FAQ: Imposing a court fine with exemption from criminal liability

FAQ: Imposing a court fine with exemption from criminal liability

This material has been prepared in the form of answers from practicing lawyers to the most frequently asked questions about the possibility of releasing an accused person from criminal liability with the imposition of a court fine as a measure of a criminal law nature.

Publication date: 09/02/2019

Question: What is a court fine and in what case is it imposed on the person who committed the crime?

Lawyer's answer: First of all, you should understand that a judicial fine (Article 104.4 of the Criminal Code of the Russian Federation) and a fine (Article 46 of the Criminal Code of the Russian Federation) are different legal concepts.

A court fine is not a criminal punishment, but refers to other measures of a criminal legal nature. When a court fine is imposed, the person is released from criminal liability. A fine is applied to a person found guilty of committing a crime by a court verdict as a punishment and entails legal consequences in the appearance of a criminal record. When a court imposes a judicial fine, a person is considered not to have a criminal record.

A court fine in the form of the obligation to pay a sum of money established by the court in favor of the budget of the Russian Federation may be imposed on a person who has committed a crime of minor (maximum punishment - up to 3 years of imprisonment) or moderate (up to 5 years of imprisonment) crime for the first time, if it compensated for the damage or otherwise made amends for the harm caused by the crime.

Question: Can the accused be released from criminal liability with the imposition of a court fine if the crime did not cause property damage to anyone?

Lawyer's answer: Yes, it can. A judicial fine may be imposed by the court even if, as a result of the commission of a crime, no material damage was actually caused. For example:

• if the guilty person voluntarily returned the stolen property;
• if the crime was not completed by the accused;
• when the crime committed (according to the disposition of the article of criminal law charged to the accused) does not imply the occurrence of material consequences.

In the latter cases, in order to impose a judicial fine, the guilty person is obliged to take actions aimed at smoothing out the consequences of the crime committed, which will indicate a reduction in the degree of public danger of the unlawful act and/or neutralization of the harmful consequences of the crime. Methods of compensation for damage and making amends for the harm caused by a crime are not limited by law in any way, but they must be legal in nature and not infringe the rights of third parties. In each case, the type and amount of compensation measures must be determined individually by both the accused himself and his lawyer (defender).

The court, for its part, evaluates whether the measures taken by the culprit are sufficient to be released from criminal liability with the imposition of a court fine.

Question: If the accused does not have funds and sources of income, the court will not be able to impose a fine on him?

Lawyer's answer: No, that's not true. The law does not impose such restrictions. At the same time, when resolving the issue of the amount of the imposed judicial fine, the court pays attention to the property status of the guilty person, and also takes into account the possibility of the culprit receiving wages or other income to pay the judicial fine.

Sample petition for release from criminal liability with the imposition of a court fine

Question: How much is a court fine?

Lawyer's answer: The amount of the court fine cannot exceed half the maximum amount of the fine provided for by the article of the criminal law under which the accused is charged. If the incriminated article does not provide for punishment in the form of a fine, then the court fine should not exceed two hundred and fifty thousand rubles. The minimum amount of a judicial fine is not regulated by criminal law, which is why the court has the authority to assign minimum amounts of money.

Question: If the accused has committed several crimes of moderate gravity, can he be released from liability with a court fine?

Lawyer's answer: Yes, it can. The presence of such a possibility in the court is evidenced by the content of the paragraph “Review of judicial practice of exemption from criminal liability with the imposition of a judicial fine (Article 76.2 of the Criminal Code of the Russian Federation)”, approved by the Presidium of the Supreme Court of the Russian Federation on July 10, 2019.

Question: Can a court impose a judicial fine with exemption from liability if the victim in a criminal case or the prosecutor is against it?

Lawyer's answer: According to the current law, the consent of the victim to the application of the provisions on a judicial fine is not required. If the material damage to the injured party is compensated in full, the court may impose a judicial fine even if there are relevant objections. When considering the case, the court must find out the reasons why the victim objects to the termination of the criminal case with the imposition of a court fine, and also evaluate, at its discretion, the sufficiency of the measures taken by the culprit to compensate for the damage or make amends for the harm to the victim.

The consent of the prosecutor, who, by virtue of the requirements of the law, expresses his opinion on the legality and validity of releasing the accused from liability with the imposition of a court fine, is also not obligatory for the court.

Lawyer Pavel Domkin

Traffic police fines without a driver's license

• 12.3 (2): driving a car by a driver who does not have a license. Sanction: imposition of a fine of 500. A law enforcement officer identifies the driver using databases. If positive identification confirms the presence of a license to drive a vehicle, the driver can continue driving.
• 12.7 (1, 2): driving a vehicle in the absence of a license or driving a vehicle when deprived of a license. The sanction measure in the first case: a fine of up to 15,000 rubles, in the second - 30,000 (can be replaced by administrative arrest or correctional labor). Based on Art. 27.12 and art. 27.13 The car is temporarily withdrawn for evacuation to a special parking lot.

Purpose and application

The parties have the right to apply a contractual penalty under the Civil Code of the Russian Federation only if such a condition is clearly stated and defined in the agreement. In other cases, the provisions of the law on the extent of liability of the parties are fulfilled.

It is important to remember that in certain cases the size of the sanction is fixed at the legislative level, and the parties cannot reduce it by their own decision; they only have the right to increase it.

Such a strict fixation is established by the legislator as a measure of liability of a contract participant in the event of:

• failure to comply with the deadline for fulfilling consumer requirements by the seller - here penalties are applied for violation of the terms of the contract established by the “Law on the Protection of Consumer Rights”;
• failure by the insurer to comply with the conditions regarding the deadline for returning the insurance premium or part thereof to the policyholder under the law on compulsory motor liability insurance (Part 4, Article 16.1 of the Federal Law of April 25, 2002 No. 40-FZ).

Thus, to briefly answer the question, what is a contractual penalty (FC)? It is an effective tool for realizing the rights of the parties to the contract; it serves as a guarantee of the fulfillment of obligations. In case of their violation, if such a sanction is provided for in the contract, the party does not need to prove the losses incurred; it is enough to refer to a specific clause of the document. Therefore, the penalty is used in practice very often.

3.1. Penalty for the customer

The procedure for calculating penalties for the customer in case of delay in fulfilling the obligation stipulated by the contract is established by Part 5 of Article 34 of Law No. 44-FZ. The amount of the penalty is 1/300 of the key rate of the Central Bank of the Russian Federation in force on the date of payment of the penalty of the amount not paid on time. The penalty is accrued for each day of delay in fulfilling the obligation stipulated by the contract, starting from the day following the day of expiration of the deadline for fulfilling the obligation established by the contract. It should be noted that the amount of the penalty is not limited by the contract price.

Formula for calculating penalties for the customer:

2.1. Penalty for the supplier

The amount of the fine for the supplier is established by Part 7 of Article 34 of Law No. 44-FZ and is 1/300 of the key rate of the Central Bank of the Russian Federation in force on the date of payment. The penalty is calculated from the price of the contract (a separate stage of contract execution), reduced by an amount proportional to the volume of obligations stipulated by the contract (the corresponding stage of contract execution) and actually fulfilled by the supplier. The penalty is accrued for each day of delay in fulfilling the obligation, starting from the day following the day of expiration of the deadline for fulfilling the obligation established by the contract and including the day of actual fulfillment of the obligation by the supplier. In a letter from the Ministry of Finance of the Russian Federation dated April 13, 2016. No. 02-04-06/21780 states that the calculation of the penalty includes all calendar days “... regardless of the day off (holiday or non-holiday), the penalty is charged for each day of delay in the supplier’s fulfillment of the obligation provided for in the contract, starting from the day following the day of expiration the deadline for fulfilling the obligation established by the contract...". When the customer calculates the amount of the penalty accrued to the counterparty, the days required for the customer to accept the delivered goods, work performed or services rendered, and to formalize the results of such acceptance, are not taken into account, unless otherwise provided by the contract (see letter of the Ministry of Finance of the Russian Federation dated March 16, 2020 No. 24-03 -07/19771). It should be noted that the amount of the penalty is not limited by the contract price.

Formula for calculating penalties for a supplier:

Traffic police fines without a car number

The image shows a car without a license plate

• 12.1: violation of the deadlines (10 days from the date of purchase) allotted for registering a car with obtaining license plates. Punishment: from 500 to 800 rubles. In case of repeated violation, the amount increases to 3 thousand rubles, or the vehicle driving license may be confiscated for a period of up to three months.
• 12.2: lack of state registration numbers of the vehicle. Both numbers or one number may be missing. The imposition of material sanctions in the amount of 5,000 is provided.

Traffic police fine for continuous

• 12.15 (4): driving into the oncoming lane or crossing a solid line - up to 5,000 rubles. or temporary withdrawal of rights for up to six months. The decision on choosing a preventive measure is made by the judicial authority.
• 12.15 (5): repeated violation provided for in Article 12.15 (4) - by a court decision, deprivation of rights is imposed for a period of 12 months if the violation is recorded by a law enforcement officer (if recorded using an automatic camera - 5,000 rubles).
• 12.16 (2): crossing a solid road when performing a maneuver involving a U-turn or a left turn - up to 1500.

Important! When performing a maneuver on the road that involves overtaking, crossing a solid lane is allowed if overtaking began before the corresponding markings began. Crossing is also allowed if otherwise may pose a real threat to human life and health (including avoiding a collision).

How to draw up a claim and submit it to court

Rules for filing a claim for a penalty:

• it is necessary to calculate the amount of the sanction;
• if there is a condition on a mandatory preliminary claim procedure, fulfill it;
• Having received a refusal or not receiving a response, go to court in compliance with the rules of jurisdiction and jurisdiction;
• To do this, it is necessary to formulate a statement of claim in accordance with the requirements of the relevant procedural regulatory documents, pay the state fee and collect the evidence base.

Read more: “Statement of claim for recovery of unjust enrichment”

The procedure for collecting penalties from the supplier

The customer can recover a penalty from the supplier in 4 ways:

1. Withhold from contract performance security if the corresponding security is transferred in cash.
2. Withhold from the amount due to the supplier for payment under the contract.
3. The supplier may voluntarily transfer the penalty to the customer's account.
4. Collect in court.

It should be noted that the withholding of a penalty from the amount of contract security or the amount of payment under the contract should be qualified as one of the methods of terminating obligations - offsetting counter-similar claims (in accordance with Article 410 of the Civil Code of the Russian Federation). Set-off in the cases under consideration will undoubtedly be legal if the counterparty recognizes such a debt or if the possibility of appropriate deduction is provided for in the contract between the customer and the supplier.

These findings are consistent with the position of regulatory and control authorities. The Ministry of Finance of Russia and the Federal Treasury in a joint letter dated December 25, 2014 N 02-02-04/67438, 42-7.4-05/5.1-805 indicate that partial or full withholding of the security amount is carried out in accordance with the terms of the contract. This position is supported by the FAS Russia in a letter dated December 10, 2015 N ATs/70978/15: “...In the opinion of the FAS Russia, the inclusion in the draft contract of a condition that in the event of non-fulfillment or improper fulfillment of the obligation provided for in the contract, the customer has the right to make payment according to contract minus the appropriate amount of the penalty (fine, penalty), does not contradict the requirements of the Law on the Contract System.” Also, the Ministry of Finance of Russia, in letter dated November 2, 2020 N 24-03-08/95446, indicates: “... the customer has the right to make payment under the contract minus the appropriate amount of the penalty (fine, penalty) or has the right to return the contract security, reduced by the amount of accrued fines, pennies..."

Penalties cannot be withheld from a bank guarantee. Letters from the Ministry of Finance of Russia dated 09/14/2020 N 24-05-08/80942, dated 10/02/2020 N 24-03-08/86257 indicate: “Thus, based on the above, the penalty cannot be paid using bank guarantee funds, so as a minor obligation under a contract, the performance of which is secured by a bank guarantee...”