Analysis of judicial practice in the application by courts of the region of the provisions of Part 6 of Art. 15 of the Criminal Code of the Russian Federation on changing the category of crime

Change in production volume under 44-FZ

16.10.2019

From this article you will learn:

• Why can’t the scope of construction work be changed in contracts concluded before July 1, 2021?
• Why is it impossible to change the volume of purchased products in a contract concluded as a result of a request for quotations in electronic form?
• How to correctly change the quantity of goods supplied under a contract?
• What is the distinctive feature of contracts for the supply of goods and performance of work (provision of services) when deciding on a change in volume?
• How can not only the customer, but also the supplier, be hit with administrative fines associated with changes in volume?
• What are the features when purchasing from a single supplier?
• and much more interesting information about the quantity (volume) of products purchased under Law No. 44-FZ.

Are we interested in you? Then make yourself comfortable in front of the screen and read this article to the end. After reading, do not forget to leave your review (comment), and also join our closed WhatsApp group to receive advice from the experts of our consultation center!

Retroactivity of criminal law

1. A criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of a person who committed a crime, has retroactive effect, that is, it applies to persons who committed the relevant acts before the entry into force of such a law, including persons serving a sentence or those who have served their sentence but have a criminal record.
A criminal law that establishes the criminality of an act, increases punishment or otherwise worsens a person’s position does not have retroactive effect. 2. If a new criminal law mitigates the punishment for an act that is being served by a person, then this punishment is subject to reduction within the limits provided for by the new criminal law.

A little theory

The volume (quantity) of products purchased under the contract is its essential condition. As a general rule, changes in essential terms in contracts concluded or concluded under Law No. 44-FZ are not allowed, except for cases expressly specified in the law. The main cases are the following:

pp. “b” clause 1, part 1, art. 95 of Law No. 44-FZ

b) if, at the customer’s proposal, the quantity of goods, volume of work or service provided for in the contract (except for the contract, the subject of which is the performance of construction, reconstruction, major repairs, demolition of a capital construction project, or work to preserve cultural heritage sites) is increased by no more than by ten percent or the quantity of goods supplied, the volume of work performed or services provided is reduced by no more than ten percent as provided for in the contract. In this case, by agreement of the parties, it is allowed to change, taking into account the provisions of the budgetary legislation of the Russian Federation, the contract price in proportion to the additional quantity of goods, additional volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than ten percent of the contract price. When reducing the quantity of goods, volume of work or service provided for in the contract, the parties to the contract are obliged to reduce the contract price based on the unit price of the goods, work or service. The price of a unit of additionally supplied goods or the price of a unit of goods in case of a decrease in the quantity of the supplied goods stipulated by the contract must be determined as the quotient of dividing the original contract price by the quantity of such goods stipulated in the contract;

pp. “c” clause 1, part 1, art. 95 of Law No. 44-FZ

c) when there is a change in the volume and (or) types of work performed under a contract, the subject of which is the performance of construction, reconstruction, major repairs, demolition of a capital construction project, and work to preserve cultural heritage sites. In this case, it is allowed to change the contract price, taking into account the provisions of the budget legislation of the Russian Federation, by no more than ten percent of the contract price;

clause 10, part 1, art. 95 of Law No. 44-FZ

10) in case of concluding a contract with a single supplier (contractor, performer) in accordance with paragraphs. 1, 8, 22, 23, 29, 32, 34, 51 part 1 art. 93 of Law No. 44-FZ.

Part 18 Art. 34 of Law No. 44-FZ

18. When concluding a contract, the customer, in agreement with the procurement participant with whom the contract is concluded in accordance with Law No. 44-FZ, has the right to increase the quantity of goods supplied by an amount not exceeding the difference between the contract price proposed by such participant and the initial (maximum) price contract (lot price), if this right of the customer is provided for in the procurement documentation. In this case, the price of a unit of goods should not exceed the price of a unit of goods, determined as the quotient of the contract price specified in the application for participation in the competition, request for proposals or proposed by the auction participant with whom the contract is concluded, by the quantity of goods specified in the notice of procurement .

Commentary to Art. 10 Criminal Code

1. In Part 1 of Art. 10 of the Criminal Code formulates the principle of retroactive force of criminal law, which is an exception to the requirements established in Art. 9 of the Criminal Code.

The criminal law is given retroactive force in three cases: a) elimination of the criminality of the act; b) mitigation of punishment; c) otherwise improve the situation of the person who committed the crime.

2. A law that eliminates the criminality of an act is a law that abolishes criminal liability for it. The exclusion from the Criminal Code of an article that contained signs of a special norm does not exclude the criminal liability of a person under another article of the Criminal Code, which sets out the signs of a general norm that covers this act.

3. The law mitigates punishment if it: replaces the type of punishment in the sanction with a more lenient one; excludes the most severe form of punishment from the alternative; excludes additional punishment; introduces a more lenient type of primary or additional punishment into the sanction; reduces the minimum and maximum amounts of punishment (in the case when the lower limit of punishment has become softer and the upper limit has become stricter, one should focus on the upper limit, such a law is recognized as more stringent), etc. If the sanctions of the old and new laws are the same, the crime must be classified according to the law in force at the time it was committed.

4. A law that otherwise improves the situation of a person who has committed a crime is recognized, in particular, mitigating the conditions for release from criminal liability or punishment, reducing the terms for expunging or expunging a criminal record, etc.

5. The rule on the retroactive effect of a new, more lenient criminal law applies both to persons who committed the corresponding act before the entry into force of such a law, and to persons who have already been convicted and are serving a sentence or have a criminal record under the old, more stringent law.

6. If a new criminal law mitigates the punishment for an act that is being served by a person, then this punishment is subject to reduction within the limits provided for by the norms of the Special Part of the Criminal Code in the new edition using the provisions on sentencing from the General Part of the Criminal Code applied when the punishment was initially imposed.

Mitigation of punishment

In 1996, the new Criminal Code included for the first time the following as mitigating factors:

• Justified risk.
• Execution of instructions/orders.
• Coercion (mental/physical).

The penalty may be reduced by reducing the minimum, maximum, or both limits of the sanction. The following laws are considered more lenient:

• They do not change the limits of the main sanction, but exclude the mandatory imposition of an additional punishment or its imposition, but in a milder form.
• Changing downward the limits of punishment provided for by the Special Part.
• Providing for the possibility of the court, at its discretion, to impose an additional sanction, in contrast to previously existing norms that established the mandatory nature of its imposition.

The procedure for applying such regulations is established by Part 2 of Art. 10 CC.

Controversial point

In the legal literature, there are discussions about which law should include an act that mitigates and toughens punishment at the same time. We are talking, in particular, about provisions that reduce the minimum amount of the main or additional sanction and at the same time increase the maximum limit or act vice versa.

In practice, the following approach is used. If a new legal act may impose a more lenient measure, then it has retroactive force to the extent that it improves the citizen’s situation. Those provisions that tighten liability are not subject to application, and the citizen is sanctioned according to the previously valid law.

Let's look at an example. Let’s say the previous law established 5-8 years in prison for the crime. In the new regulatory act, the sanction was changed to 3-10 years. The court, thus, received an abstract opportunity to deprive the subject of freedom for less than 5 years, that is, soften the sanction, or impute the entire 10 years, that is, toughen the responsibility.

However, as established by Art. 10, deterioration of the citizen’s position is not allowed, since it contradicts the principles of humanism of legislation. Accordingly, the retroactive force of the above-mentioned normative act applies only to the extent of mitigating responsibility, i.e. the court has the right to impute to the offender at least 3, but not more than 8 years in prison.

Exceptions

The legal status of the subject, according to Art. 10 of the Criminal Code cannot worsen if, after the crime committed by him, a new law was introduced that tightened the punishment. In such situations, the previous normative act in force at the time of the act is applied. Thus, the provisions of the previous Code on violation of privacy, illegal receipt of credit funds, unlawful actions in the event of bankruptcy in relation to crimes committed before 01/01/1997 do not have retroactive force. This is due to the fact that the 1960 law did not establish penalties for these deeds.

Eliminating the crime of the crime

In the provisions of Art. 10 of the Criminal Code uses several specific concepts. One of them is to eliminate the criminality of the crime.

A law decriminalizing an assault is a legal act in accordance with which an act that was previously a crime ceases to be such. It is relegated to the category of disciplinary, administrative, immoral, civil offenses, or is not mentioned at all or is encouraged by legal norms.

Provisions of the law that eliminate the criminality of an act can exclude from the Criminal Code the article establishing punishment for it, change the disposition of the norm, introduce new elements into it, only in the presence of which the subject can be held accountable.

In addition, decriminalization can be carried out by introducing new norms into the General Part of the Criminal Code. For example, they can establish previously unknown or expand traditional conditions that exclude crime. The rules may also provide grounds for releasing a person from liability that were not previously enshrined in law.

Art. 10 of the Criminal Code of the Russian Federation with comments

The retroactive force of a legal act is considered an exception to the rule regarding the validity of the law in time. The existence of such a norm is one of the manifestations of humanism.

Application of Art. 10 of the Criminal Code is possible if the perpetrator commits an act under one law, but is held accountable under another legal act.

If the provisions of the latter are aimed at improving the situation of the subject, judicial and investigative workers must apply them. In this case, the time of the commission of the act does not matter.

For example, after the introduction of the new Criminal Code in 1996, some acts were decriminalized. In particular, liability was not provided for failure to report a crime, violation of the order of departure, residence in the border zone, sabotage, and so on.

Additionally

Separately, it is worth mentioning the retroactive effect of “intermediate” laws. This is the name given to acts that are in force after the previous law has been softened, but before the new one has been tightened.

For example, at the time of a crime, a sanction of up to 6 years in prison was established, when a guilty citizen was brought to justice - up to 5, and at the time the court made a decision - up to 7. Based on the principle of humanism, the court should apply the “intermediate” normative act as the most liberal, improving the position of the subject.