Article 165. Causing property damage by deception or abuse of trust

ST 165 of the Criminal Code of the Russian Federation.

1. Causing property damage to the owner or other possessor of property by deception or abuse of trust in the absence of signs of theft, committed on a large scale, is punishable by a fine in the amount of up to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, or forced labor for a term of up to two years with or without restriction of freedom for a term of up to one year, or imprisonment for a term of up to two years with 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 without it and with or without restriction of freedom for up to one year.

2. The act provided for in the first part of this article: a) committed by a group of persons by prior conspiracy or by an organized group; b) causing especially large damage - is punishable by forced labor for a term of up to five years with or without restriction of freedom for a term of up to two years, or by imprisonment for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months or without it and with or without restriction of freedom for a period of up to two years.

Commentary to Art. 165 Criminal Code

1. The subject of the crime is property gain, i.e. increase in property, which should increase the value of the victim’s property.

2. The objective side of the crime is characterized by causing property damage through deception or abuse of trust in the absence of signs of theft (fraud) committed on a large scale.

Such property damage (and this is the difference from fraud) is caused as a result of the non-transfer of the perpetrators, the retention of property (including non-payment of funds), which, in accordance with the law, other legal act, or agreement, should go to the victim. The methods of committing a crime are deception or abuse of trust (clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51 “On judicial practice in cases of fraud, misappropriation and embezzlement” and commentary on Article 159 of the Criminal Code of the Russian Federation).

3. The crime is considered completed from the moment the person fails to fulfill his obligation to transfer property or pay money to the victim in a large amount.

4. The qualifying features of this crime (Part 2) coincide with similar features of Art. 158 - 159 CC.

Article 165. Causing property damage by deception or abuse of trust

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• Article 165. Causing property damage by deception or abuse of trust

1. Causing property damage to the owner or other possessor of property by deception or abuse of trust in the absence of signs of theft, committed on a large scale,
is punishable by a fine in the amount of up to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, or forced labor for a term of up to two years with or without restriction of freedom for a term of up to one year, or imprisonment for a term of up to two years with 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 without it and with or without restriction of freedom for up to one year.

2. The act provided for in part one of this article:

a) committed by a group of persons by prior conspiracy or by an organized group;

b) causing particularly large damage, -

shall be punishable by forced labor for a term of up to five years, with or without restriction of liberty for a term of up to two years, or by imprisonment for a term of up to five years with 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 without it and with or without restriction of freedom for a term of up to two years.

Commentary on Article 165

An object

This crime is similar to the main object of extortion; this crime can also be classified as an attack on property as a whole - the amount of legally protected property rights and interests of participants in civil transactions.

In the law as a victim

the owner or other owner of the property is indicated. From this we can conclude that the subject of the crime is property in the sense of a thing. Actually this is not true. There is no subject to this crime; any person who has suffered damage can be recognized as a victim, even if he does not act as the owner or owner of the property, but as a participant in an obligatory relationship, a producer of work or a performer of services.

Objective side

crime is expressed in action, consequence, causal connection between them and alternative methods of committing a crime (deception or breach of trust).

This crime is similar in method to fraud, embezzlement and embezzlement and differs from them in the absence of individual elements of these crimes. For example, Art. 165 of the Criminal Code of the Russian Federation is applied in the absence of the subject of theft, as well as in a situation where the damage is caused not in the form of loss of property, but in the form of lost income (lost profits).

Signs of the act

are not specified in the law, this can be any action or inaction that causes property damage.

Property damage

may result in any losses, including lost profits (lost income).

Methods

committing a crime: deception or breach of trust. Unlike fraud, both methods have independent meaning.

Deception

is understood in the same way as in fraud. Unlike fraud, the damage is not associated with the loss of property and its transfer to the criminal. Yes, Art. 165 of the Criminal Code of the Russian Federation applies to evasion by fraud from payment for electricity, other utilities, telephone services, transport and any other work and services. For example, if a person uses the services of a beauty salon and then disappears without paying, all the signs of this crime are present (unless the act is considered minor). In practice, deception in committing this crime is understood very broadly. If a person, for example, makes technical changes to the telephone network that allow him to conduct unpaid long-distance or international telephone conversations, the act is qualified precisely under Art. 165 of the Criminal Code of the Russian Federation. It does not matter whether the damage is caused directly to the communications organization or whether the calls are made at the expense of one of its clients.

“Infliction of property damage through deception or abuse of trust in the absence of signs of theft should be distinguished from fraud (Article 165 of the Criminal Code of the Russian Federation). In the latter case, there are no, in their entirety or separately, such obligatory signs of fraud as illegal, gratuitous final confiscation and (or) conversion of someone else’s property for the benefit of the perpetrator or for the benefit of other persons, committed for mercenary purposes. When deciding whether a person’s actions contain corpus delicti, liability for which is provided for in Article 165 of the Criminal Code of the Russian Federation, the court must establish whether the owner or other owner of the property suffered real material damage or damage in the form of lost profits, that is, lost income that this person would have received under normal conditions of civil circulation if his right had not been violated by deception or abuse of trust" (clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 No. 51 "On judicial practice in cases of fraud, misappropriation and waste").

Does not constitute a crime under Art. 165 of the Criminal Code of the Russian Federation, evasion of taxes, fees and customs duties in the absence of a large amount required for tax crimes. The rules on tax crimes are special in relation to the article in question of the Criminal Code of the Russian Federation. Having defined the line of criminality in these norms by indicating a large scale of evasion, the legislator thereby decriminalized tax evasion that does not reach a large scale.

The theft of tickets and other signs committed by a person for the purpose of using it as a means of payment for transport services must be qualified under Art. Art. 325, 30 and 165 of the Criminal Code of the Russian Federation as theft of forms and preparation to cause property damage by deception, and in cases of their actual use - for a set of crimes provided for in Art. 325 and 165 of the Criminal Code of the Russian Federation (clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 23, 1980 No. 6 “On the practice of application by the courts of the Russian Federation of legislation when considering cases of theft in transport”).

Breach of trust

as a method of committing this crime is closer to a method of appropriation and embezzlement than to a method of fraud. Not every breach of trust can be understood as a method necessary for the existence of a crime under Art. 165 of the Criminal Code of the Russian Federation. In particular, trust within the framework of credit relations is not enough to qualify the offense under this article. Failure to repay a debt, even intentionally, is not a crime; it is a matter of dispute in civil proceedings. There may be good reasons for not repaying a debt. It is not the failure to fulfill a civil obligation as such that is criminal, but the theft of other people’s money, committed by deception in the intention of fulfilling the obligation, but this crime is not qualified under Art. 165, and according to Art. 159 of the Criminal Code of the Russian Federation.

The breach of trust characteristic of the crime in question is only possible within the framework of a fiduciary relationship. These are relationships based on trust (civil or labor), by virtue of which a person acquires powers over someone else’s property and is obliged to act in good faith (bona fide) in the interests of others. Breach of trust in relation to Art. 165 of the Criminal Code of the Russian Federation, therefore, should be understood as abuse of powers over someone else’s property or actual capabilities arising from these powers

.

Causing property damage through abuse of trust is qualified under Art. 165 of the Criminal Code of the Russian Federation in the absence of signs of misappropriation and embezzlement (Article 160 of the Criminal Code of the Russian Federation), abuse of authority (Article 201 of the Criminal Code of the Russian Federation) and abuse of official powers (Article 285 of the Criminal Code of the Russian Federation). This rule is subject to application, for example, in the case of abuse of the powers and capabilities of an attorney (for example, a bribed representative in an arbitration process abandoned the claim), a guardian (for example, a guardian allowed his relative to rent out the property of the ward and appropriate the income from this), as well as employees who are trusted, but do not fall into the category of officials and managers in commercial organizations (for example, a train conductor or bus driver transports stowaways, pocketing fares).

Material elements of the crime

. The crime will be completed from the moment the consequences in the form of property damage occur.

Subjective side

a crime is characterized by guilt only in the form of direct intent, when the perpetrator is aware of the social danger of his act, foresees the possibility or inevitability of the occurrence of socially dangerous consequences and desires their occurrence.
The issue of selfish purpose
is resolved ambiguously. The law does not specify selfish purpose as an element of a crime. Before the revolution of 1917, the legislator proceeded from the fact that a selfish goal is not a mandatory sign of abuse of trust. For example, a criminal may pursue the goal of causing harm to a ward. In modern legal literature, this crime is usually classified as a selfish crime against property. In practice there are also no cases of application of Art. 165 of the Criminal Code of the Russian Federation in the absence of a selfish goal.

Subject

general crime - a sane person who has reached the age of sixteen years.

Qualifying features

: group of persons by prior conspiracy, large size (Part 2 of Article 165 of the Criminal Code of the Russian Federation); organized group, especially large damage (Part 3 of Article 165 of the Criminal Code of the Russian Federation).

Group of persons by prior conspiracy

and
an organized group
are understood in the same way as in theft.
Large
and
especially large amounts of damage
are calculated according to the same rules as for theft, taking into account the fact that it is not the cost of the stolen property that is taken into account, but losses in full.

Second commentary to Art. 165 of the Criminal Code of the Russian Federation

1. The methods characterizing the objective side of the crime being analyzed are deception or abuse of trust. The crime in question differs from fraud in that when it is committed, it does not involve the taking of someone else’s property. The culprit receives illegal enrichment not at the expense of property located in the cash funds of the owner or other owner, but through the unlawful appropriation of property (or payment for a service), which has not yet been received, but in accordance with the law, other regulatory legal act or agreement must be received in these funds, as well as through non-payment of mandatory payments.

For example, submitting a fictitious certificate to the social security authorities about having the required work experience in hazardous industries and unjustifiably receiving a pension supplement should be classified as fraud, since profit is made by receiving illegal payments from the state budget. And the submission at the place of residence of a forged certificate about the presence of dependents of the culprit in order to reduce the amount of utility bills contains elements of causing property damage by deception in the absence of signs of theft, since the culprit illegally withholds money that is subject to receipt of the local budget, and does not withdraw it from there.

2. The crime is considered completed from the moment of actual infliction of property damage.

3. The subjective side of the crime is characterized by direct intent, selfish motive and the goal of extracting illegal property benefits.

4. Only a private person over 16 years of age can be the subject of a crime. When the same actions are performed by an official or a person performing managerial functions in a commercial or other organization, the act should be additionally qualified under Art. 285 or under Art. 201 CC.

5. The qualifying features of a crime are: commission of a crime by prior conspiracy by a group of persons or on a large scale. They have the same content as during theft.

6. The commission of a crime by an organized group as a sign of a particularly qualified group has the same content as in the case of theft. As for paragraph “b” of Part 2 of Art. 165 of the Criminal Code, the legislator associates the increased punishment not with a large amount (as in the case of theft), but with large damage. However, the legislator evaluates the size and damage using the same quantitative indicators (this can be seen from the note to Article 169 of the Criminal Code). In relation to Art. 165 of the Criminal Code, large damage amounts to an amount exceeding two hundred and fifty thousand rubles (note 4 to Article 158 of the Criminal Code).

The essence of the problem

Every citizen has the legal right to dispose of his property at his own discretion. This fully applies to both any owner and the direct owner. But sometimes the actions of other persons, committed through abuse of trust or direct deception, cause property damage to a citizen. Issues related to such situations are considered by Art. 165 of the Criminal Code of the Russian Federation. Moreover, such actions are characterized by two circumstances:

1. Absence of any obvious signs of theft. That is, we are not talking about theft here. The offender did not steal the property. He disposed of it in his own interests, while depriving the owner of his legal right.
2. The damage was committed on a large scale. As a result of unlawful actions of third parties, the owner did not receive a certain part of the possible income from his property. Here we can rather talk about lost profits.

This is exactly how this crime is described in Part 1 of Art. 165 of the Criminal Code of the Russian Federation. An example of such a violation could be:

• unauthorized access to the Internet by using someone else's login or password;
• unauthorized check-in of guests by a hotel employee without appropriate registration;
• evasion of mandatory payment for electricity and others.

Part 2 of this article deals with the same violation, but under more serious circumstances:

a) the actions were committed by an organized group or several persons by prior conspiracy;

b) the damage caused is assessed as particularly large.

Offenses committed in this way will be subject to legal punishment.

Debt collection

Vivid examples of the situation discussed in Art. 165 of the Criminal Code of the Russian Federation, there are cases related to the collection of overdue debts. Banks, when issuing consumer loans, often face a problem when citizens, for one reason or another, refuse to make required payments on time. That is, they, abusing the trust of management, cause property damage to the organization in the form of an unpaid amount. In this case, the management of the financial company has two options:

1. Take the debtor to court.
2. Collect debt using collection firms.

Oddly enough, many choose the second option. In this case, specialists take on the work and, through reminders and threats, try to force the debtor to fulfill their previously assumed obligations. In fact, their actions are quite fair. True, if they occur within the framework of the law. Sometimes collectors in their “messages” mention various articles of the Criminal Code of the Russian Federation (159, 165). But the last of them is hardly applicable here. Do not forget that it deals exclusively with large amounts of damage. And it, in accordance with paragraph 4 of part 4 of Article 158 of the Criminal Code of the Russian Federation, must exceed two hundred thousand rubles. If the amount of a citizen’s debt does not reach the specified amount, then this article is not applicable to him.

Special cases

Recently, there have often been situations where citizens have to answer before the law for their actions under Art. 165 of the Criminal Code of the Russian Federation. Judicial practice knows many different examples of such actions:

• exploitation of other people's things without the consent of the owner;
• abuse of guardians when carrying out transactions in the interests of their ward;
• failure to make mandatory payments (utilities or other services);
• transportation by responsible persons of passengers or luggage without payment.

However, in each of these cases the main features of the crime must be clearly present. If desired, a good lawyer can always find a loophole and reclassify it to a less serious crime, the punishment for which will be lighter.

In addition, in recent years, conflict situations have very often arisen between consumers and sellers of services. As a rule, they are resolved in civil court. Here, written evidence plays an important role and must be collected by both parties. Quite a wide judicial practice has also developed in relation to apartment scams. Employers, trusting the owners, were sometimes negligent in documenting the transaction. As a result, they found themselves victims of deception. Moreover, it was sometimes impossible to prove the opposite.

Fair punishment

For such a crime against property, the perpetrators must be punished.

Sentence under Art. 165 of the Criminal Code of the Russian Federation provides:

1. For part 1:

• a fine of up to three hundred thousand rubles or in the amount of the citizen’s total income for a period of up to 2 years;
• forced labor for the same period with possible restriction of freedom for up to 1 year or without it;
• imprisonment for up to two years and a fine of up to 80 thousand rubles or in the amount of total income for a period of up to six months (or without it) with restriction of freedom for up to 1 year (or without it).

2. For part 2:

• forced labor for up to 5 years with possible restriction of freedom for up to two years;
• imprisonment for up to five years with a fine of up to 80 thousand rubles or in the amount of the citizen’s total income for a period of up to 6 months (or without it), as well as with restriction of freedom for up to 2 years (or without it).

The amount of punishment is determined by the court depending on the severity of the offender’s guilt. In this case, the fact of direct intent and the offender’s full awareness of his illegal acts must be taken into account.

Corpus delicti

Art. will help to fully clarify all the circumstances related to the problem of property damage. 165 of the Criminal Code of the Russian Federation. It will be much easier to do this with comments. They clearly describe the subjective and objective signs that characterize this act as a crime:

1. The subject of such an offense may be persons who have reached the age of sixteen. Employees of companies who commit such offenses using their official position are not included here. They will be held accountable to the law under a completely different article.
2. The subjective side is determined by guilt in the form of a selfish goal or direct intent. The perpetrators are well aware that, in essence, they are using someone else’s property. And such actions are considered socially dangerous.
3. The object here will be relations that relate to property.
4. The objective side will be the extraction of material benefits through deliberate deception or gross abuse of trust.
5. Any property acts as an object. Moreover, its owner can be not only a private person, but also an organization (including a state-owned one) or a commercial enterprise.

If all the above signs are present, then we can conclude that this is indeed a selfish crime against property.