The Russian Criminal Code is constantly changing. This is necessary in order to ensure a more complete, comprehensive review of cases in accordance with the principles of legality, equality and humanity.
In 2012, the amendments touched on many provisions, in particular article 159. Previously, this provision provided for punishment for any kind of fraud. This crime generalized the category of cases involving fraud and breach of trust.
Fraud, regardless of form, implies on the part of the offender attempts to establish friendly, trusting relationships with the victim, whether it be an individual or an organization. In addition, the perpetrator does not just maintain contact with the victim, but commits deliberate acts that will allow the victim to understand that the offender has only positive qualities, although this is not true.
As a result of the implementation of a carefully thought-out plan, the guilty person, due to the fact that the victim trusts him, can realize his criminal plan.
Before the amendments, there was article 159, combining all categories, without distinction on the objects of crime, such as:
- individuals;
- organization of credit lines;
- government agencies that pay benefits and provide benefits and others.
For the latter two sites, fraud consists in providing false information or forged documents to receive money.
Amendments
In November 2012, article 159 changed significantly. Corrections and additions are related to the fact that cases related to individuals and crimes in relation to organizations, as well as in the field of high technology cannot be assigned to one category.
Provisions 159.1 to 159.6 were added to this article. Now each object is assigned to its article, and crimes against these objects have certain sanctions.
The changes also affected the definitions of large and especially large fraud (except for Article 159). If before it was a question of amounts of 250 thousand rubles. and 1 million rubles. respectively, now they amount to 1 and 6 million rubles.
These amounts arise mainly at a different level, in contrast, for example, from such a crime as a particularly large fraud (Art. 159 para. 4) committed by an ordinary individual.
In addition, the institution of proceedings under Articles 159 - 159.6 is possible only if the victim has a personal statement. Law enforcement agencies do not have the right to, for their own reasons, initiate criminal cases of fraud. This is due to the fact that business in the field of entrepreneurship was very often fabricated. The initiators could be competitors, or the police officers had some personal scores with entrepreneurs. Even if the fact of fraud, that is, theft by deception of movable or immovable property, is evident, a statement is required to initiate proceedings.
Deception in business
The most difficult to prove and identify is a crime under Article 159.4, that is, illegal actions in the field of entrepreneurship. Between legal entities or individual entrepreneurs, certain relations may arise, which mainly relate to the field of finance or transactions. For example, one organization paid for another shipment of goods. The recipient of the funds intentionally did not deliver the products and did not intend to do so.
In the event that the guilt of the suspects is proved, the court may impose a fine of up to one and a half million rubles, forced labor or imprisonment of up to five years with its restriction (or without it) for the same period.
In 2014, that is, two years after the amendment of Chapter 21 of the Criminal Code, the Constitutional Court ruled to amend the sanctions under Articles 159 - 159.6 to resolve the issue of proportionality of punishment.
Application of law
The court noted that the punishments in the field of entrepreneurship make it possible to qualify this act as grave. Sanctions for this type of crime are already indicated in Art. 159 part 4, and the legislator did not have to separate them into a separate article on theft between businessmen. In addition, when this article appeared, there were discrepancies. In particular, with regard to such a moment: if one of the parties is an individual, is it worth attributing the crime to this norm?
Initially, this article was supposed to solve the issue of initiating criminal cases against entrepreneurs without sufficient justification. However, this provision was often not applied; in court, many crimes were qualified under Art. 159 h. 4 of the Criminal Code, where sanctions for these acts are already envisaged.
As a result, the availability of Articles 151–159.6 did not simplify, but complicated the work of the judicial apparatus. For example, according to Art. 159.1, there is such a crime as financial service fraud. Today, a loan can be obtained not only in large banks, but also in microfinance organizations, which are one of the forms of entrepreneurial activity. In the event that an act was committed in the field of finance, the question arises: "Which article should this crime be attributed to - 159.1, 159.4, or to part 4 of article 159?"
The practice of the courts suggests that qualifications depend on the object and subject of the crime.
If we consider article 159.4 as a necessary provision on criminal liability in entrepreneurial activity, then the legislator should indicate that the parties in this case are only legal entities, individual entrepreneurs or the state. For all other types of fraud, articles 159–159.6 already exist.
In addition, it must be remembered that each crime has a statute of limitations, after which a person is no longer responsible for the committed act.
In Art. 159, in the first part, an act of minor gravity is provided, since the term of real imprisonment is no more than 3 years. Therefore, the limitation period in this case is 2 years.
With regard to the second part, the statute of limitations will be 6 years, since this disposition indicates a moderate crime.
The third and fourth parts of Article 159 provide for serious acts, the statute of limitations for which Article 15 of the Criminal Code of the Russian Federation has designated 10 years.
Review of sentence
In connection with the application of the updated Criminal Code, those who previously received under Part 4 of Art. 159 of the Criminal Code of the Russian Federation, the term of real punishment for criminal acts in the field of business (that is, until November 2012), was released under an amnesty, provided that the damage was compensated.
According to article 10 of the Code of Criminal Procedure, the law is retroactive. That is, if the guilty person is already serving a sentence under any article, but after some time the sanctions were changed to milder, the convicted person has the right to ask the district court to review the sentence.
There are prisoners convicted under Art. 159 part 4 of the Criminal Code, the punishment for which is up to 10 years in prison, could also achieve a mitigation of the sentence if the act committed has all the signs of illegal actions in an entrepreneurial niche.
In connection with the repeal of Article 159.4, crimes will be qualified in accordance with general standards. In the event that the guilty person is still serving a sentence, and under the new applicable provision, Part 4 of Art. 159 the term is provided for in a larger amount, the sentence is not reviewed, since the deterioration of the situation of the convict is unacceptable.
However, it doesn’t matter if a person was released after serving his full term, according to parole or there was an amnesty. Art. 159 para. 4 provides for administrative supervision, which must be established in any case. Exemption from the actual punishment in connection with any acts does not extend to monitoring a freed citizen. The more serious the crime, the longer this period. For especially large-scale fraud (Article 159, Part 4), subsequent supervision may be set for a maximum period.
Qualifying symptoms
In addition to the indicated shortcomings made by the legislator, it can be noted that the punishment under article 159.4, if a crime is committed on an especially large scale, will be much milder than the same act qualified under art. 159 h. 4 of the Criminal Code. In this case, it was easier for the guilty to prove that the act was committed in carrying out entrepreneurial activity, rather than serving a sentence under a general article providing for a term of up to 10 years in a custodial institution.
To date, the application of 159 “general” articles is more justified, since basically the guilty attempted a large or especially large size - 250 thousand and 1 million rubles, respectively, specifically for this provision.
In addition, if we take into account the principle of entrepreneurship, it is almost always possible to say with certainty that the crime was committed by a group of people with a certain structure.
In the disposition of Art. 159 h. 4 the punishment for a crime is provided twice as much as for a similar act under part 3 of article 159.4. In addition, the disposition of the expired article indicates only a large amount of fraud, while the provision of the last part implies not only a fairly large amount of theft, but also depriving individuals of their ownership of housing.
This approach is due to the fact that fraud is committed primarily in the field of real estate, and since the cost of an apartment can be less than the largest fine in the Criminal Code, the legislator included fraud in this area in art. 159 h. 4 of the Criminal Code.
Use of position
A crime committed using a provision related to official duties is noted in subsection 15 (3). The allocation of the category of persons holding any position in an organization or institution is connected with the authorities of those responsible.
As a rule, senior citizens exert their decisions on the fate of people. That is why, in connection with public danger, fraud in this case is a serious crime with an appropriate measure of punishment.
Deception and breach of trust consist, as a rule, in the fact that a person can intentionally conceal the fact of his lack of authority in the commission of any action, deceiving the victims on a large or especially large scale. Moreover, for qualification under Art. 159 h. 3, 4 of the Criminal Code of the Russian Federation, it is necessary that the perpetrator was not initially going to fulfill obligations.
If in reality the citizen does not have the right to any action, but he implements an early prepared plan according to an oral agreement that violates the rights and interests of the public or the state, article 201 (abuse of authority) or article 288 (assignment of official authority) applies .
Signs of Fraud
Despite the completeness and clarity of the disposition of Art. 159 part 4, as well as all the rest of its parts, it is necessary to highlight the moments that distinguish fraud from other forms of theft.
In particular, if the crime was committed against incapable persons, it shall be considered as theft. This is due to the fact that qualification under Article 159 can only occur if the victim knew and understood that he was transferring property or the right to it to a third party. At the same time, such concomitant factors as deception and breach of trust should take place.
In the case of the victim's incapacity, the theft cannot be called explicit, as the person does not realize, due to age or illness, in the actions taken.
Ended crime
It must be understood that any crime, for proper qualification, must be completed. Unfinished deeds are considered in the framework of other articles, including as an attempt on a crime.
As for fraud, it is considered completed at the moment when the property on the basis of property already belongs to the offender, and he can dispose of it.
The same applies to cash and other things and items for which the registration of rights is not performed. In this case, as soon as the thing was in the hands of the fraudster, the crime is considered completed. Only the price category is important, which is one of the determining factors in sentencing.
Thus, the basic concepts and provisions of fraud can be closely intertwined with ongoing entrepreneurial activity, as well as with qualifying features of other structures, especially cases under art. 159 para. 4, the judgment of which is often imposed on business owners. That is why there is no need to distinguish legal entities in a separate category, since they have no privileges with respect to the committed act.
Subjective side
Crucial in qualifying fraud is intent. If we consider the situation when one citizen has a trusting relationship with another, and in connection with this he has acquired some property for sale, transfer to someone or for other purposes, this is not considered a crime.
In the event that a person did not intend to fulfill obligations related to the conditions for obtaining property, and the person had the intention to take such actions before transferring things or any rights to him, the crime shall be qualified under Article 159.
Practice
Judicial practice in the application of the code in relation to fraud has criminal cases of fraud, which from article 159 have been reclassified to other provisions due to insufficient evidence. Moreover, the crime could be provided for both in Articles 159.1 - 159.6, as well as in other provisions of the Criminal Code.
In relation to fraud, there are also certain rules of jurisdiction. If according to the first part of article 159 under consideration, acts can be considered in a magistrate court, then district justice bodies carry out proceedings under art. 159 parts 4, 3, and 2.
This is due to the fact that the first part provides for more private prosecution, while the rest deals with cases of a private-public nature.
Comments on the article
There is the possibility of exemption from punishment and its consequences if there have been crimes provided for in paragraphs 1 or 2 of Article 159. If the perpetrator committed the act for the first time and at the same time compensated the damage and reconciled with the victim, the criminal case is terminated in accordance with Article 25 of the Code of Criminal Procedure of the Russian Federation.
It is impossible to relieve a person of responsibility if an act is committed under Art. 159 part 4 or part 3. In the case when a citizen - in a single person - deceived someone and did it for the first time, one can still assume that intent arose spontaneously. Regarding officials or organized groups, the concept of randomness does not apply, therefore, these categories of criminals are fully responsible in accordance with the law.
Repeated actions related to the deliberate deception of the victim entail real punishment, even if damage has been repaired. Here we can talk about a relapse of criminal behavior. When making a deadline, this fact will be taken into account in the first place.
Thus, according to Art. 159, part 4 of the legislator’s comments, reveal the peculiarities of criminal acts aimed at obtaining property by fraud.