The objective side is a violation of the rules of border service. A mandatory feature of the composition is socially dangerous consequences, consisting of causing harm to the security interests of the state.
The composition is designed as a composition of real danger, therefore the act will be considered completed from the moment the threat of the specified consequences arises.
2. The subject of this encroachment is a military serviceman who is part of a border guard detachment or performs other duties of the border service.
3. Grave consequences (Part 2) include loss of life, penetration of foreign intelligence agents, weapons, etc. across the state border.
4. In part 3, the subjective side is characterized by negligence in the form of frivolity or negligence.
Contents of Art. 341 TK
At the beginning it is indicated that the completion of work in foreign missions of the Russian Federation is carried out due to the end of the period established when sending an employee by the relevant government agency or registering a temporary labor relationship with him.
It is emphasized that there may be special reasons for the early termination of work of these employees. These include:
- the occurrence of an emergency in the host country;
- declaring an employee persona non grata or notifying the relevant structures about the undesirability of his further residence in the state;
- optimization of the existing quota of diplomatic or technical specialists;
- the employee’s disregard for the laws and customs of the host state or generally accepted standards of behavior and morality;
- failure by the employee to fulfill the obligations assumed during employment to ensure that family members comply with the laws of the host state, generally accepted standards of conduct, as well as residence standards relevant to the representative office;
- gross violation by an employee of his duties, as well as the regime requirements that are mandatory for familiarization during employment;
- temporary disability lasting more than two months or the discovery of an illness that makes it impossible to work abroad, in accordance with a special list of illnesses approved by a federal government agency authorized to do so by the Government.
It is emphasized that the end of work in a foreign representative office for one of the listed reasons is formalized differently for different groups of employees:
- for those of them who are not on the staff of the government agency that sent them to work abroad, dismissal is formalized under clause 2, part 1, art. 77 TK;
- For those of them who are part of the staff of the government agency that sent them to work abroad, dismissal is formalized on the appropriate grounds provided for by the Labor Code and relevant legislation.
The considered article provides for seven situations when early termination of work in foreign missions of the Russian Federation is possible, and this list is closed. The identification of such situations is explained by the specifics of the diplomatic service. She also identifies two groups of employees for whom early termination of their work is formalized differently: those who are and are not employed by the relevant government agencies.
Second commentary to Art. 341 of the Criminal Code of the Russian Federation
1. The crime encroaches on the security of the State Border of Russia and is expressed in violation of the established procedure for performing border service. The procedure for this service is regulated by the Law of the Russian Federation “On the State Border” and other regulations.
2. Part 1 art. 341 applies if a violation of the rules for performing border service has resulted or could have resulted in harm to the interests of the security of the state. Harm can be expressed in weakening the security of the State Border, causing harm to the population by external encroachments, etc. The possibility of harm is characterized by the fact that as a result of the violation, real preconditions are created for the occurrence of the specified consequences, which can occur if there is an encroachment on the border.
In parts 2 and 3, the crossing of the border by a spy or saboteur, the passage of large quantities of contraband or weapons, etc. should be recognized as grave consequences.
The subject of the crime is a soldier who is part of a border guard unit or performing other duties of the border service. A person performing other duties of the border service is a military personnel who is not part of the border patrol, but participates in solving tasks for protecting the State Border.
3. The subjective side of the crime provided for in parts 1 and 2 is characterized by an intentional form of guilt. Part 3 provides for negligence in relation to violations and consequences.
https://rospravosudie.com/court-severo-kavkazskij-okruzhnoj-voennyj-sud-rostovskaya-oblast-s/act-489707770/Chairman Krivtsov K.N.
APPEAL DECISION No. 22A-213/2014
July 10, 2014 Rostov-on-Don
Judicial panel for criminal cases of the North Caucasus District Military Court, consisting of the presiding Generalov A.V.,
with the secretary of the court session Obukhova M.V., with the participation of the military prosecutor of the department of the military prosecutor's office of the Southern Military District <data taken> Skazkin N.F., convicted Koltsov A.V. and defender Krekhov D.I. examined at a court hearing a criminal case based on appeals from defense attorney D.I. Krekhov. on the verdict of the Grozny Garrison Military Court dated April 28, 2014, according to which a serviceman of the Border Directorate of the FSB of Russia for the Chechen Republic <data taken>
Koltsov Anton Vitalievich, born DD.MM.YYYY in <address>, <data withdrawn>, performing military service under a contract <data withdrawn>
convicted under Part 1 of Art. 341 of the Criminal Code of the Russian Federation to a restriction on military service for a period of <data withdrawn> with deduction from monetary allowance <data withdrawn> to state income.
Having heard the report of the presiding Generalov A.V., the speeches of the convicted Koltsov A.V. and defender Krekhov D.I. in support of the arguments of the appeals, as well as the objections of the prosecutor N.F. Skazkin, judicial panel
INSTALLED:
Koltsov was found guilty of violating the rules of performing border service as part of a border patrol, which could have resulted in harm to the security interests of the state.
According to the verdict, Koltsov, being a member of the border patrol, in the period from <data taken> <data taken> DD.MM.YYYY to <data taken> DD.MM.YYYY in the territory of <address> in violation of the requirements of Art. 26 Federal Law “On the status of military personnel”, Art. 3 of the Law of the Russian Federation of April 1, 1993 No. 4730-1 “On the State Border of the Russian Federation”, Art. 16, 39, 43 and 45 of the Charter of the Internal Service of the Armed Forces of the Russian Federation, Art. 6, 12, 15, 52 and 123 of the Temporary Charter of the Border Troops of the Russian Federation, put into effect by Order of the Commander-in-Chief of the Border Troops of the Russian Federation dated November 8, 1994 No. 0330, without good reason, deviated from the route of the “Sentry on the Border Section” squad, entered to an observation post on a section of the road <data taken>, where he took off his equipment, was distracted from duty, relaxed his vigilance, and then left the guarded area until his shift. By his actions, Koltsov grossly violated the rules of border service, which could have caused harm to the security interests of the state.
In his appeals, defense lawyer Krekhov considers the verdict illegal and unfounded, asks for it to be overturned and for an acquittal, citing the following arguments.
According to the author of the complaints, Koltsov’s actions lack the corpus delicti under Part 1 of Art. 341 of the Criminal Code of the Russian Federation, since in his official activities he should not have been guided by the Temporary Charter of the Border Troops of the Russian Federation, since he served in the Border Directorate of the Federal Security Service of Russia (hereinafter referred to as the PU of the FSB of Russia), and not in the Border Troops of the Russian Federation (hereinafter referred to as the RF PV) . At the same time, the court of first instance did not cite normative legal acts extending the effect of orders of the RF RF to military personnel of the FSB of Russia.
The defense attorney also claims that DD.MM.YYYY Koltsov could not perform his duties in the border patrol due to smoke inhalation and shock due to the fire of the observation post.
Having considered the materials of the criminal case and the arguments of the appeals, the judicial panel comes to the conclusion that the verdict against Koltsov is legal, justified and fair, and the appeal of Krekhov’s defender cannot be satisfied for the following reasons.
As can be seen from the minutes of the court session, during the trial in accordance with Art. 15, 244 and 274 of the Code of Criminal Procedure of the Russian Federation ensured equality of rights of the parties, for whom the court of first instance, while maintaining objectivity and impartiality, in the conditions of an adversarial process, created the necessary conditions for a comprehensive and complete study of the circumstances of the case.
Contrary to the allegations contained in the appeals, the conclusions set out in the court verdict correspond to the factual circumstances of the case and are confirmed by the materials presented to the court and examined. The conclusions of the trial court about the guilt of the convicted Koltsov in committing the act charged with him correspond to the factual circumstances of the case and are confirmed by the totality of the evidence examined by the court : testimony of witnesses FULL NAME 8, FULL NAME 9, FULL NAME 10, FULL NAME 11 and FULL NAME 12, expert opinion No. dated DD.MM.YYYY, who conducted the military-statutory forensic examination, copies of the book of the border service department <data taken>, as well as other evidence.
The said evidence was properly examined and assessed by the court during the trial, was sufficiently fully and correctly presented in the verdict, and does not raise doubts about its relevance, admissibility and reliability.
Contrary to the defense’s assertion of the innocence of the convicted Koltsov, his guilt is confirmed by a sufficient body of evidence available in the criminal case, which is consistent with each other, reliably recreates the factual circumstances of the incident and received a proper assessment in the verdict.
The arguments of the author of the appeals that Koltsov should not have been guided by the Temporary Charter of the Border Troops of the Russian Federation, and that the court did not cite regulatory legal acts extending the said charter to servicemen of the FSB of Russia, are refuted by the order of the FSB of the Russian Federation dated June 26, 2003, examined by the court of first instance. No. 417 and the corresponding certificate from the head of the Border Directorate of the FSB of Russia for the Chechen Republic dated February 27, 2014 on the need to be guided by the regulations of the Federal Border Guard Service of the Russian Federation - including the Temporary Charter of the PV of the Russian Federation - until they are recognized as no longer in force, as well as the testimony of the witness FULL NAME12 and the conclusion based on the results of a military-statutory examination, according to which, when performing service, Koltsov had to be guided by the Temporary Charter of the Border Troops of the Russian Federation, put into effect by Order of the Commander-in-Chief of the Border Troops of the Russian Federation dated November 8, 1994 No. 0330.
Under such circumstances, the court came to the correct conclusion that before the abolition of the Federal Border Guard Service of the Russian Federation and the transfer of the functions of this department to the FSB of Russia, one should be guided by the regulatory legal acts of the Federal Border Guard Service of the Russian Federation, and therefore the defense’s arguments to the contrary should be considered unfounded.
The argument of the author of the complaints that Koltsov DD.MM.YYYY was ill, and therefore could not return to duty, is rejected by the judicial panel, since it is not supported by medical documents.
Criminal actions of the convicted Koltsov under Part 1 of Art. 341 of the Criminal Code of the Russian Federation was qualified correctly by the court of first instance.
The court of first instance did not commit any violations of the criminal procedural law that entailed the cancellation or modification of the sentence.
The arguments of the appeal about the injustice of the sentence and the excessive severity of the imposed punishment cannot be recognized as justified, since when assigning a sentence to the convicted person, the court, based on the provisions of Art. 60 of the Criminal Code of the Russian Federation, took into account the nature and degree of public danger of the crime committed.
The verdict also correctly stated and took due account of the fact that Koltsov was brought to criminal responsibility for the first time, had not previously been found guilty of anything reprehensible, had a positive service record, and was a combat veteran.
Thus, the punishment imposed on the convicted Koltsov cannot be considered unfair due to excessive severity, and there are no grounds for changing the sentence, which is the question raised in the appeal.
Based on the above, guided by art. 38920, 38928 and 38933 Code of Criminal Procedure of the Russian Federation, judicial panel
DECIDED:
The verdict of the Grozny Garrison Military Court of April 28, 2014 regarding Anton Vitalievich Koltsov is left unchanged, and the appeals of Krekhov’s defender D.I. - without satisfaction.
Presiding
Commentary on Article 341 of the Civil Code of the Russian Federation
1. Usually the right of pledge arises from the mere fact of concluding a pledge agreement. In a pledge, the acquisition by the pledgee of the right of pledge is based on the actual composition, which consists of two elements: the agreement of the parties to establish the right of pledge and the transfer of the thing to the pledgee.
The emergence of the right of pledge means that the pledge agreement has entered into force. The parties may, by agreement, establish a later date for the entry into force of the agreement by concluding a pledge agreement under a suspensive condition or by assigning a suspensive period. On the entry into force of an agreement securing a conditional or future claim, as well as an agreement on the pledge of a future thing, see paragraph 1 of the comment. to Art. 337 Civil Code and paragraph 7 comments. to Art. 340 GK.
2. The right of mortgage on real estate arises with the fulfillment of the actual composition, which includes the following elements: 1) mortgage agreement; 2) state registration of the mortgage agreement; 3) making a record of the mortgage in the Unified State Register (Clause 3 of Article 11 of the Law on Mortgage).
3. To create a right of pledge over shareholder and bond rights, in addition to concluding a pledge agreement, it is necessary to make an entry in the register of shareholders or bondholders about the pledge (clause 13 of the Supreme Arbitration Court letter No. 67).
4. If at the time of concluding the pledge agreement the thing to be transferred to the pledgee is in someone else’s illegal possession, then the pledgor may cede to the pledgee the claim to reclaim the thing from someone else’s illegal possession. Having received the thing into his possession, the pledgee will acquire the right of pledge over it.
Labor Code of the Labor Code of the Russian Federation
Chapter 53.1
Peculiarities of labor regulation for workers sent temporarily by the employer to other individuals or legal entities under an agreement on the provision of labor for workers (personnel)
Article 341.1. General provisions
A private employment agency or other legal entity that, in accordance with the legislation of the Russian Federation on employment in the Russian Federation, has the right to carry out activities to provide labor for workers (personnel), for the purpose of carrying out such activities, have the right in cases, on conditions and in the manner that are established by this chapter, to temporarily send their employees, with their consent, to an individual or legal entity that is not the employer of these employees (hereinafter also referred to as the receiving party), for the employees to perform labor functions specified in their employment contracts in the interests, under the management and control of the specified individual or legal entity. The conditions of remuneration under an employment contract with an employee sent to work for the receiving party under an agreement on the provision of labor for workers (personnel) must be no worse than the conditions of remuneration for workers of the receiving party performing the same labor functions and having the same qualifications. Compensation for work with harmful and (or) dangerous working conditions, if the employee is sent to work in appropriate conditions, is established on the basis of information about the characteristics of working conditions at the workplace provided by the receiving party.
Article 341.2. Peculiarities of labor regulation for workers sent temporarily by a private employment agency to other individuals or legal entities under an agreement on the provision of labor for workers (personnel)
An employment contract concluded by a private employment agency with an employee sent temporarily to work for the receiving party under an agreement on the provision of labor for workers (personnel) must include a condition that the employee, by order of the employer, perform the labor function specified in the employment contract in the interests, under the management and control of an individual or legal entity who is not an employer under this employment contract. A private employment agency has the right to conclude an employment contract with an employee containing the condition specified in part one of this article, in cases where he is sent temporarily to work with the receiving party under an agreement on the provision of labor for workers (personnel) to: an individual who is not an individual entrepreneur, for the purpose of personal service, assistance with housekeeping; an individual entrepreneur or legal entity to temporarily perform the duties of absent employees, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, employment contracts, retain their place of work; an individual entrepreneur or legal entity to carry out work related to a deliberately temporary (up to nine months) expansion of production or the volume of services provided. For the purpose of temporary employment of certain categories of persons seeking temporary work (persons studying full-time education; single and large parents raising minor children; persons released from institutions serving a sentence of imprisonment), a private employment agency has the right to enter into agreements with these persons employment contracts containing the condition specified in part one of this article, both in the cases provided for in part two of this article, and in other cases in which, in accordance with this Code or other federal laws, fixed-term employment contracts are or may be concluded with employees. When an employee is sent to work for the receiving party under an agreement on the provision of labor for workers (personnel), the employment relationship between this employee and the private employment agency does not terminate, and the employment relationship between this employee and the receiving party does not arise. When sending an employee to work for the receiving party under an agreement on the provision of labor for workers (personnel), the private employment agency and the employee enter into an additional agreement to the employment contract indicating information about the receiving party, including the name of the receiving party (last name, first name, patronymic of the receiving party - an individual ), information about documents proving the identity of the receiving party - an individual, the taxpayer identification number of the receiving party (with the exception of the receiving party - an individual who is not an individual entrepreneur), as well as information about the place and date of conclusion, number and validity period of the agreement on the provision labor of workers (personnel). If, during the period of validity of the employment contract, a private employment agency sends an employee to work for another receiving party under another contract for the provision of labor for workers (personnel), the private employment agency and the employee enter into a new additional agreement to the employment contract indicating information about the receiving party, provided for in part five of this article. Additional agreements to the employment contract specified in parts five and six of this article are an integral part of the employment contract, are concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the additional agreement is given to the employee, the other copy is kept by the employer. The employee’s receipt of a copy of the additional agreement must be confirmed by the employee’s signature on the copy of the additional agreement kept by the employer. In cases where this is provided for in the contract for the provision of labor to employees (personnel), additional agreements to the employment contract specified in parts five and six of this article may provide for the following conditions: on the right of the receiving party to demand from the assigned employee the performance of his labor duties, careful attitude to the property of the receiving party (including the property of third parties located by the receiving party, if the receiving party is responsible for the safety of this property) and to the property of the receiving party’s employees, compliance with the internal labor regulations of the receiving party; on the obligation of the receiving party to provide the assigned employee with equipment, tools, technical documentation and other means necessary for the performance of his job duties; on the obligation of the receiving party to provide for the everyday needs of the assigned employee related to the performance of his job duties; on the obligation of the receiving party to remove from work or not allow the assigned employee to work in the cases specified in part one of Article 76 of this Code. At the same time, the receiving party is obliged to notify the employer immediately about cases of removal from work or prohibition of the assigned employee from work. A private employment agency is obliged to enter information about work under a contract for the provision of labor for workers (personnel) with the receiving party in the employee’s work book. A private employment agency is obliged to monitor the compliance of the actual use of the labor of sent workers by the receiving party with the labor functions determined by the employment contracts of these workers, as well as the compliance by the receiving party with labor law standards. The receiving party does not have the right to prevent a private employment agency from carrying out this control.
Article 341.3. Peculiarities of labor regulation of workers sent temporarily by an employer that is not a private employment agency to other legal entities under an agreement on the provision of labor for workers (personnel)
The specifics of regulating the labor of workers sent temporarily to other legal entities under an agreement on the provision of labor for workers (personnel) by an employer that is not a private employment agency are established by federal law.
Article 341.4. Investigation of an accident that occurred with an employee sent temporarily to work under a contract for the provision of labor for workers (personnel) and participating in the production activities of the receiving party
An accident that occurs with an employee sent temporarily to work for the receiving party under an agreement on the provision of labor for workers (personnel) and participating in the production activities of the receiving party is investigated by a commission formed by the receiving party. The commission includes a representative of the employer who sent the employee. Failure to arrive or untimely arrival of the specified representative is not grounds for changing the timing of the investigation (part five of Article 229 of this Code).
Article 341.5. Vicarious liability for the employer’s obligations arising from labor relations with employees sent temporarily to work under a contract for the provision of labor for employees (personnel)
For the employer’s obligations arising from labor relations with employees sent temporarily to work for the receiving party under an agreement on the provision of labor for employees (personnel), including obligations for the payment of wages and other amounts due to the employee, for the payment of monetary compensation for violation the employer of the established period for payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the receiving party bears subsidiary liability.
