The structure of offenses in the financial sector changes every year. Statistics show that modern computer technologies are increasingly used to commit crimes. One of the vulnerable areas is the use of bank plastic cards. Illegal payments or cash withdrawals from ATMs are regularly detected in Russia.
Criminal liability has been established for illegal circulation of payment funds under Article 187 of the Criminal Code of the Russian Federation. Let's look at the cases in which it occurs and what threatens attackers.
Article 187 of the Criminal Code of the Russian Federation: history and content
Article 187 of the Criminal Code of the Russian Federation appeared in Russian criminal legislation in 1996. At first it was called “Production or sale of counterfeit credit or payment cards and other payment documents.”
It was added to the code because with the development of information technology, new areas of activity appeared that needed to be protected at the legislative level .
According to the first edition of the article, it was criminally prosecuted for the production or sale of counterfeit credit or payment cards , as well as other payment documents not related to securities.
Latest changes to Art. 187 of the Criminal Code of the Russian Federation occurred in 2015. Then the article was renamed “Illegal circulation of means of payment.” Changes have also been made to the content. Criminal liability has been established for the production, storage, transportation and receipt for use or sale, as well as the sale itself :
- counterfeit payment cards;
- fake orders for the transfer of funds, documents or means of payment (except for counterfeit money and securities);
- electronic means and storage media, devices, computer programs for illegal money circulation.
Note : The circulation of funds refers to their receipt, issue and transfer.
Responsibility
Let's consider how illegal circulation of means of payment is punished :
| What are they punished for? | How to punish | Rule from the Criminal Code |
For production, storage, transportation and acquisition for use and sale, as well as for distribution:
|
| Part 1 art. 187 of the Criminal Code of the Russian Federation |
| The same actions, but committed by a group of people. |
| Part 2 art. 187 of the Criminal Code of the Russian Federation |
The severity of the punishment depends on the presence of aggravating circumstances . Among them is the commission of illegal circulation of means of payment by an organized group of persons. In this case, criminals face harsher punishment - up to seven years in prison with a fine of up to 1 million rubles.
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Object and subject of the crime
Who is committing a crime and against what? The object of production or sale of illegal means of payment - the procedure for circulation of means of payment . It is important to distinguish between illegal circulation of means of payment and counterfeiting of funds.
In counterfeiting, banknotes - paper bills, metal coins or securities - are directly counterfeited. And in case of illegal circulation of means of payment, means of payment with the help of which non-cash payments are carried out are counterfeited.
The subject of the crime is a person . A sane individual who is over 16 years old is brought to justice.
Subject of the crime
Let's consider what is the subject of a crime under Article 187 of the Criminal Code of the Russian Federation. With the comments everything will become clear to you:
| Subject of the crime | A comment |
| Fake payment cards | The offense is committed in relation to three types of payment bank cards:
|
| Fake money transfer orders | Which money transfer orders are forged:
|
| Fake documents or means of payment | The legislation does not have an unambiguous interpretation of the terms. In practice, counterfeit documents or means of payment include, for example, store gift cards. They are not considered bank cards, but they are used to pay for goods in the store that issued the card. |
| Electronic media, tools, computer programs and technical devices intended for illegal circulation of money | This category includes flash cards, tablets, mobile phones, computer equipment and other means, as well as programs through which violators gain unauthorized access to manage bank accounts. |
Commentary to Art. 187 Criminal Code
1. The subject of the crime is payment cards, orders for the transfer of funds, documents or means of payment (except for the cases provided for in Article 186 of the Criminal Code); electronic means, electronic storage media, technical devices, computer programs intended for the unlawful acceptance, issuance, and transfer of funds.
2. The objective and subjective aspects of the crime are characterized by the same features as Art. 186 of the Criminal Code, and the rules for qualifying criminal actions in this case are the same as in Art. 186 of the Criminal Code.
Composition of the crime and its qualifications
The corpus delicti under Article 187 of the Criminal Code of the Russian Federation is formal and complex . With two alternative actions:
- Production of counterfeit means of payment . This action involves the complete re-creation or illegal production of cards issued by banks by unauthorized persons. Moreover, the fake card must be usable. Manufacturing is also expressed in the introduction of false information into real cards and other means of payment. For example, by falsifying document details or signatures.
- Sales of counterfeit means of payment . The sale of funds means their transfer to some other person. In this case, sales occur both on a paid and gratuitous basis. Examples: sale, donation, transfer for use, etc. Sales are considered a completed crime from the moment someone accepts at least one counterfeit means of payment from the offender.
Attention! The sale of counterfeit and obviously unusable means of payment (for example, obviously unusable bank payment cards) constitutes fraud and is qualified under Article 159 of the Criminal Code of the Russian Federation “Fraud”.
Payment order according to the new rules
From September 10, 2021, despite the entry into force of new rules from Regulation No. 762-P, payment orders must still be filled out on the same form. All his details have been preserved. However, there are two points you need to pay attention to.
The new rules now include:
- the procedure for indicating the type of income code in payments (previously it was regulated by Bank of Russia Directive No. 5286-U dated October 14, 2019, which became invalid as of September 10, 2021).
- format for reflecting in the “Purpose of payment” field the amount collected under the writ of execution (until September 10, 2021, recommendations on the format for reflecting the amount were specified in the Information Letter of the Central Bank of the Russian Federation dated February 27, 2020 No. IN-05-45/10).
Thus, there have been no fundamental changes in the procedure for transferring funds in terms of filling out payment orders for transferring salaries and other income. The new Regulation No. 762 combined the previously existing rules, which were prescribed in separate documents.
Let us recall these rules.
From 01.06.2020, when transferring wages or other income to the debtor’s bank account, the employer in a special format is required to indicate in the settlement document the amount collected under the executive document (Part 3 of Article 98 of the Federal Law “On Enforcement Proceedings” dated 02.10.2007 No. 229- Federal Law). In addition, companies and individual entrepreneurs, when paying wages and other income, must indicate a special code in the purpose of payment, allowing bankers and bailiffs to recognize payments that can be recovered and separate them from payments of a social nature, through which the law does not allow debt collection.
In the payment slip, this information is indicated in fields 20 and 24, reserved to reflect the purpose of the payment:
The procedure for filling out fields 20 and 24 according to the new rules (Appendix 1 to Regulation No. 762-P):
Among other things, the new rules clarify the procedure for filling out certain details of payment documents in connection with the transition of the Federal Treasury from 2021 to conducting operations through a single treasury account.
For a sample of filling out a payment order according to the rules from Regulation No. 762-P, see here:
Sample payment order
From judicial practice under Art. 187 of the Criminal Code of the Russian Federation
If the offender produced counterfeit bank cards not for sales purposes , but in order to unlawfully use them himself, the actions are not qualified under Article 187 of the Criminal Code of the Russian Federation. Such production qualifies as preparation for fraud.
The Moskovsky District Court of Cheboksary convicted citizen K. under Part 1 of Art. 187 of the Criminal Code of the Russian Federation. Sentence: imprisonment for two years and one month with a fine of 200 thousand rubles . By a resolution of the Presidium of the Supreme Court of the Chuvash Republic, the sentence was overturned for lack of corpus delicti.
Details from the case materials: K. prepared payment orders with false data entered into them and submitted them to the bank. According to these papers, money from the account of the organization in which K. was listed as a director was transferred to the bank cards of individuals for the purpose of cashing them out. K.'s remuneration was five percent of the amount cashed out.
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K.’s actions are qualified under Art. 187 of the Criminal Code of the Russian Federation . The Moskovsky District Court of Cheboksary indicated that having prepared a fake payment order, K. sold it, presenting it to the bank for payment. The Supreme Court of the Chuvash Republic did not agree with this conclusion based on the fact that sales is the transfer of an illegal document by its manufacturer to another person. The presentation of a payment order to a banking institution by the manufacturer himself does not constitute the sale of a payment order under Art. 187 of the Criminal Code of the Russian Federation.
Why were new rules for transferring money needed?
The Central Bank approved a new Regulation “On the rules for transferring funds” dated June 29, 2021 No. 762-P to replace the previously existing similar regulation from the Central Bank Regulation dated June 19, 2012 No. 383-P.
The main reason for updating the current rules is the multiple amendments made to Regulation No. 383-P and the urgent need in connection with this to publish a completely updated document. In addition, the new rules introduce a new document (payment order), the need for which is dictated by the implementation of the international financial communications standard ISO 20022 into the national payment system.
