Commentary to Art. 350 of the Criminal Code of the Russian Federation
The object of the crime is the safety of movement and operation of military vehicles. The subject of the crime is combat, special and transport vehicles. These are self-propelled vehicles in service, carrying weapons, special devices that serve as a means of transportation, movement of military equipment: tanks, infantry fighting vehicles, armored personnel carriers, artillery mortars, rocket launchers, construction and fire fighting vehicles, vehicles intended for transporting personnel, transportation of weapons and ammunition, etc.
The objective side of the crime can be expressed both in action and inaction and consists of a violation of driving rules. Driving is the direct control of a vehicle while moving (violating the speed limit, improper maneuvering, violating the requirements of a traffic controller, road signs, etc.). Operation is the use of the machine in accordance with its purpose, technical capabilities, compliance with maintenance rules, etc.
Mandatory elements of a crime include the occurrence of socially dangerous consequences in the form of grave harm to human health as a result of violation of the relevant rules. According to the construction of the objective side, the corpus delicti is material. The crime is completed from the moment of causing serious harm to a person’s health.
Causing harm to human health (or death) through negligence as a result of violating the rules of driving or operating machines as a single crime is covered by the relevant part of Art. 350 of the Criminal Code of the Russian Federation and does not require additional qualifications under articles on crimes against the person.
At the same time, violation of the rules of driving or operating machines, which, along with carelessly causing damage to human health or life, also resulted in material damage due to negligence, can form a set of crimes and be qualified under Art. 350 of the Criminal Code of the Russian Federation and the corresponding article of the Criminal Code of the Russian Federation (Article 168 or Art. 347).
The disposition of the article under consideration is blanket. Therefore, to establish the elements of a crime, it is necessary to refer to specific regulations governing the procedure for driving and operating cars. The main difference between the crime under consideration and the crimes provided for in Art. Art. 263, 264 of the Criminal Code of the Russian Federation, consists in the ownership of transport by the armed forces.
The subjective side is characterized only by a careless form of guilt in the form of frivolity or negligence.
The subject of the crime is a special one - a serviceman driving a military vehicle or responsible for its operation.
Qualified and especially qualified offenses provide for liability for the same act, which negligently resulted in the death of one person (Part 2 of Article 350 of the Criminal Code of the Russian Federation) or several - two or more persons (Part 3 of Article 350 of the Criminal Code of the Russian Federation).
Commentary to Art. 350 of the Criminal Code
1. This corpus delicti is special in relation to the corpus delicti provided for in Art. 264 CC. The rules for driving and operating a combat, special or transport vehicle are regulated in addition to the Traffic Rules approved by Resolution of the Council of Ministers - Government of the Russian Federation of October 23, 1993 N 1090, and various departmental regulatory legal acts.
2. The objective side is characterized by a violation of driving rules, i.e. direct control during movement, or operation carried out in order to ensure trouble-free operation of these items.
3. The crime will be considered completed from the moment of causing serious harm to human health.
Judicial practice under Article 350 of the Criminal Code of the Russian Federation
The appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 31, 2019 N 5-APU19-2
is being processed by the investigative department of the Investigative Department of the State Service for Combating Economic Crimes under the Government of the Kyrgyz Republic. There is a criminal case on charges against Yusupov M.Kh. in taking possession of someone else's property by deception and abuse of trust, causing significant damage to a citizen, as well as in forgery of documents, that is, in committing crimes provided for in paragraph 2, part 3 of Art. 166, part 1, 2 art. 350 of the Criminal Code of the Kyrgyz Republic.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 28, 2019 N 78-APU19-25
The Deputy Prosecutor General of the Russian Federation issued a resolution dated April 10, 2021 on the extradition of A.T. Ismailov. to bring to criminal liability for fraud under Art. 166 part 2 clauses 2, 3 of the Criminal Code of the Kyrgyz Republic and for forgery of an official document under Art. 350 parts 1, 4, 6 of the Criminal Code of the Kyrgyz Republic. In the extradition of Ismailov A.T. to bring to criminal liability for the use of a knowingly forged document under Art. 350 part 2 of the Criminal Code of the Kyrgyz Republic was denied.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 04/01/2019 N 25-КГ18-7
According to the verdict of the St. Petersburg Garrison Military Court dated June 17, 2003, Martynov A.B. found guilty of committing a crime under Part 3 of Article 350 of the Criminal Code of the Russian Federation (violation of the rules of driving or operating a combat, special or transport vehicle, resulting in the death of two or more persons through negligence), he was sentenced using an article of the Criminal Code of the Russian Federation (appointment a more lenient punishment than provided for this crime) in the form of imprisonment for a period of three years in a penal colony.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 02/01/2021 N 11-КГ20-12-К6
By the resolution of the investigator of the military investigative department of the Investigative Committee of the Russian Federation for the Sosnovy Bor garrison dated October 9, 2021, it was refused to initiate a criminal case (hereinafter also referred to as the resolution to refuse to initiate a criminal case) against a former serviceman under the contract of military unit 46108 I.G. Gazizov. upon a report of the commission of a crime provided for in Part 1 of Article 350 of the Criminal Code of the Russian Federation (violation of the rules of driving or operating a combat, special or transport vehicle, resulting through negligence in causing grievous harm to human health), on the basis provided for in paragraph 4 of Part 1 of Article 24 of the Criminal Code procedural code of the Russian Federation, that is, in connection with the death of the person in respect of whom the inspection was carried out.
Determination of the Constitutional Court of the Russian Federation dated 07/08/2021 N 1373-O
The criminal law establishes a system of special norms aimed at ensuring safety in certain areas of life, characterized by increased requirements for the behavior of subjects (in particular, articles 143, 215, 216, 217, 218, 219, 236, 247, 263, 264, 268, 350 of the Criminal Code of the Russian Federation). In such relations, their participants act as special subjects called upon to comply with a set of rules that ensure both individual safety and the general security of life and health of a wide (indefinite) circle of people. Failure to comply (violate) the requirements of special norms in itself creates a danger of causing harm to the life and health of people and other objects of criminal legal protection.
Commentary on Article 350 of the Criminal Code of the Russian Federation
1. The subject of the crime is combat vehicles (tanks, self-propelled artillery, armored personnel carriers, infantry fighting vehicles, etc.), special vehicles (bulldozers, scrapers, etc.), transport vehicles for transporting personnel, weapons and other military equipment.
2. The objective side of the crime is a violation of the rules of driving or operating a combat, special or transport vehicle, which through negligence resulted in the infliction of serious harm to human health.
The rules for driving and operating combat, special or transport vehicles are determined by the Rules of Road Traffic and Operation of Vehicles, general military regulations of the Armed Forces of the Russian Federation, and other regulatory legal acts.
Violations of these Rules include the release of technically unprepared vehicles, permission to drive military personnel in a sick condition, exceeding the established speed, improper overtaking of moving vehicles, driving into oncoming traffic, etc.
3. The crime is considered completed from the moment of causing serious harm to a person’s health, the concept of which is disclosed in Art. 111 of the Criminal Code.
4. The subjective side of the crime is characterized by a careless form of guilt.
5. The subject of the crime is a military serviceman driving a vehicle or responsible for its operation.
Violation of these rules, which through negligence resulted in the death of a person, is qualified under Part 2, and the death of two or more persons - under Part 3 of Art. 350.
Commentary to Art. 350 Civil Code of the Russian Federation
1. The methods and procedure for foreclosure on a pledged immovable property are regulated by Art. Art. 56 - 61 of the Law on Mortgage, and for movable things - Art. 28.1 of the Law on Pledge, which can also be applied to the pledge of rights.
Foreclosure of real estate is carried out by selling it at a public auction organized by a bailiff, or at an auction held by a specialized organization acting on the basis of an agreement with the mortgagee. In case of foreclosure on movable property, it is also possible to use the following methods: sale of the subject of pledge by a commission agent acting on the basis of an agreement with the pledgee; receipt of the pledged item into the property of the pledgee; sale of the subject of pledge by the pledgee to a third party without holding an auction. According to para. 2 p. 2 art. 28.1 of the Law on Pledge, securities traded on the organized securities market are subject to sale at auction by the organizer of trading on the securities market.
The proceeds received from the sale of the pledged item are used to satisfy the claims of the pledgee. The claims secured by the pledge are terminated. However, here there is no fulfillment of the obligation (clause 1 of Article 408 of the Civil Code), since the satisfaction of the creditor does not occur as a result of the provision made by the debtor.
If the pledgor is a third party, then if the creditor is satisfied at the expense of the value of the pledged property, the claim that the pledgee has against the debtor passes to the pledgor (paragraph 4 of article 387 of the Civil Code).
2. The instructions on satisfying the pledgee by receiving the pledged item into his own property are very contradictory (see paragraph 1 of the commentary to Article 334 of the Civil Code). The wording of sub. 1 clause 3 and clause 4 art. 28.1 of the Law on Pledge speaks of the receipt of the subject of pledge into the property of the pledgee. At the same time, in para. 1 clause 1 art. 334 of the Civil Code refers to the “transfer of the subject of pledge into the ownership of the pledgee.” Clause 6 of Art. 28.1 of the Law on Pledge gives the pledgee the right to demand “the transfer of the pledged movable property to him by the pledgor, provided that it was left with the pledgor.”
The legislator should have more clearly resolved the issue of how to satisfy the mortgagee. Taking into account the above instructions, the following solution to this issue can be proposed. The ownership right to the subject of the pledge (see paragraph 2 of the commentary to Article 338 of the Civil Code) passes to the pledgee by virtue of the instructions of the law (ex lege) upon the occurrence of those listed in Art. Art. 348 and 349 of the Civil Code of the prerequisites for foreclosure on mortgaged property. If, under the terms of the pledge agreement, the pledged item remained with the pledgor, then with the onset of prerequisites for foreclosure, the pledgee acquires an obligatory requirement to transfer the pledged item into ownership (Article 398 of the Civil Code). The satisfaction of this requirement by the pledgor is carried out through tradition, i.e. agreement on the transfer of property into ownership.
3. Another indication referred to in paragraph 2 of the commented article is provided, in particular, by paragraph 5 of Art. 358 of the Civil Code for pledging things in a pawnshop.
4. If the proceeds from the sale of the pledged item are not enough to satisfy the bankruptcy claims of the pledgee, then the remaining part is satisfied at the expense of the rest of the bankruptcy estate as part of the claims of the third priority (paragraph 3, clause 5, article 18.1 of the Bankruptcy Law).
5. It follows from paragraph 4 of the commented article that a monetary obligation arises between the pledgee and the pledgor to transfer (transfer) the excess proceeds received from the sale of the pledged item. The deadline for fulfilling this obligation is determined in accordance with clause 17 of Art. 28.1 of the Law on Pledge, and liability for violation - on the basis of Art. 395 Civil Code. For information on the scope of claims secured by collateral, see commentary. to Art. 337 Civil Code.
Proceeds from the sale of mortgaged real estate are distributed in accordance with Art. 61 of the Mortgage Law. Paragraph 4 of the commented article does not apply to these relations.
6. Within the meaning of paragraph 5 of the commented article in its connection with Art. 337 of the Civil Code, the payment of the debtor or the pledgor, who is a third party, must fully cover all claims secured by the pledge. The moment of sale is considered the moment the obligation arises to transfer the sold collateral into the ownership of the buyer, i.e. the moment of concluding the purchase and sale agreement (clause 1 of Article 454 of the Civil Code). However, if the buyer does not pay money for the purchased item, the auction is declared invalid and interested parties can still stop the collection.
Payment of funds terminates the secured obligation, as a result of which the pledge is terminated (subclause 1, clause 1, article 352 of the Civil Code). If funds are paid by a mortgagor who is not a debtor, then they must be accepted by the creditor by virtue of clause 1 of Art. 313 of the Civil Code and paragraph 5 of the commented article. If the pledgee or the auction organizer evades receiving the offered funds, the pledgor has the right to deposit the outstanding amount (Article 327 of the Civil Code). With the deposit of money into the notary's deposit, the claim secured by the pledge is terminated, which also leads to the termination of the right of pledge. Therefore, the mortgagor has the right to reclaim his property from someone else’s illegal possession (Article 301 of the Civil Code).
7. In what cases the auction is declared invalid is defined in paragraph 12 of Art. 28.1 of the Law on Pledge and in paragraph 1 of Art. 58 of the Mortgage Law.
8. Mentioned in paragraph. 1, paragraph 6 of the commented article, an agreement on the acquisition of pledged property by the pledgee is considered by the legislator not as an agreement to provide compensation (Article 409 of the Civil Code), but as a type of purchase and sale agreement (Article 454 of the Civil Code). This agreement is characterized by the following features. The subject of the purchase and sale agreement does not need to be individualized, since it is already individualized by the pledge agreement. The price of the purchase and sale agreement in this case is determined, in the absence of another agreement, by the initial sale price at the auction. Payments of the purchase price are made only to the extent that is not covered by the offset of claims secured by the pledge. A statement of offset (Article 410 of the Civil Code) is not required, since the very fact of concluding the agreement in question means that a contractual offset of the claim for payment of the purchase price and the claims secured by the pledge has been made.
According to para. 2 clause 13 art. 28.1 of the Law on Pledge and clause 2 of Art. 58 of the Mortgage Law, this agreement must be concluded within ten days from the date the auction was declared invalid. If an agreement is not concluded, then re-tenders are held. As a general rule, the initial sale price at repeated auctions is set 15% lower than the initial price at the first auction.
9. The fact that the repeated auction has been declared invalid gives rise to the pledgee’s right to acquire ownership of the pledged item or become the owner of the pledged right. This acquisition occurs through a unilateral transaction of the pledge holder, which is formalized by his written application sent to the auction organizer, and in cases provided for by law - to the pledgor and the bailiff (paragraph 5, paragraph 13, article 28.1 of the Law on Pledge and paragraph 2 p 5 Article 58 of the Mortgage Law).
If the value of the property acquired by the pledgee exceeds the amount of claims secured by the pledge, then in the amount of the positive difference the pledgee is unjustly enriched, as a result of which he is obliged to pay this amount to the pledgor (clause 1 of Article 1102 of the Civil Code).
The acquisition by the pledgee of the subject of pledge entails the termination of the claims secured by the pledge. In this case, the termination of the obligation secured by the pledge occurs on a special basis arising from paragraph 6 of the commented article. The subject of the pledge cannot be considered compensation, since its provision to satisfy the creditor’s demands is not made by agreement of the parties to the obligation (Article 409 of the Civil Code). Due to the termination of the claims secured by the pledge, the collateral relations are also terminated (subclause 1, clause 1, article 352 of the Civil Code).
Violation of driving or operation rules
1. Violation of the rules of driving or operating a combat, special or transport vehicle, resulting through negligence in causing grievous harm to human health,
is punishable by arrest for a term of four to six months, or detention in a disciplinary military unit for a term of up to two years, or imprisonment for a term of up to two years. for a term of up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. The same act, resulting in the death of a person through negligence, -
shall be punishable by imprisonment for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
3. An act provided for in the first part of this article, resulting in the death of two or more persons through negligence, -
is punishable by imprisonment for a term of up to seven years.
