Art. 165 of the Criminal Code with commentary, judicial practice
Property rights of Russian citizens are protected by law. Any encroachment by other persons on them is considered as a gross violation and is punished properly. A particular case of such a crime is the circumstances described in Art. 165 of the Criminal Code.
The essence of the problem
Every citizen has the legal right to dispose of the property belonging to him at his discretion. This fully applies to any owner, as well as to the direct owner. But sometimes the actions of other persons, committed by abuse of trust or direct deception, cause property damage to the citizen. Issues related to such situations are considered by art. 165 of the Criminal Code. Moreover, such actions are characterized by two circumstances:
- The absence of any obvious signs of theft. That is, here we are not talking about theft. The intruder has not stolen property. He ordered it in his own interests, while depriving the owner of his legal right.
- Damage done on a large scale. As a result of illegal actions of third parties, the owner did not receive a certain part of the possible income from his property. Here we can rather talk about lost profits.
That is how this crime is described in Part 1 of Art. 165 of the Criminal Code. An example of such a violation can be:
- unauthorized access to the Internet by using someone else's login or password;
- unauthorized check-in by an employee of a hotel for guests without proper clearance;
- evasion of the mandatory payment of electricity and others.
Part 2 of this article deals with the same violation, but under more serious circumstances:
a) actions were committed by an organized group or several persons in prior agreement;
b) the damage caused is assessed as particularly large.
For offenders committed in this way, the criminals will have to incur legal punishment.
Vivid examples of the situation in question in Art. 165 of the Criminal Code, there are cases associated with the recovery of overdue debts. Banks, issuing consumer loans, often face a problem when citizens for one reason or another refuse to make mandatory payments in a timely manner.That is, they, abusing trust of a management, cause to the organization a property damage in the form of the unpaid amount. In this case, the management of the financial company has two options:
- Submit to the debtor in court.
- Collect debt by resorting to the help of collection firms.
Strangely enough, but many choose the second option. In this case, the work is taken by specialists who, by means of reminders and threats, try to force the debtor to fulfill the obligations assumed earlier. In fact, their actions are quite fair. True, if they occur within the law. Sometimes collectors in their "messages" mention various articles of the Criminal Code of the Russian Federation (159, 165). But the last one is hardly applicable here. Do not forget that it deals exclusively with large amounts of damage. And he, in accordance with clause 4 of part 4 of article 158 of the criminal code of the Russian Federation, must exceed two hundred thousand rubles. If the amount of a citizen’s debt does not reach the specified value, then this article is not applicable to him.
Find out until the end of all the circumstances related to the problem of property damage, will help Art. 165 of the Criminal Code. With comments it will be much easier.They clearly describe the subjective and objective signs that characterize this act as a crime:
- The subject of such an offense may be persons who have reached the age of sixteen. Employees of companies that commit such offenses, using their official position, do not apply here. They will be accountable to the law for a completely different article.
- The subjective side is determined by guilt in the form of a mercenary purpose or direct intent. The perpetrators are well aware that, in fact, they use someone else's property. And such actions are considered socially dangerous.
- The object here will be relationships that relate to property.
- The objective side will be to extract material gain by deliberate deception or gross abuse of trust.
- In the role of the object serves any property Moreover, its owner can be not only a private person, but also an organization (including a state one) or a commercial enterprise.
If all of the above signs are present, then we can conclude that this is indeed a mercenary crime against property.
Evolution of legality
In the old version, Article 165 of the Criminal Code of Russia did not provide for a large amount of property damage. Especially since the cases related to it were not embezzlement. But, taking into account the real state of affairs in the country and the practice of offenses, it was decided to toughen this indicator. In Art. 165 of the Criminal Code of the Russian Federation provides for the commission of this crime on a large scale.
Now only those crimes began to concern her, the damage from which amounted to more than 250 thousand rubles. By their nature, they are similar to fraud. The only difference is that in the case of the crime in question there is no direct seizure of other people's property. It still remains with the owner, but does not bring him the expected income. In fact, the guilty person extracts for himself the illegal profit at the expense of another's property, which has not yet managed to be received by the direct owner. Sometimes it is not easy to prove it. Therefore, such a crime is recognized as committed only when the fact of the direct damage is recorded.
For such a crime against property, the perpetrators must be punished.
The sentence under Art. 165 of the Criminal Code provides:
1. For part 1:
- a fine of up to three hundred thousand rubles, or in the sum of the total income of a citizen for a period of up to 2 years;
- Forced labor for the same period with the possible restriction of freedom of up to 1 year or without it;
- imprisonment of up to two years and a fine of up to 80 thousand rubles, or in the amount of total income for a period of up to six months (or without it), with restriction of liberty of up to 1 year (or without it).
2. On part 2:
- Forced labor for up to 5 years with a possible restriction of freedom for up to two years;
- imprisonment of up to five years with a fine of up to 80 thousand rubles, or in the amount of a citizen’s total income for a period of up to 6 months (or without it), and with restriction of liberty of up to 2 years (or without it).
The size of the punishment is determined by the court depending on the severity of the guilt of the criminal. In this case, the fact of the presence of direct intent and the full awareness by the violator of their wrongful acts are necessarily taken into account.
Recently, there are often situations when citizens have to be accountable before the law for their actions under art. 165 of the Criminal Code.Judicial practice knows many different examples of such actions:
- exploitation without the consent of the owner of other things;
- abuse of guardians in the implementation of transactions in the interests of his ward;
- failure to make mandatory payments (utilities or other services);
- transportation of passengers or baggage by persons in charge without payment.
However, in each of these cases, the main features of the crime must be clearly present. If desired, a good lawyer can always find a loophole and retrain him in a less serious, punishment for which will be easier.
In addition, in recent years, conflicts often arise between consumers and sellers of services. As a rule, they are resolved in a civil court. Here, an important role is played by written evidence, which must be collected by both parties. Quite a wide judicial practice has also developed with the situations of housing scams. The tenants, trusting the owners, were sometimes negligent about documenting the transaction. As a result, they were victims of fraud. Moreover, sometimes it was not possible to prove the opposite.