Comments on Article 170.2 of the Criminal Code of the Russian Federation 2017-2018 from leading lawyers

ST 170.2 of the Criminal Code of the Russian Federation

1. Introduction by a cadastral engineer of knowingly false information into a boundary plan, technical plan, survey report, survey project of a land plot or land plots or a map plan of the territory or forgery of documents on the basis of which the survey plan, technical plan, survey report, survey project were prepared a plot of land or plots of land or a map-plan of the territory, if these acts caused major damage to citizens, organizations or the state -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by compulsory labor for a term up to three hundred and sixty hours.

2. The same acts that caused especially large damage -

shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by correctional labor for a term of up to one years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

Note : In the articles of this chapter, with the exception of Article 169, parts three - six of Article 171.1, articles 171.2, 171.3, 172.3, 174, 174.1, 178, 180, 185 - 185.4, 185.6, 191.1, 193, 193.1, 194, 198 - 199. 1, 199.3, 199.4, 200.1, 200.2, 200.3, 200.5 and 200.7, large-scale, large-scale damage, income or debt in a large amount are recognized as cost, damage, income or debt in an amount exceeding two million two hundred and fifty thousand rubles, and especially large - nine million rubles.

Features of the crime

The unlawful act belongs to the category of special ones, i.e. the person committing illegal actions must be in the civil service of the relevant authority. The crime is characterized by several independent compounds that have similar characteristics.

The difference lies in the objective manifestation of all three actions. Read on to learn more about what constitutes registration of illegal land transactions.

Concept

The concept of a criminal act is enshrined in Art. 170 and combines three alternative crimes that affect one common object, which is land management relations. These relations relate to the following issues:

expedient use and turnover of land plots;
strict implementation of norms and rules related to the procedure for state regulation of land use.

The subject of the crime is official documentation:

Unified State Register.
Real estate cadastre.
Papers on tax payments for land or lease.

Regulations

In 2015, a new related norm appeared in the Criminal Code (Article 170.2). It provides for responsibility for the preparation of documentation related to the formation of land plots, with the entry into it of data that does not correspond to the real state of affairs. Thus, the disposition of the norm provides for the commission of separate acts in relation to the following official papers:

land survey plan;
technical plan;
inspection report;
land surveying project;
map-plan of the area.

To incur liability, a civil servant must perform the following actions: enter false data into the specified documentation or commit forgery of these official papers. The composition is a special case in relation to other criminal attacks in the field of economic activity.

The same as in Art. 170 of the Criminal Code of the Russian Federation, the norm provides for a specific subject, which is a civil servant holding the position of cadastral engineer.

A mandatory characteristic feature of a crime must be the subjective side - direct intention, and the occurrence of a socially dangerous outcome, which is expressed in causing harm to citizens, legal entities and the state. The amount of damage is indicated as large, i.e. over 1 million rubles. The qualifying norm in Part 2 provides for consequences on a particularly large scale, i.e. amounts exceed 6 million rubles.

So, now you know what it is, registration of obviously illegal land transactions, let’s talk about the legal characteristics of the crime.

Legal characteristics

The illegal acts specified in Art. 170, have a high level of secrecy, so it is almost impossible to obtain a real forensic picture. The main reason for this is the scrupulous work in preparation for the crime, the inability to immediately detect the injured party, since it is not clearly expressed.

These atrocities are committed by an entity with special knowledge in the field of state registration of real estate, which is endowed with certain powers. Therefore, disclosure may be difficult due to the presence of many additional legislative acts regulating state registration activities. However, according to statistics, the number of reported atrocities increases every year, and exceeds more than 100 criminal cases per year.

Registration of illegal transactions with real estate also has its own corpus delicti under Article (Article) 170 of the Criminal Code of the Russian Federation, we will talk about it further.

This video will tell you how to reclaim real estate from someone else’s illegal possession:

Composition of the crime and qualifying characteristics

The composition of a crime means all the characteristics that characterize it. The external expression of an unlawful act is its objective side and the object of the attack.

An object

The object is social connections regarding the implementation of the procedure for state registration of real estate objects, transactions with it, as well as the rights of copyright holders.

The seriousness and danger to society is as follows:

violation of the country's interests (public and financial);
increase in facts of corruption of civil servants;
violation of the principle of equality of areas of the real estate market, including the turnover of land plots;

Illegal actions with sites can lead to the following negative aspects:

withdrawal of land from agricultural use;
concentration of land in the hands of one person;
turning plots of land into objects of speculative illegal operations;
violation of the rights of legitimate copyright holders.

Objective side

The objective side consists of three independent actions:

state registration of obviously illegal real estate transactions;
falsification of Unified State Register data;
reduction in payments for real estate transactions.

The elements of the crime are formal, i.e. it will be completed from the time the person performs the specified actions. To qualify a crime, the moment of the onset of a truly dangerous outcome for society and the state is not important.

State registration of illegal real estate transactions is the commission of actions that contradict the provisions of legal acts in order to make the transaction legal, i.e. with legal consequences. However, there are no grounds for state registration of such an operation and the official is aware of this. The Civil Code provides for the following types of real estate transactions:

acquisition of real rights to land and other real estate (inheritance, the right to perpetual use of land);
acquisition of rights of obligation, resulting from their contractual relations (rent, donation, purchase and sale, etc.)

In addition, termination and transfer of rights to real estate are subject to state registration. All these actions must be certified in the prescribed manner by a specially authorized state registrar at the request of the copyright holder. The rules and procedures are enshrined in a special law on state registration of real estate, which assigns a number of responsibilities to officials:

receiving documentation and checking the validity of the information provided;
checking the property for the right holder, previously completed transactions and the presence of encumbrances;
conducting a legal examination of the legality of the transaction;
detection of reasons for refusal of state registration;
sending requests to other authorities to confirm and obtain reliable data and documentation for state registration;
entering information into the Unified State Register, issuing a state registration document, etc.

Subject and subjective side

Subject under Art. 170 is special - this is an official authorized by the state to carry out the procedure for state registration of real estate. A civil servant must use his official status.

The subjective side is characterized by intentionality, i.e. these actions must be performed by a person with a clearly expressed desire. A prerequisite for intent must be the interest of the subject: mercantile or personal.

Mercantile interest is expressed in the desire of an official to make a profit from committing illegal actions.
Another interest may be expressed in the provision of services to the participants in the transaction as “their” people, in the opportunity to obtain connections with the “right” people.

This article does not provide qualifying characteristics, i.e. those that aggravate responsibility.

Article 170.2 of the Criminal Code of the Russian Federation constitutes a crime. Composition of the crime and qualifying characteristics

With the entry into force of the act on state registration in the Russian Federation of real estate objects, as well as transactions with them, a provision appeared in the Criminal Code providing for liability for the illegality of this procedure (Article 170).

In accordance with the law, all actions related to plots and other real estate must be formalized in a strictly defined manner.

Information about objects and owners is entered into the Unified State Register - a state special resource, a unified database.

This responsibility is assigned to civil servants of the Federal State Registration Service, who must verify all real estate transactions for legality and compliance with legal provisions. So, let's talk about entering deliberately false information into the boundary plan and other circumstances that violate a real estate transaction.

Features of the crime

The difference lies in the objective manifestation of all three actions. Read on to learn more about what constitutes registration of illegal land transactions.

Concept

expedient use and turnover of land plots;
strict implementation of norms and rules related to the procedure for state regulation of land use.

The subject of the crime is official documentation:

Unified State Register.
Real estate cadastre.
Papers on tax payments for land or lease.

Regulations

land survey plan;
technical plan;
inspection report;
land surveying project;
map-plan of the area.

The same as in Art. 170 of the Criminal Code of the Russian Federation, the norm provides for a specific subject, which is a civil servant holding the position of cadastral engineer.

A mandatory characteristic feature of a crime must be the subjective side - direct intention, and the occurrence of a socially dangerous outcome, which is expressed in causing harm to citizens, legal entities and the state. The amount of damage is indicated as large, i.e. over 1 million rubles. The qualifying norm in Part 2 provides for consequences on a particularly large scale, i.e. amounts exceed 6 million rubles.

So, now you know what it is, registration of obviously illegal land transactions, let’s talk about the legal characteristics of the crime.

Legal characteristics

These atrocities are committed by an entity with special knowledge in the field of state registration of real estate, which is endowed with certain powers.

Therefore, disclosure may be difficult due to the presence of many additional legislative acts regulating state registration activities.

However, according to statistics, the number of reported atrocities increases every year, and exceeds more than 100 criminal cases per year.

Registration of illegal transactions with real estate also has its own corpus delicti under Article (Article) 170 of the Criminal Code of the Russian Federation, we will talk about it further.

This video will tell you how to reclaim real estate from someone else’s illegal possession:

Composition of the crime and qualifying characteristics

The composition of a crime means all the characteristics that characterize it. The external expression of an unlawful act is its objective side and the object of the attack.

An object

The object is social connections regarding the implementation of the procedure for state registration of real estate objects, transactions with it, as well as the rights of copyright holders.

The seriousness and danger to society is as follows:

violation of the country's interests (public and financial);
increase in facts of corruption of civil servants;
violation of the principle of equality of areas of the real estate market, including the turnover of land plots;

Illegal actions with sites can lead to the following negative aspects:

withdrawal of land from agricultural use;
concentration of land in the hands of one person;
turning plots of land into objects of speculative illegal operations;
violation of the rights of legitimate copyright holders.

Objective side

The objective side consists of three independent actions:

state registration of obviously illegal real estate transactions;
falsification of Unified State Register data;
reduction in payments for real estate transactions.

acquisition of real rights to land and other real estate (inheritance, the right to perpetual use of land);
acquisition of rights of obligation, resulting from their contractual relations (rent, donation, purchase and sale, etc.)

receiving documentation and checking the validity of the information provided;
checking the property for the right holder, previously completed transactions and the presence of encumbrances;
conducting a legal examination of the legality of the transaction;
detection of reasons for refusal of state registration;
sending requests to other authorities to confirm and obtain reliable data and documentation for state registration;
entering information into the Unified State Register, issuing a state registration document, etc.

Subject and subjective side

Subject under Art. 170 is special - this is an official authorized by the state to carry out the procedure for state registration of real estate. A civil servant must use his official status.

Mercantile interest is expressed in the desire of an official to make a profit from committing illegal actions.
Another interest may be expressed in the provision of services to the participants in the transaction as “their” people, in the opportunity to obtain connections with the “right” people.

This article does not provide qualifying characteristics, i.e. those that aggravate responsibility.

Punishment and responsibility

The norm provides for an alternative sanction for these illegal acts.

The minimum punishment under the article is (from 200 to 500 thousand or the amount of earnings for 1-3 years).
The maximum penalty is up to 360 hours with up to 3 years.

The sanction of the article not only punishes the guilty parties, but also expands the possibilities of protecting land legal relations and ensures the legality of the activities of civil servants in the field of circulation of land plots and other real estate.

Now let’s look at some cases from judicial practice under Article 170 of the Criminal Code of the Russian Federation.

Judicial practice under Art. 170 of the Criminal Code of the Russian Federation regarding registration of illegal transactions with land

Most crimes in this category are classified only if they were committed with mercenary intentions.

The reason for the lack of practice in such cases lies in the latency of criminal acts, so they are poorly identified, it is difficult to collect evidence for them, and the perpetrators are identified.

When faced with incidental circumstances arising during the consideration of such cases, judges are guided by the decisions of the Plenums of the Supreme Court related to cases of corruption, abuse of official powers, o.

If illegal real estate transactions are identified, those responsible, and the data entered into the Unified State Register, cadastre or other documents, are subject to cancellation in the prescribed manner. If violations of the law are seen in the actions of the participants in the transactions, then they are also brought to trial, only under other articles of the Criminal Code.

Among them, illegal real estate transactions and other atrocities are the scourge of our time. They are called that way because they are capable of undermining the economic well-being of the state.

The following video presents lawyers' answers to popular questions regarding the application of Article 170 of the Criminal Code of the Russian Federation:

Insertion by a cadastral engineer of knowingly false information into a boundary plan, technical plan, survey report, project for surveying a land plot or land plots, or a map plan of the territory or forgery of documents on the basis of which the survey plan, technical plan, survey report, project for surveying a land plot were prepared or land plots or a map-plan of the territory, if these acts caused major damage to citizens, organizations or the state, is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to two years. , or deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or compulsory work for a period of up to three hundred and sixty hours.

Part 2 art. 170.2 of the Criminal Code of the Russian Federation

The same acts that caused especially large damage are punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to three years, with deprivation of the right to hold certain positions or engage in certain activities for a term up to three years or correctional labor for up to one year with deprivation of the right to hold certain positions or engage in certain activities for up to three years. Note.

3, large-scale, large-scale damage, income or debt on a large scale are recognized as cost, damage, income or debt in an amount exceeding two million two hundred and fifty thousand rubles, and especially large - nine million rubles.

Punishment and responsibility

The norm provides for an alternative sanction for these illegal acts.

The minimum punishment under the article is (from 200 to 500 thousand or the amount of earnings for 1-3 years).
The maximum penalty is up to 360 hours with up to 3 years.

Now let’s look at some cases from judicial practice under Article 170 of the Criminal Code of the Russian Federation.

Judicial practice under Art. 170 of the Criminal Code of the Russian Federation regarding registration of illegal transactions with land

According to statistics, criminal cases regarding illegal state registration of real estate transactions are initiated in a small volume. Accordingly, judicial practice in cases of this category is insignificant. Most crimes in this category are classified only if they were committed with mercenary intentions. The reason for the lack of practice in such cases lies in the latency of criminal acts, so they are poorly identified, it is difficult to collect evidence for them, and the perpetrators are identified.

When faced with incidental circumstances arising during the consideration of such cases, judges are guided by the decisions of the Plenums of the Supreme Court related to cases of corruption, abuse of official powers, o.

Among them, illegal real estate transactions and other atrocities are the scourge of our time. They are called that way because they are capable of undermining the economic well-being of the state.

The following video presents lawyers' answers to popular questions regarding the application of Article 170 of the Criminal Code of the Russian Federation:

Article 170. Invalidity of imaginary and feigned transactions

Ruling of the Supreme Court of the Russian Federation dated January 10, 2019 N 302-ES18-8503(2) in case N A33-5891/2017 When resolving the dispute, the courts of first and appellate instances assessed the evidence presented according to the rules of Chapter 7 of the Arbitration Procedural Code of the Russian Federation and guided by the provisions of the articles 4, 16, 19, 100 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”, proceeded from the fact that the company’s claims based on borrowed relations (taking into account the new obligation) arose as a result of the actions of affiliated persons when the right is abused for the purpose of increasing the authorized capital (clause 2 of Article 170 of the Civil Code of the Russian Federation), and therefore such claims are of a corporate nature, which prevents their inclusion in the register of creditors’ claims.

Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated January 31, 2019 N 304-ES17-21966(3) in case N A45-27225/2016

Since cover transactions are void (clause 2 of Article 170 of the Civil Code of the Russian Federation), and according to the cover transaction Maksimov V.V. fulfilled his obligations without receiving counter-provision in the form of transfer of rights to apartment No. 408, the court of first instance correctly included the requirement of V.V. Maksimov. to the register of claims for the transfer of residential premises (Article 201.7 of the Bankruptcy Law).

Ruling of the Supreme Court of the Russian Federation dated 02/04/2019 N 304-ES18-24278 in case N A27-12750/2015

When resolving a separate dispute, the courts, based on an assessment of the evidence presented in the case in accordance with the rules of Chapter 7 of the Arbitration Procedural Code of the Russian Federation, guided by Articles 167, 168, 170, 181 of the Civil Code of the Russian Federation, Articles 61.2, 61.6, 213.32 of the Federal Law dated 26.10 .2002 N 127-FZ “On Insolvency (Bankruptcy)”, explanations set out in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 N “On some issues related to the application of Chapter III.1 of the Federal Law “On Insolvency (Bankruptcy)” ", proceeded from the sham of the disputed transaction, concluded with abuse of law to the detriment of the interests of creditors in order to exclude the possibility of foreclosure on the debtor's property through a formal change of owner.

Ruling of the Supreme Court of the Russian Federation dated January 22, 2019 N 309-ES18-23138 in case N A60-39658/2017

The courts of the first and appellate instances, having assessed, according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, the evidence presented in the case materials, guided by Articles 129, 166, 168, 170 of the Civil Code of the Russian Federation, the explanations given in paragraph 86 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/23/2015 N “On the application of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”, they refused to satisfy the stated requirements, without establishing the presence of signs of sham of the disputed transactions, and also pointing out the lack of evidence indicating that the parties to the transactions acted exclusively with intent to cause harm to the plaintiff or abused the right in other forms.

Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated February 11, 2019 N 305-ES16-20779(32) in case N A40-154909/2015

Moreover, the creditors based their claims on the fact that the agreement dated November 29, 2016, concluded following the auction, was of a sham nature and, along with subsequent transactions, covered up the sale of property not to Sovcombank, but to other persons who did not have the right to take part in the auction. According to paragraph 2 of Article 170 of the Civil Code of the Russian Federation, a sham transaction, that is, a transaction that was made with the aim of covering up another transaction, including a transaction on different terms, is void. The limitation period for claims to invalidate a void transaction is three years (clause 1 of Article 181 of this Code). Thus, from the point of view of sham, the statute of limitations within the framework of this separate dispute was not missed in any case, since the claim was submitted by the creditors on November 24, 2017.

Ruling of the Supreme Court of the Russian Federation dated 02/07/2019 N 301-ES18-18888(2) in case N A43-27419/2015

Satisfying the requirements, the appellate court, based on an assessment of the evidence presented in the case in accordance with the rules of Chapter 7 of the Arbitration Procedural Code of the Russian Federation, including the expert’s conclusion dated October 17, 2012 N 2012-1071-ZS, the circumstances established during the consideration of case N A40- 91932/2008 of the Moscow Arbitration Court, guided by the provisions of articles , , 166, 168, 170, 454, 549, 551 of the Civil Code of the Russian Federation, articles 2, 3, 6, 19, 61.1 61.3, 61.6 of the Federal Law of October 26, 2002 N 127 -FZ “On Insolvency (Bankruptcy)”, the position set out in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 30, 2009 N “On some issues related to challenging transactions on the grounds provided for by the Federal Law “On Insolvency (Bankruptcy)” , paragraphs 4 - 8, 25 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 N “On some issues related to the application of Chapter III.I of the Federal Law “On Insolvency (Bankruptcy)”, proceeded from the imaginary nature of the controversial transactions, having established the fact of their committed by interested parties without the intention of the emergence, change, termination of civil rights and obligations as a result of these transactions, but with the unlawful purpose of causing harm to the property rights of the debtor’s creditors in the form of withdrawal of the latter’s assets and preventing foreclosure on said property; applied the consequences of invalidity of transactions.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 29, 2019 N 4-КГ18-93

The plaintiff referred to the fact that after the divorce he became aware of the defendant’s serious illness, while the family relationship between them actually continued. In order to create psychological comfort for the defendant, conducive to healing, he decided to re-register the specified real estate in the name of his ex-wife. June 3, 2014 between Medvedev S.N. and Medvedeva E.V. a purchase and sale agreement was concluded for the specified land plots and residential buildings. This agreement was not aimed at creating legal consequences, the funds under the agreement were not paid to him, in fact, the real estate was not transferred to the defendant, the burden of maintaining the property continued to be borne by S.N. Medvedev. Referring to the provisions of paragraph 1 of Article 166, Article 167, paragraph 1 of Article 170 of the Civil Code of the Russian Federation, he asked to recognize the specified transaction as imaginary and satisfy the stated claims.

Ruling of the Supreme Court of the Russian Federation dated February 15, 2019 N 305-ES18-25188 in case N A40-192801/2017

Satisfying the requirements of the company (the only participant of TradeCenter LLC), the courts, guided by the provisions of Articles 167, 168, 170 of the Civil Code of the Russian Federation, Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”, clarifications contained in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 N “On some issues related to challenging major transactions and interested party transactions”, Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N “On the application by courts of certain provisions of Section I Part One of the Civil Code of the Russian Federation The Federations proceeded from the fact that the disputed transaction was large for TradeCenter LLC, was made in violation of the procedure for approving large transactions and would entail losses for TradeCenter LLC.

Ruling of the Supreme Court of the Russian Federation dated February 15, 2019 N 304-ES18-6043(3) in case N A03-2586/2017

In resolving the dispute and satisfying the stated demands, the courts were guided by the provisions of Articles 168 and 170 of the Civil Code of the Russian Federation and proceeded from the fact that the contested transaction mediated the withdrawal of the debtor’s assets in favor of an affiliated person (participant) to the detriment of creditors. At the same time, the courts rejected objections about the passage of the limitation period, including with reference to paragraph 10 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 30, 2009 N “On some issues related to challenging transactions on the grounds provided for by the Federal Law “On Insolvency (Bankruptcy”) )".

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 19, 2019 N 18-КГ18-257

In support of the requirements, pointing out that the financial situation of Chirvin A.V. as a guarantor did not allow him to fulfill his obligations under the loan agreement, since his salary at Agromir LLC did not exceed 25,000 rubles. per month, in connection with which, these guarantee agreements are imaginary transactions in accordance with paragraph 1 of Article 170 of the Civil Code of the Russian Federation.

Ruling of the Supreme Court of the Russian Federation dated February 25, 2019 No. 304-ES18-18874(2) in case No. A27-5085/2017

Recognizing the claim of the bankruptcy trustee as justified, the courts of the first and appellate instances, having assessed the evidence presented in accordance with the provisions of Article 71 of the Arbitration Procedural Code of the Russian Federation, were guided by Article 170 of the Civil Code of the Russian Federation, the provisions of Chapter III.1 of the Federal Law of October 26, 2002 N 127-FZ “On insolvency (bankruptcy)” and proceeded from the fact that the applicant provided sufficient evidence of the nullity of the controversial real estate purchase and sale transactions, as executed to cover up a transaction for the gratuitous withdrawal of the debtor’s asset, which is also invalid.

Part 2 art. 170.2 of the Criminal Code of the Russian Federation

In the articles of this chapter, with the exception of Article 169, parts three to six of Article 171.1, articles 171.2, 171.3, 174, 174.1, 178, 180, 185 – 185.4, 185.6, 191.1, 193, 193.1, 194, 198 – 199.1, 199. 3, 199.4, 200.1, 200.2 and 200.3, large-scale, large-scale damage, income or debt on a large scale are recognized as cost, damage, income or debt in an amount exceeding two million two hundred and fifty thousand rubles, and especially large - nine million rubles.

Commentary to Art. 170.2 of the Criminal Code of the Russian Federation

Commentary edited by Esakova G.A.

1. Subject of the crime:

a) a survey plan, a technical plan, a survey report, a project for surveying a land plot or land plots, or a map plan of the territory;

b) documents on the basis of which the documents listed in paragraph “a” are prepared.

2. The objective side is characterized by a socially dangerous act, expressed by two alternative actions. The first of them (relates to the subject of the crime set out in paragraph “a”) is the introduction of knowingly false information into documents; the second (refers to the subject of the crime set out in paragraph “b”) – forgery of these documents.

3. The crime is considered completed from the moment of causing major damage to citizens, an organization or the state in an amount exceeding 2.25 million rubles.

4. The subject of the crime is a cadastral engineer, i.e. an individual who is a member of a self-regulatory organization of cadastral engineers and has a special right to carry out cadastral activities.

On July 25, 2015, amendments to the Criminal Code came into force in Russia, which provide for criminal liability for cadastral engineers for entering knowingly false information into prepared documents. This code has been supplemented by an article.

In accordance with the provisions of the mentioned article, only a cadastral engineer can be the subject of a crime. A person who does not have a cadastral engineer certificate cannot be prosecuted under Article 170.2 of the Criminal Code of the Russian Federation.

Article 170 of the Criminal Code of the Russian Federation

This article talks about Article 170 of the Criminal Code of the Russian Federation. What kind of article is this and what could be the consequences?

As soon as the acts on state registration in the Russian Federation of real estate items and procedures with them came into force, Article 170 of the Criminal Code arose, which implies liability for the illegal implementation of the presented procedure.

According to the law, absolutely all actions that are combined with plots and other real estate must be registered in a specific manner. Data about objects and owners will be included in the Unified State Register.

This responsibility will be assigned to government workers from the Federal Service for State Registration, who are required to check absolutely all real estate procedures for legality and compliance with legal provisions.

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Peculiarities

An illegal act will be classified as a special one, in other words, a person who carries out illegal acts must be in the public service of one or another authority. The offense is characterized by a pair of individual compounds, which have similar characteristics.

The difference will be hidden in the objective expression of all three acts.

Regulations

In 2015, a new general rule emerged in the Criminal Code. It assumes responsibility for registering documents related to the appearance of plots of land, with entering into it information that does not correspond to the current state of affairs.

In order for liability to arise, a civil servant must commit acts such as entering false information into certain documentation or forging such official papers. The composition is shown as a matter of a private nature, in relation to other attacks of a criminal nature in the field of economic work.

Characteristics of legal type

Illegal acts as defined in Art. 170 of the Criminal Code of the Russian Federation, have a very high level of secrecy. For this reason, it is virtually impossible to obtain a normal forensic picture. The main reason for this seems to be very precise work in preparation for an offense, since it is not expressed explicitly.

Such offenses are carried out by an entity that has special knowledge in the field of state registration of real estate and is vested with certain powers.

For this reason, disclosure may be difficult, since there are a large number of additional acts of legislation that regulate state registration activities.

Yet, by definition, the number of these offenses grows every year and reaches a figure of more than 100 criminal cases per year.

The recording of illegal processes involving real estate also has its own elements of an offense under Art. 170 of the Criminal Code of the Russian Federation.

Signs of qualification

Absolutely all the signs defining it are shown under the elements of the offense. The external manifestation of an illegal action is its objective part and the object of the offense.

An object

The object shows relations of a social nature regarding the procedure for state registration of real estate objects, procedures with them and the rights of copyright holders.

The threat to the public will be that:

The views of the country are being violated.
The incidence of bribery of government officials is increasing.
The principle of compliance of areas of the real estate market, including the circulation of land plots, is violated.

Illegal actions with plots lead to the following bad facts:

Removal of land from agricultural use.
Finding the land in one hand.
Passage of lands in cases of speculative illegal procedures.
Oppression of the rights of real copyright holders.

Documents that may be subject to forgery

The newly introduced article of the Criminal Code of the Russian Federation contains a list of documents that may be subject to forgery. Such documents are:

land surveying project for a land plot or land plots,
map-plan of the territory.

The direct reference to the specified list of documents is not accidental, since it is on the basis of these documents that information about real estate objects is entered into the State Real Estate Cadastre and then into the Unified State Register of Rights.

Commentary on Article 170 of the Criminal Code of the Russian Federation

1. Regulatory material: ZK; Art. 25 Law of the Russian Federation dated October 11, 1991 N 1738-1 “On payment for land” (as amended on August 9, 1994) <1>; Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” (as amended on December 18, 2006) <2>; dated January 2, 2000 N 28-FZ “On the State Land Cadastre” (as amended on December 4, 2006) <3>; dated June 18, 2001 N 78-FZ “On Land Management” (as amended on December 4, 2006) <4> and others ——————————— <1> Gazette of the Russian Federation. 1991. N 44. Art. 1424; NW RF. 1994. N 16. Art. 1860.

<2> Northwestern Russian Federation. 2001. N 11. Art. 997, N 16. Art. 1533; 2002. N 15. Art. 1377; 2003. N 24. Art. 2244; 2004. N 27. Art. 2711, N 30. Art. 3081, N 35. Art. 3607, N 45. Art. 4377; 2005. N 1 (part 1). Art. 15, Art. 22, Art. 40, Art. 43, N 50. Art. 5244; 2006. N 1. Art. 17, N 17 (part 1). Art. 1782, N 23. Art. 2380, N 27. Art. 2881, N 30. Art. 3287, N 50. Art. 5279; RG. N 290. 2006.

<3> Northwestern Russian Federation. 2000. N 2. Art. 149; 2004. N 35. Art. 3607; 2006. N 27. Art. 2881, N 50. Art. 5279.

<4> Northwestern Russian Federation. 2001. N 26. Art. 2582; 2005. N 30 (part 1). Art. 3098; 2006. N 50. Art. 5279.

2. The object of criminal encroachment is economic interests in the sphere of land relations.

3. The commented article combines three independent crimes, close to each other in that they all, one way or another, relate to land: 1) registration of obviously illegal transactions with land; 2) distortion of registration data of the State Land Cadastre; 3) deliberate understatement of payments for land. The objective side of the first is the registration of obviously illegal land transactions.

4. Transactions with land mean its purchase, sale, lease, pledge, including mortgage, easements, donation, inheritance, etc.

5. Transactions are illegal if they contradict current civil and land legislation. Examples of illegal transactions include the sale and other transfer of ownership, as well as lease of land plots withdrawn from circulation (for example, occupied by state natural reserves and national parks, facilities of federal security service organizations or federal state protection bodies, military and civil burial grounds, etc. etc.), sale of a land plot by a person who is not its owner, any disposal (except for the transfer of rights by inheritance) of a land plot by a person who, not being the owner, owns it by right of lifelong inheritance, transfer by a tenant of a leased land plot to sublease without notifications, and in some cases, without the consent of the owner of this site, and others.

6. The subject of the second criminal offense provided for in the comment. The article is the registration data of the State Land Cadastre.

The state land cadastre is a systematized collection of documented information about objects of state cadastral registration, about the legal regime of land in the Russian Federation, about the cadastral value, location, size of land plots and real estate objects firmly associated with them, about the subjects of rights to land plots.

7. Documents of the state land cadastre are divided into main, auxiliary and derivative.

The main documents include the Unified State Register of Lands, cadastral files and duty cadastral maps (plans).

The Unified State Register of Lands is intended to carry out state cadastral registration of land plots and contains information about existing and ceased to exist land plots. It indicates their cadastral numbers, location, area, category of land and permitted use of land plots, description of the boundaries of land plots, their individual parts, real rights and restrictions (encumbrances) registered in the prescribed manner, etc.

A cadastral file is a set of documents compiled in accordance with the established procedure, confirming the fact of the emergence or termination of the existence of a land plot.

The duty cadastral map (plan) is a map (plan) on which information about the location of land plots and territorial zones is reproduced in graphic and text forms.

8. Auxiliary and derivative documents of the state land cadastre cannot be the subject of distortion of the accounting data of the State Land Cadastre.

9. The objective side of distortion of accounting data is the entry into the main documents of the State Land Cadastre of false entries or partial falsification of true accounting data, which can be expressed in erasures, additions, erasing entries and making new ones, etc. Distorted data may concern the owner of the land plot, the category of the land plot, its value and size, its location, boundaries, its intended purpose, its tenants, landowners and land users, the presence of real estate, etc.

10. The subject of the third criminal offense provided for in the comment. article are payments for land.

The forms of payment are land tax (before the introduction of real estate tax) and rent. Land tax refers to those levied annually; it does not depend on the results of economic activities of land owners, landowners and land users and is established by the Tax Code of the Russian Federation. Rent is charged for lands leased. The amount of rent is established in the land lease agreement and is an essential condition of this agreement. In some cases (for example, with the permanent (indefinite) use of land plots by legal entities, excluding their individual categories), the rent is set in accordance with the decision of the Government of the Russian Federation (see Article 3 of the Federal Law of October 25, 2001 N 137-FZ “On the introduction of operation of the Land Code of the Russian Federation" (as amended on December 18, 2006) <1>). ——————————— <1> NW RF. 2001. N 44. Art. 4148; 2003. N 28. Art. 2875, N 50. Art. 4846; 2004. N 41. Art. 3993; 2005. N 1 (part 1). Art. 17, N 25. Art. 2425; 2006. N 1. Art. 3, Art. 17; 2006. N 17 (part 1). Art. 1782, N 27. Art. 2881; RG. N 290. 2006.

According to the Law of the Russian Federation “On Payment for Land”, the form of payment, in addition to land tax and rent, is the standard price of land. It is determined annually by the executive authorities of the constituent entities of the Russian Federation for the purchase or redemption of land plots and for obtaining a loan against them. In accordance with paragraph 13 of Art. 3 Federal Law dated October 25, 2001 N 137-FZ, the standard price of land is applied in cases where its cadastral value has not been determined.

11. The objective side of understating the size of the land payment is an illegal reduction of the latter; illegal application of tax or other benefits to the land owner, landowner or land user.

12. The crime in all its manifestations is considered completed at the moment of commission of the act specified in the disposition of the article.

13. The subjective side of registration of illegal land transactions is characterized only by direct intent.

14. A mandatory element of the subjective side of the composition is selfish or other personal interest.

15. The subject of a criminal attack is an official using his official position.

16. The act belongs to the category of crimes of minor gravity.

What kind of deliberately false information can there be and who might benefit from it?

False information can come in a wide variety of forms. Here are the most common:

1. Underestimation of areas. It is beneficial for the owner to reduce the cadastral value, and with it the property tax. In the technical plan, some areas may not be indicated at all, or they may be classified not as residential, but as the cold part of the room.

2. An indication of a supposedly built part that has not yet actually been built. It may be beneficial to the developer who is delaying construction deadlines.

3. Drawing up an inspection report for a premises that has allegedly been demolished, although it actually exists. It is beneficial for the owner to avoid paying property taxes.

4. Overestimation of actual areas. It is beneficial for the seller, who can sell property that is actually smaller at a higher price and faster.

Responsibility for violations

If the cadastral engineer entered knowingly false information on his own, administrative liability is possible:

fine up to 300 thousand rubles,
deprivation of the right to engage in activities for up to 3 years,
compulsory work for up to 360 hours.

If the damage caused by such actions is particularly large, then the liability increases:

fine up to 500 thousand rubles,
correctional labor for up to 1 year.

If the acts are committed by a group of persons by prior conspiracy:

fine up to one million rubles,
imprisonment for up to 3 years.