Article 216. Violation of safety rules when conducting mining, construction or other work

New edition of Art. 216 of the Criminal Code of the Russian Federation

1. Violation of safety rules when carrying out construction or other work, if this entailed, through negligence, the infliction of serious harm to human health or major damage, -

shall be punishable by a fine in the amount of up to eighty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to six months, or by restriction of freedom for a term of up to three years, or by forced labor for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities. for a term of up to three years or without it, or imprisonment for the same term with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

2. The same act, resulting in the death of a person through negligence, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.

3. An act provided for in the first part of this article, resulting in the death of two or more persons through negligence, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.

Note. In the articles of this chapter, major damage is recognized as damage the amount of which exceeds five hundred thousand rubles.

Article 216. Violation of safety rules when conducting mining, construction or other work

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Article 216. Violation of safety rules when conducting mining, construction or other work

1. Violation of safety rules when carrying out mining, construction or other work, if this entailed through negligence the infliction of serious harm to human health or major damage,
is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months, or restriction of freedom for a term of up to three years, or forced labor for a term of up to three years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a period of up to three years or without it.

2. The same act, resulting in the death of a person through negligence, -

3. An act provided for in the first part of this article, resulting in the death of two or more persons through negligence, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.

(Part three was introduced by Federal Law of December 8, 2003 N 162-FZ - Collection of Legislation of the Russian Federation, 2003, N 50, Art. 4848)

Note. In the articles of this chapter, major damage is recognized as damage the amount of which exceeds five hundred thousand rubles (note introduced by Federal Law of December 8, 2003 N 162-FZ - Collection of Legislation of the Russian Federation, 2003, N 50, Art. 4848).

Commentary on Article 216

Main object

crimes - public safety in the production of certain types of work.

An additional object is human health, property relations.

An optional subject is human life.

The norm in question is blanket, and to understand its content it is necessary to refer to legislative and other normative legal acts of other branches of law.

The concept of mining is given in the Federal Law of June 20, 1996 “On state regulation in the field of mining and use of coal, on the features of social protection of employees of coal industry organizations” <1>, Uniform safety rules for open-pit mining of mineral deposits, approved by the Resolution Federal Mining and Industrial Supervision of Russia dated September 9, 2002 <2>. Mining operations are a complex of works (production processes) for carrying out, securing, maintaining mine workings and extracting minerals; works on construction, operation, expansion, reconstruction, technical re-equipment, conservation and liquidation of quarries, mines, hydraulic dumps of processing plants, gold dumps and slag dumps of thermal power plants and metallurgical enterprises.

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<1> Northwestern Russian Federation. 1996. N 26. Art. 3033.

<2> Bulletin of normative acts of federal executive authorities. 2002. N 51.

Specific safety rules for mining operations are also determined by the Safety Rules in Coal Mines, approved by the Resolution of the Federal Mining and Industrial Supervision of Russia dated June 5, 2003 <1>.

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<1> RG. Special issue. 2003. June 21.

The general requirements for work safety are as follows: workers engaged in mining operations must have a professional education corresponding to the profile of the work performed, must be trained in safe work practices, know emergency warning signals, rules of conduct in case of accidents, locations of rescue equipment and be able to use them . Workers must be re-instructed on occupational safety at least every six months and tested for knowledge of occupational instructions at least once a year. The results of the inspection are documented in a protocol with an entry in the briefing log and the worker’s personal card.

For all persons entering work, as well as for persons transferred to another job, it is mandatory to undergo labor safety training, training in safe methods and techniques for performing work, and providing first aid to victims.

Workers and specialists must be provided with and required to use special clothing, special footwear, working safety helmets, goggles and other personal protective equipment appropriate to their profession and conditions, in accordance with approved standards.

Persons who are not on the staff of a mining site, but who need to visit it to carry out production tasks, must be instructed in safety measures and provided with personal protective equipment.

Before starting work, everyone must make sure that their workplace is safe, check the presence and serviceability of safety devices, protective equipment, tools, mechanisms and devices required for work.

If violations of safety requirements are detected, the employee must, without starting work, report this to the mining foreman, site manager, deputy site manager (hereinafter referred to as the technical shift manager).

Construction work is a generic concept for a group of specialized works, which include installation, excavation, drilling, concrete, roofing, stone, finishing, insulation, electrical installation, testing of equipment and pipelines and some other types. The general requirements for their safe implementation are determined by the Resolutions of the State Committee of the Russian Federation for Construction and Housing and Communal Sector dated July 23, 2001 and September 17, 2002 “On the adoption of building codes and regulations of the Russian Federation “Labor Safety in Construction” <1>.

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<1> Bulletin of normative acts of federal executive authorities. 2001. N 38; 2002. N 48.

Other work includes, for example, blasting work that is not related to work at explosive facilities or in explosive workshops.

Objective side

The crime consists of violating safety rules when carrying out mining, construction or other work, resulting in serious harm to human health or major damage.

When qualifying an offense, it is necessary to accurately determine which point, paragraph, article of the relevant rules was violated by the guilty person.

In cases of this category, it is necessary to limit the crimes provided for in Art. 143 of the Criminal Code of the Russian Federation, from crimes provided for in Art. 216 of the Criminal Code of the Russian Federation, taking into account that when resolving this issue, one should proceed from the specific work in which safety rules were violated. If a violation of these rules (including labor safety rules) was committed during mining or construction work, then the offense must be qualified under Art. 216 of the Criminal Code of the Russian Federation.

In order to avoid errors when qualifying actions that entailed harmful consequences during mining, construction and other work using special self-propelled machines (excavator, grader, scraper, etc.), courts should keep in mind that if a person operating a tractor or another self-propelled machine, violated the rules for performing certain work, safety regulations or other labor protection rules, even if these violations were committed while the machine was moving, the act must be qualified under the articles of the Criminal Code of the Russian Federation, providing for liability for violation of these rules, and in appropriate cases - for crimes against the life and health of citizens, destruction or damage to property.

The corpus delicti is material. To recognize the act as completed, the consequences must occur in the form of causing serious harm to the health of at least one person or major damage (in the amount of over five hundred thousand rubles).

According to paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 23, 1991 No. 1 “On judicial practice in cases of violations of labor protection and safety rules in mining, construction and other works,” the subjective side of this crime is characterized by careless guilt.

Subject

a crime is both the person who is entrusted with the obligations to comply with the rules and regulations of labor protection (for example, the chief engineer, the head of the workshop, section, foreman, foreman), and other employees whose activities are related to this enterprise (a specific employee who has violated the technical rules security, a person sent to an enterprise, a student intern).

In Part 2 of Art. 216 of the Criminal Code of the Russian Federation provides for liability for the same act that resulted in the death of a person through negligence.

An act provided for in Part 1 of this article, resulting in the death of two or more persons through negligence, entails liability under Part 3 of Art. 216 of the Criminal Code of the Russian Federation.

Criminal case No. 1- 48/15

SENTENCE

IN THE NAME OF THE RUSSIAN FEDERATION

Moscow January 30, 2015

Izmailovsky District Court of Moscow composed of the presiding federal judge Pospelova E.V., with the secretary of the court session Ashyrova M.Sh., with the participation of:

State Prosecutor - Senior Assistant of the Izmailovo Interdistrict Prosecutor of Moscow, 3rd Class Lawyer O.M. Lavrov,

defendant Kuts D.V.,

defense lawyer Arshinova G.A.,

having examined in an open court session in a special manner the materials of the criminal case in relation to:

Kuts D.V., no criminal record,

accused of committing a crime under Art. 216 part 1 of the Criminal Code of the Russian Federation, -

INSTALLED:

Kuts D.V. guilty of violating safety rules when carrying out construction and other work, if this resulted in negligence causing serious harm to human health.

The crime was committed under the following circumstances: ** 2014 in the period of time from approximately * hours * minutes to * hours * minutes, during the implementation of LLC "****" complex of construction, installation and commissioning work on laying a cable line from the substation to the electrical panel ******, located at: Moscow, st. *** foreman of LLC “****” Kuts D.V., appointed by order of the General Director of the said Company No. ** dated ** 2014 as the responsible manager of the work with the obligation to comply with the “Rules for conducting earthworks in Moscow” when performing labor protection, safety of existing networks and communications”, violated safety rules when carrying out construction and other work, showing criminal negligence, that is, he did not foresee the possibility of socially dangerous consequences of his actions, although with the necessary care and forethought he should and could have foreseen these consequences. So he (D.V. Kuts) did not take into account the unsatisfactory content and shortcomings in the organization of workplaces, in violation of paragraph 3 of table 1. clause 5.2.6 of section 5.2 “Organization of workplaces” SNiP 04/12/2002 “Labor safety in production” ": "Work associated with the presence of workers in excavations with slopes without fastenings in bulk, sandy and silty-clayey soils above the groundwater level" (taking into account capillary rise) or soils drained by artificial dewatering is allowed at the excavation depth and the steepness of the slopes indicated in Table 1: The steepness of the slope (the ratio of its height to the foundation), after which he gave instructions to the electrician for servicing electrical installations of LLC “****” K.I. appointed to this position in accordance with the order of the General Director of the said Company No. 8 dated May 7, 2014, to trim the reinforcement existing at the bottom of the earthen trench, without taking into account that the ground, vertical walls of the trench are not strengthened and when carrying out work in the trench, collapse is possible unstrengthened walls. During the execution of K.I. of the specified works, ** 2014, approximately in the period of time from * hours * minutes to * hours * minutes, a ground collapse occurred, as a result of which the latter, according to the expert’s conclusion dated ** 2014, suffered the following bodily injuries: closed blunt trauma to the chest cells: multiple bilateral fractures of the ribs: closed fractures of the 2,3,5,6,7,8,9 ribs on the right, 10th rib on the right with displacement of fragments: closed fractures of the 3,4,5 ribs on the left, 5, 6,7,8,9th ribs on the left with displacement of fragments; closed fracture of the middle third of the left clavicle with displacement of fragments; hemothorax (accumulation of blood in the pleural cavity) on the right and left; pneumothorax (accumulation of air in the pleural cavity) on the right and left; contusion of both lungs; soft tissue emphysema (accumulation of air in the soft tissues) of the neck, chest and abdomen; abrasions of the torso, limbs. These injuries are collectively qualified as serious harm to health based on the danger to life. The diagnosis made: “Contusion of the thoracic spine” was not confirmed by the presence of bodily injuries (wounds, abrasions, bruises or bone-traumatic changes) in the specified area, and therefore is not subject to forensic medical assessment.

Defendant Kuts D.V. He fully admitted his guilt in committing the crime, repented of what he had done, agreed with the accusation and filed a petition for consideration of the criminal case in a special manner, explaining that he submitted the petition voluntarily and after consultation with the defense lawyer, he (D.V. Kuts) understands the nature and consequences of this request.

Having made sure that all the requirements of the law have been met for consideration of the case in a special order, since the defendant is aware of the nature and consequences of the petition filed by him, this petition was submitted by the defendant voluntarily and after consultation with the defense lawyer, who supported the stated petition in court, taking into account the consent of the prosecutor and the victim , who did not object to the consideration of the case in a special order, the court considers it possible to satisfy the defendant’s request and, having considered the present criminal case in a special order, comes to the conclusion that the charge, which the defendant agreed with Kuts D.V. justified and supported by evidence collected in the criminal case.

The court qualifies the actions of Kuts D.V. according to Art. 216 part 1 of the Criminal Code of the Russian Federation, since he is guilty of violating safety rules when carrying out construction and other work, if this resulted in negligence causing serious harm to human health.

When assigning punishment to the defendant, the court, in accordance with Art. 60 of the Criminal Code of the Russian Federation takes into account the nature and degree of public danger of the crime, information about the identity of the perpetrator:

Kuts D.V. we have no criminal record (vol. 2, pp. 100-102), are characterized positively at the place of work (vol. 2, pp. 99), no complaints were received at the place of residence (vol. 2, pp. 104), is not registered in the ND, PND (vol. 2, pp. 105-106), has a dependent mother who suffers from a serious illness and needs expensive operations.

Mitigating Kuts D.V. circumstances, the court recognizes his repentance for his actions, a positive reference at his place of work, and the presence of a dependent mother with a serious illness.

Considering the nature and degree of public danger of the crime committed, mitigating circumstances, guided by Art. 43 of the Criminal Code of the Russian Federation, the court believes that in order to restore social justice and prevent the commission of new crimes, the correction of Kuts D.V. perhaps by imposing punishment on him using Art. 73 of the Criminal Code of the Russian Federation.

Guided by Art. Art. 314-316 Code of Criminal Procedure of the Russian Federation, court

SENTENCED

Recognize Kuts D.V. guilty of committing a crime under Art. 216 part 1 of the Criminal Code of the Russian Federation and impose a fine on him in the amount of 30,000 (thirty thousand) rubles.

The preventive measure until the sentence enters into legal force remains unchanged in the form of a written undertaking not to leave the place and proper behavior.

The verdict can be appealed to the Moscow City Court through the Izmailovsky District Court of Moscow within 10 (ten) days from the date of proclamation, taking into account the requirements of Art. 389.15 clause 1 of the Code of Criminal Procedure of the Russian Federation.

In the case of an appeal, the convicted person has the right to participate in the consideration of the criminal case by the court of appeal.

Chairman E.V. Pospelov

Commentary to Art. 216 Civil Code of the Russian Federation

1. Paragraph 1 of the commented article contains a list of real rights - the most important category of civil law. Property law formalizes the ownership of things - the most common objects of civil rights - to persons, thereby establishing the necessary starting prerequisites for civil circulation. Alienation of material goods is impossible without a clear preliminary distinction between “one’s own” and “theirs”, i.e. determination of the subjective property right on which the thing is held by the person alienating it.

2. The key difficulty of interpretation is precisely the definition of real rights, their delimitation from the opposite category - rights of obligations. The task is to find signs of property rights, especially considering that the legislator in the commented article left this question open. It is advisable to preface the analysis of the characteristics of property rights with a number of methodological remarks.

Firstly, it is necessary to highlight only those features that are inherent in all real rights, including the right of ownership, but not limited to it (cf. paragraph 2 of the commented article).

Secondly, the totality of these features must necessarily distinguish real rights from obligatory rights and cannot be inherent in both.

Thirdly, the unconditional “litmus test” by which the suitability of a characteristic is assessed should be those rights that the law directly (expressis verbis) calls real. Currently, the legislator (Article 209, commented article, Articles 31, 33, 34 of the Housing Code - based on the name of Section II of the Housing Code, paragraph 3 of Article 53 of the Mortgage Law) directly calls the following rights in rem: right of ownership; the right to lifelong inheritable ownership of a land plot; the right to permanent (indefinite) use of a land plot; easement; the right to manage property; the right to operational property management; the right of family members of the owner of the residential premises; the right to use residential premises by testamentary refusal; the right to use residential premises on the basis of a lifelong maintenance agreement with dependents.

We should proceed from the priority of the clearly expressed normative will and talk about the signs of real rights under the current legislation - de lege lata. Therefore, all rights directly named in the law as real rights must meet the stated criteria. However, this does not mean that if the put forward feature is confirmed in all property rights specified in the law, then it is satisfactory; after all, it is possible that rights of obligation also correspond to it.

3. Property rights are always a product of positive law. Therefore, references to foreign experience in the legal regulation of property rights should be regarded as nothing more than de lege ferenda arguments, since the set of property rights may vary significantly in different national jurisdictions.

Let us now consider those features that are based on the current legislation and which are satisfied by all real rights, directly named as such in the commented article and other acts of legislation.

4. The object of property rights is a thing. The opinion that the object of real rights can be not only things, but also intangible objects, contradicts the nature of real rights.

5. The objects of real rights can be not just things, but things defined by individual characteristics that make it possible to distinguish them in space from other things of the same kind. With the destruction of a thing, the real right to it also ceases, while the right of obligation exists as long as there is a debtor or his successor. Therefore, wild animals located in their natural habitat and not isolated from it, in accordance with international law, cannot be objects of property law.

6. The absoluteness of a property right is defined as the possibility of its implementation exclusively and independently of other persons. It follows from the meaning of the remedies provided to property rights, namely special property claims against anyone and everyone who violates these rights.

Without demanding any actions from third parties, the subject of property rights has the right to count on their abstinence from arbitrary interference in his sphere of use of the thing, to exclude everyone from the exercise of his right. Therefore, property rights belong to the category of exclusive ones and can be violated by anyone and everyone (the circle of violators is unlimited). On the contrary, the law of obligations cannot be violated by anyone other than the debtor, i.e. a person with whom the creditor has a legal relationship.

7. The analysis shows that the only thing common to all rights directly called real in the legislation is the right to use. Use is a legally secured opportunity to extract useful properties, fruits and other income from a thing during its operation.

The use of a thing is carried out by the subject of property rights exclusively in his own interest. If this happens in the interests of another person (for example, a contractor uses the customer’s material for an economic purpose, but does it in the customer’s interest), then such use cannot create a special subjective property right.

8. At present, other properties of real rights identified in the literature cannot be considered their signs, since they are not confirmed in all real rights directly named as such in the law.

The most serious “contender” to be a universal feature of property rights is the right to own a thing. Possession is understood as the legally secured possibility of a person’s volitional, actual and direct domination over a thing (see for more details the commentary to Article 209 of the Civil Code). Possession is inherent in most real rights based on their purpose - to formalize the direct relationship of a person to a thing. However, the opposite conclusion (that all real rights are equipped with the right of ownership) would be an obvious stretch. After all, an easement, which is directly called a property right in the law (clause 1 of the article under comment), by its nature is obviously deprived of the right of ownership (clause 1 of Article 274 of the Civil Code).

9. In paragraphs 3 and 4 of the commented article, two legal characteristics of real rights are given: the property of succession and proprietary protection, which nevertheless cannot be considered their characteristics.

The essence of these characteristics is as follows:

1) the transfer of ownership of property to another person is not the basis for the termination of other real rights to this property (the so-called property of succession). The property right is, as it were, attached to the thing and follows it when the owner changes, regardless of the will of the latter;

2) real rights are provided with special proprietary protection. Since a property right can be violated by anyone and everyone, it is protected against any violator, while an obligation law is protected only against one or more obligated persons. The attractiveness of property rights claims - vindication (on the recovery of a thing from someone else’s illegal possession - Article 301 of the Civil Code) and negatory (on the elimination of any violations of property rights, even if these violations were not connected with a violation of possession - Art. 304 of the Civil Code) - consists is that the plaintiff must prove only his own title according to the formula: “This thing is mine.” For subjects of limited property rights, the formula is slightly different: “I have this thing legally.”

10. The property of succession and property-legal protection are not signs of property law, but act as manifestations of its regime, i.e. as consequences. It is a mistake to say that if a right has the property of succession and proprietary protection, then it is proprietary; this is a logical circle. In order to understand how to protect an object, in any case, it is necessary to first understand what is being protected. Therefore, one should reason differently: if the right is in rem, then it has the property of being followed and protected in rem.

Hence, a few special remarks.

Firstly, there is no need to repeat these consequences in relation to each specific property right, and although sometimes such repetition is made (Article 300 of the Civil Code), its absence should not automatically lead to the conclusion that we are not dealing with a property right.

Secondly, if a certain specific right, although not called a real right, is nevertheless simultaneously and directly provided in the law with the property of succession and real protection, then it is logical to assume that we have a real right (this is precisely an assumption, since, strictly speaking, the exact conclusion from the proposed premise is different: we have before us a law, the consequences of which coincide with the regime of property law). This presumption makes sense only in the case when the law does not directly call a certain right a property right and at the same time gives it both of these properties at the same time. As an example, we can point out the right of pledge, which, by virtue of a direct indication of the law, has both the property of succession (Article 353 of the Civil Code) and proprietary protection (Article 347 of the Civil Code). If a special law, directly calling a right in rem, nevertheless just as directly deprives this right of any one of the indicated consequences (for example, the property of consequentiality, as is the case for the right of a citizen living together with the owner in a residential building belonging to him) (Article 31 of the LC, paragraph 2 of Article 292 of the Civil Code), then we must nevertheless talk about property rights, giving priority to the formal interpretation of words and expressions, as well as their location in the text of the law.

11. At present, the consolidation of an exhaustive list of them in legislation (numerus clausus) can hardly be considered a sign of real rights. The argument that the closed nature of the list clearly follows from the meaning of the article under comment is unconvincing. On the contrary, it is obvious that the commented article provides an open list of real rights - it contains the clause “in particular”. At the same time, taking into account the importance of this issue, as well as the fact that in other federal laws establishing property rights, the term of the same name is rarely used, this list should be provided not just in federal laws, but specifically in the Civil Code, in the commented article, providing its provision that new types of real rights can be introduced by other federal laws only with simultaneous amendments to this article. Moreover, the list of real rights themselves, and not their characteristics, is subject to consolidation (by analogy with the closed list of commercial organizations established in paragraph 2 of Article 50 of the Civil Code).

12. The power of disposal (see in more detail the commentary to Article 209 of the Civil Code) is included in the content of the right of ownership and a number of other real rights, but is not inherent, for example, in an easement, and therefore cannot be a universal feature.

13. Perpetuity (the absence of a set period of existence) also cannot be considered as a sign of a property right, simply because it is not inherent in all its varieties. An easement (clauses 3, 4 of Article 23 of the Housing Code), the right to use residential premises provided by testamentary refusal (clause 1 of Article 33 of the Housing Code) may have a period of existence and thereby confirm that a property right is not necessarily eternal .

14. Finally, today the so-called seniority, which means the greater strength of the property right that precedes other similar rights in time, is not considered today as a sign of a property right. It does not follow from the current legislation (with the exception of paragraph 1 of Article 342 of the Civil Code on pledge) and, in addition, is inherent in rights of obligation (paragraphs 7, 8 of paragraph 2 of Article 855 of the Civil Code).

15. So, subjective property right is a legally secured opportunity to use an individually defined thing in one’s own interest and independently of other persons. This definition seems to be necessary and sufficient de lege lata for qualifying a subjective right as a property right and, as a consequence, establishing in it the property of succession and property protection, unless otherwise established by a special law.

Based on the definition given above, we designate those rights that satisfy it: 1) the right of ownership; 2) the right to lifelong inheritable ownership of a land plot; 3) the right to permanent (indefinite) use of the land plot; 4) the right to free temporary use of a land plot; 5) the right to use a subsoil plot under the terms of a production sharing agreement; 6) easement; 7) the right to manage property; the right to operational property management; 9) the right of the institution to independently dispose of income received from commercial activities not prohibited by the constituent documents, as well as property acquired with these incomes; 10) the right of a family member of the owner of the residential premises; 11) the right to use residential premises by testamentary refusal; 12) the right to use residential premises on the basis of a lifelong maintenance agreement with dependents; 13) the right to use a forest fund site; 14) the right to lease and the right of a tenant of residential premises (after the transfer of the thing); 15) the right to use the thing free of charge (after transfer of the thing); 16) the right of persons living together with the employer; 17) the right of a member of the cooperative to an apartment before its redemption; 18) right of pledge including the right to use.

On the contrary, they cannot be real rights, since they are not connected with the right to use, the pre-emptive right to purchase, the right to claim rental payments, the right of the subject of lien, the custodian, the carrier, the right of the person in whose interests the insurance contract was concluded. The contractor's right to materials transferred from the customer, the right of the trustee, cannot be real rights, since they are connected with use not in his own interest.

To conclude the analysis of the commented article, it should be noted that the definition of real rights is inevitably controversial and the presence of alternative points of view in the literature. It is obvious that the rules on property rights need legislative improvement.

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