ST 308 of the Criminal Code of the Russian Federation.
Refusal of a witness or victim to testify or evasion of the victim from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing handwriting and other samples for comparative research is punishable by a fine of up to forty thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to three months, or by compulsory work for a period of up to three hundred and sixty hours, or by correctional labor for a period of up to one year, or by arrest for a period of up to three months.
Note : A person is not subject to criminal liability for refusing to testify against himself, his spouse or his close relatives.
Commentary to Art. 308 of the Criminal Code
1. The objective side is expressed in inaction: a) refusal of a witness or victim to testify; b) the victim’s evasion from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from submitting handwriting and other samples for comparative research. Refusal to testify may be expressed in silence or in an oral or written statement about a complete or partial refusal to testify. At the same time, the person does not hide the fact that he has the necessary information. Evasion is expressed in the failure to appear (failure to fulfill the obligation to appear), without good reason, of the victim within the established time limits for undergoing an examination, proceedings in relation to his forensic examination in cases where his consent is not required, or in evading the submission of handwriting samples and other samples for comparative research. These actions are carried out during the proceedings at the stage of pre-trial or judicial proceedings. The fact that a witness or victim fails to appear when summoned to an inquirer, investigator or court without good reason cannot be qualified under this article.
2. The crime is recognized as completed from the moment the witness or victim refuses to testify, or the victim fails to appear to carry out other specified procedural actions.
3. Special subject: a) a person recognized as a witness or victim in the case; b) a person recognized as a victim in the case.
4. The note stipulates that a person is not subject to criminal liability for refusing to testify against himself, his spouse or his close relatives (Clause 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation), which corresponds to the provision of Part 1 of Article 51 of the Constitution of the Russian Federation.
Article 308. Parties to the obligation
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 Contrary to the opinion of the Social Housing Complex society (the legal predecessor of the Bautechnik-T society), the court’s finding of the first instance of the validity of V.V. Maksimov’s claim. to the StroyTsentr company regarding the fulfillment of an obligation in kind does not violate the rights and legitimate interests of the Social Housing Complex company and does not affect the scope of its obligations. Maksimov V.V. Bautechnik-T did not make any claims against the company in the framework of this separate dispute. The ruling of the court of first instance does not contain any judgment that this company is a party to the agreement between the debtor and V.V. Maksimov. The mere presence in the register of creditors' claims of the StroyTsentr company demands of V.V. Maksimov. cannot serve as a basis for the conclusion that the StroyTsentr company has the right to receive apartments in a building under construction from the Bautechnik-T company. Based on the factual circumstances of the dispute established by the court of first instance, the Social Housing Complex society, by virtue of paragraph 3 of Article 308 of the Civil Code of the Russian Federation, cannot be considered a person obligated in relation to V.V. Maksimov.
Ruling of the Supreme Court of the Russian Federation dated 02/04/2019 N 305-ES18-24522 in case N A40-205554/2016
When accepting the appealed judicial acts, the courts of the first and appellate instances, guided by the provisions of Articles 210, 308, 385, 388, 395, 1102 of the Civil Code of the Russian Federation, Articles 39, 154, 158 of the Housing Code of the Russian Federation, proceeded from the fact that the defendant did not provide evidence payment for services rendered. The calculation of interest for the use of other people's funds has been verified by the courts and found to be correct.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 29, 2019 N 18-КГ18-200
In addition, by virtue of paragraph 3 of Article 308 of the Civil Code of the Russian Federation, the obligation does not create obligations for persons not participating in it as parties (for third parties), but any fact of participation of O.N. Pereverzeva. the court has not established the obligation relationship.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 29, 2019 N 18-КГ18-242
On the contrary, by virtue of paragraph 1 of Article 45 of the Family Code of the Russian Federation, which provides that for the obligations of one of the spouses, recovery can only be applied to the property of this spouse, each spouse is allowed to have their own obligations. Moreover, according to paragraph 3 of Article 308 of the Civil Code of the Russian Federation, the obligation does not create obligations for other persons not participating in it as parties (for third parties).
Ruling of the Supreme Court of the Russian Federation dated March 13, 2019 N 306-ES19-686 in case N A65-2998/2018
When accepting the appealed judicial acts, the courts, guided by the provisions of Articles 307, 308, 309, 614, 622, 642 of the Civil Code of the Russian Federation, having examined and assessed in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation the evidence presented in the case, having established the fact of the existence of arrears in paying rent in the declared size, satisfied the claim.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated March 21, 2019 N 304-ES17-21966(4) in case N A45-27225/2016
Contrary to the opinion of the Social Housing Complex society, the finding by the court of first instance of the validity of citizens' demands to the StroyTsentr society for the fulfillment of an obligation in kind does not violate its rights and legitimate interests and does not affect the scope of its obligations. Citizens did not present any claims to the Bautechnik-T company in the framework of this separate dispute. The ruling of the court of first instance does not contain any judgment that this company is a party to the agreement between the debtor and citizens. The mere presence of citizens' claims in the register of creditors' claims of the StroyTsentr company cannot serve as a basis for the conclusion that the StroyTsentr company has the right to receive apartments in a house under construction from the Bautechnik-T company. Based on the factual circumstances of the dispute established by the court of first instance, the Social Housing Complex society, by virtue of paragraph 3 of Article 308 of the Civil Code of the Russian Federation, cannot be considered a person liable to citizens.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated March 28, 2019 N 307-ES18-21620 in case N A56-18369/2016
The issuance of a bank guarantee is a typical banking operation for a credit organization (clause 8 of part 1 of article 5 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”, hereinafter referred to as the Law on Banks), aimed at realizing the main goal of any commercial legal entity. persons - making a profit (Article 1 of the Law on Banks, Article of the Civil Code of the Russian Federation). In business relations, a bank guarantee is issued on a reimbursable basis and in pursuance of an agreement concluded between the guarantor and the principal. As a general rule, the risk of violations committed during its issuance falls on the guarantor within the framework of its legal relations with the principal and cannot be opposed to the beneficiary who is not a party to the agreement on the issuance of the guarantee (clause 3 of Article 308 of the Civil Code of the Russian Federation). A different interpretation would allow a guarantor who has violated the rules for issuing a guarantee to be easily released from its obligations, thereby making a bank guarantee an ineffective way to secure obligations, which is in no way consistent with the goals of legal regulation.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 23, 2019 N 5-КГ19-14
In addition, the court did not take into account that in paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 22, 2021 N “On some issues of application of the general provisions of the Civil Code of the Russian Federation on obligations and their execution” it is explained that according to the general rule provided for in paragraph 3 of Article 308 of the Civil Code of the Russian Federation, the obligation does not create rights and obligations for persons not participating in it as parties (for third parties). Accordingly, the parties to an obligation cannot raise objections against third parties based on the obligation between themselves, just as third parties cannot raise objections arising from an obligation in which they do not participate. For example, when the rights of a creditor are transferred to another person under an agreement on the assignment of a claim, the debtor, as an objection to the claims of the new creditor, does not have the right to refer to the assignee’s failure to fulfill his obligations to pay the right of claim to the assignor.
Ruling of the Supreme Court of the Russian Federation dated October 14, 2019 N 304-ES19-17351 in case N A46-4718/2018
Guided by Articles 308, 333, 395, 401, 405, 406 of the Civil Code of the Russian Federation, the provisions of the Town Planning Code of the Russian Federation, the explanations set out in the resolutions of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 N “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations" and dated November 22, 2016 N "On some issues of application of the general provisions of the Civil Code of the Russian Federation on obligations and their fulfillment", the terms of the agreement dated December 26, 2013 N P-20653 for connection to water supply and sewerage networks, having examined and assessed in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented, the courts established the completion of the measures provided for in the contract for the construction (modernization) of municipal infrastructure facilities (off-site networks), ensuring the possibility of connecting the facility being built by the company to water supply and sewerage networks and came to the conclusion that there were no grounds for entrusting the water utility with obligations to fulfill the terms of the contract in kind.
Ruling of the Supreme Court of the Russian Federation dated October 14, 2019 N 307-ES19-17638 in case N A05-16922/2018
Refusing to satisfy the claim, guided by Articles 210, 308, 539, 543, 616 of the Civil Code of the Russian Federation, Rules for non-discriminatory access to services for the transmission of electrical energy and the provision of these services approved by Decree of the Government of the Russian Federation of December 27, 2004 N 861, Basic provisions for the functioning of retail electricity markets, approved by Decree of the Government of the Russian Federation dated 04.05.2012 N 442, the courts proceeded from the fact that in the absence of an energy supply agreement between the tenant of non-residential premises and the resource supply organization concluded in accordance with current legislation, the obligation to pay for energy lies with the owner (lessor ) non-residential premises.
Ruling of the Supreme Court of the Russian Federation dated October 30, 2019 N 305-ES17-19041 in case N A40-231052/2015
Based on the results of studying the judicial acts adopted in the case and the arguments contained in the cassation appeal, it was established that the grounds provided for in Article 291.6 of the Arbitration Procedural Code of the Russian Federation for transferring the complaint for consideration in a court session of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation are absent. The courts were guided by Articles 138, 139, 141, 148 of the Arbitration Procedural Code of the Russian Federation, Article 308 of the Civil Code of the Russian Federation, Articles 5, 61.3, 126 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” and proceeded from the fact that the settlement agreement may violate the rights of the company's creditors in the bankruptcy case, the company objects to the conclusion of the settlement agreement, the stated claims are not current, and therefore are subject to consideration within the company's bankruptcy case.
Second commentary to Art. 308 of the Criminal Code of the Russian Federation
1. The objective side covers two acts:
1) refusal of a witness or victim to testify, i.e. demonstrative unwillingness to fulfill the procedural obligation to give truthful testimony. The refusal to testify is expressed in a clear and categorical statement made both orally and in writing. If a witness or victim distorts factual circumstances related to the subject of proof or the subject of the claim, his actions fall under Art. 307 CC;
2) the victim’s evasion from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing handwriting and other samples for comparative research.
2. The crime is completed from the moment the actions specified in the law are committed.
3. The subjective side is characterized by direct intent.
4. The subject of the crime is special: a witness or victim. A person is not subject to criminal liability for refusing to testify against himself, his spouse or close relatives.
