1. Arbitrariness, that is, unauthorized, contrary to the procedure established by law or other normative 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, -
shall be punishable by a fine in the amount of up to eighty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to six months, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by arrest for a term of up to six months.
2. The same act, committed with the use of violence or with the threat of its use, -
shall be punishable by forced labor for a term of up to five years, or arrest for a term of up to six months, or imprisonment for a term of up to five years.
Commentary to Art. 330 of the Criminal Code of the Russian Federation
1. The social danger of a crime lies in the fact that it violates the established procedure for citizens to exercise their rights and causes significant harm to the legitimate rights and interests of citizens or organizations.
2. The objective side of the crime is the unauthorized commission of any actions, contrary to the established procedure, the legality of which is disputed by an organization or a citizen. These are always active actions. They are committed contrary to the procedure established by law or other regulatory legal act (resolution of the Government of the Russian Federation, regulatory act of a local government body, etc.). Only such actions are carried out arbitrarily, the legality of which is disputed by an organization or a citizen, and not only those related to the person’s exercise of his actual or perceived right. Actions can be challenged through judicial, administrative or disciplinary procedures. This is possible both at the time of committing arbitrary actions and after they have been committed.
The corpus delicti is formulated as material. A mandatory feature is a consequence in the form of causing significant harm. Harm can be caused to citizens or organizations, it can be expressed in material damage, moral harm, violation of citizens' rights, etc. The significance of the harm is assessed by the court at the time of the arbitrary actions.
N. was convicted under Part 1 of Art. 330 of the Criminal Code of the Russian Federation. Significant harm, as the court recognized, was expressed in the fact that N. provided loans to himself and his employees in violation of the established rules, paid for a trip to a sanatorium for his wife, thereby causing damage in the amount of 34 thousand rubles, thereby damaging his business reputation organizations. The Presidium of the Lipetsk Regional Court, considering the case on the protest, established on the basis of witness testimony that the amount of 34 thousand rubles. for the closed joint-stock company NPF "Russian Seeds", where N. worked, is small, and the company's reputation suffered as a result of other circumstances. The case was dismissed for lack of evidence of a crime. ——————————— BVS of the Russian Federation. 2003. N 6. P. 16; see also: BVS RF. 2008. N 10. P. 14.
A causal connection must be established between the significant harm that has occurred and arbitrary actions. ——————————— BVS of the Russian Federation. 2003. N 5. P. 13 - 14.
3. The subject of the crime is a sane individual who has reached the age of 16. If arbitrary actions are committed by an official or an employee of private security or detective services, their actions should be qualified under Art. Art. 285, 286, 201 or 203 of the Criminal Code of the Russian Federation.
4. The subjective side of the crime is characterized by an intentional form of guilt. The person is aware of the social danger of arbitrary actions, realizes that he is acting contrary to the law or other legal act, i.e. arbitrarily commits actions that are disputed by another person or organization, foresees the possibility or inevitability of significant harm and desires or consciously allows such harm to occur or is indifferent to its occurrence.
5. Part 2 of the commented article names qualifying criteria - the use of violence or the threat of its use (see commentary to Article 318). Causing death as a result of arbitrary actions requires additional qualification under articles on crimes against life or health.
6. Some arbitrary actions constitute independent criminal offenses, for example, those provided for in Art. Art. 137, 139, 140, 166, 260 of the Criminal Code of the Russian Federation.
7. The crime in question should be distinguished from an administrative offense (Article 19.1 of the Administrative Code) based on the absence of significant harm, the use of violence or the threat of its use.
SUPREME COURT OF THE RUSSIAN FEDERATION
DEFINITION
dated January 30, 2006
Case No. 20-D05-15
The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, consisting of:
presiding Pelevin N.P.,
judges Podminogina V.N.,
Kumenkova A.V.
considered at a court hearing the complaint of convicted G. to review the verdict of the federal court of the Sovetsky district of Makhachkala dated March 3, 2004.
By the verdict of the magistrate of judicial district No. 13 of the Sovetsky district of Makhachkala on February 3, 2003
G., <...>, unconvicted, -
acquitted under Part 1 of Art. 330 of the Criminal Code of the Russian Federation for lack of corpus delicti.
By the verdict of the federal court of the Sovetsky district of Makhachkala on March 3, 2004, the above sentence was overturned and G. was convicted under Art. 330 part 1 of the Criminal Code of the Russian Federation to a fine in the amount of 2500 rubles.
The case was not considered in cassation.
By the decision of the judge of the Supreme Court of the Republic of Dagestan dated October 21, 2004, with which the acting agreed. Chairman of the Supreme Court of the Republic of Dagestan, the supervisory appeal of the convicted G. was denied.
By a resolution of the judge of the Supreme Court of the Russian Federation dated June 8, 2005, supervisory proceedings were initiated to review the verdict of the Sovetsky District Court of Makhachkala dated March 3, 2004, and the supervisory complaint of the convicted G. was submitted for consideration to the Presidium of the Supreme Court of the Republic of Dagestan.
By the decision of the Presidium of the Supreme Court of the Republic of Dagestan dated July 7, 2005, the supervisory appeal of the convicted G. was left unsatisfied.
In the supervisory complaint, G. requests a review of the sentence of March 3, 2004, with the termination of the proceedings for lack of evidence of a crime. G. claims that her family lives in one of the rooms of the apartment, I. in another room, and A in the third. In common use there is a kitchen, toilet, bathroom and a common corridor. I. purchased a third room from A. in 2001 and immediately built a passage to the common areas. In addition, by agreement with her, I built a partition in the common corridor and captured a part of the corridor with an area of 9 square meters. m, making yourself a hallway. When I. was doing renovations in the rooms, she brought her old things, which were of no value, into the common area adjacent to our apartment No. 17. When she invited I. to pick up her things after the renovation, the latter refused. All this is confirmed by witnesses. The convict believes that her actions did not cause significant harm to I. and her actions did not constitute a crime.
Having heard the report of Judge V.N. Podminogin, the opinion of prosecutor R.D. Zueva, who believed that the court verdict should be overturned and the case should be terminated, the Judicial Collegium
installed:
G. was convicted of the fact that on March 25, 2002, she arbitrarily, contrary to the procedure established by law, took away the personal property of Ms. I. from the common rooms for <...> and subsequently, replacing the front door of this apartment, deprived gr. I. the opportunity to use the common rooms in the above-mentioned apartment, thereby arbitrarily seizing a usable area measuring 8.2 square meters. m, causing I. significant harm.
Having checked the materials of the criminal case and discussed the arguments of the supervisory complaint, the Judicial Collegium finds that the court decisions taken are subject to cancellation on the following grounds.
Disposition part 1 art. 330 of the Criminal Code of the Russian Federation, as a mandatory sign of the presence of corpus delicti, provides for causing significant harm.
Meanwhile, the existence of significant harm in the present case has not been confirmed by sufficient evidence.
As can be seen from the verdict, G.’s arbitrariness was expressed in the fact that she removed I.’s personal property from the common premises and, by replacing the front door in the apartment, deprived I. of the opportunity to use the common premises, i.e. arbitrarily seized an area measuring 8.2 square meters. m.
However, in the case materials there is testimony from I. that after she purchased the room, she blocked the door of the room leading to the common area, connecting the room with her apartment No. 18. She did not use the common area, because she has all the individual conditions in apartment no. 18, but sometimes she came in for her own needs.
These testimony of I. are consistent with the data that I., having blocked the door of the room belonging to her from the common areas in the apartment. No. 17, actually fenced herself off from the indicated premises, and left her used things in the common areas in the apartment. N 17.
From G.’s testimony it is clear that due to the need to carry out repairs in the apartment, including in common areas, she repeatedly turned to I. to take out her things, but she refused to do so.
From I.’s explanations and testimony it follows that G. came to her and asked her to take things out, because is going to do repairs, but she refused. Then she discovered that the convict had taken her things into the common corridor, after which she called the police.
Thus, the evidence available in the case established that G. committed actions that formally contain signs of arbitrariness, but due to their insignificance do not pose a public danger, because her actions did not cause significant harm to the victim I. Therefore, by virtue of Art. 24 part 1 clause 2 of the Code of Criminal Procedure of the Russian Federation, the court’s verdict is subject to cancellation due to the lack of corpus delicti in G.’s actions.
Based on the above, guided by art. Art. 407, 408 - 410 Code of Criminal Procedure of the Russian Federation, Judicial Collegium
determined:
1. To satisfy the supervisory complaint of convicted G.
2. The verdict of the federal court of the Sovetsky district of Makhachkala dated March 3, 2004 and the resolution of the Presidium of the Supreme Court of the Republic of Dagestan dated July 7, 2005 in relation to G. are cancelled, the case is terminated due to the absence of corpus delicti in her actions in accordance with Art. 24 part 1 clause 2 of the Code of Criminal Procedure of the Russian Federation.
Presiding
N.P.PELEVIN
Judges:
V.N.PODMINOGIN
A.V.KUMENKOV
Judicial practice: sentences and punishment under Art. 330 of the Criminal Code of the Russian Federation
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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.
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?
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.
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.
