All military offenses are covered in Chapter 33 of the Criminal Code “Crimes against military service” and are secretly distributed in various areas. The Article 349 we are considering, “Violation of the rules for handling weapons and objects that pose an increased danger to others,” is included in the list of norms 345-352 of the Criminal Code, united on the basis of “careless or frivolous use of military property, weapons and non-compliance with requirements for the use of specialized equipment.”
This article differs from other norms of criminal law in the composition of the offense, object, subject, qualifying features and penalties, so we will cover each of these points in detail. Also in our material you can find examples of violations of safety requirements when handling weapons and the grounds for which liability under Art. 349 is not assigned.
The essence of the criminal act
It consists of failure to comply with established standards for handling weapons and the subsequent infliction of heavy damage to people, units of military equipment, or the occurrence of other consequences provided for by law.
Important ! A sufficient condition for an act to be recognized as an offense is the moment when adverse consequences occur.
For the composition of the violation, it is also very important to identify the cause-and-effect relationship between actions and results.
Objective side
Manifests itself in the form of an incorrect action or lack of any action. One way or another, there is improper adherence to the requirements for the use, storage, transportation or application of the items discussed in the article.
The object of the offense is the established procedure for handling weapons, ammunition, radioactive materials, explosives or other substances and objects that pose an increased danger to others.
How to handle weapons and other high-risk items is stated in such regulations as:
- Charters of internal, garrison and guard services;
- shooting courses from various types of weapons;
- manuals on small arms and mortars;
- guidelines for the storage of certain types of ammunition, explosives, chemicals, radioactive and other substances.
Reference . Requirements for handling certain types of hazardous chemical compounds and items are set out in regulations of non-military departments. Their violation is also prosecuted under Article 349 of the Criminal Code of the Russian Federation.
Subjective side
The subjective side is characterized by the result in the form of damage to human health or other consequences resulting from the frivolous or careless attitude of the employee to his duties.
A serviceman who, for use in service, was ordered to possess weapons and objects that pose a danger to others may become guilty under Article 349 of the Criminal Code.
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Subject of the criminal act
The subject of the violation may be:
- weapons and ammunition;
- radioactive materials – substances not related to nuclear materials that emit ionizing radiation;
- explosives;
- other substances and objects (for example, various chemical, biological, highly toxic substances that are not considered weapons of mass destruction, but are still recognized as very dangerous due to their special properties).
Federal Law of December 13, 1996 N150-FZ “On Weapons” defines the concepts of weapons and ammunition. The first refers to service small arms, artillery and missile weapons available to the armed forces and other troops of the Russian Federation.
The latter include cartridges, shells, grenades and other devices that are used for shooting, detonation and other actions. Similar things, only used not in combat, but in exercises (for example, blank or training cartridges) cannot become the subject of an offense. At the same time, the use of a blank cartridge in violation of the rules for handling weapons, if this entails the consequences provided for in the commented article, forms a crime, but on the basis of non-compliance with the requirements for handling weapons, and not with ammunition.
Radioactive substances are substances that have the property of spontaneous decay and, as a result, emit electromagnetic or corpuscular radiation, which can cause serious damage to living beings (uranium, strontium, etc.).
Explosives are mixtures prone to rapid chemical reactions due to external influence directed at them. They can lead to powerful destructive consequences. Their list includes gunpowder, TNT, etc.
Second commentary to Art. 349 of the Criminal Code of the Russian Federation
1. Rules for the safe handling of weapons, ammunition, radioactive materials, explosives and other substances and objects that pose an increased danger to others are defined in military regulations, manuals, instructions and other regulations. The act provided for in Art. 349, constitutes a crime if it is expressed in violation of the rules for handling the specified items.
2. Rules for handling weapons are a set of techniques and a sequence of actions with weapons that ensure the safety of others while using them.
3. Grave consequences provided for in Art. 349 represent primarily physical harm, but property and organizational damage are also possible.
Part 1 provides for liability for a violation that causes serious harm to someone’s health, the destruction of military equipment, or other grave consequences. Other grave consequences mean major property and organizational damage.
Ch.ch. 2 and 3 provide for liability for violations that lead to the death of one or more persons, respectively. A mandatory element of a crime is a causal connection between the violation committed and the consequences that occur.
4. The subject of the crime is a military serviceman who, due to certain circumstances, has the opportunity to use substances and objects that pose an increased danger to others.
5. The subject of violation of the rules for handling substances and objects that pose an increased danger to others is only the military personnel to whom these substances and objects are entrusted for official use.
6. The subjective side of the crime is guilt in the form of negligence.
Qualifying features
The qualifying criterion for the first part of Article 349 of the Criminal Code of the Russian Federation is the result in the form of severe damage to human health (we are talking about one person), the death of a piece of military equipment or other unfavorable results.
The concept of grave damage is specified in Article 111 of the Criminal Code. The death of military vehicles means their complete disabling, after which they cannot be used for their intended purpose. Other serious results include, for example, environmental pollution, significant material damage, disruption of an assigned mission, a decrease in the level of combat readiness, etc.
For the second part, the sign of a crime is murder due to the carelessness of an official.
To be punished under the third part, the death of two or more people must occur for the same reason as indicated for the second part of the article in question.
The actions specified in the first part of Art. 349 of the Criminal Code of the Russian Federation, belong to the category of offenses of minor gravity. The punishment under the second and third parts of the article is considered to be of medium severity.
The result in the form of carelessly caused damage to a person or his death due to non-compliance with the requirements for handling weapons and other means is entirely determined by the article in question and does not imply any other qualification according to the norms of the Criminal Code on offenses against the person.
What punishment does the culprit face?
If the unlawful act was qualified under the first part of Art. 349 of the Criminal Code of the Russian Federation, the perpetrator is subject to a restriction on military service or detention in a disciplinary military unit for a maximum of two years.
Anyone guilty of a crime under Part 2 of the article in question faces imprisonment for no more than five years.
The punishment for an offense under the third part is the most severe: imprisonment for up to ten years.
When liability under Art. 349 of the Criminal Code of the Russian Federation does not apply
There is no chance to avoid criminal liability at all. According to the recommendations of the plenums of the Supreme Court in cases of certain crimes against public safety, if there is competition between general and special criminal law norms, a special one should be used. However, due to certain qualifying criteria, there are exceptions to this rule.
In the system of offenses against public safety, the actions specified in Art. 349 of the Criminal Code of the Russian Federation, the closest unlawful acts are from the following articles of the code:
- 218 “Violation of the rules for accounting, storage, transportation and use of explosives, flammable substances and pyrotechnic products”;
- 220 “Illegal handling of nuclear materials or radioactive substances.”
They may completely coincide in subject matter, consequences, subjects and subjective side, so in this case a careful distinction is required.
So, if the serviceman was not given instructions providing for compliance with the requirements for handling explosives, actions that resulted in heavy damage or death due to negligence should be qualified under Article 218 of the Criminal Code of the Russian Federation.
Article 220 of the Criminal Code of the Russian Federation is a little more complicated, since it provides for punishment for a wider range of offenses than Art. 349. According to 220, the object of the violation is public security relations. And if there was a failure to comply with the requirements for handling radioactive materials, but the consequences did not occur, the actions are recognized as an offense against military service, but are qualified as an attack on public safety under Part 1 of Art. 220 of the Criminal Code of the Russian Federation.
An example from judicial practice
Let's consider the following clear example of a violation from judicial practice under Art. 349 of the Criminal Code of the Russian Federation.
The Baltic Garrison Military Court, having examined the materials of the criminal case against the defendant Chernykh V.V., found him guilty of committing the crime set out in Part 2 of Art. 349 of the Criminal Code of the Russian Federation.
Chernykh V.V., being a contract soldier, served in the military unit XX and violated the requirements for the safe use of weapons, which through negligence resulted in the death of his colleague FULL NAME82.
The defendant was assigned a daily duty officer at the bottom of the ship, and therefore he was entitled to receive a pistol and 16 rounds of ammunition.
At about 16:55 on the same day, the defendant woke up and, getting ready to form the incoming daily squad, in violation of safety standards, unnecessarily turned off the safety of the pistol he had previously received. He also put a cartridge into the chamber and, believing that it was not there, pointed the pistol at FULL NAME82, who was sleeping on his bed. Then the trigger was pulled and a shot was fired. FULL NAME82 received a gunshot wound to the head.
The defendant Chernykh fully admitted his guilt. At the same time, he testified that he fired the shot accidentally, in a hurry to get into formation, forgetting that he had inserted the magazine into the pistol, without looking where he was pointing the pistol, and in violation of the established and known to him requirements for the safe handling of firearms.
In addition to personal confession, the defendant’s guilt in the crime is confirmed by the totality of evidence examined at the trial.
Article 349 of the Civil Code of the Russian Federation. Procedure for foreclosure on pledged property (current version)
1. The commented article talks about the concept and procedure for making a decision to foreclose on mortgaged property. Foreclosing on pledged property means that the pledgee obtains permission to satisfy his claim against the debtor precisely at the expense of the pledged property. Thus, the satisfaction of the pledgee's claim is carried out by foreclosure on the pledged property and its subsequent implementation (sale).
In paragraph 1 of Art. 349 of the Civil Code provides as a general rule that foreclosure on pledged property is carried out by a court decision, unless an agreement between the mortgagor and the pledgee provides for an extrajudicial procedure for foreclosure.
Moreover, even if the agreement of the parties provides for an extrajudicial procedure for foreclosure on the pledged property, the mortgagee has the right to submit a demand to the court for foreclosure on the pledged property. In this case, additional costs associated with foreclosure of the pledged property in court are borne by the mortgagee, unless he proves that foreclosure of the pledged property or sale of the pledged property in accordance with the agreement on out-of-court foreclosure was not carried out due to with the actions of the pledgor or third parties.
The provisions of part 3 of paragraph 1 of the commented article oblige the pledgee and other persons, when foreclosure and sale of the pledged property, to take measures necessary to obtain the greatest proceeds from the sale of the pledged item, as well as providing for the right of the person who suffered losses by failure to fulfill this obligation to demand their compensation.
It seems that the pledgee is objectively interested in receiving the greatest proceeds from the sale of the pledged item, so there is no additional need to declare this obligation.
2. Along with the judicial procedure, in accordance with paragraph 2 of the commented article, it is allowed to make a decision to foreclose on the pledged property without going to court (out of court) on the basis of an agreement between the mortgagor and the mortgagee, unless otherwise provided by law.
An agreement to foreclose on the pledged property out of court can be concluded at any time (at the conclusion of the pledge agreement, during the period of its validity - before or after the violation of the main obligation).
3. Clause 3 of the commented article provides for an open list of cases when foreclosure on the subject of pledge can only be made by a court decision. In particular, foreclosure can only be carried out by a court decision if the subject of the pledge is the only residential premises owned by a citizen, with the exception of cases of concluding an agreement on extrajudicial foreclosure after the emergence of grounds for foreclosure.
4. According to paragraph 4 of the commented article, the condition on the extrajudicial procedure for foreclosure on the pledged property can be included directly in the pledge agreement (without concluding a separate agreement).
5. As follows from paragraph 5 of the commented article, if a separate agreement on extrajudicial foreclosure was concluded, then it must be concluded in the same form as the pledge agreement for this property.
6. Extrajudicial foreclosure of the subject of pledge is also possible on the basis of a notary’s writ of execution in the manner established by the legislation on notaries and the legislation of the Russian Federation on enforcement proceedings, in the event of non-fulfillment or improper performance by the debtor of the obligation secured by the pledge, if the pledge agreement containing a condition foreclosure of pledged property out of court, certified by a notary.
Thus, foreclosure on movable property pledged in a pawnshop is, as a general rule, carried out on the basis of a notary’s writ of execution (Article 12 of the Law on Pawnshops). Foreclosing on the subject of pledge according to a notary's writ of execution without going to court is also permitted if the pledge agreement, which contains a condition for foreclosure on the pledged property extrajudicially, is certified by a notary (Clause 6, Article 349 of the Civil Code of the Russian Federation).
7. According to paragraph 7 of the commented article, an agreement to foreclose on pledged property out of court must contain a number of essential conditions, without which it will be considered not concluded.
Such conditions are an indication of one method or several methods of selling the pledged property provided for by the Civil Code, as well as the value (initial sale price) of the pledged property or the procedure for determining it.
Moreover, if the agreement to foreclose on the pledged property provides for several ways to sell the pledged property, then, as a general rule, the right to choose the method of sale belongs to the pledgee. However, a specific agreement may provide otherwise.
8. If foreclosure is carried out extrajudicially, then the mortgagee or notary who carries out the foreclosure is obliged to send to the mortgagor, mortgagees known to them, as well as to the debtor a notice of the start of foreclosure (clause 8 of Article 349 of the Civil Code).
According to Part 2 of Clause 8 of the commented article, the sale of pledged property is permitted no earlier than ten days from the date of receipt by the pledgor and the debtor of the notification of the pledgee or notary.
However, this norm is dispositive in nature, and a different period may be provided for by law, including banking legislation. In particular, in cases provided for by banking legislation, the sale of pledged movable property may be carried out before the expiration of the specified period with a significant risk of a significant reduction in the value of the pledged item compared to the sale price (initial sale price) specified in the notification.
For example, according to Art. 47 of the Federal Law of July 10, 2002 N 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)”, the sale of pledged movable property by the Bank of Russia is allowed earlier than the deadline established by paragraph 8 of Article 349 of the Civil Code of the Russian Federation, if this is provided for by an agreement between the Bank of Russia and credit institution, with a significant risk of a significant reduction in the value of the pledged property compared to the sales price (initial sale price) specified in the notice of foreclosure on the pledged movable property.
In addition, the agreement itself may provide for a period exceeding the specified minimum period.
Comment source:
“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"
S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019
