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.

What is unlawful detainment of property

According to Ozhegov’s explanatory dictionary, to retain means to preserve, to save, not to let go, not to give away, not to allow something to be revealed.
Illegal retention is the retention of a thing contrary to the law, without any reason. Thus, the retention may be legal or illegal. If you simply take an item from the owner and do not give it back, it is illegal. An example of a legal lien would be a lien in civil law. The creditor legally holds the property of the debtor until the latter pays his debt for this thing or debt. A striking example of such a technique would be the landlord’s actions of not returning the tenant’s belongings due to the latter’s rent arrears.

How to distinguish illegal retention of someone else's property from legal one?

The measures will be legal if the thing is in the possession of the person holding it on legal grounds (in accordance with the contract or by virtue of the law).
To recognize retention actions as legal, there must be a debt or obligation on the part of the owner of the thing to the one who is retaining it.

However, in any case, it is important to remember that the line between legal retention actions and an offense is quite thin. Therefore, you need to be confident in the legality of your actions so as not to become involved in a criminal case. We’ll talk about how to distinguish legal from illegal retention below.

Procedure for bringing to responsibility

Regardless of whether your property was confiscated through arbitrariness or misappropriation, you must contact law enforcement authorities as quickly as possible. This is the only way you can fully defend your legal rights. After you write a statement to the police about the misappropriation of property, the investigator or district police officer is obliged to react and help you. If this is beyond their competence, you will be sent to court. If your application is accepted, you will receive a notification with a court date within 30 days.

Judicial proceedings require payment of a state fee. Without a receipt for payment, the judge will not consider the application. The amount of the state duty depends on the value of the disputed property. In your appeal, you can indicate your desire to recover from the culprit the cost of the state fee to satisfy the claim.

The judge will be on the side of the applicant if he can provide evidence of ownership of the thing, for example, a purchase and sale agreement if we are talking about real estate, a vehicle passport if a car is disputed or, for example, a deed of gift. Depending on the circumstances of the case, the judge may order the culprit to return the disputed item to the applicant and pay a fine, forced labor, or specify another punishment. Sometimes a crime can be reclassified as an administrative violation and the court will impose a fine of up to 500 rubles on the perpetrator and limit it to a warning.

After the judge makes a decision, the perpetrator must fulfill the assigned punishment and return the item to the owner safe and sound. If the subject of the dispute was damaged, then the culprit must compensate for its value in monetary terms.

You can become not only a victim of arbitrariness, but also its subject. Sometimes, due to ignorance of the laws, a person commits rash acts, after which he is accused of appropriation of property or arbitrariness. To prevent this from happening, try to discuss in advance with the owner the nuances of using his property, preferably in front of witnesses, or draw up an agreement that clearly states the terms and responsibilities of the parties. This is the only way you can protect yourself from unfounded accusations, as well as protect your property from dishonest people.

Legislation on unlawful detainment of someone else's property

There is no separate provision of law containing the offense of unlawfully retaining someone else’s property and the punishment for this. However, actions to delay a thing and prevent access to it by the rightful owner appear in different legislative acts in different guises.

Such actions can be classified as a crime according to the provisions of the Criminal Code (Article 330 - arbitrariness, Art. 160 - misappropriation and embezzlement).
Such actions can be regarded as an administrative offense according to the norms of the Code of Administrative Offenses of the Russian Federation (Article 19.1).
Civil legislation aims not to punish, but to return, and therefore contains rules that allow you to claim your property from someone else’s illegal possession (Article 301 of the Civil Code of the Russian Federation).
Judicial practice concerning the consideration of certain offenses in the form of retention of someone else's property is systematized in the resolution of the plenum of the Supreme Court “On judicial practice in cases of fraud, misappropriation and embezzlement” dated December 27, 2007 No. 51.

Differences in punishment

Since Articles 158 and 160 of the Criminal Code of the Russian Federation both talk about types of non-violent theft, responsibility for acts (qualified and without qualifying features) is largely similar. However, of course, there are differences.

Both articles contain four parts: the first – unqualified composition, the next – with qualifying characteristics. In all parts, these articles of the Criminal Code of the Russian Federation provide for sanctions of identical duration in the form of imprisonment, forced labor or restriction of freedom.

Part 1 of Article 158 also specifies a sanction in the form of arrest for up to four months, which is not included in Part 1 of Art. 160. In parts 1 and 2 of Art. 160 provides for a larger fine than in the same parts of Article 158. Theft, on the contrary, requires a longer period of compulsory and correctional labor.

In Part 3, both articles provide for similar sanctions in the form of deprivation and restriction of freedom, forced labor. However, due to the specifics of Article 160, it also provides for such a measure as a ban on holding certain positions or engaging in certain activities for a period of up to 5 years. Also in this article the fine is less than in Article 158.

In Part 4, both articles contain completely identical qualifying criteria. The sanctions are also almost identical.

Illegal retention of someone else's property as a crime and administrative offense

The Criminal Code contains 2 offenses that can be classified as illegal retention of someone else's property.

Misappropriation (Article 160 of the Criminal Code of the Russian Federation) is characterized as free, illegal conversion by a criminal of material goods entrusted to him for his own benefit, committed for selfish interests, without the owner’s order to do so. Thus, in order for the retention of someone else’s property to qualify as misappropriation, the following signs must be present:
there is self-interest in the actions of the detainee;
there are no instructions from the owner of the thing to conceal it.
Arbitrariness (Article 330 of the Criminal Code of the Russian Federation) is the willful commission of any actions that are contrary to the established norms of the law or other legislative acts, the legality of which is questioned by an organization or citizen, if such behavior has caused significant harm. The most striking and common example of such a crime is the obstruction of one co-owner from another from living on the property, contrary to a court decision or available documents.

Of course, for such actions to be qualified under the Criminal Code, the consequences must be significant. But whether the harm is significant is determined in each specific case individually. The law does not clearly define substantial harm.

Arbitrariness within the framework of administrative legislation (Article 19.1 of the Code of Administrative Offenses of the Russian Federation) is defined almost identically to the concept from criminal law, but with one significant difference. If the above actions did not cause significant harm to the injured party, then the committed action is classified not as a crime, but as an administrative violation, the punishment for which is much milder.

How to distinguish embezzlement from embezzlement or theft

There are several options for stealing someone else's property. For example: theft, robbery, fraud, etc. Important differences between them:

According to Article 160 of the Criminal Code of the Russian Federation, misappropriation of property is considered to be actions with those things that their owner gave to the offender voluntarily;
Theft is the illegal appropriation of property without the permission and knowledge of the copyright holder;
Robbery – seizure of property under threat of violence or the use of weapons;
Robbery is a direct attack on the owner of property with the aim of taking this property;
Fraud is the taking of the victim’s belongings through deception, but without the use of violence.

In addition to the norms of the Criminal Code, when considering specific court cases, the explanation of the Supreme Court No. 51 can be used, which also examines the differences between these types of appropriation of someone else's property.

When considering a specific case, the court will determine:

Whether there were legal grounds for the use of the property on the part of the accused;
Did he use violence, deception or threats to obtain property;
Whether the retention of property was a violation of the law;
Did the accused have selfish motives?

Selling someone else's property or spending his money on his own needs (including the consumption of his food) is considered embezzlement and also falls under Article No. 160 of the Criminal Code of the Russian Federation.

Responsibility for a crime and misdemeanor for retaining someone else's property

The punishment for appropriation of someone else's property may be as follows:

a fine of up to 120,000 rubles;
compulsory work up to 240 hours;
correctional labor for up to six months;
restriction of freedom, forced labor or imprisonment - up to 2 years.

Aggravating circumstances are:

commission of a crime by several previously agreed persons, with damage exceeding 2,500 rubles;
abuse of official position, with damage exceeding 250,000 rubles;
the crime was committed by a group, damage in the amount of more than 1,000,000 rubles.

The punishment in these cases will be as follows:

Fine - up to 500,000 rubles or the perpetrator’s earnings for a period of up to 3 years, depending on the severity of the violation.
Mandatory work lasting up to 360 hours.
Correctional labor for up to a year.
Forced labor for a period of up to 5 years with possible restriction of freedom from 1 to 1.5 years.
Imprisonment for a term of 5, 6 and 10 years, proportional to the severity of the act committed, with an additional penalty in the form of restriction of freedom for up to 1, 1.5 and 2 years, respectively, and a fine of 10,000 rubles.

Arbitrariness under criminal law is punishable by:

a fine of up to 80,000 rubles or in the amount of the offender’s income for six months; or
compulsory work no more than 480 hours; or
correctional labor for no more than 2 years; or
arrest for a period of not more than 6 months.

If a similar act was combined with violence or threats to use it, the sanctions are increased to 5 years of forced labor, or up to six months of arrest, or up to 5 years in prison.

As an administrative offense, arbitrariness, i.e., retention of someone else's property (Article 19.1 of the Administrative Code), is punishable by a warning or a fine in the amount of 100 to 300 rubles for citizens and from 300 to 500 rubles for officials.

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.

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.

When property is considered legally retained

It is possible to retain an item if the debtor has violated an obligation, for example, failed to pay for the item within the period established by the contract. There are no restrictions for relationships that arise from entrepreneurship; you can use this measure of security for any obligations.

The conditions for legal retention are as follows:

The thing must belong to the debtor.
The creditor must take legal possession of the item, for example, if a contractor repaired a car and the customer does not pay for the repairs. Another example is that the tenant does not pay rent and has not removed things from the apartment.
The right of lien must be provided for by law or contract.
The creditor must retain the retained item and does not have the right to dispose of it.

If the retention is illegal, then the debtor can claim the thing through the court and recover damages.

Errors in delimitation

One of the important questions when qualifying: can an official who is entrusted with certain material assets for certain purposes commit theft?

If he commits theft in the same way as any other subject (without special signs) could commit it, then it will be regarded as theft. For example, a cattleman breaks into a locked animal pen at night on his day off and steals sheep from there.

It is also important to avoid mistakes in classifying the act in cases where the criminal has access to property due to the nature of his work, but the property is not entrusted to him. This is mentioned in the BC Bulletin 1997.No.4. C.4

For example, a driver breaks into a sealed container with cargo and commits theft. This is theft. If we are talking about a forwarder, to whom this cargo was entrusted and authorized to accept the cargo, transport it, submit it for reporting, and such a person steals property, then this is already regarded as misappropriation.

As we can see, the contents of Articles 158 and 160, although both describe types of theft, are very different from each other: in terms of the subject, the subject of the theft, and the objective side of the act. The differences are most often obvious, but quite complex cases are also possible, where for the correct qualification it is necessary to carefully consider all the details of the crime.

Bailiffs do not have the right to the family's subsistence level (Perezaliv)

Sample statement to the police about neighbors making noise at night? If the lender has all the necessary documents, then such actions will be absolutely legal. The criminal act of illegal appropriation of someone else’s real estate is characterized by the following aspects:

The property was temporarily transferred to a third party for safekeeping.
The opponent receives benefit and profit from the fact that he holds other people’s material assets.
When an attacker provides material benefits to his counterparties, he does not indicate that he is not the actual owner of the assets.