ST 145 of the Criminal Code of the Russian Federation.
Unreasonable refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy, as well as unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age, for these reasons - is punishable by a fine of up to two hundred thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a period of up to three hundred and sixty hours.
Commentary to Art. 145 Criminal Code
1. The victim is a pregnant woman or a woman who has at least one child under the age of three.
2. The objective side is characterized by an unjustified refusal to conclude an employment contract with the victim or an unjustified termination of the employment contract with the victim. Refusal to conclude an employment contract and termination of an employment contract with the victim become unjustified when they are caused by reasons related to pregnancy or the presence of a child under three years of age, and not other considerations of the employer.
Criminal liability under Art. 145 of the Criminal Code is not excluded in the case where the dismissal of a woman (termination of an employment contract) occurs not on the initiative of the employer, but by agreement of the parties, the initiative of the employee or other circumstances known to labor law, however, all these circumstances are artificially created by a person who does not want to have employee a pregnant woman or a woman with a child under three years of age.
3. Special subject: an individual who is an employer, or an individual authorized on behalf of a legal entity to enter into and terminate an employment contract.
Second commentary to Art. 145 of the Criminal Code of the Russian Federation
1. The object of the crime is the constitutional right to the protection of motherhood and childhood, which, in accordance with the Constitution of the Russian Federation, must be ensured by the state (Article 38 of the Constitution of the Russian Federation).
2. The objective side is the unjustified refusal to hire or unjustified dismissal from work of a pregnant woman or a woman with children under three years of age.
The crime is completed from the moment of refusal to hire or dismissal from work.
3. The subject of the crime is an official, as well as a person performing managerial functions in a commercial or other organization, enjoying the right to hire and dismiss from work.
4. Subjective side - guilt in the form of direct intent. The motive for the crime was reluctance to employ a pregnant woman or a woman with children under three years of age.
Judicial practice: sentences and punishment under Art. 144 of the Criminal Code of the Russian Federation
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Third commentary to Article 145 of the Criminal Code of the Russian Federation
1. The direct object of the crime in question is social relations that ensure the right to work of a pregnant woman and a woman with children under three years of age.
2. The objective side of the crime is characterized by an act (action or inaction) in the following forms: a) unjustified refusal to hire or unjustified dismissal of a pregnant woman; b) unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age. Illegal actions that contradict labor laws and that actually violate the equality of citizens based on gender should be considered unreasonable. The corpus delicti of this crime is formal, i.e. the act is considered criminal regardless of the occurrence of any harmful consequences and is considered completed at the time of the commission of illegal actions.
3. This is a special composition in relation to the corpus delicti provided for in Art. 136 of the Criminal Code. The crime is considered completed at the moment of refusal or when a dismissal order is issued. The duration of pregnancy does not matter, but the perpetrator must know for sure that the woman is pregnant.
4. A crime can only be committed with direct intent. The subject is aware that he is unreasonably (illegally) refusing to hire or dismissing a woman who he knows is pregnant or has children under the age of three, and wishes to act in this way. A mandatory feature is the motive specified in the law - reluctance to employ a pregnant woman or a mother with children under three years of age.
5. The subject of the crime is only special - either an official who exercises the right to hire or fire, or a person performing managerial functions in a commercial or other organization.
If selfish motives or other personal interest are established in the actions of these persons, then an ideal set of crimes is evident (Articles 145 and 201 or 285 of the Criminal Code). ‹Article 144.1. Unreasonable refusal to hire or unjustified dismissal of a person who has reached pre-retirement ageUp Article 145.1. Non-payment of wages, pensions, scholarships, benefits and other payments ›
Article 144. Procedure for considering a report of a crime
Article 144. Procedure for considering a report of a crime
[Code of Criminal Procedure] [Part Two] [Section VII] [Chapter 19]
. The inquiry officer, the inquiry body, the investigator, the head of the investigative body are obliged to accept, verify a message about any crime committed or being prepared and, within the competence established by this Code, make a decision on it no later than 3 days from the date of receipt of the specified message. When checking a report of a crime, the inquiry officer, the inquiry body, the investigator, the head of the investigative body has the right to receive explanations, samples for comparative research, request documents and objects, seize them in the manner established by this Code, order a forensic examination, take part in its production and obtain a conclusion expert within a reasonable time, carry out an inspection of the scene of the incident, documents, objects, corpses, examination, demand documentary checks, audits, studies of documents, objects, corpses, involve specialists in these actions, give the body of inquiry a binding written order to carry out operational search activities.
1.1. Persons participating in the production of procedural actions when checking a report of a crime are explained their rights and obligations provided for by this Code, and are provided with the opportunity to exercise these rights to the extent that the procedural actions performed and procedural decisions made affect their interests, including the rights not testify against yourself, your spouse and other close relatives, the circle of whom is defined in paragraph 4 of Article 5 of this Code, use the services of a lawyer, and also file complaints against the actions (inaction) and decisions of the investigator, the head of the inquiry unit, the head of the agency inquiry, inquiry body, investigator, head of the investigative body in the manner established by Chapter 16 of this Code. Participants in the verification of a crime report may be warned about the non-disclosure of data from pre-trial proceedings in the manner established by Article 161 of this Code. If necessary, the safety of a participant in pre-trial proceedings is ensured in the manner established by part nine of Article 166 of this Code, including when receiving a report of a crime.
1.2. Information obtained during the verification of a crime report may be used as evidence, subject to the provisions of articles of this Code. If, after the initiation of a criminal case, the defense or the victim submit a request for an additional or repeated forensic examination, then such a request must be granted.
. According to a report of a crime disseminated in the media, the inspection is carried out on behalf of the prosecutor by the inquiry body, as well as on behalf of the head of the investigative body by the investigator. The editorial office and the editor-in-chief of the relevant mass media are obliged to hand over, at the request of the prosecutor, investigator or body of inquiry, the documents and materials at the disposal of the relevant mass media confirming the report of a crime, as well as information about the person who provided the specified information, except in cases where this the person set a condition to keep the source of information secret.
. The head of the investigative body, the head of the inquiry body has the right, at the motivated request of the investigator or interrogating officer, respectively, to extend the period established by part one of this article to 10 days. If it is necessary to carry out documentary checks, audits, forensic examinations, studies of documents, objects, corpses, as well as conduct operational search activities, the head of the investigative body at the request of the investigator, and the prosecutor at the request of the investigator, has the right to extend this period to 30 days with mandatory indication of specific, the actual circumstances that served as the basis for such an extension.
. The applicant is issued a document confirming the acceptance of a crime report indicating information about the person who received it, as well as the date and time of its acceptance.
. A refusal to accept a report of a crime may be appealed to the prosecutor or to the court in the manner established by Articles 124 and 125 of this Code.
. The application of the victim or his legal representative in criminal cases of private prosecution, submitted to the court, is considered by the judge in accordance with Article 318 of this Code. In the cases provided for in part four of Article 147 of this Code, verification of a crime report is carried out in accordance with the rules established by this article.
. When a message about crimes under Articles 198 - 199.1 of the Criminal Code of the Russian Federation is received from the body of inquiry, the investigator, in the absence of grounds for refusing to initiate a criminal case, within no later than three days from the date of receipt of such a message, sends it to a higher tax authority in relation to the tax authority with which the taxpayer is registered with the tax authorities (tax agent, fee payer, insurance premium payer), or upon receipt of a message from the inquiry body about crimes provided for in Articles 199.3 and 199.4 of the Criminal Code of the Russian Federation - to the territorial body of the insurer in which they are registered registration of an insured - an individual or an insured organization who is obliged to pay insurance premiums for compulsory social insurance against accidents at work and occupational diseases to a state extra-budgetary fund (hereinafter in this article - the insured), a copy of such a message with the attachment of relevant documents and a preliminary calculation the estimated amount of arrears on taxes, fees and (or) insurance premiums.
. Based on the results of consideration of the materials sent by the investigator in the manner established by part seven of this article, the tax authority or the territorial body of the insurer, no later than 15 days from the date of receipt of such materials:
- 1) sends to the investigator a conclusion on violation of the legislation of the Russian Federation on taxes and fees and (or) the legislation of the Russian Federation on compulsory social insurance against accidents at work and occupational diseases and on the correctness of the preliminary calculation of the amount of the alleged arrears on taxes, fees and (or) insurance contributions in the event that the circumstances specified in the report of the crime were the subject of investigation during a previously appointed tax audit or verification of the correctness of calculation, timeliness and completeness of payment (transfer) of insurance contributions for compulsory social insurance against industrial accidents and occupational diseases, according to the results of which resulted in an effective decision of the tax authority or territorial body of the insurer, as well as information on appealing or suspending the execution of such a decision;
- 2) informs the investigator that a tax audit or verification of the correctness of calculation, timeliness and completeness of payment (transfer) of insurance contributions for compulsory social insurance against industrial accidents is being carried out in relation to the taxpayer (tax agent, fee payer, insurance premium payer) or the insurer and occupational diseases, based on the results of which a decision has not yet been made or has not entered into legal force;
- 3) informs the investigator about the absence of information about a violation of the legislation of the Russian Federation on taxes and fees and (or) the legislation of the Russian Federation on compulsory social insurance against industrial accidents and occupational diseases if the circumstances specified in the report of the crime were not the subject of investigation when conducting a tax audit or checking the correctness of calculation, timeliness and completeness of payment (transfer) of insurance contributions for compulsory social insurance against industrial accidents and occupational diseases.
. After receiving the conclusion of the tax authority or the territorial body of the insurer, but no later than 30 days from the receipt of the report of the crime, based on the results of consideration of this conclusion by the investigator, a procedural decision must be made. A criminal case for crimes provided for in Articles 198 - 199.1, 199.3, 199.4 of the Criminal Code of the Russian Federation may be initiated by the investigator before receiving from the tax authority or territorial body of the insurer the conclusion or information provided for in part eight of this article, if there is a reason and sufficient data indicating for signs of a crime.
