The concept and liability for significant damage in the Criminal Code of the Russian Federation

What is damage, the concept of significant damage

First, let's look at the very concept of “damage”. These are those disadvantageous property consequences for the victim that occur as a result of the crime. They can be expressed both in a decrease in property assets and in a missed opportunity to obtain any benefit.

Damage is divided into two types:

• material (it is applied to property and funds of a legal entity or individual);
• moral (it is expressed in moral or even physical suffering, as well as in humiliation of a person’s dignity and honor).

Damage has two types - material and moral.

There are also three types of damage:

• significant;
• large;
• especially large.

Important! It is worth immediately noting that they are expressed in monetary terms, but do not have any unified system of legally defined amounts. It all depends on the offense itself, its type and the consequences that resulted from it.

What is significant damage under the Criminal Code of the Russian Federation? If we talk about an individual, then, according to Note 2 to Art. 158 of the Criminal Code of the Russian Federation (“Theft”), it is defined as an amount of at least 5,000 rubles.

This means that if the harm was assessed at a different amount, then it will be a minor damage, which means that the crime will no longer be considered criminal, and the offender will most likely bear administrative liability.

Reference. According to Art. 159 of the Criminal Code of the Russian Federation (“Fraud”), the amount of significant damage is 10,000 rubles.

As for those situations where this type of damage was caused to a legal entity, state or individual entrepreneur, you will not find a clear definition in the legislation. A huge number of factors are taken into account when assessing it. For example, these include:

• the price of destroyed or damaged property, as well as their restoration;
• their significance for the victim;
• the type of his activity;
• his financial condition;
• property status and so on.

Significant damage helps in assessing the severity of the crime committed.

All of the listed criteria help determine how much significant damage this is under the Criminal Code of the Russian Federation in each individual situation. After all, any offense is individual in its essence, which means it is necessary to apply a differentiated approach to determining the degree of harm caused.

Abuse of repairs

Member of the Moscow Administration Council Konstantin Rivkin recalls that the Supreme Court has already addressed similar issues in the resolution of the Plenum on cases of abuse of official powers and exceeding official powers. Then he distinguished between abuse of power and malfeasance. The draft new resolution, according to Rivkin, “in more detail and meaningfully” explains what these compounds are.

Thus, abuse of authority (Article 201 of the Criminal Code) and abuse of authority in the execution of a state defense order (Article 201.1 of the Criminal Code) should be understood as “the commission by a person performing managerial functions in a commercial or other organization of such acts that, although they were directly related to the exercise by him of his rights and obligations, but were not caused by official necessity and objectively contradicted the legitimate interests of this commercial or other organization, as well as the goals and objectives for which this person was vested with the appropriate powers.”

Rivkin points out that the Supreme Court “as a guideline” gave examples of those cases when a person “commits actions within the scope of his powers in the absence of mandatory conditions or grounds for their commission” - if these actions entailed socially dangerous consequences. For example, it hires people who do not actually perform job duties. Or it exempts the organization’s employees from performing labor duties “with the assignment to repair an apartment or improve a home owned by the person himself or his relatives and friends.” Another option is that the criminal “makes a transaction in the absence of the necessary consent or subsequent approval of the collegial management body of the organization,” notes Konstantin Rivkin.

Which articles regulate liability for causing significant damage?

Now let's turn to those articles of the Criminal Code of the Russian Federation that describe certain preventive measures in the event that significant damage has been caused.

Since significant damage is almost always caused by the destruction or damage of property, a certain number of crimes where this qualification was present are present in Chapter 21 of the Criminal Code of the Russian Federation, which treats offenses against property. In particular, these are:

• theft (Article 158);
• fraud (Article 159);
• scams using electronic payment methods (Article 159.3);
• fraud in the field of insurance (Article 159.5);
• fraud in the field of computer technology (Article 159.6);
• misappropriation or embezzlement (Article 160);
• intentional destruction or damage to other people's property (Article 167).

The term “significant damage” appears in many articles of the Criminal Code of the Russian Federation.

Thus, significant damage often occurs as a result of various types of theft.

The remaining offenses that result in criminal liability are found in different chapters of the Criminal Code of the Russian Federation, which determine punishments for crimes in a variety of areas. These include:

• exerting undue influence on the result of sports competitions or other competitions (Article 184);
• commercial bribery (Article 204);
• terrorist act (Article 205);
• false report about him (Article 207);
• acquisition or storage of narcotic substances (Article 228);
• their production or sale (Article 228.1);
• theft or extortion of drugs (Article 229);
• their smuggling (Article 229.1);
• improper use of subsoil (Article 255);
• illegal logging (Article 260);
• violation of the regime of natural reserves (Article 262);
• sabotage (Article 281);
• receiving a bribe (Article 290);
• her dacha (v. 291);
• mediation in bribery (Article 291.1).

Nature of the offense

Basically, those offenses that are related not to actual actions, but to the preparation of relevant documentation, as well as offenses of a formal nature, are considered minor.

As an example, Ksenia Chuchman cited the decision of the Komsomolsky District Court of Tolyatti. GZHI, with its inspection protocol, established that in the apartment building equipped with ODPU, the management company made errors when preparing payment documents: it did not indicate the readings of collective metering devices and the type of utility resource.

In substantiating its position, the MA referred to the fact that the absence of indications in the payment document is a formal violation. This situation did not entail the collection of funds in a larger amount than was established, and did not deprive consumers of the opportunity to contact the management company on a voluntary basis.

The court agreed with this position, canceling the decision of the magistrate, due to the fact that when considering the case, circumstances indicating the insignificance of the offense were not taken into account.

This means that those MAs that have problems with paperwork have a good chance of citing insignificance. An important condition: the mistakes did not result in a violation of someone’s rights and freedoms.

How can an organization avoid a fine for an administrative violation?
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Liability for legal damage. face and physical face

Significant damage to organizations and individuals has completely different monetary expressions. As a rule, for the former it is established in a larger amount than for the latter, which means that the preventive measures will be established completely different.

Much depends on the type of offense itself, as well as its other qualifying characteristics . This directly affects the type and size of the punishment that will be chosen by the court. It is indicated in the resolution as a result of investigative actions, as well as judicial proceedings.

If significant damage is caused, a criminal case is opened.

Let us consider separately what types of punishments will be imposed on ordinary citizens and organizations.

Preventive measures for individuals persons

Significant damage to a citizen often occurs as a result of certain types of theft. For example, this could be Art. 158 or 167 of the Criminal Code of the Russian Federation. According to them, a person can be sentenced to:

• payment of a fine;
• one of the types of work (corrective, compulsory or forced);
• arrest;
• imprisonment.

The easiest of them is payment of a fine, and the most severe is imprisonment in a colony.

The judge chooses a specific preventive measure, taking into account all the circumstances that accompanied the incident.

Preventive measures for legal entities. persons

For organizations and companies, any of the previously listed preventive measures can be determined using such additional sanctions as:

• prohibition to hold certain positions or carry out certain types of activities;
• restriction of citizen's movements.

As is known, the legal entity itself as a whole is not brought to criminal liability, but only those persons who perform managerial or organizational functions in the organization. These include the CEO, director, etc.

Circumstances influencing the sentence (aggravating/mitigating)

Almost every crime has its own aggravating and mitigating circumstances, in which the court chooses various forms of preventive measures for different time periods. What factors can positively influence the court's decision on the chosen punishment, and which - negatively?

When sentencing, taking into account significant damage, aggravating and mitigating circumstances of the incident are also taken into account.

Aggravating circumstances

These include a large number of different factors, based on which the court will most likely impose a more severe punishment on the perpetrator of the incident. They may be:

• committing an offense as part of a group with a premeditated plan;
• if it was committed by a person who abused his official position or took advantage of some of his work privileges;
• in cases where it is committed against the most vulnerable members of society (pregnant women, young children, old people);
• if the crime was carried out with particular cruelty or torture to the victim;
• when using weapons, explosive or chemical substances, etc.

Extenuating circumstances

This complex includes various factors in which the court is ready to meet the defendant halfway and assign him a mitigated form of preventive measure or reduce the term of serving the sentence. Among them are:

• failure by a citizen to reach the required age limit;
• presence of small children;
• the offense occurred because the offender was in a difficult life situation;
• the offender cooperated with the investigation and also provided active assistance in establishing the truth;
• he provided medical assistance to the victim or he himself decided to compensate for the damage caused by him in the form and amount as determined by the latter, etc.

Illegal request from a notary

Abuse of powers by a private notary or auditor (Article 202 of the Criminal Code) consists of committing acts “which, although directly related to the exercise of his rights and obligations, were not caused by official necessity and objectively contradicted the tasks of notarial or auditing activities, as well as those goals and the tasks for which that person has been vested with appropriate authority.”

The Supreme Court includes such actions, for example, when a notary sends an information request “for the purpose of transferring information to third parties.” Or “certifying a transaction for the alienation of real estate for the purpose of obtaining benefits and advantages for oneself or other persons or for the purpose of causing harm to other persons” - if the notary knew “that the terms of such a transaction do not correspond to the expressed will of its participants or that the participant in the transaction is not aware of it legal consequences." Another option is “the auditor submitting a knowingly false audit report.”

But at the same time, liability arises only if these acts entail socially dangerous consequences.

Conditions for qualifying violations

To determine whether the violation in question is recorded, let’s look at the signs that characterize this act. Here it is appropriate to be guided by the following typical criteria:

• use of violence or threats in case of robbery;
• secret theft of property during theft;
• recording of damage by the injured party;
• the criminal is driven by a selfish motive;
• the violation was committed intentionally.

If we are talking about fraud, for example, on the Internet, here the offense is determined by the motive, intent and purpose of the criminal. An attacker develops a fraudulent scheme to steal money from a victim. However, proof of such acts requires the presentation of convincing evidence of violation.

The condition for the onset of criminal punishment here is compliance with the above minimum value of the stolen property..

In addition, an important innovation in the legislation was the amendment to Art. 10 CC. Here, the developers of legal standards provided for the “decriminalization” of past violations and the mitigation of already imposed punishments.

Methods of fraud that are most often encountered in life

Each of us encounters fraud or attempts to commit it in our lives almost every day. Let's talk about the most common methods:

Electronic fraud

Everyone receives various letters and SMS sent to email and phone containing offers of a profitable purchase, requests for help, invitations to an attractive business, etc. Sometimes such messages come from relatives and friends.

In this case, the information should be double-checked through other communication channels. Criminals often hack into accounts and send requests for help to everyone in their address book. In another option, letters are simply sent out in bulk, for example: “Mom, I’m in trouble.” Criminals wait for those who respond and try to deceive them. Call your friends and relatives back, make sure that they really have a difficult situation.

Also check through other channels all messages supposedly coming from banks, providers, etc. Fraudsters send mass messages, for example, that your card will be blocked. They contain an algorithm of actions that will help you avoid trouble. Usually it is suggested to call or send SMS to the specified number. These numbers are paid numbers and the criminals will get everything they wanted as soon as their instructions are followed.

Another type of email fraud is phishing. This is the collection of personal data online. Attackers are interested in everything: scans of documents, social logins and passwords. networks, bank card numbers and codes, etc. In the future, they either use the data themselves in fraudulent schemes or sell it. Think carefully about whether to provide personal information. Do not share bank card and payment system codes with anyone, even if the person contacting you introduces himself as a bank employee.

Note!

Any online lucrative offer that requires upfront payment or investment should be considered fraudulent. The more lucrative the offer, the more likely it is to come from a criminal.

Various "scams"

The heyday of street lotteries and other similar events to steal money from gullible and naive people are over. However, they may still come your way. Never gamble with strangers and try not to make any transactions with them. Even if you are offered to start the game for free or organize a playful bet.

Card games

Criminals identify gambling people who have money and involve them in the game. Sometimes losses are catastrophic. You should adhere to the rule that you should not play cards for money with strangers, otherwise you may end up with zero.

Various options for suggestion and hypnosis

Often this type of fraud is carried out by various kinds of fortune tellers, psychics and healers. They identify the suggestible person, intimidate him with certain troubles and offer to get rid of them by performing certain actions. For example, they may offer to give them a wallet for a while, since the person from whom the damage is being removed should not have money on him.

Never contact such charlatans. If they pester you on the street, just walk past without making contact.

Contract fraud

The methods of crime described above are non-contractual. In case of contractual fraud, a certain civil transaction is made. This could be any agreement from selling a pen to buying an apartment. In any case, the criminal does not plan in advance to fulfill his obligations in whole or in part. His task is to obtain the victim’s funds without providing anything in return, or to provide something completely different from what was promised. For example, they may show you a luxurious mansion, and under the contract you will receive a barn on the outskirts.

It is with contractual fraud that the size of thefts is usually the largest. All transactions involving significant amounts must be accompanied by lawyers, starting from the moment of preliminary negotiations.

New schemes

The development of modern technologies makes it possible for fraudsters to master new forms of fraud, which have become widespread not only in our country, but throughout the world, despite the cybersecurity measures taken.

The tools used to commit fraudulent actions include:

• Internet
  . It is used in connection with reducing to zero the possibility of catching offenders committing virtual acts.
• Cellular
  . It is no less widespread. Despite the fact that SIM cards are sold using a passport.

The most popular methods of small-scale fraud on the Internet include raising funds for the treatment of a seriously ill child or adult. Some of the scammers offer to invest money in a joint business that will supposedly generate high income.

No less popular is deception on the Internet, when swindlers act on behalf of certain companies, offering to purchase their shares at an attractive price. Then they disappear without a trace on the Internet after receiving funds. Mobile communications can also disappoint with loss of funds. For example, a scammer persuades him to top up his cell phone account, indicating some reason:

• make an advance payment for any service;
• taking part in the promotion, for this he asks to send him a replenishment code;
• etc.

Many scammers offer the services of astrologers, palmists, fortune tellers, and healers. They skillfully use people’s desires to escape from life’s problems, family troubles and all kinds of illnesses. In fact, fraud in this area cannot be justified by criminal law. Moreover, this type of scam is common both in a real meeting with a deceiver and on the Internet.

Example from judicial practice No. 2

Brothers M.V. and I.V., having entered the farm at night, tied up the watchman and slaughtered the bull. Having cut the carcass into pieces, the attackers took it with them. In the morning, farm workers freed the bound guard.

The watchman said that he did not resist because the criminals had an ax and a knife. Although the culprits were exposed quickly enough, they continued to deny their guilt. As a result, they admitted to their crime and explained that they committed the crime due to unemployment and difficult financial situation. Regarding the ax and knife, the brothers explained that they intended to use these tools for slaughtering a steer, and not as weapons.

The court considered their arguments justified, and therefore they were prosecuted for robbery, not banditry. The punishment was 2 years in prison.

As evidenced by extensive practice, robberies have a number of common features: a selfish motive, impudence, and sometimes aggressiveness.

Consequences for the offender

Now let's look at the countermeasure options that are provided by legal provisions. If the minimum amount of theft to initiate a criminal case corresponds to the amount of 2,500 rubles, the violator of the order faces the following punishment options:

• fine;
• correctional labor;
• compulsory work;
• arrest;
• imprisonment.

The application of specific measures here is determined by the severity of the offense and the established amount of financial losses. However, the final verdict is influenced by mitigating and aggravating circumstances.

The second group includes the organization of a criminal group for attack, unauthorized entry into private territory, damage caused to the state, and the public danger of the act.

In addition, when assigning punishments, the court practices the use of complex listed measures. Proven serious crimes entail a fine with simultaneous imprisonment of the perpetrator of the incident.

If we talk about mitigation of punishments, the legislation provides for this option. In this case, it is appropriate to be guided by the provisions of Article 61 of the Criminal Code.

Elimination of the offense at the time of consideration of the case

This is a controversial basis for the application of deniability clauses. In the current contradictory judicial practice, three main positions can be distinguished:

1. It cannot be considered as a circumstance indicating insignificance, because the actions did not occur voluntarily, but after the discovery of the offense.
2. Elimination of the offense at the time of consideration of the case indicates its insignificance.
3. This circumstance cannot be considered a basis of insignificance, but it influences the choice of the size of the sanction.

Article 158 of the Criminal Code of the Russian Federation theft. comments from a federal judge MIP legal group

Important

Today (April 27) in the morning I was invited by telephone to see the judge for a conversation. In this conversation, the judge invited me to agree to have our car repaired by the suspect after the warranty period expired (after May 24). Compensation for material damage Civil legislation protects the property of all persons located on the territory of Russia.

Material harm includes not only damage to a citizen’s property, but also deterioration of its condition, a decrease in the profit previously brought by this property and other changes for the worse regarding material benefits. Concepts and classification - what is it? The concept of causing property damage means material or economic deterioration of the property of one person as a result of the unlawful actions of another person.

Length of offense

Also, as one of the grounds for applying the provisions on insignificance, the courts regard the short duration of the offense until it is identified or eliminated.

There is an interesting decision of the Dmitrov City Court. The audit found that the director of the educational institution carried out his activities without a qualification certificate. The magistrate considered that in this case there could be no talk of insignificance, since this official was entrusted with great responsibility, and a lot depended on his actions.

The city court, overturning this decision, referred to the fact that the director carried out his activities without a certificate for only six days. The period during which the offense was committed was insignificant, so it was regarded as minor.

There is a practical problem for such cases: there are no clear criteria for determining a short duration, so the courts will assess the duration according to their subjective feeling.

Example from judicial practice No. 1

Previously convicted citizen N., unemployed, abusing alcoholic beverages, committed open theft of someone else's property.

Having seen a large bright package in the supermarket, the attacker brought it closer to the exit. Seizing the moment when the guard switched his attention, the intruder took the package out of the store.

The security guard reacted in time and detained the criminal on the street, after which he called the police.

Initially, based on witness testimony and other circumstances of the case, the unlawful act was classified as robbery.

However, during the judicial investigation, the classification of the offense was changed to attempted robbery, and the attacker was charged with responsibility for an unfinished crime. This was done as a result of assessing the contents of a stolen package, which contained a children's insulated blanket worth 700 rubles.

The culprit confirmed that he had no intention of stealing the blanket. He was mistaken in thinking that the package contained something more valuable.

At the same time, since citizen N. had previously committed similar acts, the change in the crime did not lead to significant improvements in the situation of the convicted person: he was imprisoned for a period of 1 year and 6 months.