Crimes in the sphere of economy
Crimes against property
(as amended by Federal Law No. 162-FZ of 08.12.2003)
1. Theft, that is, the secret theft of someone else's property -
is punishable by a fine of up to eighty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to six months, or by compulsory work for up to three hundred and sixty hours, or by correctional labor for up to one year, or by restriction freedom for up to two years, or forced labor for up to two years, or by arrest for up to four months, or by imprisonment for up to two years (as amended by Federal Law of 07.12.2011 No. 420-FZ).
2. Theft, Perfect:
a) by a group of persons by prior agreement;
b) with illegal entry into the premises or other storage;
c) causing significant damage to the citizen;
d) from clothes, bags or other carry-on baggage that was with the victim -
is punishable by a fine of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for up to four hundred and eighty hours, or by corrective labor for up to two years, work for a period of up to five years with restriction of freedom for a period of up to one year or without it, or by imprisonment for up to five years with restriction of freedom for a term of up to one year or without (in the edition of the Federal Law dd. 07.12.2011 № 420-FZ ).
3. Theft, Perfect:
a) with illegal entry into the home;
b) from the oil pipeline, oil pipeline, gas pipeline;
c) on a large scale, -
is punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to three years, or by forced labor for a period of up to five years, with restraint of liberty for up to one and a half years or without that, or by imprisonment for up to six years with a fine of up to eighty thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to six months, or without it and with restraint of liberty for a term of up to one and half years or without tacos (as amended by Federal Law No. 377-FZ of December 27, 2009, No. 26-FZ of 07.03.2011, No. 420-FZ of 07.12.2011) (part three in the amended version of the Federal Law from 30.12.2006 The same 283-FZ).
4. Theft, Perfect:
a) by an organized group
b) on an especially large scale, -
is punishable by imprisonment for up to ten years with a fine of up to one million rubles or in the amount of the wage or other income of the convicted person for a period of up to five years, or without it and with restraint of liberty for up to two years, or without of this (as amended by Federal Law No. 377-FZ of 27.12.2009, No. 26-FZ of 07.03.2011).
Notes: 1. Under the theft in the articles of this Code means committed for mercenary purpose illegal gratuitous withdrawal and (or) circulation of someone else's property in favor of the guilty or other persons who caused damage to the owner or other owner of this property.
2. Significant damage to a citizen in the articles of this chapter is determined taking into account his property status, but can not be less than two thousand five hundred rubles.
3. Under the placement in the articles of this chapter we mean buildings and structures, regardless of the form of ownership, intended for temporary residence of people or the placement of tangible assets for production or other official purposes.
Under the repository, the articles of this chapter are business premises separate from residential buildings, plots of land, pipelines, other structures regardless of ownership, intended for permanent or temporary storage of tangible property ( in the amended version of Federal Law No. 283-FZ of December 30, 2006).
4. The large size in the articles of this chapter, with the exception of articles 159 1 , 159 3 , 159 4 , 159 6 the value of property exceeding two hundred and fifty thousand rubles is recognized, and especially large - one million rubles (clause 4 of Federal Law No. 207-FZ of November 29, 2012).
1. The notion embezzlement covers a group of criminal encroachments on someone else's property. The content of the term embezzlement It is explained in subsection 1, we shall take, to the article being commented. The essence of theft consists in illegal, gratuitous seizure of another's property, its circulation in favor of the guilty, and equally other persons. The given actions are made only with the mercenary purpose and are obliged to cause a material damage to the proprietor or the property owner.
2. Depending on the method of committing a crime in Ch. 21 of the Criminal Code there are such forms of embezzlement as "theft" (Article 158), "fraud" (Article 159), misappropriation and embezzlement (Article 160 ), robbery (Article 161), robbery (Article 162). A special place in this series is extortion (Article 163). It does not apply to theft, but at the same time has many similar features.
3. About theft as a generic concept is also spoken in Art. 164, 221, 226, 227, 229, 325 of the Criminal Code.
4. The object of embezzlement is social relations that develop in the sphere of distribution and redistribution of material goods and belong to the category "property." Theft does not entail loss of ownership by the owner of the right to seize During the crime of property, and the person who committed the theft, there is no right of ownership of the stolen. Any form by ordering them stolen is illegal.
5. The subject of embezzlement is always a specific foreign property, it's only
items of the material world that have a consumer value (price, necessarily expressed in monetary units), the money itself, documents that serve as the equivalent of money. Both movable and immovable property may be stolen, as well as property seized from civil turnover.Documents of a non-property nature, as well as documents that do not have an independent consumer value, but which give the right to receive money or property (savings bank books, baggage receipts, invoices, checks) are not subject to theft. Equals that grant the right to receive property, money (locker rooms, credit and debit cards, keys and electronic keys to safes and storages) are also not subject to theft. The theft of the above documents, items for the purpose of subsequent abduction of property - depending on the circumstances of the case, qualifies as preparation for theft or fraud.
Stealing is a property crime, therefore its subject can not be objects of intellectual property, as well as electrical and thermal energy.
6. Basic common signs of embezzlement - unlawfulness, gratuitousness, seizure of property from the lawful owner or conversion of someone else's property in favor of the guilty or other persons, damage to the owner or possessor of property.
The illegality (unlawfulness, illegitimacy) of theft is indicated by its commission in violation of existing norms of law.
Free of charge means without compensation of consumer value.
Seizure of property - a real action in the material world. It is usually expressed in the direct transfer of material values in space from the owner (the legal owner) to the guilty person, to other persons.
The appeal of property in favor of the guilty and other persons is a form of embezzlement, which is characterized not by the transfer of the object of theft in the material world, but by the illegal execution of documents on the transfer of the right to property to the guilty person or to other persons.>
Theft can also be carried out by making the owner of obstacles to the use and disposal of the property belonging to him.
The seizure of someone else's property in the process of embezzlement is always committed without the consent of its owner and contrary to the will of the latter, with the knowingly absence from the guilty right to the property seized by him, transferred to his property, by other persons.
7. Delimitation of embezzlement from related crimes and offenses. If the owner seizes property even with a clear violation of the established procedure, but the person who carries out these actions has a valid, as well as an assumed right (for example, the accountant kept from the disputed property accountable amounts due to him wages), then such actions do not constitute theft.
There will be no corpus delicti if the property, although it was withdrawn from the storage facilities, but still remained in the owner's funds or the funds from its sale were spent on the needs of the owner, albeit with a clear violation of the established order.
Depending on the circumstances of the case, a person in the above cases may be liable for arbitrariness (Article 330), abuse of authority (Article 201) or abuse of office (Article 285).
It is not embezzlement of temporary use of other people's property for their own purposes, within the framework of which the disposal of this property does not occur. In the presence of certain circumstances, such actions may be qualified under Art. 165, 166 of the Criminal Code.
8. Causing damage - an indispensable sign of embezzlement. Do not form theft of manipulation with someone else's property that did not cause damage to the owner. The material damage caused to the owner or possessor of the property must be in a causal relationship with the actions of the person who committed the theft. Evaluation in this case is subject only to stolen property. All other forms of damage caused by the theft of someone else's property are not assessed in this case.
Theft of someone else's property through theft, fraud, misappropriation or embezzlement is considered small if the value of the stolen property does not exceed 1000 rubles. (note to article 7.27 of the Code of Administrative Offenses).
The amount of damage caused by theft, the presence of which causes the onset of criminal liability, has been repeatedly changed. From July 1 to November 5, 2002, its size was five times the minimum wage, then one minimum wage. From July 8, 2007 to May 31, 2008, it was equal to 100 rubles. and now is 1000 rubles. When qualifying the actions of past years, you should check: do not the actions of the guilty party make small theft.
Theft of someone else's property worth less than 1000 rubles. if there are signs of crimes provided for in Part 2-4 of the article being commented, Part 2 and 3 of Art. 159, part 2 and 3 of Art. 160 of the Criminal Code, entails an offensive not administrative but criminal responsibility (Article 7.27 of the Code of Administrative Offenses).
An obligatory condition for the proper qualification of the deed is fixing the value of the stolen property. Determining the amount of stolen property, one should proceed from its actual value at the time of the crime. In the absence of reliable information about the price, the value of the stolen property can be established on the basis of the expert's conclusion.The special historical, scientific, artistic or cultural value of stolen objects or documents (Article 164 of the Criminal Code) (regardless of the method of theft) is determined only on the basis of an expert opinion, taking into account not only their value in monetary terms, but also the significance for history, science, art or culture.
The absence of data on the cost of secretly stolen property in the criminal case, as well as the absence of data on the value of property in the criminal case, on the kidnapping of which the guilty intent was committed in the attempted theft, is the basis for stopping the criminal case for lack of corpus delicti.
For example, N. was convicted under part 3 of Art. 30, part 1 of the article being commented. According to the verdict, he was found guilty of having penetrated into the car for the purpose of secret theft, but he did not finish his criminal intent, as he was detained by police officers.
The verdict against N. was abolished, the criminal case was dismissed, as the preliminary investigation bodies, charging him, could not determine the cost of the alleged property, since they did not establish what exactly N. intended to kidnap from the car.>
9. The only goal of committing embezzlement is self-interest. Even clearly illegal actions committed with someone else's property for other purposes do not constitute a theft.
The presence of the above signs of embezzlement is an obligatory component of the offense of any theft.
10. Completed structure - if the owner's property is seized, the latter received a real opportunity to use and dispose of it at his discretion.
If the perpetrator, having committed certain actions aimed at stealing someone else's property, managed to seize it, but under circumstances beyond his control, the opportunity to use the abducted person, dispose of it, did not come, the deed qualifies as an attempt at theft.
The exception is robbery, considered to be finished from the moment of the attack in order to steal someone else's property, if there are signs indicated in the dispositions of Art. 162 of the Criminal Code.
11. The objective side of embezzlement - the actions of the perpetrator in the material world, aimed at the seizure of someone else's property, and turning it in their favor or the benefit of others.
12. The subject of embezzlement is a sane individual. Responsibility under art. 158, 161, 162, 163 of the Criminal Code comes from the age of 14, under art. 159, 160, 164 - from the age of 16.
13. From the subjective side any theft presupposes that the guilty person has a direct, as a rule, concretized intent aimed at capturing a particular alien property by criminal means with the aim of applying it in their favor or favor of third parties.
The perpetrator is always aware not only of the public danger of his actions, but also knows that he is stealing someone else's property. This means that he foresees the mandatory occurrence of dangerous consequences in the form of causing the property owner or other owner of material damage, wishes this.
The mercenary motive determines the direction of the intent of the perpetrator for theft. Partners may have other motivations, but they must in any case be aware of the nature of the actions performed by the perpetrator.
There will not be a theft if the person seized someone else's property not for mercenary motives, for example, from any other personal interest, misunderstood official interests, for temporary use.Apart from the selfish motive, other motives may accompany (including hooliganism, revenge, etc.), but the lack of self-interest in the actions of the perpetrator precludes the possibility of qualifying what was done as a theft.
All the cases of embezzlement are cases of public accusation, therefore, when deciding whether to bring those responsible to criminal responsibility, the opinion of the owner (the legal owner) does not matter.
If in the case of embezzlement of a vehicle it turns out that the perpetrator was not pursuing the purpose of disposing of the vehicle, the action taken in the presence of the grounds is qualified as hijacking (Article 166 of the Criminal Code), if such a qualification does not worsen his situation.
14. On judicial practice in cases of embezzlement by the Plenum of the US Armed Forces, explanations are given in Decrees No. 29 of December 27, 2002, No. 51 of December 27, 2007.
15. Stealing - secret theft of someone else's property.
Object of theft - legal relationship relating to the category "property."
16. The objective side of theft as a form of theft consists in the secret illegal seizure of property in the absence of its owner or owner, as well as by unauthorized persons, if such withdrawal is committed in their presence, but imperceptibly for them. If outsiders saw that the theft was committed, but the perpetrator, proceeding from an analysis of the surrounding situation, believed that it operated in secret, the deed was also a secret embezzlement of someone else's property.
If those present in the unlawful seizure of someone else's property are not aware of the unlawfulness of the actions of the perpetrator or are his friends, associates or close relatives, in this connection the thefter expects that there will be no opposition from them in the seizure of property or his actions will even be approved , the deed is qualified as theft.
When the listed individuals take measures to stop the theft of someone else's property (for example, they demand to stop it), the guilty person's responsibility for the offense comes under Article 161 of the Criminal Code.
If in the course of the theft the actions of the guilty are detected by the owner, other owner of the property or other persons, but the perpetrator, being aware of this, continues to make an illegal seizure of property or retains it, the deed is qualified as robbery, and in case of violence dangerous to life or health, or the threat of such violence - as robbery.
The actions of the perpetrator do not outgrow the robbery, if, hiding, for objective reasons, he is not able to get rid of the stolen property. For example, a person committed a secret embezzlement of clothing, putting on the stolen things. At this point, the culprit was found by the owner. Hiding from the latter, the kidnapper, throwing some of the stolen goods on the run, escaped, carrying with him those garments that he could not quickly take off himself.
17. According to the general rule theft is deemed to be over, if the property is seized and the guilty person has a real opportunity to use it, dispose of it at his discretion, for example, to steal the stolen in his favor or in favor of other persons, to dispose of him for a mercenary purpose way. At the same time, in some cases, it has become a stable practice to consider the crime "finished" immediately after the property was withdrawn from the ownership of the owner. For example, it is considered that the apartment thief, who was detained at the exit from the entrance, completed the theft, because the objects placed in a closed space or in a protected area continue to be owned by the owner until they are taken out of this space or territory. Consequently, a person who unlawfully seizes someone else's property, for example, in a self-service store, detained in a store, although outside the section where the goods were stolen from him, committed an attempt at theft, and after he left the store, his actions will be over composition of secret theft.
Similarly, pocket theft is concluded as soon as a pocket thief has pulled a purse from his pocket.
An exception to the general rule is the secret kidnapping of quickly consumed goods, which usually include food. For example, if a person guilty for the purpose of stealing penetrated into someone else's apartment, where he used expensive food and wine, his actions would be the finished crime.
Particular difficulty is caused by the practitioners' qualification of the offense committed in the cases when they, having penetrated into the dwelling for the purpose of stealing, for example, expensive jewelry and preparing to seize someone else's property on a large scale, only managed to consume expensive products, after which they were detained in person. Obviously, in this case there was an attempt on secret theft of someone else's property on a large scale.
18. From the totality of thefts, it is necessary to distinguish the continued secret theft of of other people's property, consisting of a number of identical criminal acts committed by the seizure of someone else's property from the same source, united by a single intent and constituting in their totality a single crime.
19. Theft can be any sane individual who has reached the age of 14.
20. The subjective side of theft is characterized by the presence of a direct, as a rule, concretized intent and selfish purpose. The subject's mind is covered by the following points: the property being stolen is a stranger; the guilty person has no right to dispose of them; property is confiscated only against the will of the owner; since the seizure occurs secretly, the owner of the property does not know anything about the commission of the crime.
A person who organized the crime or who incited to commit the theft of a person known to be not criminally liable for the crime, in accordance with Part 2 of Art. 33 of the Criminal Code is criminally liable as the executor. If there are grounds for its action, they are additionally qualified under Art. 150 CC.
21. In cases where a group of persons has previously agreed to commit theft of someone else's property, but any of the co-executors has gone beyond the collusion (the excess of the performer), committed robbery or robbery, he should qualify according to the relevant points and parts of art. 161, 162 of the Criminal Code.
22. The selfish goal means that the perpetrator intends to dispose of the stolen property as his own.
Do not form a theft of illegal activities aimed at capturing other people's property not for mercenary purposes, but, for example, for the purpose of its temporary use with subsequent return to the owner or in connection with the alleged right to this property. Depending on the circumstances of the case, such actions, if there are grounds for this, are subject to qualification under art. 330 or other articles of the Criminal Code.
In cases where illegal seizure of property is committed in case of hooliganism, rape or other criminal acts, it is necessary to establish for what purpose this property was seized.
If a person pursued a self-serving goal, what he did, depending on the way he seized property, should be cumulative as a corresponding crime against property and hooliganism, rape or another crime.
23. Qualified types of theft are settled part 2-4 of the article being commented. According to Part 2, such are the commission of theft by a group of persons by prior conspiracy; with illegal entry into the premises or other storage; with causing significant damage to a citizen; from clothes, bags or other hand luggage.
24. The commission of a theft by a group of persons by prior conspiracy recognizes an act committed by two or more persons who have agreed in advance on the joint commission of a crime. Consequently, when qualifying the actions of perpetrators as committing a secret theft of someone else's property by a group of persons by prior conspiracy, it should be clarified whether such collusion had taken place before the actions directly aimed at stealing someone else's property. It is also necessary to check: whether an agreement was made on the distribution of roles for the purpose of criminal intent, what specific actions were committed by each perpetrator and other accomplices in the crime.
According to the meaning of Part 2 of Art. 35 of the Criminal Code, criminal responsibility for the theft committed by a group of persons by prior conspiracy also occurs when, according to a preliminary agreement between the accomplices, one of them is directly seized by the property if the other participants in accordance with the distribution of roles have performed concerted actions in the form of direct assistance to the performer . For example, a person did not enter the dwelling, but participated in breaking doors, locks, gratings, according to a pre-arranged agreement, took out the stolen goods, insured the other accomplices from the possible detection of the crime being committed. What they did in such cases is co-participation and, by virtue of Part 2, Art. 34 of the Criminal Code does not require additional qualification under Art. 33 of the Criminal Code.
If the organizer, instigator or accomplice did not directly participate in the commission of embezzlement of another's property, the crime committed by the perpetrator of the crime can not be qualified as committed by a group of persons by prior conspiracy. In these cases, by virtue of Part 3 of Art. 34 CC of the actions of the organizer, instigator or accomplice should be qualified with reference to Art. 33 of the Criminal Code.
Actions of a person who did not directly participate in the secret theft of someone else's property, but who promoted the commission of this crime with advice, directions or who had promised in advance to hide the traces of the crime, to remove obstacles that do not relate to assisting the immediate perpetrators of the crime, to sell the stolen goods are classified as complicity in the act form of complicity with reference to Part 5 of Art. 33 of the Criminal Code.
In qualifying the actions of two or more persons who have stolen another's property by secret theft by a group of persons by prior conspiracy, it should be borne in mind that in cases where a person was not conspiring in the course of the commission of a crime by others, he took part in his such a person shall be criminally liable only for specific acts committed by him personally.
The actions of persons who have stolen someone else's property by theft by a group of persons by prior conspiracy are qualified under item "a" Part 2 of the commented article on the "group of persons by prior conspiracy," if two or more performers jointly participated in the commission of the crime, which, by virtue of Art. 19 of the Criminal Code are subject to criminal liability for what they have done.
Acted by a person who committed the theft by using persons who are not subject to criminal responsibility due to age, insanity or other circumstances (in the absence of other qualifying signs), qualifies under Part 1 of the article as an act of the direct perpetrator of the crime under Part 2 of Art. 33 of the Criminal Code.
The law does not provide for a qualifying sign of theft by a group of persons without prior collusion. In such cases (in the absence of other qualifying signs), the deed is qualified according to part 1 of the article being commented.
25. Theft with unlawful entry into a room or other storage. An unlawful entry into a room or other storage means an unlawful secret or open invasion committed to commit theft. Penetration in buildings or structures is also carried out when the perpetrator retrieves the abducted objects without entering the corresponding premises.
The terms room and vault is disclosed in point 3 of the Note, to the article being commented. Premises - buildings and structures designed to temporarily locate people and locate material assets (warehouses, workshops, farms). Repositories - various structures (cisterns, barrels, containers), as well as specially designated areas of the territory intended for storage of material values. Distinctive features of the storage - the availability of technical or other means of protection.
The fact of illegal penetration into a dwelling, a building or a store is indicated by the moment of the origin of intention for the acquisition of another's property. If the person has penetrated the lawfully, the intent to steal from him arose after penetration, then there is no sign of the theft with penetration in his actions.
This qualifying sign is also absent in cases when a person was in a room or other storage with the consent of the victim or persons under whose protection the property was located, by virtue of kinship, dating, or was in the shop floor, in the office and other premises, open to citizens.
Destruction, damage to someone else's property at the time of illegal entry into the premises or storage (hacking doors, locks, grids) in order to commit theft of additional qualifications under art. 167 of the Criminal Code does not require, if deliberate destruction, damage to property was a method of committing theft.
If during the theft of intentionally destroyed or damaged someone else's property that was not the subject of theft (for example, furniture, household appliances and other things), the deed should, in the presence of that reason, additionally qualify under art. 167 of the Criminal Code.
26. Theft with causing significant damage to a citizen. The term "citizen" in this case is understood as an individual to whom property damage is caused by theft. The significance of the damage caused to the theft of a citizen is evidenced by the importance, significance of the consequences of the crime for the victim himself and his family.
In order to substantiate the presence of this qualifying characteristic (paragraph "in" part 2 of the article), it is necessary to analyze the property status of the victim, the real value of the stolen property, its significance for the victim, the size and frequency of his income (wages, pensions) , the presence of dependents, the total income of family members with whom he leads a joint farm, etc.
All listed circumstances are subject to mandatory clarification in the process of preliminary investigation and trial.
The victim's opinion on the significance or insignificance of the damage caused to him as a result of a crime is assessed in conjunction with the case materials confirming the value of the stolen property and the property situation of the victim.
In any case, in accordance with clause 2 of Note. to the article being commented, the victim must suffer material damage, which can not be less than 2500 rubles.
If the damage caused as a result of the theft does not exceed the specified amount or the damage does not occur due to circumstances beyond the control of the perpetrator, the act may be qualified as an attempted theft with significant damage to the citizen, provided that the intent of the perpetrator was directed at theft of property in a significant amount.When deciding on the qualification of the actions of persons who committed the theft of someone else's property in a group of persons by prior agreement or an organized group, on the basis of "causing significant damage to a citizen", one should proceed from the total cost of the criminal group stolen by all participants.
27. The theft of clothes, bags and other carry-on baggage, which was with the victim. In this case it is only about "pocket thefts", i.e. about thefts from pockets, bags, portfolios, suitcases, and also these bags, portfolios, suitcases.
The secret embezzlement of luggage delivered to the transport organization, as well as individual items of luggage, should be qualified as theft from the storage.
28. Especially qualified thefts (part 3 of the article being commented) are secret theft: with illegal penetration into the dwelling; from oil pipeline, oil pipeline, gas pipeline; on a large scale.
29. Theft with penetration into the home. Illegal penetration into the home is understood as an unlawful secret or open invasion committed to commit theft. Penetration into the dwelling is also carried out when the perpetrator extracts the stolen objects without entering into the living quarters.
The concept of "dwelling" is disclosed in Note. to art. 139 CC. This is an individual dwelling house, with its residential and non-residential premises, any other living space that is included in the housing stock and suitable for permanent or temporary residence (separate apartments, rooms in communal apartments and hostels, rooms in hotels and campsites), and is equal to another building or building intended for temporary residence (cabins, tents, huts, dugouts).
The fact of the presence of illegal entry into the dwelling is evidenced by the moment of the origin of intent to take possession of another's property. If the person has penetrated the lawfully, the intent to steal from him arose after penetration, then there is no sign of the theft with penetration in his actions.
This qualifying sign is also absent in cases when a person has appeared in a dwelling with the consent of the victim or persons under whose protection the property was located, by virtue of kinship relations, acquaintance or was in the trading floor of the store, in the office and other premises open to visitors citizens.
If a person is found guilty of stealing someone else's property by illegally entering an additional qualification under Art. 139 CC is not required, because such unlawful action is a qualifying sign of theft.
30. Stealing from an oil pipeline, oil product pipeline, gas pipeline is a specially qualified version of theft from the storage. The objective side of this crime is the unauthorized selection of oil, oil products and gas from pipelines.
If during the theft of oil, oil products and gas from the oil pipeline, oil product pipeline, gas pipeline through tie-ins into pipelines, they are destroyed, damaged or brought to an unusable condition, as well as technologically related objects, structures, communication equipment, automatics , alarms that caused or could lead to a violation of their normal operation, then the deed is subject to qualification for the totality of crimes provided for in the "b" Part 3 of the commented article ist. 2153 of the Criminal Code.
31. Theft in a large amount. According to paragraph 4 of the Note, to the commented article such is the secret theft of someone else's property worth over 250 thousand rubles.
As embezzlement in a large amount, the commission of several thefts of another's property, the total value of which exceeds 250 thousand rubles, is qualified if these thefts are committed in one way and under circumstances that indicate intent to commit theft in a large or large amount.
When deciding on the qualification of the actions of persons who committed the theft of someone else's property in a group of persons by prior agreement or an organized group, on the basis of "large amount", one should proceed from the total cost of the criminal group stolen by all the participants.
32. According to part 4 of the commented article the following level of special qualification of the secret theft of someone else's property is theft: an organized group; in an especially large amount.
33. Stealing by an organized group. A deed is qualified under the a Part 4 of the article to be commented only in case of theft committed by a stable group of persons who have previously joined together to commit one or several crimes (Part 3, Article 35 of the Criminal Code). Such a group is characterized by stability, the presence in its structure of an organizer (leader) and a pre-designed plan for joint criminal activity, the distribution of functions among members of the group in preparation for the commission of a crime and the implementation of criminal intent. The stability of an organized group can be evidenced not only by the long time span of its existence, the repeated commission of crimes by the members of the group, but also the length of preparation for even one crime, as well as other circumstances, for example, the special training of the participants of the organized group for penetration into the storage and technical equipment.
When recognizing crimes committed by an organized group, the actions of all accomplices, regardless of their role in the deed, are qualified as co-participation without reference to art. 33 of the Criminal Code.
If a person incites others to create an organized group for the commission of specific crimes, but does not directly participate in the selection of its participants, planning and preparation for the commission of crimes or in their implementation, his actions qualify as complicity in the commission of an organized group of crimes, with reference to Part 4 of Art. 33 of the Criminal Code.
For the characteristics of the organized group, see also paragraphs 2-4,10 of the resolution of the Plenum of the US Armed Forces dated 10.06.2010 No. 12.
34. Theft in an especially large amount. According to clause 4 of the Note, to the commented article such is the secret theft of someone else's property worth over 1 million rubles.
As embezzlement in a particularly large amount, the commission of several thefts of other people's property, the total value of which exceeds 1 million rubles, is qualified if these thefts are committed in one way and under circumstances that indicate intent to commit theft in large or large amount.When deciding on the qualification of actions of persons who committed the theft of someone else's property in a group of persons by prior agreement or an organized group, on the basis of an "especially large amount", one should proceed from the total cost of the criminal group abducted by all participants.
35. In the case of theft under aggravating circumstances provided for in several parts of the article being commented, the actions of the perpetrator, in the absence of a real set of crimes, are subject to qualification only for that part of the specified articles of the Criminal Code, which provides for a more severe punishment. Thus in a descriptive part of a sentence all qualifying signs of an act should be resulted.
36. In the presence of the grounds provided for in Part 1 of Art. 35 of the Criminal Code, the commission of a crime within a group of persons without prior collusion may be recognized as an aggravating circumstance, with reference to cl. In " Part 1 of Art. 63 CC.
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