1. Carrying out medical activities or pharmaceutical activities by a person who does not have a license for this type of activity, provided that such a license is required, if this resulted in negligence causing harm to human health, -
shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by restriction of liberty for a term of up to three years, or by forced labor for a term of up to three years, or by imprisonment for the same term.
2. The same act, resulting in the death of a person through negligence, -
shall be punishable by forced labor for a term of up to five years or imprisonment for the same term.
Commentary to Art. 235 of the Criminal Code of the Russian Federation
1. The social danger of the crime lies in the fact that illegal medicine and pharmaceuticals lead to poor-quality medical care, which results in harm to the health of citizens or their death.
2. The direct object of the crime is social relations that ensure public health.
3. An additional object is the relationship that ensures the legal procedure for carrying out business activities.
4. Optional object - human life.
5. The objective side of the crime is characterized by: 1) illegal implementation of medical activities; 2) illegal implementation of pharmaceutical activities.
6. Medical activity is the provision of medical services by medical workers outside the institutions of the state and municipal healthcare systems.
The provision of one-time medical services, including paid ones (for example, administering a medicinal injection, making a compress, installing cups at the request of a neighbor or relative who did not want to go to a medical institution) is not recognized as medical activity.
7. Pharmaceutical activities - activities carried out by wholesale trade organizations and pharmacies in the field of circulation of medicines, including wholesale and retail trade in medicines, manufacturing of medicines (Article 4 of the Law on Circulation of Medicines).
8. These types of activities are recognized as illegal if they are carried out by persons who do not have a license for the specified type of activity. Licensing of medical and pharmaceutical activities is provided for in paragraphs 46 and 47 of Part 1 of Art. 12 of the Licensing Law.
9. License - a special permit for the right of a legal entity or individual entrepreneur to carry out a specific type of activity (perform work, provide services that constitute the licensed type of activity), which is confirmed by a document issued by the licensing authority on paper or in the form of an electronic document signed with an electronic signature, if the application for a license indicated the need to issue such a document in the form of an electronic document.
10. A person who does not have a license is one who has not received the appropriate license (for any reason), or has been engaged in activities after the expiration of the license, or under a license obtained for another person, etc.
The Law on the Fundamentals of Protecting the Health of Citizens stipulates that the right to carry out medical activities in the Russian Federation is granted to persons who have received medical or other education in the Russian Federation in accordance with federal state educational standards and who have a certificate of accreditation of a specialist. In addition, teaching and research workers who have a specialist certificate or a certificate of accreditation of a specialist who provide practical training to students in accordance with Art. 82 of the Federal Law of December 29, 2012 N 273-FZ “On Education in the Russian Federation”, as well as scientific workers who have a specialist certificate or a certificate of accreditation of a specialist carrying out scientific research in the field of health protection, have the right to carry out medical activities. When carrying out medical activities, teaching and research workers are subject to the rights, duties and responsibilities of medical workers.
11. The right to carry out pharmaceutical activities in the Russian Federation has:
1) persons who received pharmaceutical education in the Russian Federation in accordance with federal state educational standards, approved. in the manner established by the legislation of the Russian Federation, and having a certificate of accreditation of a specialist;
2) persons who have the right to carry out medical activities and have received additional professional education in the retail trade of medicines, subject to their work in separate departments (outpatient clinics, paramedic and paramedic-obstetric stations, centers (departments) of general medical (family) practice) medical organizations licensed to carry out pharmaceutical activities and located in rural areas where there are no pharmacies.
12. Accreditation of a specialist is a procedure for determining the compliance of a person who has received a medical, pharmaceutical or other education with the requirements for carrying out medical activities in a certain medical specialty or pharmaceutical activity. Accreditation of a specialist is carried out by an accreditation commission upon completion of professional educational programs of medical education or pharmaceutical education at least once every five years. The accreditation commission is formed by the authorized federal executive body with the participation of professional non-profit organizations specified in Article 76 of this Federal Law. The regulations on the accreditation of specialists, the procedure for issuing a certificate of accreditation of a specialist, the form of a certificate of accreditation of a specialist and technical requirements for it are approved by the authorized federal executive body (Part 3 of Article 69 of the Law on the Fundamentals of Protecting Citizens' Health).
13. A mandatory sign of a crime is the occurrence of consequences in the form of carelessly causing harm to the health of at least one person or the death of a person. Therefore, in all cases, a cause-and-effect relationship between the act and the resulting consequences should be established.
14. The corpus delicti is material. The crime provided for in Part 1 of this article is considered completed from the moment of causing harm to the health of any degree of severity to at least one person.
15. The subjective side of the crime is intent in relation to actions and carelessness regarding the consequences. With intent, a person realizes that he is illegally engaged in medical or pharmaceutical activities without having a license to engage in such activities, wishes to engage in such activities, or deliberately allows the illegality of his activities. In case of negligence, a person foresees the possibility of harm to human health, but expects to prevent it, or does not foresee such a possibility, but should and could have foreseen.
16. The subject of the crime is a sane individual who has reached the age of 16 and does not have the appropriate license to engage in medical or pharmaceutical activities. It can be either a person with a medical education or without such education.
17. Part 2 of the commented article provides as a qualifying feature of a crime - an act that caused the death of a person through negligence. At the same time, additional qualifications of the actions of the perpetrator under Part 1 of Art. 109 or art. 118 of the Criminal Code is not required, since they are related as general and special norms.
18. If, as a result of illegally engaging in medical or pharmaceutical activities, death occurs due to the negligence of two or more persons, the actions of the perpetrator are subject to additional qualification along with Part 2 of Art. 235 also under Part 3 of Art. 109 of the Criminal Code of the Russian Federation.
Judicial practice: sentences and punishment under Art. 235 of the Criminal Code of the Russian Federation
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Article 235. Grounds for termination of ownership rights
“Review of the practice of the Constitutional Court of the Russian Federation for 2017” 16. By ruling No. 1163-O dated June 6, 2021, the Constitutional Court revealed the meaning of the provisions of subparagraph 8 of paragraph 2 of Article 235 of the Civil Code of the Russian Federation, as well as part 1 of Article 4, part 3 of Article 16 , Article 17 and Part 2 of Article 18 of the Federal Law “On control over the compliance of expenses of persons holding public positions and other persons with their income.”
Determination of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated February 21, 2019 N 46-APG18-47
In accordance with paragraph 1 of Article 235 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), the right of ownership is terminated when the owner alienates his property to other persons, the owner renounces the right of ownership, the destruction or destruction of property and in the event of loss of ownership of property in other cases provided for by law. Paragraph 2 of this article provides for cases of forced seizure of property from the owner.
Appeal ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated June 14, 2019 N 78-APA19-10
The non-state educational institution of higher professional education "St. Petersburg Humanitarian University of Trade Unions" (hereinafter - NOU VPO "St. Petersburg Humanitarian University of Trade Unions") filed an administrative claim with the St. Petersburg City Court to declare these provisions invalid, pointing out their contradiction with the normative legal acts of greater legal force, namely paragraph 1 of article, paragraph 1 of article, paragraph 2 of article 235, paragraph 3 of article 299, articles 1064, 1065, 1069 of the Civil Code of the Russian Federation; paragraph 3 of article 2, paragraph 3 of article 3, subparagraph 2 of paragraph 1 of article 9, articles 10, 56 of the Land Code of the Russian Federation; paragraphs 8 and 9 of Article 1, Part 3 of Article 3, Part 1 of Article 4, Article 7, Part 8 of Article 36 of the Town Planning Code of the Russian Federation, Subparagraphs 1 and 2 of Part 1 of Article 15 of the Federal Law of July 26, 2006 N 135-FZ “On protection of competition."
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated July 30, 2019 N 4-КГ19-26
According to paragraph 1 of Article 235 of the Civil Code of the Russian Federation, the right of ownership terminates when the owner alienates his property to other persons, the owner renounces the right of ownership, the destruction or destruction of property and when the right of ownership to property is lost, in other cases provided for by law.
Ruling of the Supreme Court of the Russian Federation dated October 4, 2019 N 309-ES19-16438 in case N A07-37785/2017
Canceling the court decision and satisfying the claims, the appellate court, with which the district court agreed, guided by articles 131, 235 of the Civil Code of the Russian Federation, the provisions of the Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate”, paragraphs 52, 53 Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N /22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”, having examined and assessed the materials presented in case evidence in accordance with the provisions of Article 71 of the Arbitration Procedural Code of the Russian Federation, taking into account the expert opinion dated October 27, 2017 N 22/18 (17) and the conclusion dated May 21, 2018 N 18-18 of the forensic examination carried out within the framework of this dispute, from which follows that the object erected by the concern is not a disputed object (collar building), built in 1964, came to the conclusion that the disputed structure ceased to exist (destruct).
Ruling of the Supreme Court of the Russian Federation dated October 21, 2019 N 310-ES19-17938 in case N A83-10660/2017
The applicant believes that the property left the Company’s possession illegally and against his will, which led to a depreciation of the market share of shares in the authorized capital; Articles 235, 306 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) are subject to application to the legal relations of the parties.
Ruling of the Supreme Court of the Russian Federation dated October 25, 2019 N 306-ES18-17082 in case N A57-6548/2017
By canceling the judicial acts and sending the case for a new trial, the cassation court, without making any decision on the merits of the dispute, pointed out the need for the court of first instance to properly assess the factual circumstances of the case and make a reasoned decision, taking into account the application and interpretation of Articles 235, 239.2 of the Civil Code Code of the Russian Federation, parts 1, 2, 10 of Article 32 of the Housing Code of the Russian Federation, Articles 56.2, 56.3, 56.10 of the Land Code of the Russian Federation, paragraph 1 of Article 18 of the Federal Law of December 21, 1994 N 68-FZ “On the protection of the population and territories from emergency situations of natural and man-made nature", paragraph 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/02/2009 N 14 "On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation", resolution of the Government of the Russian Federation dated 01/28/2006 N 47 "On approval of the Regulations on recognizing premises as residential premises, residential premises unsuitable for habitation and an apartment building as unsafe and subject to demolition or reconstruction,” as well as taking into account the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2014), approved by the Presidium of the Supreme Court of the Russian Federation on December 24, 2014 , and the decision of the Volzhsky District Court of Saratov dated May 16, 2016 in case No. 2A-2178/2016 that entered into legal force.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated November 19, 2019 N 308-ES19-12842 in case N A32-8838/2018
In accordance with paragraph 1 of Article 235 of the Civil Code of the Russian Federation, the right of ownership terminates when the owner alienates his property to other persons, the owner renounces the right of ownership, the destruction or destruction of property and when the right of ownership to property is lost in other cases provided for by law.
Ruling of the Supreme Court of the Russian Federation dated December 12, 2019 N 305-ES19-22265 in case N A40-197783/2018
Having assessed the evidence presented in the case materials according to the rules of Articles 65 and 71 of the Arbitration Procedural Code of the Russian Federation, having analyzed the terms of the lease agreement dated September 18, 2013 N M-05-043244, the court of first instance recognized the fact of the defendant’s failure to use the disputed land plot in accordance with its intended purpose in connection with the demolition of real estate objects belonging to it, and, guided by Article 235, paragraphs 1, 2 of Article 451, 606 of the Civil Code of the Russian Federation, based on the fact that the company’s ownership of these objects had ceased, came to the conclusion that it was subject to termination and the right to use the land plot on which the specified buildings were located, which arose in him by virtue of previously effective Articles 35, 36 of the Land Code of the Russian Federation and the current Article 39.20 of the Land Code of the Russian Federation.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 3, 2019 N 41-КГ19-43
According to paragraphs 1 and 2 of Article 235 of the Civil Code of the Russian Federation, the right of ownership terminates when the owner alienates his property to other persons, the owner renounces the right of ownership, the destruction or destruction of property and when the right of ownership to property is lost in other cases provided for by law. Forced confiscation of property from the owner is not permitted, except in cases where the law provides for such confiscation.
Ruling of the Supreme Court of the Russian Federation dated January 25, 2019 N 306-ES18-24037 in case N A06-3630/2017
The courts of the first and appellate instances, having examined and assessed, according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented in the case materials, guided by Article 16 of the Arbitration Procedure Code of the Russian Federation, Article 235 of the Civil Code of the Russian Federation, Articles 1 and 35 of the Land Code of the Russian Federation, the explanations given in paragraph 52 of the resolution The Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N /22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”, came to the conclusion that there are grounds for termination of the right of ownership of the Russian Federation and the right of permanent (perpetual) use of the Institution for a land plot with cadastral number 30:01:150103:1 based on the following: The Arbitration Court of the city of Moscow, by decision of May 21, 2014 in case No. A40-40656/2012, approved a settlement agreement , concluded between the Administrations and the Ministry of Defense, which resolves disagreements between the parties regarding real estate; This agreement also established the obligation of the Ministry of Defense to transfer free of charge a land plot with an area of 235,833 square meters to the ownership of the municipal formation "City of Akhtubinsk". m with cadastral number 30:01:150103:13, located at the address: Astrakhan region, Akhtubinsk; at the time of approval of the settlement agreement, the disputed land plot with cadastral number 30:01:150103:1, on which the store building is located, owned by a third party, was part of the original plot with cadastral number 30:01:150103:13, while on this site there are no real estate objects necessary to ensure the activities of federal executive authorities in the field of defense and state security, therefore, there were no grounds for registering the right of federal property and the right of permanent (indefinite) use of the specified land plot.
