Arbitrariness: Art. 330 of the Criminal Code of the Russian Federation with comments. Judicial practice

ST 330 of the Criminal Code of the Russian Federation.

1. Arbitrariness, that is, unauthorized, contrary to the procedure established by law or other regulatory legal act, the commission of any actions, the legality of which is disputed by an organization or a citizen, if such actions caused significant harm, is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of wages wages or other income of the convicted person for a period of up to six months, or compulsory work for a period of up to four hundred eighty hours, or correctional labor for a period of up to two years, or arrest for a period of up to six months.

2. The same act, committed with the use of violence or the threat of its use, is punishable by forced labor for a term of up to five years, or by arrest for a term of up to six months, or by imprisonment for a term of up to five years.

Code of Administrative Offenses of the Russian Federation: arbitrariness

In the Code of Administrative Offenses of the Russian Federation, arbitrariness is interpreted as the unauthorized exercise of one’s supposed or actual right in defiance of the order that was established by federal law or other legal acts of the country. At the same time, there is no fact of causing significant harm to ordinary citizens or organizations.

This offense is punishable by a fine, the amount of which depends on who committed it. If this is an official, then the amount of the penalty will vary from 300 to 500 rubles, if an ordinary citizen - from 100 to 300 rubles.

The elements of an administrative offense will be present only if it does not entail the onset of the consequences specified in the Criminal Code of the Russian Federation.

What is arbitrariness

In the Criminal Code of the Russian Federation, arbitrariness is understood as actions that violate the established procedure for exercising the rights of a citizen. At the same time, the attacker’s own intentions may seem respectable.

The crime falls under Art. 330 of the Criminal Code in the case when illegal actions cause material or moral damage. Otherwise, the act is qualified as an administrative offense under Art. 19.1 Code of Administrative Offenses of the Russian Federation.

The amount of damage, as well as its existence, is determined by the court.

Arbitrariness: Art. 330 of the Criminal Code of the Russian Federation

The criminal legislation of our country interprets the concept of arbitrariness as the unauthorized implementation of any actions committed in violation of the order established by laws or other regulatory requirements, the legality of which is disputed by a citizen or organization if serious harm is caused to them. If there is a simple offense, the person guilty of this criminal act will face punishment in the form of:

a fine in the amount of up to 80,000 rubles. or in the amount of other income, salary for a period of up to six months;
compulsory work for up to 480 hours;
up to 2 years of correctional labor;
arrest up to 6 months

The second part of the studied norm of criminal law specifies the characteristics of the qualifying element, namely: violence or the threat of its use to the victim. In this case, the sentence under Art. 330 of the Criminal Code of the Russian Federation implies arrest for up to six months or imprisonment for up to 5 years.

Commentary to Art. 330 Criminal Code

1. The objective side of arbitrariness is characterized by the commission of actions: a) a person acts arbitrarily, choosing a form of behavior in violation of the normative (law or other regulatory act) established procedure for the exercise of rights; b) for the implementation of a real (existing, enshrined) or alleged (existing only according to the conviction of a person) right; c) provided that the legality of the action is disputed by the interested individual or legal entity in a judicial, administrative, claim, official or other manner before or during its commission.

2. As a result of unauthorized actions, an organization or a citizen (victims can be not only persons who challenge the legality of the actions of the perpetrator) suffers significant harm. The type of harm is not defined by law and can be expressed in property damage, lost profits, moral harm, violation of the constitutional rights of citizens, disruption of the organization’s activities, etc. The amount of damage as significant is determined taking into account the specific circumstances of the case at the time of the commission of arbitrary actions, depending on the amount of damage or the importance of the violated rights and interests.

3. Responsibility for some arbitrary actions occurs according to special norms, for example, under Art. 137 of the Criminal Code (unauthorized disclosure of information constituting personal or family secrets), Art. 139 of the Criminal Code (unauthorized entry into a home, committed against the will of the person living in it), Art. 285 or 286 of the Criminal Code (commission by an official of actions contrary to the established procedure using his official position).

Characteristics of the objective side

The objective side of a criminal act that falls under Art. 330 of the Criminal Code of the Russian Federation, should be characterized by three characteristics.

An act of a socially dangerous nature in the form of active actions.
Consequences of the action taken.
The presence of a cause-and-effect relationship between the first and second points.

In this case, the actions of the person found guilty must have the following mandatory characteristics:

they are committed contrary to the order that was established by law and other legal acts, and arbitrarily, that is, according to his own will;
the legality of these actions must be challenged by a citizen (individual or legal entity) or organization.

Thus, the offender must ignore the requirements established by the rules of law and regulating the interests of persons, both individuals and legal entities. He commits actions of a criminal nature to satisfy exclusively his own interests, without taking into account the opinions of others.

Also the objective side of the composition under Art. 330 of the Criminal Code of the Russian Federation is characterized by one main feature - the presence of consequences. They are expressed in the form of significant harm that was caused by the committed actions to a person (legal, physical). The degree of harm is of an evaluative nature and is determined taking into account the circumstances of each specific case. It can be physical, property, organizational, etc.

The composition of this criminal act is defined as material, that is, it is recognized as committed from the moment the consequences qualify as dangerous to society.

Lawyer's recommendations

Each case of arbitrariness is individual, and it is often impossible to predict the outcome of the process. Often, due to legal illiteracy, citizens make mistakes, which ultimately result in crimes involving criminal liability.

The term “arbitrariness” implies a whole range of criminal acts, the qualification of which may present certain difficulties even for an experienced judge. Having become a victim of such a crime, or being involved in a case as an accused, a citizen should heed the following advice:

Arbitrariness is a serious crime, and therefore it must be proven. You should contact a specialized organization only if you have an evidence base. The easiest way is to write a statement to the police.
If a citizen persistently demands to repay his debt, then such actions do not yet indicate arbitrariness. The presence of a crime can be judged by the threat of violent acts or damage to property. Also, arbitrariness is evidenced by the transfer of property without the consent of the owner or the presentation of illegal demands to the debtor.
The culprit is always encouraged to commit arbitrary actions by a violation of his rights and freedoms. Accordingly, both parties can be punished. For example, one citizen erected a building outside the boundaries of his site. The neighbor demolished the structure without permission, which is why he was accused of arbitrariness. The culprit filed a counterclaim, accusing the neighbor of erecting an unauthorized building. As a result, both participants in the process received a fine.

Subject and subjective side

Having studied Art. 330 of the Criminal Code of the Russian Federation with comments, one can understand the nature of the subject of this crime and its subjective side. The latter is expressed in the form of intentional guilt. The guilty person is fully aware of what he is doing and how dangerous it is. The criminal foresees the likelihood of consequences and causing significant harm and wants to cause them or consciously allows them to occur or is indifferent to this.

The subject of this crime (arbitrariness) is a sane person (individual) who has reached the age of 16 at the time of its commission.

In the second part of Art. 330 of the Criminal Code of the Russian Federation, as a qualifying feature of a crime (arbitrariness), provides for the method of its commission, which can be expressed in violence or the threat of its use in relation to the victim. What should we understand by this?

The Plenum of the Supreme Court clarified the norms of the Criminal Code that apply to private notaries and security guards

Collage: Legal.Report The Plenum of the Supreme Court of the Russian Federation approved the resolution for the second time, which clarifies judicial practice in cases of crimes against the interests of service in commercial and other organizations. We are talking, among other things, about the abuse of power by private notaries and auditors and the abuse of power by private security guards and detectives.

The Plenum of the Supreme Court for the first time summarized judicial practice under articles of Chapter 23 of the Criminal Code of the Russian Federation (201, 201.1, 202 and 203). As the developers of the document noted, crimes of this kind have become widespread recently, so clarification of complex issues of their qualification is becoming more in demand than ever before. At the same time, courts face problems when considering cases falling under these articles of the Criminal Code, which is caused by the complex structure of the crime, competition of criminal law norms and the multiplicity and heterogeneity of socially dangerous consequences.

Structurally, the 11-page resolution consists of 23 points.

An interpretation is given of abuse of power (Article 201 of the Criminal Code of the Russian Federation) and abuse of power in the implementation of state defense orders (Article 201.1 of the Criminal Code of the Russian Federation). In particular, the actions of a manager who, for example, hires people who do not actually perform labor duties, relieves the organization’s employees from performing labor duties and is sent to renovate an apartment or improve a home owned by the manager himself or his relatives and friends should be qualified as abuse of authority. , if this entailed socially dangerous consequences provided for in Art. 201 of the Criminal Code of the Russian Federation. It is clarified that when resolving the issue of the existence of consequences of abuse of power in the form of significant harm in relation to Art. 201 of the Criminal Code of the Russian Federation, it is necessary to take into account, in particular, the number of injured citizens, the severity of the physical, moral or property harm caused to them, the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and size of the material damage suffered by it.

Recognizing the harm caused to the rights and legitimate interests of citizens or organizations as a result of abuse of power by private notaries or auditors (Article 202 of the Criminal Code of the Russian Federation) as significant, the court must proceed from the significance of the violated right and legitimate interest for a particular victim, the amount of property damage caused to him (for example , termination of rights to property as a result of certification of a transaction that does not comply with the law, as well as in the absence of one of the parties to the transaction or the necessary documents, loss of the right to inheritance by a heir as a result of a notary issuing a certificate of the right to inheritance to a obviously improper person).

Under a significant violation of the rights of citizens and organizations as a result of the commission of acts, liability for which is provided for in Art. 203 of the Criminal Code of the Russian Federation, is understood as a violation by a private detective or a private security guard of the rights of individuals and legal entities guaranteed by the Constitution of the Russian Federation, generally recognized principles and norms of international law, federal laws (for example, the right to respect for the honor and dignity of the individual, personal and family life of citizens, the right to integrity home and the privacy of correspondence, telephone conversations, postal, telegraph and other messages, etc.).

The attention of the courts is drawn to the need to comply with the requirements of the law on a strictly individual approach to sentencing to persons who have committed crimes under Chapter 23 of the Criminal Code of the Russian Federation. And also to ensure that, when assessing the degree of public danger of an act, take into account the content of motives and goals, the significance of the duties that were violated, the duration of criminal actions (inaction), the nature and severity of the harm caused, the number of victims, the presence of harm to the interests of the state protected by law, other factual circumstances and information about the identity of the perpetrator.

The courts are also recommended to identify the circumstances that contributed to the commission of crimes, as well as other violations of the law, and in accordance with Part 4 of Art. 29 of the Code of Criminal Procedure of the Russian Federation with private definitions (decrees) to draw the attention of relevant organizations and officials to them.

Use of violence

Criminal law regards violence as actions involving physical pressure on the victim. They can be expressed in beatings, infliction of physical pain, torture, restriction of freedom, binding, as well as harm to health - moderate or mild. As you can see, the issue of qualifying an act is quite complex. If, in particular, grievous harm or death was caused to the victim’s health during arbitrariness, then it will be carried out in combination, namely in conjunction with Articles 111, 105 of the Criminal Code of the Russian Federation, respectively.

Use of threat of violence

Judicial practice under Art. 330 of the Criminal Code of the Russian Federation shows that arbitrariness is often accompanied by threats to the victim about the use of violence. This should be understood as an expression by the perpetrator of the intentions of the possibility of using any physical violence against them, including murder or grievous harm. The threat must be as realistic and believable as possible.

Comments on the article

The few criminal law norms with a material composition include arbitrariness (Article 330 of the Criminal Code of the Russian Federation). Judicial practice suggests that a crime will be considered committed only if certain consequences occur - causing significant harm to the victim. It can have a material or moral expression, etc. The degree of materiality is assessed by the court at the time of the commission of the criminal act.

Let's consider an example from judicial practice. A certain citizen was convicted under the first norm under consideration of the Criminal Code of the Russian Federation. Significant harm, according to the court, was expressed in the fact that he provided loans to his employees and himself, violating the established rules and thereby causing damage to the enterprise in the amount of 65,000 rubles, thereby damaging its reputation. When considering the protest in the case, the regional court considered the arguments of the first instance court to be untenable, finding that the specified amount for the limited liability company, which he led, was small, and the reputation was damaged as a result of other circumstances. The case was eventually dropped for lack of evidence of a crime.

Subject under Art. 330 of the Criminal Code of the Russian Federation (as amended in 2011) recognizes a sane person who has reached 16 years of age. That is, it is general. If arbitrariness is committed by an official or employee of private detective services, private security organizations, then their actions must be qualified under other articles, namely Articles 285, 286, 201, 203 of the Criminal Code.

In addition, some actions that fall under the category of “arbitrariness” themselves constitute separate crimes provided for by the Criminal Code of the Russian Federation. For example, violation of privacy, home, refusal to provide information to a citizen, etc.

When qualifying, we should not forget about distinguishing an act punishable under the provisions of the Criminal Code of the Russian Federation from an administrative offense on the following grounds: the absence of significant damage, violence or the threat of its use.

Algorithm of actions of a victim of arbitrariness

Having become a victim of arbitrary actions, a citizen should heed the following advice:

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To bring the criminal to justice, it is necessary to file a complaint. The application can be sent to a higher administration, prosecutor's office or police. The complaint must be submitted in writing or electronically. In the latter case, the application should be submitted through the website of the authorized organization. After considering the electronic complaint, the citizen will receive a response to the specified email address. Under no circumstances should you complain verbally. Such appeals do not bring results.
The complaint must be drafted correctly. The circumstances of the case are described briefly, in simple and understandable language. If the applicant is not confident that he can draw up such a document on his own, he should seek help from a specialized lawyer.
In the statement we refer to those legislative acts that were violated.
Evidence of arbitrariness must be attached to the complaint. Otherwise, the charges will be considered unfounded and the application will not be considered.
Having received a refusal from the police, you should contact the prosecutor's office, and then the court.

We contact the higher administration

This method is good if arbitrariness was committed by an official. The most convenient way to file a complaint is to use the organization’s website. Here the user can fill out a complaint sample or seek the help of a consultant.

Another option is to send an application by registered mail with acknowledgment of receipt. In addition, the applicant can visit the department in person, handing over the documents to a specialist for signature.

Contacting the police

In most cases, arbitrary actions involve damage to the injured party. To bring the culprit to justice, the victim can contact the police. He will also have to write a statement at the department. It is compiled according to general rules. It is important to indicate the circumstances of the case in the document, refer to legislative norms and attach evidence of arbitrariness to the application. These can be scans of correspondence on the Internet, letters, audio or video recordings. If there are witnesses, they should be listed in the application.

Having accepted the application, the police officer initiates a preliminary check. If there are circumstances indicating that a crime has been committed, the investigator initiates a criminal case.

Filing a complaint to the prosecutor's office

This organization is engaged in protecting the rights of citizens of the Russian Federation. You can submit an application to the prosecutor's office at any stage of the case. For example, a citizen can contact this organization as soon as he discovers the fact of arbitrariness. It is also possible to file a complaint with the prosecutor’s office in the event of inaction by the police or administration.

When making such a statement, you need to pay attention to the following points:

The text of the complaint is written in a business style. Sentences should be short and concise. Prolonged retreats are unacceptable, just like mistakes and blots.
It is important to back up your claim with evidence. If the evidence base is missing or insufficient, the application may be left without consideration.

A well-written application should include the following points:

"A cap". This section indicates the details of the applicant, the name and address of the organization to which the complaint is being filed. Also in the header you need to indicate the details of the manager to whom the application is being submitted.
Descriptive part. Here you need to indicate the reason for the dispute and general circumstances. For example, the actions of the culprit and the victim, the damage received. The organizations that the applicant has previously applied to should also be listed.
Request. Most often we are talking about initiating a criminal case. In this case, the applicant must refer to the current legislation.
List of documents confirming the applicant’s words.
Date and signature of the applicant.

Distinction from other compounds

The composition of self-government is quite complex and has its own qualifications. It is important to distinguish it from other criminal acts, most often from extortion and theft. Unlike them, arbitrariness does not have as its goal the seizure of someone else's property. The guilty person demands the transfer or confiscates property that belongs to him or to which he has certain rights. This is the fundamental difference between this composition and extortion and theft. In them, the main goal is someone else's property or the right to it.