Illegal retention of someone else's property

The owner of any property assets is guaranteed by law full legal protection from attacks by third parties. This also applies to cases of illegal retention or appropriation of someone else’s property, when the copyright holder is deprived not only of the opportunity to dispose of his property, but also of actually possessing it. In our article we will learn what is considered as illegal seizure and retention of someone else’s property, as well as the composition of possible penalties for the offender.

The concept and signs of theft of other people's property

Appropriation is the illegal conversion of someone else's property to one's own benefit, committed for selfish purposes and free of charge. It should also be taken into account that appropriation is established only in cases where its legal owner has objected or objects to such actions. If the owner knowingly transferred his assets free of charge to another person and does not object to the withholding, there will be no penalty for misappropriation.

The illegality of these actions is as follows:

there is no agreement or other document defining the obligations between the parties, according to which the violator legally receives the property, can use it and turn it to his advantage (for example, in the process of rental relations formalized in the form of an agreement, the transfer of property occurs on a legal basis);
termination of legal grounds for ownership of someone else’s property - expiration of the contract, early termination of contractual relations, etc.;
absence of direct permission of the proper owner to retain property by another person (with the exception of cases when retention is expressly permitted by law for security purposes).

Note!

Article 359 of the Civil Code of the Russian Federation indicates that the retention of other people's things or objects will be completely legal if this occurs in the presence of a debt to the person withholding. At the same time, the conditions for actually receiving the thing are important - this must happen legally.

If any item or object was transferred during the period of the loan agreement as collateral to secure obligations, the creditor not only has the right to retain the thing until full settlement, but can also foreclose to fully repay the debt. Such rules must be specified in detail in the contract or follow from the law.

If an item was obtained illegally, then it may be a case of theft, robbery or another type of theft. For such illegal acquisition and subsequent appropriation of someone else's property, articles of the Criminal Code of the Russian Federation are applied (for example, under Article 158 of the Criminal Code of the Russian Federation).

The article for appropriation of someone else's property is also present in the Criminal Code of the Russian Federation; it applies to cases where the guilty person tried to turn the entrusted property to his own benefit, i.e. transferred on a legal basis. Article 160 of the Criminal Code of the Russian Federation contains penalties not only for the appropriation of someone else's property, but also for its embezzlement, i.e. consumption, expenditure or disposal. When the trustee was obliged, on behalf of the owner, to deposit a certain amount into a pre-specified bank account, violation of such an order and misappropriation of entrusted money will also be punishable under Art. 160 of the Criminal Code of the Russian Federation.

Criminal liability for misappropriation occurs in the presence of the following circumstances:

the size of the assigned assets will only matter for the division of responsibility between different parts of Art. 160 of the Criminal Code of the Russian Federation, and according to Part 1, the amount of stolen funds or the value of the property does not matter at all;
the guilty person must commit the crime with direct intent. If, for objective reasons, the return of property was impossible, and the detaining person stored it for subsequent transfer to the proper owner, punishment under the Criminal Code of the Russian Federation will not follow;
in the actions of the criminal, the nature of the gratuitous appropriation must be established. If a redemption price is paid for the transferred property, but it does not correspond to market or other indicators, we will be talking about a civil dispute and not a criminal case.

In addition to the appropriation of someone else's property, Art. 330 of the Criminal Code of the Russian Federation, which contains punishment for arbitrariness. This illegal behavior consists of committing actions, the legality of which is disputed by a citizen or legal entity. A typical case of arbitrariness is a ban or other restrictive measures for the use of property by the proper owner. In this case, the property is not converted to one’s own benefit on a mercenary basis, but the owner is deprived of the opportunity to fully realize his rights.

What is the disposal of property against the will of the owner for the purposes of its subsequent vindication?

The idea of vindicating property even from a bona fide owner in the event of its theft, loss or disposal against his will is quite simple. If the owner voluntarily transfers ownership to a person, then by choosing such a person he accepts the risk that this person may turn out to be dishonest.

In addition, the owner knows the person to whom ownership is transferred, and if the property is alienated by such a person, the owner can recover damages from him. In such a case, the risk of vindication of the property cannot be placed on the innocent, bona fide purchaser of such property.

In general, at one time the famous Soviet civil specialist A.A. Agarkov wrote that the risk should be placed on someone who can, through his actions, by taking certain measures, if not eliminate this risk, then at least reduce it. The civil law of many countries is practically based on this principle. In our case, the owner has more opportunities to prevent the risk of loss of his property, since it is the owner who chooses the counterparty.

Differences

Appropriation is considered as one of the options for theft of property that does not belong to the offender. Other offenses include theft, fraud, robbery, etc. The key differences between the various types of property crimes aimed at taking someone else's money or property are as follows:

a basic sign of misappropriation or embezzlement of someone else’s property under Art. 160 of the Criminal Code of the Russian Federation is illegal actions with entrusted assets or money, i.e. the criminal initially received them on a legal basis by the direct will of the owner;
theft implies the secret seizure of property, in which the proper owner not only does not consent to such an action, but in most cases does not even know about it;
robbery consists of open theft, when the owner of money or assets is forced to part with property under the threat of violence, the use of weapons or other types of illegal behavior;
robbery is a direct attack on the owner of property, committed with the aim of stealing and converting other people's money or assets into one's own property;
Fraud means the illegal taking of other people's money, things or objects under the influence of deception, abuse of trust and other actions not related to violence.

Note!

The distinction and distinction between various types of theft is established not only according to the norms of the Criminal Code of the Russian Federation, but also according to the guiding clarifications of the Supreme Court of the Russian Federation. In particular, the appropriation of someone else's property is also disclosed in the provisions of judicial practice - Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 27, 2007 No. 51 distinguishes between appropriation, embezzlement and fraud.

The law on appropriation of someone else's property also provides for enforcement measures under the Civil Code of the Russian Federation, since the owner has the right to demand the return of things or money from the illegal possession of other persons. To do this, a statement of claim may be filed in the district court, and when considering a criminal case, a claim may be filed, including for damages.

Thus, determining the following circumstances will be of key importance when investigating misappropriation cases:

whether the property came into the possession of the offender legally;
whether violence, threat, deception or other illegal actions were used against the owner, the purpose of which was to seize other people’s things or finances;
whether the retention was unlawful;
whether the offender had selfish motives.

Sale of someone else's property for selfish purposes Art. 160 of the Criminal Code of the Russian Federation is considered embezzlement. Personal consumption of entrusted property (for example, food products), as well as spending money on one’s own needs, is also considered a crime.

Article 160 of the Criminal Code of the Russian Federation on the illegal appropriation of someone else’s property provides for the following types of punitive sanctions:

under part 1 - a fine of up to 120 thousand rubles; compulsory, correctional or compulsory work; imprisonment for up to two years;
under Part 2 (if a preliminary conspiracy is established, or significant damage is caused) - similar penalties, and imprisonment can be up to five years;
under Part 3 with major damage may be punishable by up to six years;
Part 4 (especially large scale, or participation in an organized group) - imprisonment can be up to 10 years.

To bring to justice under Art. 160 of the Criminal Code of the Russian Federation does not matter what assets ended up in the hands of the criminal, however, determining the amount of the stolen property may differ significantly depending on the type of property.

Procedure for returning your property

Having established that the property is in someone else's use, the owner can take various actions to protect his interests. To bring to criminal liability, an application for appropriation of someone else's property is written, which indicates the following facts:

information about the person who should be in possession of movable or immovable property;
the circumstances of its transfer to another person for a certain period;
evidence of illegality of presence;
a description of the actions that the legal owner took to return his property;
a request to verify the illegality of actions and bring them to justice according to the norms of the Criminal Code of the Russian Federation.

Note!
Each received application is subject to verification, the results of which will be notified to the applicant in writing. If the criminal offense is not confirmed, the applicant will be advised of other ways to protect interests.

If signs of a criminal act are established during the inspection, the owner will be recognized as a victim. Further investigation will be carried out by law enforcement agencies, and during the criminal case, property may be seized as evidence. At the end of the criminal process, it will be transferred to the rightful owner, and as part of a civil lawsuit, you can seek compensation for damages and lost profits.

If there are no signs of a criminal act, the statement of claim is sent to the court according to the general rules of the Code of Civil Procedure of the Russian Federation. Cases are heard in a court of general jurisdiction, and during the process, the disputed property may be seized. If the violator has already managed to register ownership of real estate, the entry in the state register of the Unified State Register of Real Estate is canceled, after which a similar right will again arise for the legal owner.

If damage is caused to property during the period of illegal possession, it is fully compensated at the expense of the culprit. To do this, a calculation of the losses incurred or expenses necessary to restore the previous state of objects, things or objects is submitted to the court. Its forced removal from someone else's possession will occur on the basis of a writ of execution through the bailiff service.

If you need the help of a lawyer in a case of misappropriation of someone else's property, contact our experienced lawyers for help.

What can be subject to appropriation?

As part of bringing to responsibility for any forms of theft, including misappropriation and embezzlement under Art. 160 of the Criminal Code of the Russian Federation, the following objects are considered as property:

money in rubles or other foreign currency;
things, objects and other material products;
real estate objects or rights to them;
securities, including in non-documentary form;
other types of property for which ownership belonged to another person.

The amount of funds appropriated, which will affect the division of responsibility for different parts of Art. 160 of the Criminal Code of the Russian Federation coincide with similar criteria for other types of theft. They are listed in the notes to Art. 158 of the Criminal Code of the Russian Federation. A large size must exceed 250 thousand rubles, and a particularly large one - 1 million rubles.

If a case of embezzlement of funds is being investigated, determining the amount of the stolen money will not be difficult. If the object of the theft were any things, objects or other material assets, their value will be determined during the investigation of the case by assigning various types of examinations.

If you are facing criminal prosecution for illegal retention of someone else's property, contact our lawyers who have extensive practice in handling such cases. Call us at the numbers listed on the website or ask your question online.