Theft is a crime, the liability for which is established by Article 158 of the Criminal Code of the Russian Federation. The components of theft - an object, subject, objective side, subjective side. The absence of at least one element leads to the inability to bring a person to criminal responsibility. Therefore, it is worth considering these elements, in particular, the objective side, in more detail.
The concept of the objective side
The objective side of the crime of theft, like any other, is the totality of the characteristics defined by law that characterize the external expression of a threat to society that is an encroachment on an object that is protected by criminal or administrative law.
The disclosure of the content of a criminal offense, the consequences arising from it and other signs of an objective type makes it possible to consider the committed act in full and to easily analyze its specific forms in the future.
With regard to theft, the objective side is actions that are expressed in the gratuitous and unlawful seizure by a criminal of things that do not belong to him, in his favor or in favor of third parties, as a result of which property and moral damage are caused to the owner.
The main difference between theft and other types of theft
The chapter dealing with crimes against property of others discloses in different articles the types of criminal liability for various forms of theft. For the correct qualification of illegal actions it is necessary to know the main differences between theft and other forms of theft (robbery, robbery, fraud, misappropriation and embezzlement).
The main difference and one of the signs of the objective side of theft is the mode of action. Unlike the main varieties of theft (robbery and robbery), theft is characterized by the secrecy of the nature of taking possession of another's property. This is expressed in the fact that the offender does not exert physical or mental pressure on the victim or third parties and does not apply any kind of violence to them.
The seizure of property does not occur contrary to the will of the victim, but without taking it into account. The actions of the perpetrator are secret for the victim and the people around him (if they are present), or they do not realize that what is happening is theft. For example, if a person dressed as a repairman takes out a computer supposedly for repair. At the same time, others do not perceive its action as theft, as they are confident in the legality of the removal of the item.
When committing a theft of a secret nature, the thief assumes the absence of witnesses to the crime, counts on his skills and inattention of the owner (or other person protecting the thing).
The objective side of the theft also includes the attitude of the victim and witnesses to the theft. In addition, the attitude of strangers is taken into account. Outsiders include witnesses of a criminal type of offense that are not related to the crime or the guilty person. Partners in the act, as well as relatives, friends or acquaintances of the offender, are not considered outsiders. This is due to the fact that the offender is sure that on their part there will be no obstacles to committing a crime.
If the theft takes place in places where, by definition, there can be no witnesses (garage, closed shop for the night, warehouse, unguarded territory), the criterion of secrecy is not called into question. If the criminal understands that at least one person can see him, his action will not qualify as a theft under Art. 158. The objective side in the form of a criterion of openness makes theft a robbery.
If the victim realizes that his property has been stolen, but the thief does not know about it, the act remains secret. If the kidnapper objectively realizes that no one will notice him (there is no security, the owner is sleeping or drunk), his actions also qualify as theft. If he is seen at the time of the theft, but he does not suspect about it, the crime is considered the same.
In the event that the offender realizes that he was found and stops the theft attempt, leaving the subject of theft, the qualification of the crime is changed to an attempt to commit theft. If the theft continues, it becomes a robbery.
Secret theft is also the theft of things from deliberately insane or incapable persons (children, mentally ill, drunk, sleeping and the like).
Theft Method
The next sign of the objective side of theft is the way it is committed. In relation to this method of theft, the method is the removal, retrieval or any other option of separating property from the legal possession of the owner for the simultaneous transfer of things into the illegal actual possession of the offender.
The essence of criminal possession is the ability to freely dispose of property within certain limits (to carry away, hide, spend, transfer to an accomplice and the like). In this case, the right of ownership remains with the owner, and the right of disposal passes to the offender. Conversely, the owner cannot dispose of the thing, and the offender cannot openly own it.
Theft Features
To establish the fact of seizure, it is necessary to have several significant circumstances - features of the crime committed. These features of the objective side of theft are as follows:
The property, which is the object of a criminal assault, at the time of the theft is under the jurisdiction of the owner (in his fund) or another person authorized by the owner. The subject of theft is listed on the balance sheet of a legal entity or is considered only received and not officially registered, or is in the hands of an individual owner. If the property is en route to the owner, its seizure is not considered theft.
To qualify the act as theft, the offender must unlawfully withdraw the thing from the owner’s funds, while not possessing the authority to own or dispose of it. The action must express the seizure of the thing against the will of the owner to turn it in its own favor.
Seizure methods
The next element of the objective side of theft is the method of seizure. There can be two: legal or physical. The physical method of seizure involves the movement of things in space when the subject of theft is actually transferred from the possession of the owner or other legal owner to someone else's illegal use. This method of seizure is only suitable for movable property.
The legal method of seizure is an unlawful transfer of ownership of a thing and a change in the subject of ownership. In this case, we are talking about the theft of real estate. Often when a subject steals the object and the objective side are not considered by the legal method of seizure.
Theft Composition
The next thing characterized by theft from the objective side is the composition. With respect to this type of theft, the composition must be material, that is, a mandatory element of theft is the damage to the owner of the thing (or other legal owner) in material terms.
Theft damage must be real and direct. If during the seizure of an object to the owner or other legal owner the material damage is not caused, this action cannot be qualified as theft.
The obligation to determine the damage caused, according to the criminal law, lies with the owner. Therefore, the owner must also deal with the assessment of material damage received for its compensation. In some cases, it is necessary to contact the appraisers, which requires financial costs.
If the victim understands that during the seizure of the property belonging to him, the size of the damage caused is insignificant (or there is none at all), or the owner does not make efforts to assess the damage caused, it is assumed that, from the subjective side, the damage was not caused to him. Such cases include the theft of things that were previously stolen by the victims themselves.
As regards pecuniary damage of a small amount, it should be noted that this type of offense is criminally punishable only if it has been committed by a person who has already been subjected to administrative punishment for a similar crime. This is enshrined in Article 158.1, which was enforced in 2016.
The moment of the theft
For the correct establishment of the theft (object, subject, objective side and subjective side), it is necessary to determine the moment the crime ends. There are three theories: touch, entrainment, and possession. According to the first theory, the final moment is touching the subject of theft. According to the second - the moment of picking up. According to the third, from the moment the seizure is completed, when the offender owns the thing and can freely dispose of it.
The first two theories in modern law express such a type of offense as attempted theft. If at the time of the theft the criminal touched a thing or attempted to take it away, but he was prevented in a timely manner, this is an attempt.
If the offender did all the successful things so that the thing was removed from the domain of the owner or other legal owner and transferred to the thief, this is qualified as a theft.
According to the criminal law, the theft is over:
- from the moment that the property of others is turned in favor of the criminal or another person;
- from illegal seizure of another's thing;
- from the moment that unlawful seizure and appeal to the owner or other owner of the thing caused material damage.
Wrongfulness and gratuitousness
The next sign, combining the objective and subjective side of theft, is unlawfulness. It lies in the fact that the object of theft must be obviously a stranger to the criminal, who does not belong to him either by law or by fact. The offender cannot have either the alleged or actual right to theft.
Also, unlawfulness occurs when the guilty person in certain situations has access to the thing, but has no competence in relation to it (for example, when it comes to theft of products by a store guard or seller).
Back in the Soviet Union, the Plenum of the Supreme Court of 1962 determined that the theft would be qualified as theft, not appropriation or embezzlement, if the guilty person was not vested with any powers in relation to the stolen property, but could use it to carry out its work or had it access despite the fact that it was entrusted to unauthorized persons. This explanation has been applied by law enforcement and judicial authorities to date.
Illegality as an element of the objective side of theft and a subtype of wrongfulness consists in committing the theft in one of the six ways specified in the Criminal Code. If the seizure of a thing occurs in a manner that is not fixed by law as a form of theft, it will not be unlawful theft.
The next element of the objective side of theft is the gratuitousness of the action to seize someone else's thing. An action is considered to be gratuitous when it is carried out without appropriate compensation (free of charge), or the amount of compensation is inadequate or symbolic. Compensation may be expressed in the form of cash payments, transfer of equivalent stolen property or labor costs.
According to clarifications of the legislation, theft is the theft of things or objects by substituting them for objectively less valuable ones. An example of such theft is often the theft of cultural objects, paintings or jewelry, when fakes are placed in their place.
When stealing by substitution, the amount of damage will be calculated by determining the difference in the value of the stolen property and its substitution, if the substitute thing meets the consumer normal qualities of the stolen item. If the substitution does not possess the appropriate properties, the calculation will be made at the rate of the value of the stolen object.
The objective side of theft, possessing a sign of gratuitousness, connects it with another - the onset of dangerous consequences for society in the form of causing material damage to the owner of the thing or other legal owner. The minimum amount of the tangible expression of the damage received is not defined by criminal law. The law establishes only some boundaries that allow determining the corpus delicti (along with the collectivity of theft and illegal entry into the home). The objective side of the theft will still include the onset of negative financial consequences.
Act
The next sign that characterizes the theft is the perpetrator of active actions. From the household point of view, action is body movements or human actions. The criminal law definition of an action is as follows: an action is a combination of actions and body movements that are aimed at committing illegal actions.
Action as an element of the objective side of theft should have the above considered legal and social features - be socially dangerous and unlawful. In this regard, actions prohibited by criminal law that are unlawful, but because of their insignificance do not pose a danger to society, are not crimes.
The actions consist in the seizure, that is, the transfer by the criminal of a movable object in space, as a result of which the legal possession of the owner is eliminated, and the other person’s property is actually seized. The processes of seizure and seizure are inextricably linked in connection with which in most cases are carried out as part of a single process of illegal activity.
Causal relationship
The next element of the objective side of theft is the relationship of a causal nature between the active illegal actions of the offender, which resulted in the seizure of another's property and turning it into their own favor or the benefit of other persons, and the ensuing dangerous consequences for society in the form of causing the owner of the thing or its other owner real material damage.
When investigating solitary crimes under the hundred and fifty-eighth article of the Criminal Code of the Russian Federation in establishing a causal relationship between theft and causing property damage, there are no problems or difficulties, since this connection is obvious. If in a criminal case the fact of the seizure of the thing and the infliction of damage precisely because of theft has been proved, there is no need to establish a causal relationship.
Problems can arise when investigating group thefts that occur over a period of time. Difficulties in establishing a causal relationship occur if the composition of the criminal group has changed during the period of criminal activity.
In this case, the actions and the moment of entry into the group of each individual participant are investigated in a special order. Law enforcement agencies calculate what damage the group caused at each stage, since no one is entitled to blame the damage to the criminal before he joins the group of offenders.
As an objective aspect of a crime (theft), a causal relationship in the investigation of group crimes is considered the most difficult to prove. In this case, the mechanism of causing damage (harm) to property is the phased development of links of causal nature, interconnected, which were generated by the illegal encroachment of a criminal entity. This is an illegal effect on an object, that is, an unlawful change in the position of a thing in the structure of social interconnections, which entails depriving the owner of the thing of the opportunity for free implementation of actions to own, dispose and use the thing. The result of this relationship is a violation of the proper functioning of property relations.
Disclosure of crimes provided for in Article 158 of the Criminal Code of the Russian Federation is difficult if the crime is a group crime or there are no witnesses. In this case, all the elements of the objective side are subject to careful research with the nomination and testing of various hypotheses in order to establish the truth.