Registration of obviously illegal transactions with real estate, deliberate distortion of information from the state real estate cadastre and (or) the Unified State Register of Rights to Real Estate and Transactions with It, as well as understatement of the cadastral value of real estate, if these acts were committed out of selfish or other personal interest by an official using his official position, -
shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by compulsory labor for a term up to three hundred and sixty hours with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
- Article 169. Obstruction of legal business or other activities
- Article 170.1. Falsification of the unified state register of legal entities, the register of securities owners or the depository accounting system
Commentary to Art. 170 of the Criminal Code of the Russian Federation
The article under comment provides for three independent elements of crime, which differ from each other by objective characteristics.
The object of the first crime is the established procedure for state registration of land transactions.
Rights of possession, use and disposal, as well as other real rights to land arise on the grounds established by civil and land legislation, and are subject to state registration in accordance with the Civil Code of the Russian Federation (Articles 131, 164) and the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it.”
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RG. 1997. July 30.
Transactions with land are a type of civil law transactions, which, in accordance with Art. 153 of the Civil Code of the Russian Federation recognizes the actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations (for example, the right of lifelong inheritable ownership of a land plot (Article 265 of the Civil Code of the Russian Federation), the right of permanent (indefinite) use of a land plot (Article 268 Civil Code of the Russian Federation), right of limited use of someone else's land plot (easement) (Article 274 of the Civil Code of the Russian Federation), pledge (Article 334 of the Civil Code of the Russian Federation), purchase and sale (Article 454 of the Civil Code of the Russian Federation), exchange (Article 567 of the Civil Code of the Russian Federation), donation (Article 572 of the Civil Code of the Russian Federation), rent (Article 606 of the Civil Code of the Russian Federation)).
The objective side of the crime is expressed in action - registration of obviously illegal land transactions.
State registration of rights is a legal act of recognition and confirmation by the state of the emergence, limitation (encumbrance), transfer or termination of rights to real estate in accordance with the Civil Code of the Russian Federation. This document is the only evidence of the existence of a registered right, which can only be challenged in court.
Registration actions begin from the moment of receipt of documents necessary for state registration of rights and meeting the relevant requirements. This procedure is then carried out in the following sequence:
— registration of such documents with the obligatory attachment of a document confirming payment of the state duty;
— their legal expertise and verification of the legality of the transaction;
— establishing the absence of contradictions between the declared and already registered rights to a given real estate object, as well as other grounds for refusal or suspension of state registration of rights;
— making entries in the Unified State Register of Rights to Real Estate in the absence of these contradictions and other grounds for refusal or suspension of state registration of rights;
— making inscriptions on title documents and issuing certificates of state registration of rights.
The transaction is considered registered, and the legal consequences are considered to occur from the day an entry about the transaction or right is made in the Unified State Register of Rights.
In accordance with Art. 129 of the Civil Code of the Russian Federation, land and other natural resources may be alienated or transferred from one person to another by other means to the extent that their circulation is permitted by the laws on land and other natural resources.
Therefore, a land transaction is considered illegal if it is made in violation of the provisions of civil and land legislation. For example, land plots classified as lands withdrawn from circulation cannot be provided for private ownership, nor can they be the objects of transactions provided for by civil legislation (Article 27 of the Land Code of the Russian Federation (LLC RF)).
Features of the turnover of agricultural land are regulated by Federal Law of July 24, 2002 N 101-FZ “On the turnover of agricultural land”. For example, land plots from agricultural lands, which are in state or municipal ownership, are provided to citizens and legal entities in ownership at auctions (competitions, auctions) (Article 10 of the said Law).
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RG. 2002. July 27.
In addition, in all cases, void or voidable transactions should be considered illegal. For example, transactions are considered void: those that do not comply with the law or other legal acts (Article 168 of the Civil Code of the Russian Federation); contrary to the fundamentals of law and order and morality (Article 169 of the Civil Code of the Russian Federation); imaginary and feigned (Article 170 of the Civil Code of the Russian Federation); prisoners with incompetent (Article 171 of the Civil Code of the Russian Federation) persons or persons under fourteen years of age (Article 172 of the Civil Code of the Russian Federation). These transactions are invalid regardless of whether they are recognized as such by the court.
In contrast, voidable transactions are invalid due to the presence of a judicial act (Article 166 of the Civil Code of the Russian Federation). These should include transactions made: by a person outside the scope of his powers (Article 174 of the Civil Code of the Russian Federation); minors aged from fourteen to eighteen years (Article 175 of the Civil Code of the Russian Federation); persons limited by the court in legal capacity (Article 176 of the Civil Code of the Russian Federation) and unable to understand the meaning of their actions or manage them (Article 177 of the Civil Code of the Russian Federation); under the influence of delusion (Article 178 of the Civil Code of the Russian Federation) or deception, threat, violence, malicious agreement between a representative of one party and the other party or a confluence of difficult circumstances (Article 179 of the Civil Code of the Russian Federation), etc.
The act is completed at the moment an entry about an illegal transaction is made in the Unified State Register of Rights to Real Estate and Transactions with It. The corpus delicti is formal.
The object of the second crime is the established procedure for maintaining the state land cadastre.
Land plots located on the territory of the Russian Federation, regardless of the form of land ownership, their intended purpose and permitted use, are subject to state cadastral registration. According to the Federal Law of January 2, 2000 N 28-FZ “On the State Land Cadastre”, the state land cadastre is a systematized set of documented information obtained as a result of state cadastral registration of land plots on the location, intended purpose and legal status of the lands of the Russian Federation and information about territorial zones and the presence of objects located on land plots and firmly connected with these land plots.
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RG. 2000. 10 Jan.
Documents of the state land cadastre are divided into main, auxiliary and derivative. Auxiliary ones include books of records of documents and issued information, catalogs of coordinates of points of the reference boundary network. Derivatives - documents containing lists of lands owned by the Russian Federation, property of constituent entities of the Russian Federation, property of municipalities, reports on the state and use of land resources, statistical reports, analytical reviews, derivative cadastral maps (plans), other reference and analytical documents.
Registration data of the state land cadastre are contained only in basic documents, which include the Unified State Register of Lands (intended for conducting state cadastral registration of land plots and containing information about existing and ceased to exist land plots), cadastral files (a set of documents compiled in the prescribed manner confirming the fact of the emergence or termination of the existence of a land plot as an object of state cadastral registration) and cadastral maps (plans) (a map (plan) on which the information contained in the state land cadastre is reproduced in graphic and text forms).
The procedure for maintaining the state land cadastre is carried out according to a unified methodology and represents sequential actions for collecting, documenting, accumulating, processing, recording and storing information about land plots. This procedure is regulated by Federal Law No. 28-FZ of January 2, 2000 “On the State Land Cadastre” and other regulations (for example, Decree of the Government of the Russian Federation of September 6, 2000 No. 660 “On approval of the Rules for the cadastral division of the territory of the Russian Federation and the Rules assignment of cadastral numbers to land plots").
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RG. 2000. 19 Sep.
The objective side of the crime is expressed in action - distortion of registration data of the state land cadastre.
Distortion means the entry into the main documents of the state land cadastre of accounting information that does not correspond to reality. For example, the boundaries of a land plot, its intended purpose or legal status have been changed.
The form of the documents in which such distortions are made does not matter. This can be both paper and electronic media.
The act is completed at the moment of introducing distortions into the registration data of the state land cadastre. The corpus delicti is formal.
Distortion of registration data of the state land cadastre is a type of official forgery and does not require additional compliance with Art. 292 of the Criminal Code of the Russian Federation.
The object of the third crime is the established procedure for determining the amount of payments for land.
In accordance with the Land Code of the Russian Federation, the use of land is carried out on a paid basis (Article 65). The forms of payment are land tax (before the implementation of the real estate tax), rent and the standard price of land.
The procedure for calculating and paying land tax is established by the legislation of the Russian Federation on taxes and fees. According to Art. 388 of the Tax Code of the Russian Federation (Tax Code of the Russian Federation), taxpayers of this payment are organizations and individuals who own land plots on the right of ownership, the right of permanent (perpetual) use or the right of lifelong inheritable possession. The object of taxation is land plots located within the municipality (federal cities of Moscow and St. Petersburg), on the territory of which the tax was introduced (Article 389 of the Tax Code of the Russian Federation).
The tax base for a taxpayer - an individual (with the exception of an individual entrepreneur) is determined by officials of tax authorities on the basis of information provided to them by organizations maintaining the state land cadastre, registration of rights to real estate and transactions with it, as well as municipal entities. In all other cases, the tax base is calculated by the taxpayer himself - an organization and an individual entrepreneur (Article 391 of the Tax Code of the Russian Federation).
Consequently, this crime can only be committed in relation to land tax, the taxpayer of which is individuals who do not have the status of an individual entrepreneur.
Rent is charged for lands leased. The order in which it is determined depends on who owns it. If the land is in state or municipal ownership, then the amount of rent is established by the Government of the Russian Federation, state authorities of the constituent entities of the Russian Federation and local governments, if it is privately owned - by the land lease agreement (Article 65 of the Land Code of the Russian Federation).
Therefore, underestimation of land rent can be carried out by officials only in relation to land plots owned by the Russian Federation, constituent entities of the Russian Federation and municipalities.
When calculating land tax, it is necessary to determine the cadastral value of the land plot, for which a state cadastral valuation of land is carried out. The procedure for its implementation is established by Decree of the Government of the Russian Federation of April 8, 2000 N 316 “On approval of the Rules for conducting state cadastral valuation of land.”
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RG. 2000. April 17
In accordance with paragraph 13 of Art. 3 of the Federal Law of October 25, 2001 N 137-FZ “On the implementation of the Land Code of the Russian Federation” for the purposes specified in Art. 65 of the Land Code of the Russian Federation, the standard price of land is applied if its cadastral value has not been determined. In accordance with the Law of the Russian Federation of October 11, 1991 N 1738-1 “On Payment for Land,” the standard price of land is an indicator characterizing the cost of a plot of a certain quality and location based on the potential income for the estimated payback period. The procedure for its calculation is provided by the Government of the Russian Federation.
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RG. 2001. 30 Oct.
RG. 1991. 30 Oct.
Decree of the Government of the Russian Federation of March 15, 1997 N 319 “On the procedure for determining the standard price of land” // RG. 1997. April 2
The objective side of the crime is expressed in action - understating the amount of payments for land.
Understatement refers to a reduction in payments for land in violation of current legislation. For example, when calculating land tax, tax benefits are unreasonably used.
The actions of officials who deliberately assisted taxpayers (organizations and individual entrepreneurs) in understating the amount of land tax must be qualified as complicity in evading taxes and (or) fees from an individual or organization (Articles 198, 199 of the Criminal Code of the Russian Federation).
The crime is over at the moment of understating the amount of payments for the land. It does not matter for qualification whether they were actually paid or not. The corpus delicti is formal.
The common features of the crimes provided for in the commented article are the subjective side and the subject of the act.
The subjective side is characterized by guilt in the form of direct intent. The official realizes that, using his official position, he commits one of the specified actions, and desires this.
Mandatory signs of the subjective side are also motives - selfish or other personal interest. Selfish interest is the extraction of property benefits or getting rid of material costs for yourself and your loved ones.
Other personal interests may be expressed in the desire to benefit from a non-property nature, caused by such motives as careerism, protectionism, nepotism, the desire to embellish the actual situation, receive a mutual favor, enlist support in resolving any issue, hide one’s incompetence, etc. .
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See: paragraph 17 of the Resolution of the Plenum of the Supreme Court of the USSR of March 30, 1990 No. 4 “On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and forgery” // Collection of resolutions of the Plenums of the Supreme Court Russian Federation (USSR, RSFSR) in criminal cases. M., 2001. S. 298 - 302.
The acts specified in the disposition of Art. 170 of the Criminal Code of the Russian Federation, associated with the receipt of a bribe, must be qualified in conjunction with Art. 290 of the Criminal Code of the Russian Federation.
A special subject of a crime is an official using his official position who has reached the age of sixteen (see the note to Article 285 of the Criminal Code of the Russian Federation and the commentary thereto). As a rule, these are employees of state or municipal bodies who register rights to real estate and transactions with them, maintain the state land cadastre, and calculate the amount of payments for land.
Judicial practice under Article 170 of the Criminal Code of the Russian Federation
Ruling of the Constitutional Court of the Russian Federation dated October 24, 2019 N 2725-O
1. By the decision of the court, left unchanged by the court of appeal, the claim of citizen S.V. was partially satisfied. Posokhov to the Ministry of Finance of the Russian Federation for compensation for moral damages for illegal prosecution under paragraph “b” of part three of Article 188 of the Criminal Code of the Russian Federation, illegal use of criminal procedural coercive measures, violation of the inviolability of home and private life, as well as the right to a good name . The same decision rejected similar demands related to criminal prosecution under Part One of Article 170 of the Criminal Code of the RSFSR and Part One of Article 194 of the Criminal Code of the Russian Federation, since the proceedings in the relevant criminal case were terminated by the court on January 31, 2002 due to the expiration of the statute of limitations criminal prosecution. In the transfer of cassation complaints S.V. Posokhov's request for these court decisions to be considered in a court session by the cassation court was refused.
Judicial practice: sentences and punishment under Art. 170.2 of the Criminal Code of the Russian Federation
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