Awareness of the signs of the subject of the crime provided for in Article 189 of the Criminal Code of the Russian Federation: the position of judicial practice

Article 189. Illegal export from the Russian Federation or transfer of raw materials, materials, equipment, technologies, scientific and technical information, illegal performance of work (provision of services) that can be used in the creation of weapons of mass destruction, weapons and military equipment

1. Illegal export from the Russian Federation or transfer to a foreign organization or its representative of raw materials, materials, equipment, technologies, scientific and technical information, illegal performance of work for a foreign organization or its representative, or illegal provision of services to a foreign organization or its representative, which the offender knows may be used in the creation of weapons and military equipment and in respect of which export control has been established (in the absence of signs of crimes provided for in Articles 226.1 and 275 of this Code), -

shall be punishable by a fine in the amount of one 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, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by forced labor for a term up to three years, or imprisonment for the same period.

2. The same acts committed by a group of persons by prior conspiracy, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

3. Acts provided for in part one of this article, committed by an organized group or in relation to raw materials, materials, equipment, technologies, scientific and technical information, works (services), which the perpetrator knows can be used in the creation of weapons of mass destruction, their means of delivery and in respect of which export control has been established -

shall be punishable by imprisonment for a term of three to seven years, with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years.

Note. Lost power. — Federal Law of November 2, 2013 N 302-FZ.

• Article 188. Repealed
• Article 190. Non-return of cultural property to the territory of the Russian Federation

Commentary to Art. 189 of the Criminal Code of the Russian Federation

The object of the crime in question is the established procedure for carrying out foreign economic activity in relation to raw materials, materials, equipment, technologies, scientific and technical information, works (services) used in the creation of weapons and military equipment, weapons of mass destruction and their means of delivery.

In accordance with the Federal Law of July 18, 1999 N 183-FZ “On Export Control”, a set of measures (export control) is provided in the Russian Federation to ensure the implementation of the procedure established by the current legislation for carrying out foreign economic activity in relation to goods, information, work, services, results of intellectual activity that can be used in the creation of weapons of mass destruction, their means of delivery, other types of weapons and military equipment, or in the preparation and (or) commission of terrorist acts.

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RG. 1999. July 29.

Export control is carried out in order to protect the interests of Russia and its compliance with international treaties in the field of non-proliferation of weapons of mass destruction and other types of weapons and military equipment.

Controlled goods and technologies are raw materials, materials, equipment, scientific and technical information, works, services, results of intellectual activity (rights to them), which, due to their characteristics and properties, can make a significant contribution to the creation of weapons of mass destruction, their delivery vehicles, other types of weapons and military equipment, as well as products that are especially dangerous in terms of preparing and (or) committing terrorist acts (Article 1 of the Federal Law “On Export Control”).

The content of concepts, as well as the nomenclature of goods, information, works (services) and technologies subject to export control, is determined by lists (lists) approved by decrees of the President of the Russian Federation on the proposal of the Government of the Russian Federation.

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See, for example: List of dual-use goods and technologies that can be used in the creation of weapons and military equipment and in respect of which export control is carried out, approved by Decree of the President of the Russian Federation of May 5, 2004 N 580; List of dual-use equipment and materials and related technologies used for nuclear purposes, subject to export control, approved by Decree of the President of the Russian Federation of January 14, 2003 No. 36; List of equipment, materials and technologies that can be used in the creation of missile weapons and in respect of which export control has been established, approved by Decree of the President of the Russian Federation of August 8, 2001 N 1005.

Activities in the field of international relations related to export and import, including the supply or purchase, development and production of military products, are regulated by Federal Law of July 19, 1998 N 114-FZ “On military-technical cooperation of the Russian Federation with foreign states."

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RG. 1998. July 23.

According to Art. 1 of this regulatory act, weapons and military equipment are understood as military products. For example, complexes of various types of weapons and means of ensuring their combat use, communication systems and control of troops, weapons and military equipment; explosives, objects and devices for exploding, gunpowder (except for hunting), rocket fuel for military missiles, special-purpose materials and special equipment for their production.

Weapons of mass destruction include nuclear, chemical, bacteriological (biological) and toxin weapons. Its delivery vehicles are missiles and unmanned aerial vehicles capable of delivering weapons of mass destruction.

The objective side of the crime is expressed in the following illegal actions provided to a foreign organization or its representative: 1) export or transfer of goods, information and technology; 2) performance of work or provision of services.

In accordance with Federal Law No. 164-FZ of December 8, 2003 “On the Fundamentals of State Regulation of Foreign Trade Activities,” export is the removal of goods from the customs territory of the Russian Federation without the obligation to re-import.

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RG. 2003. 18 Dec.

The transfer of raw materials, materials, equipment, technologies, scientific and technical information means any actions as a result of which a foreign organization or its representatives became the owner of these items. Unlike export, the transfer of these items is carried out on the territory of Russia.

Carrying out work for a foreign organization or its representative is the performance of any work that can be used in the creation of weapons and military equipment, weapons of mass destruction, and means of delivery. For example, the refurbishment of a facility intended for the production of military equipment.

Services to a foreign organization or its representative may be expressed in the provision of assistance (consultations, training, research, etc.) related to the creation of weapons of mass destruction, their delivery vehicles and other weapons and military equipment.

A foreign organization is a legal entity, regardless of its organizational and legal form, created on the territory of a foreign state. Representatives of this organization are its leaders and other persons authorized on its behalf to perform certain actions.

Actions that form the objective side of this crime must be illegal, i.e. committed in violation of the procedure established in the Russian Federation for carrying out foreign economic activity in relation to controlled goods and technologies.

The performance of these actions is subject to qualification under Art. 189 of the Criminal Code of the Russian Federation, if they do not contain signs of crimes provided for in Art. Art. 188 and 275 of the Criminal Code of the Russian Federation.

If the illegal export or transfer of controlled goods and technologies is committed in addition to or with concealment from customs control, or with the fraudulent use of documents or means of customs identification, or involves non-declaration or false declaration, the person is subject to criminal liability for smuggling (Part 2 of Art. 188 of the Criminal Code of the Russian Federation).

If the transferred goods and technologies contain information constituting a state secret, or if other assistance provided to a foreign organization or its representative may cause damage to the external security of Russia, the act must be qualified under Art. 275 of the Criminal Code of the Russian Federation, which provides for liability for high treason.

The act is completed at the moment of commission of any action specified in the disposition of this article. The corpus delicti is formal.

The subjective side is characterized by guilt in the form of direct intent. The person is aware that he is illegally exporting or transferring relevant items, information, performing work or providing services to a foreign organization or its representative, and wishes to do so.

Knowing as a mandatory feature of this crime presupposes that the perpetrator reliably knows that the controlled goods and technologies with which illegal actions are committed can be used in the creation of weapons and military equipment and that export control has been established in relation to them.

A special subject of a crime is a person entitled to carry out foreign economic activity who has reached the age of sixteen.

According to the note to the commented article, a person entitled to carry out foreign economic activity is understood as the head of a legal entity created in accordance with the legislation of the Russian Federation and having a permanent location on the territory of the Russian Federation, or an individual entrepreneur with a permanent place of residence on the territory of the Russian Federation.

The qualifying feature is the commission of a crime by a group of persons by prior conspiracy (see Part 2 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto).

A particularly qualifying feature is the commission of an act by an organized group (see Part 3 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto) or in relation to raw materials, materials, equipment, technologies, scientific and technical information, works (services) that are known to the person endowed with the right to carry out foreign economic activity, can be used in the creation of weapons of mass destruction, means of their delivery and in respect of which export control has been established.

Administrative liability is established for carrying out foreign economic transactions with controlled goods and technologies without a special permit (license), if such a permit is required, or in violation of licensing requirements, as well as using a permit obtained illegally or with the submission of documents containing false information (Art. 14.20 Code of Administrative Offenses of the Russian Federation).

Civil Code of the Russian Federation Part 1

Chapter 10. REPRESENTATION. POWER OF ATTORNEY

Article 182. Representation

1. A transaction made by one person (representative) on behalf of another person (represented) by virtue of authority based on a power of attorney, an indication of the law or an act of an authorized state body or local government body directly creates, changes and terminates the civil rights and obligations of the represented .

Authority may also be evident from the environment in which the representative operates (retail salesperson, cashier, etc.).

2. Persons who act, although in the interests of others, but on their own behalf, persons who only convey the will of another person expressed in proper form, as well as persons authorized to enter into negotiations regarding possible future transactions, are not representatives. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

3. A representative cannot make transactions on behalf of the represented person in relation to himself personally, as well as in relation to another person whose representative he is at the same time, except for cases provided for by law.

A transaction that was made in violation of the rules established in paragraph one of this paragraph, and to which the principal did not give consent, may be declared invalid by the court at the request of the principal if it violates his interests. Violation of the interests of the represented person is assumed unless proven otherwise.

(Clause 3 as amended by Federal Law dated 05/07/2013 N 100-FZ)

4. It is not allowed to carry out a transaction through a representative, which by its nature can only be completed in person, as well as other transactions specified in the law.

Article 183. Concluding a transaction by an unauthorized person

1. In the absence of authority to act on behalf of another person or when such authority is exceeded, a transaction is considered to be concluded on behalf and in the interests of the person who completed it, unless another person (represented) subsequently approves this transaction.

Before the transaction is approved by the represented, the other party, by making a statement to the person who made the transaction or the represented, has the right to refuse it unilaterally, except for cases where, when making the transaction, she knew or should have known about the lack of authority of the person making the transaction or about their excess.

(Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. Subsequent approval of the transaction by the represented creates, changes and terminates for him civil rights and obligations under this transaction from the moment of its completion.

3. If the principal refused to approve the transaction or the response to the proposal to the principal to approve it was not received within a reasonable time, the other party has the right to demand from the unauthorized person who made the transaction the execution of the transaction or has the right to refuse it unilaterally and demand compensation for losses from this person. Losses are not subject to compensation if, during the transaction, the other party knew or should have known about the lack of authority or about its excess. (Clause 3 introduced by Federal Law dated 05/07/2013 N 100-FZ)

Article 184. Commercial representation

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. A commercial representative is a person who constantly and independently represents on behalf of entrepreneurs when they enter into contracts in the field of entrepreneurial activity.

2. Simultaneous commercial representation of different parties to a transaction is permitted with the consent of these parties, as well as in other cases provided for by law. If a commercial representative acts at an organized auction, it is assumed, unless otherwise proven, that the represented person agrees to the simultaneous representation by such representative of the other party or parties.

3. Features of commercial representation in certain areas of business activity are established by law and other legal acts.

Article 185. Power of attorney

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. A power of attorney is recognized as a written authority issued by one person to another person or other persons for representation before third parties.

2. Powers of attorney on behalf of minors (Article 28) and on behalf of incapacitated citizens (Article 29) are issued by their legal representatives.

3. Written authority to carry out a transaction by a representative may be presented by the represented directly to the relevant third party, who has the right to verify the identity of the represented and make a note about this on the document confirming the authority of the representative.

Written authorization for a representative of a citizen to receive his deposit in a bank, to deposit funds into his deposit account, to carry out transactions on his bank account, including receiving funds from his bank account, as well as to receive correspondence addressed to him in a communications organization may be presented directly to the bank or telecommunications organization.

4. The rules of this Code on powers of attorney also apply in cases where the powers of the representative are contained in an agreement, including in an agreement between the representative and the represented, between the represented and a third party, or in a decision of the meeting, unless otherwise established by law or contrary to the essence of the relationship .

5. If a power of attorney is issued to several representatives, each of them has the powers specified in the power of attorney, unless the power of attorney stipulates that the representatives exercise them jointly.

6. The rules of this article accordingly apply also in cases where a power of attorney is issued jointly by several persons.

Article 185.1. Power of attorney

(introduced by Federal Law No. 100-FZ dated 05/07/2013)
1. A power of attorney for transactions requiring a notarial form, for filing applications for state registration of rights or transactions, as well as for disposing of rights registered in state registers must be notarized, with the exception of cases provided for by law.

2. The following are equivalent to notarized powers of attorney:

1) powers of attorney of military personnel and other persons undergoing treatment in hospitals, sanatoriums and other military medical institutions, which are certified by the head of such an institution, his deputy for medical affairs, and in their absence, the senior or duty doctor;

2) powers of attorney of military personnel, and at points of deployment of military units, formations, institutions and military educational institutions, where there are no notary offices and other bodies performing notarial acts, also powers of attorney of employees, members of their families and family members of military personnel, which are certified by the commander (chief ) these units, formations, institutions or establishments;

3) powers of attorney of persons in places of deprivation of liberty, which are certified by the head of the corresponding place of deprivation of liberty;

4) powers of attorney of adult capable citizens located in social protection institutions, which are certified by the administration of this institution or the head (his deputy) of the relevant social protection authority.

3. A power of attorney to receive wages and other payments related to labor relations, to receive remuneration for authors and inventors, pensions, benefits and scholarships, or to receive correspondence, with the exception of valuable correspondence, may be certified by the organization in which the principal works or studies, and the administration of the inpatient medical institution where he is being treated. Such a power of attorney is certified free of charge.

4. A power of attorney on behalf of a legal entity is issued signed by its head or another person authorized to do so in accordance with the law and constituent documents.

Article 186. Duration of power of attorney

1. If the power of attorney does not indicate its validity period, it remains valid for a year from the date of its execution. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

A power of attorney that does not indicate the date of its execution is void.

2. A power of attorney certified by a notary, intended for performing actions abroad and not containing an indication of its validity period, remains valid until canceled by the person who issued the power of attorney.

Article 187. Transfer of trust

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
1. The person to whom the power of attorney has been issued must personally perform the actions for which he is authorized. It can entrust their execution to another person if it is authorized to do so by a power of attorney, and also if it is forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney and the power of attorney does not prohibit the entrustment.

2. A person who has delegated powers to another person must notify the person who issued the power of attorney about this within a reasonable time and provide him with the necessary information about the person to whom the powers have been transferred. Failure to fulfill this obligation makes the person who delegated the authority responsible for the actions of the person to whom he delegated the authority as if it were his own.

3. A power of attorney issued by way of delegation must be notarized.

The rule on notarization of a power of attorney issued by way of delegation does not apply to powers of attorney issued by way of delegation by legal entities, heads of branches and representative offices of legal entities.

4. The validity period of a power of attorney issued by way of subrogation cannot exceed the validity period of the power of attorney on the basis of which it was issued.

5. Transfer of trust is not allowed in the cases provided for in paragraph 3 of Article 185.1 of this Code.

6. Unless otherwise specified in the power of attorney or established by law, a representative who has transferred powers to another person by way of delegation does not lose the corresponding powers.

7. The transfer of powers by a person who received these powers as a result of a delegation to another person (subsequent transfer) is not allowed, unless otherwise provided in the initial power of attorney or established by law.

Article 188. Termination of power of attorney

1. The power of attorney is terminated due to:

1) expiration of the power of attorney;

2) cancellation of the power of attorney by the person who issued it, or by one of the persons who issued the power of attorney jointly;

3) refusal of the person to whom the power of attorney was issued renounces his powers;

4) termination of the legal entity on whose behalf or to whom the power of attorney was issued, including as a result of its reorganization in the form of division, merger or merger with another legal entity;

5) death of the citizen who issued the power of attorney, recognition of him as incompetent, partially capable or missing;

6) death of a citizen to whom a power of attorney was issued, recognition of him as incompetent, partially capable or missing;

7) the introduction of a bankruptcy procedure in relation to the represented or representative, in which the corresponding person loses the right to independently issue powers of attorney.

(Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. The person to whom the power of attorney has been issued may at any time renounce the powers, and the person who issued the power of attorney may cancel the power of attorney or reassignment, except for the case provided for in Article 188.1 of this Code. An agreement to waive these rights is void. (Clause 2 as amended by Federal Law dated 05/07/2013 N 100-FZ)

3. With the termination of the power of attorney, the sub-power of attorney loses its force.

Article 188.1. Irrevocable power of attorney

(introduced by Federal Law No. 100-FZ dated 07.05.2013)
1. In order to fulfill or ensure the fulfillment of the obligation of the represented person to the representative or persons on behalf of or in whose interests the representative acts, in cases where such an obligation is related to the implementation of business activities, the represented person may indicate in the power of attorney issued to the representative that this power of attorney cannot be canceled before the end of its validity period or can be canceled only in the cases provided for in the power of attorney (irrevocable power of attorney).

Such a power of attorney in any case may be revoked after the termination of the obligation for the fulfillment or enforcement of which it was issued, as well as at any time in the event of abuse by the representative of his powers, as well as when circumstances arise that clearly indicate that this abuse may happen.

2. An irrevocable power of attorney must be notarized and contain a direct indication of the limitation of the possibility of its cancellation in accordance with paragraph 1 of this article.

3. A person to whom an irrevocable power of attorney has been issued cannot entrust the performance of actions for which he is authorized to another person, unless otherwise provided in the power of attorney.

Article 189. Consequences of termination of a power of attorney

1. A person who issued a power of attorney and subsequently canceled it is obliged to notify the person to whom the power of attorney was issued, as well as third parties known to him, for whose representation the power of attorney was given, about the cancellation. The same obligation is assigned to the legal successors of the person who issued the power of attorney in cases of its termination on the grounds provided for in subparagraphs 4 and 5 of paragraph 1 of Article 188 of this Code. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

The cancellation of the power of attorney may be published in the official publication in which information about bankruptcy is published. In this case, the signature on the application to revoke the power of attorney must be notarized. Third parties are considered to be notified of the revocation of the power of attorney after a month from the date of said publication, unless they were notified of the revocation of the power of attorney earlier. (paragraph introduced by Federal Law dated 05/07/2013 N 100-FZ)

2. If a third party is presented with a power of attorney, the termination of which he did not know and should not have known, the rights and obligations acquired as a result of the actions of the person whose powers were terminated remain valid for the principal and his legal successors. (Clause 2 as amended by Federal Law dated 05/07/2013 N 100-FZ)

3. Upon termination of the power of attorney, the person to whom it was issued or his successors are obliged to immediately return the power of attorney.

Judicial practice under Article 189 of the Criminal Code of the Russian Federation

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 14, 2019 N 5-APU19-10
to the competent authorities of the Republic of Kazakhstan for criminal prosecution under Part 3 of Art. , clause 2, part 4, art. 189 of the Criminal Code of the Republic of Kazakhstan were left without satisfaction, and the said decision of the Deputy Prosecutor General of the Russian Federation was recognized as legal and justified. Having heard the report of the judge of the Supreme Court of the Russian Federation E.B. Erdyniev, the speech of Ertaev Zh.Zh., lawyers Karpinsky R.S. and Petrova A.A. on the arguments of the appeal, speech by prosecutors Terekhova S.P., Klykovsky S.A., who objected to the arguments of the appeal, Judicial Collegium

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 15, 2019 N 67-APU19-9

It is not clear from the record of the court session that during the interrogation of witness K. by state prosecutor L.A. Orlova. the provisions of Part 2 of Art. 189 of the Criminal Code of the Russian Federation. The court complied with the requirements of Art. 15 Code of Criminal Procedure of the Russian Federation. The statement of A.Yu. Komarov is untenable. about the court’s distortion in the verdict of D.’s testimony regarding his participation in organizing a procession called “Russian March” along a certain route.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 12, 2018 N 18-APU18-18

01/27/2015 Gontar M.M. was recognized as a suspect under Part 4 of Art. 189 of the Criminal Code of the Republic of Kazakhstan and was interrogated in this status. 02.22.2016 actions Gontar M.M. law enforcement agencies of the Republic of Kazakhstan have been reclassified to paragraph “b” of Part 4 of Art. 177 of the Criminal Code of the Republic of Kazakhstan (as amended by the law dated July 16, 1997) - fraud, that is, the theft of someone else’s property through deception and abuse of trust, on an especially large scale.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 20, 2018 N 5-APU18-78

The Investigation Department of the General Prosecutor's Office of the Republic of Kazakhstan is investigating a criminal case against K.V. Sviridov. in committing crimes under Art. 250, paragraph 1, part 3, art. 189 of the Criminal Code of the Republic of Kazakhstan. On May 13, 2017, the accused was put on the wanted list and detained on the territory of the Russian Federation on August 1, 2021.