Criminal liability for misappropriation and embezzlement. Distinction from related crimes

Powers over property may arise from official position, contractual relations or special instructions enshrined in documentary form (agreement, act, labor agreement, 6. The owner represented by the state, an organization, including a non-state one, as well as individual citizens can act as a guarantor for certain operations with property.

Article 160

Acts, provided for in parts first, second or third of this article, perfect organized group or in special large size, - are punishable by imprisonment for a term of up to ten years with a fine in the amount of up to one million rubles or in the amount wages or other income of the convicted person for a period of up to three years or without it and with restriction of freedom for a period of up to two years or without it. Commentary to Art.

Misappropriation of funds by deception

What punishment is provided for embezzlement of funds in the amount of 160 thousand rubles?

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Article 160 of the Criminal Code of the Russian Federation: comments

or in the amount of two years’ salary/other income of the convicted person. Up to 360 hours of mandatory work. Up to 5 years in prison. Up to a year of correctional labor. Deprivation of liberty may additionally be accompanied by its limitation to 1 year. The same provision applies to the case of assignment of forced labor. Art.

Criminal Code, N 63-FZ

The same acts committed by a person using your official position, as well as 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 wages or other income of the convicted person for a period of one to three years, or by deprivation of the right to occupy certain positions or study certain activities for a period of up to five years, or forced labor for a term of up to five years with or without restriction of freedom for a term of up to one and a half years, or imprisonment for a term of up to six years with a fine in the amount of up to ten thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to one month or without it and with or without restriction of freedom for a period of up to one and a half years. 4.

Misappropriation or embezzlement? Differences and similarities, which article of the Criminal Code of the Russian Federation is regulated?

which for some reason was entrusted to him. Embezzlement Embezzlement is an unlawful act characterized by illegal use other people's property. At its core, the concept of embezzlement differs from the concept of appropriation by the action that follows the appropriation, which in all cases is recognized as illegal. Which article in the Criminal Code of the Russian Federation is responsible for embezzlement or misappropriation? Article 160 of the Criminal Code of our country regulates the punishment for such a property crime.

Article 160 of the Criminal Code of the Russian Federation.

Article misappropriation of other people's funds

In accordance with Art. Article 160 of the Criminal Code of the Russian Federation ii: Embezzlement or embezzlement means the theft of someone else’s property entrusted to the perpetrator. According to Note 1 to Art. 158 of the Criminal Code of the Russian Federation Theft refers to the unlawful gratuitous seizure and (or) circulation of someone else's property in favor of the perpetrator or other persons committed for personal gain and causing damage to the owner or other holder of this property. In the Resolution of the Plenum Supreme Court RF dated December 27, 2007

Misappropriation of funds

Salaries were paid every week. When receiving a salary, I was regularly short of 500-2000 rubles per week. I worked in the office for 2 years and left. I'm tired of the regular deception. When we came to people to install windows, we had two documents in our hands: 1-act of work completed, 2-check for additional payment. The additional payment was handed over to the manager’s office once a week (they took the additional payment without signatures and gave it back without receipts). After my dismissal, they charged me and my partner with a sum of 40,000 thousand.

1. Misappropriation or embezzlement, that is, theft of someone else’s property entrusted to the guilty person, -

shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to one year, or compulsory work for a period of up to two hundred and forty hours, or correctional labor for a term of up to six months, or restriction of liberty for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for the same term.

2. The same acts committed by a group persons according to prior agreement, as well as causing significant damage citizen -

shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to three hundred sixty hours, or by corrective labor for a term of up to one year, or by forced labor for a term of up to five years. with restriction of freedom for a term of up to one year or without it, or imprisonment for a term of up to five years with restriction of freedom for a term of up to one year or without it.

3. The same acts committed by a person using his official position, as well as on a large scale, -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by forced labor for a term up to five years with restriction of freedom for a term of up to one and a half years or without it, or imprisonment for a term of up to six years with a fine in the amount of up to ten thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one month or without it and with restriction of freedom for a period of up to one and a half years or without it.

4. Acts provided for in parts one, two or three of this article, committed by an organized group or on an especially large scale, -

shall be punishable by imprisonment for a term of up to ten years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to three years and with or without restriction of freedom for a term of up to two years.

Comments to Art. 160 of the Criminal Code of the Russian Federation

1. These crimes are defined in the commented article as the theft of someone else’s property entrusted to the perpetrator. Essentially we're talking about about two independent forms of theft.

2. Misappropriation “consists of gratuitous, committed for selfish purposes, unlawful use by a person of the property entrusted to him in his own favor against the will of the owner” (clause 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51). The embezzled property continues to be at the disposal of the perpetrator; it has not yet been alienated or consumed.

3. Theft in this form “is considered a completed crime from the moment when the legal possession of the property entrusted to a person became illegal and this person began to commit actions aimed at converting said property in his own favor (for example, from the moment when a person, through forgery, conceals the presence of entrusted property to him, or from the moment the person fails to fulfill the obligation of a person to place funds entrusted to this person into the bank account of the owner)" (clause 19 of the above Resolution).

At the same time, subsequent misconduct(expenditure, consumption, etc.) with appropriated property, over which it has already been established, at least for for a short time, unlawful possession, lie outside the scope of the crime and cannot be considered as theft in the form of embezzlement.

4. Embezzlement is “the unlawful actions of a person who, for personal gain, has spent the property entrusted to him against the will of the owner by consuming this property, spending it or transferring it to other persons” (clause 19 of the said Resolution). Unlike appropriation, which is characterized as the retention of someone else's property, embezzlement is the withholding of this property, i.e. its sale, donation, transfer on debt or to pay off a debt, etc.

5. Embezzlement is recognized as a completed crime from the moment of actual expenditure or alienation of the property entrusted to the perpetrator.

6. The commonality between embezzlement and embezzlement is that theft is committed without taking property from the owner: the culprit uses the actual opportunity to take advantage of or dispose of personal purposes someone else's property, which is entrusted to him for the exercise of the powers stipulated by the owner for disposal, management, storage, delivery, etc., and is under his jurisdiction.

7. If a person commits with a single intent the theft of someone else’s property, one part of which is appropriated and the other is wasted, the act does not form a set of crimes, since both forms of theft are provided for by the disposition of the same criminal law norm.

8. Subjective side characterized by guilt in the form of direct intent and selfish purpose.

The direction of a person’s intent to commit illegal, gratuitous actions aimed at turning the property entrusted to him for his own benefit or for the benefit of other persons must in each case be determined by the court based on the specific circumstances of the case, such as, for example, whether this person has real possibility return the property to its owner, the perpetrator attempts by forgery or in another way to hide their actions (clause 20 of the Resolution).

9. Special subject of misappropriation and embezzlement - “a person to whom someone else’s property was entrusted by legal or an individual on legally With specific purpose or for certain activities" (clause 22 of the Resolution). In other words, the subject, by virtue of official or other official position, agreement or special assignment, is vested with certain powers to dispose, manage, deliver or store entrusted property.

Actions of persons who do not have these characteristics special subject, but directly involved in the theft of property by prior conspiracy with the person to whom the property was entrusted, must be qualified as the actions of organizers, instigators or accomplices under the relevant part of Art. 33 and art. 160 of the Criminal Code (clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51).

10. The theft of entrusted property should be qualified as committed by a group of persons by prior conspiracy, provided that two or more persons with the characteristics of a special entity were directly involved in the crime (for example, the head of the organization in whose jurisdiction the stolen property is located, and an employee responsible for agreement financial liability behind this property), which in advance, i.e. before the crime began, they agreed to commit it together (clause 22 of the above-mentioned Resolution).

11. Signs qualified personnel: commission of a crime causing significant damage to a citizen (Part 2 of Article 160 of the Criminal Code) and especially qualified embezzlement: committed by a person using his official position or on a large scale (Part 3 of Article 160 of the Criminal Code) completely coincide with the qualifying and especially qualifying signs of fraud. They have the same content as for theft and fraud.

12. Most dangerous look the crime in question (Part 4 of Article 160 of the Criminal Code) is characterized by the same characteristics as theft and fraud, i.e. committed by an organized group or on a particularly large scale.

13. Embezzlement and embezzlement committed on an especially large scale should also be qualified in the case of multiple thefts, if they were committed in the same way and under circumstances indicating an intent to commit theft on an especially large scale. The amount of theft committed by a group of persons by prior conspiracy or by an organized group must be recognized as particularly large based on total cost property stolen by all participants criminal group(Clause 25 of the above Resolution).

1. Misappropriation or embezzlement, that is, theft of someone else’s property entrusted to the guilty person, -
shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a term of up to two hundred and forty hours, or by corrective labor for a term of up to six months, or by restriction of freedom for a term of up to two years, or forced labor for up to two years, or imprisonment for the same period.

2. The same acts committed by a group of persons by prior conspiracy, as well as causing significant damage to a citizen, -
shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to three hundred sixty hours, or by corrective labor for a term of up to one year, or by forced labor for a term of up to five years. with restriction of freedom for a term of up to one year or without it, or imprisonment for a term of up to five years with restriction of freedom for a term of up to one year or without it.

3. The same acts committed by a person using his official position, as well as on a large scale, -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by forced labor for a term up to five years with restriction of freedom for a term of up to one and a half years or without it, or imprisonment for a term of up to six years with a fine in the amount of up to ten thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one month or without it and with restriction of freedom for a period of up to one and a half years or without it.

4. Acts provided for in parts one, two or three of this article, committed by an organized group or on an especially large scale, -
shall be punishable by imprisonment for a term of up to ten years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to three years and with or without restriction of freedom for a term of up to two years.

Commentary on Article 160 of the Criminal Code of the Russian Federation

1. The article describes two independent forms of theft, combined special treatment perpetrators to the stolen property. It lies in the fact that the property is entrusted to them.

Property is considered entrusted if the owner or user gives the person to whom it is transferred certain legal powers: to use the property in within certain limits, removing it beneficial features; keep; implement delivery services, etc. As a rule, entrustment presupposes the proper execution of these powers - the conclusion of an agreement for use, storage, delivery, etc.

2. Appropriation consists of the gratuitous, mercenary, unlawful use by a person of the property entrusted to him for his own benefit against the will of the owner. Since the property is already in the lawful possession of such a person, the circulation of the property consists of its wrongful retention.

3. The crime is considered completed when the legal possession of the entrusted property has become unlawful; the person began to take actions aimed at converting the specified property to his benefit (for example, by means of forgery, he conceals the presence of entrusted property in his possession, does not fulfill the obligation to deposit the funds entrusted to him into the bank account of the owner).

4. Embezzlement is the illegal actions of a person who, for selfish purposes, spent the property entrusted to him against the will of the owner by consuming this property, spending it or transferring it to other persons. In contrast to appropriation - the retention of someone else's property, embezzlement can be characterized as the withholding of this property, i.e. its expenditure: sale, donation, loan, etc.

5. The crime is completed from the moment of actual expenditure or alienation of the property entrusted to the perpetrator.

6. It is incorrect to consider embezzlement as a subsequent stage, the development of appropriation. If a person has entered into unlawful possession of a thing (the storekeeper brings a TV from the warehouse and uses it), then the thing has been appropriated. The subsequent disposal of it, say, giving it to a friend for his birthday, does not constitute a crime, since the theft in the form of appropriation is completed. Embezzlement involves spending property without actual possession to them (the person hands over a TV from the warehouse as a gift to his friend).

7. If a person commits with single intent the theft of someone else’s property, one part of which is appropriated and the other is wasted, the act does not form a set of crimes, since both forms of theft are provided for by the disposition of the same criminal law norm.

8. The subjective side is characterized by guilt in the form of direct intent and selfish purpose.

9. Special subject of a crime - a person to whom someone else’s property was entrusted by a legal entity or individual on a legal basis for a specific purpose or for a specific activity.

10. Embezzlement and embezzlement are qualified as committed by a group of persons by prior conspiracy if two or more persons with the characteristics of a special entity were directly involved in them (for example, the head of the organization in whose jurisdiction the stolen property is located, and an employee who is financially responsible under the contract for this property), which in advance, i.e. before the crime began, they agreed to commit it together.

The actions of persons who do not have the indicated characteristics of a special subject, but who directly participated in the theft of property by prior conspiracy with the person to whom the property was entrusted, must be qualified as the actions of organizers, instigators or accomplices under the relevant part of Art. 33 and Art. 160 CC.

12. Embezzlement and embezzlement committed on an especially large scale should also be qualified in the case of multiple thefts, if they were committed in the same way and under circumstances indicating an intent to commit theft on an especially large scale. The amount of theft committed by a group of persons by prior conspiracy or by an organized group must be recognized as particularly large based on the total value of the property stolen by all members of the criminal group.

Another commentary on Article 160 of the Criminal Code of the Russian Federation

1. The commented article regulates liability for two independent forms of theft of other people’s property - its appropriation and embezzlement, each of which has its own objective features inherent in these methods of confiscation and circulation of objects of infringement in favor of the perpetrator or other persons.

When qualifying misappropriation and embezzlement, it is necessary to use the explanations of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2007 “On judicial practice in cases of fraud, misappropriation and embezzlement" (website of the Supreme Court of the Russian Federation: www.supcourt.ru).

2. Assignment as independent form theft from objective side represents active actions, ultimately expressed in the seizure, isolation of inventory items entrusted to the perpetrator and their circulation in one’s own favor or in favor of other persons by establishing their illegal possession over them. The essence of appropriation is that property legally entrusted to the offender is economically transferred from the possession of the owner, who thereby loses his power over him, into the illegal physical possession of the criminal, who receives the actual opportunity to dispose and use it at his own discretion. The subjective powers of the owner to own, use and dispose of property criminally transform into the illegal actual ability of the subject of appropriation to act in relation to the property entrusted to him in the same way, against the will of the person to whom it belongs by right of ownership or title ownership based on it.

In the case when the culprit steals the property entrusted to him, in order to turn it to his advantage, it is first inevitably necessary to isolate it from the rest of the owner’s property fund, move the stolen property in space and add it to his personal property, i.e. the criminal must first seize the object of the attack, and then turn it to his advantage. Therefore, contrary to widespread belief, appropriation is not just “withholding”, “non-return”, “evading return” of entrusted property, which, in their psychophysical situation, in their operational content and form, are always passive behavior, typical variety human inaction. However, it is practically and theoretically impossible to steal something through inaction, as is generally accepted. Appropriation is also a form of active behavior consisting of isolation, i.e. confiscation and conversion of stolen property to one’s own benefit.

3. The defining feature of appropriation as an independent form of theft is the special legal relation subject to stolen property that does not affect the economic and legal nature the very object of the encroachment, which continues to remain the material substrate of someone else’s property.

Article 160 of the Criminal Code, characterizing this relationship, in general form speaks of property “entrusted to the guilty.”

This should be considered property that is in the legal possession of a person who is vested with certain powers in relation to this property. Revealing the content of the analyzed form of theft, the Plenum of the Supreme Court of the Russian Federation explained that the misappropriation or embezzlement of property entrusted or under the control of a person should be qualified as the illegal gratuitous circulation in one’s own favor or in the favor of another person of property that is in the lawful possession of the perpetrator, who, by virtue of job responsibilities, contractual relations or special instructions of the owner exercised powers of disposal, management, delivery or storage in relation to this property (storekeeper, forwarder, supply agent, seller, cashier and other persons).

This essentially correct explanation related to the theft in the named forms of only state or public property, and therefore, as bearers of powers - possible special subjects of the crime, the Resolution of the Plenum of the Supreme Court named some staff or casual workers relevant organizations, which, by appropriating or wasting the property entrusted to them by the organization, must inevitably use their official position. The situation has changed dramatically due to the introduction of the new Criminal Code of the Russian Federation criminal liability and for misappropriation or embezzlement of property belonging to individual citizens. This category of victims can also entrust their property to private individuals who are not employees of any organization, giving them certain powers to dispose, manage, deliver or store property. Such powers to one degree or another can be transferred by a citizen - owner of property to other citizens on the basis civil contracts contract, lease, commission, rental, rent Vehicle, including contracts for the provision of management services and technical operation(Articles 626 - 641 of the Civil Code), transportation and storage, etc. It is clear that private individuals who have received certain powers from the owner under a civil contract can criminally abuse them and appropriate property values ​​transferred to them or sums of money for the purpose of implementation contract rights and obligations of the parties.

It seems that it is precisely these cases of selfish gratuitous misappropriation or waste of property values ​​entrusted by the owner to a private person that Part 1 of Art. 160 CC. The subject of the crime, who exercises certain powers in relation to the property entrusted to him in connection with his position (foreman, forwarder, supply agent, official, etc.), appropriating the values ​​transferred to him, always uses his official position by virtue of that they would not have been under his control and disposal without the fact of his position. This criminal situation is covered, in our opinion, by Part 2 of Art. 160 of the Criminal Code on the basis of embezzlement or embezzlement by a person using his official position, and this subject of a qualified type of crime under comment can be either an official (see commentary note to Article 285 of the Criminal Code) or ordinary employees who nevertheless exercised powers in regarding the property entrusted to them. This is fundamental new situation, arising from the literal interpretation of the text of Parts 1 and 2 of Art. 160 of the Criminal Code, one must keep in mind when qualifying the actions of persons who have committed misappropriation or embezzlement of someone else’s property.

4. One of the central issues in the practical application of the commented article of the Criminal Code is the question of whether the subject has or does not have certain powers in relation to the inventory assets transferred to him by the owner, bearing in mind that the exact qualification of the actions of the culprit depends on its correct resolution by the investigative authorities and the court according to the relevant article ch. 21 of the Criminal Code of the Russian Federation. In this regard, the subjects of this crime, along with officials of agricultural enterprises, organizations and institutions, should include forwarders, delivery drivers, managers of currents, warehouses and other employees who exercised powers in relation to stolen property (BVS RSFSR. 1979. T 9. P. 7).

At the same time, the actions of drivers, tractor drivers, combine operators, drivers of horse-drawn transport, drivers of small-scale river vehicles (boats, boats, ferry ferries), expressed in the selfish, gratuitous seizure of harvested grain and other agricultural products during their transportation to places of warehousing or storage, should be qualify as theft of someone else's property. If specified categories workers, in addition to purely production functions for transportation of products, they also performed the duties of a forwarder, i.e. were provided with a waybill or other official reporting document indicating the name, assortment, quantity (weight), and sometimes the cost of the property, their effect in similar cases should be considered as theft of valuables entrusted to them in the form of misappropriation or embezzlement (BVS USSR. 1985. Vol. 1. P. 7).

By general rule certain powers of a person in relation to the property entrusted to him are secured in a certain documentary form: the form of distribution of rights, duties by position, contract, agreement, order or written order management of the organization, waybill or receipt issued by an authorized official in the name of their specific artist.

5. The special subject of appropriation is materially responsible persons, who are directly entrusted with inventory assets and who, because of this, permanently or temporarily carry out in relation to them certain powers. The subject of the crime in question can be both officials, which in practice is much more common, and non-officials, both regular and non-regular employees various organizations, including commercial structures who have reached the age of 16. Subject of this crime maybe ordinary citizen, who has received certain powers in relation to specific property from the same ordinary citizen, but only the owner. But even in this case, the “ordinary” citizen receives criminal legal status a special subject of a crime who gives him special powers in relation to the stolen property.

6. Appropriation as a form of theft is considered completed from the moment of seizure and separation of someone else’s property from the rest of the inventory, owned by the owner, and at the same time attaching it to the personal property of the subject of the crime in order to dispose of it as his own. Subsequent actions of the perpetrator in the form of one or another unlawful use of already appropriated property, over which he has established his illegal possession, lie outside the scope of the crime and do not transform appropriation into another form of theft - embezzlement. IN otherwise we would have to recognize the combination of two independent acts of theft, and qualify the second of them on the basis of the repetition of its commission. There is no need to say that similar solution- legal nonsense, i.e. complete nonsense.

7. Embezzlement is an independent form of theft, in which property entrusted to the guilty person for the exercise of certain powers is illegally and free of charge spent, spent, sold, consumed and otherwise through active actions alienated by them, for example, transferred to third parties.

If the elements of embezzlement of property are established, this automatically means that the actions of the perpetrator do not contain the elements of misappropriation of the same property.

8. Embezzlement is recognized as a completed crime at the moment of illegal disposal of property entrusted to the perpetrator, i.e. when the process of its complete alienation in one form or another has been completed (consumption, expenditure, sale, transfer to other persons, etc.). Most often, when committing a crime in the form of embezzlement, the beginning and end of the act merge into single act alienation of stolen property, which by itself physical nature the process of development of this crime excludes the very possibility of saying that for a certain time the perpetrator illegally possessed the stolen property. For example, a wholesale storekeeper commodity base sells to citizens the material assets entrusted to him, and turns the money received into his own property. In another case, a senior salesman fur store gave the nutria coat to his sister free of charge. It is precisely this moment that embezzlement differs from appropriation, which always presupposes illegal actual possession of the stolen property by an authorized person - the subject of the said crime during certain period time.

The process of illegal disposal of property may not be of a one-time and one-act nature, but rather consist of several episodes of its alienation, extended over time. This, however, does not change the nature of embezzlement as an act not related to the establishment of unlawful possession over those material assets, which have not yet been alienated to the guilty. Embezzlement, consisting of several episodes covered by a single intent of the subject, and having common goal illicit enrichment at the expense of someone else's property, must be recognized as completed at the moment of the commission of the last criminal act of alienation of valuables, as is typical for a single ongoing theft.

9. Appropriation and embezzlement of someone else's property should be distinguished from theft. The main distinguishing feature specified forms theft is the attitude of the subject of the crime to the stolen property. In case of misappropriation or embezzlement, the property is not only entrusted to the culprit and is in his lawful possession, but he is also endowed with certain powers in relation to this property. In case of theft, the subject either has nothing to do with the stolen property at all, or only gains access to it to perform purely technical, production functions, which, however, do not give rise to any of his powers to own, use, dispose or responsible security. A debtor who has borrowed a certain amount of money from someone is not a subject of misappropriation or embezzlement, since their owner does not grant the other party any powers in the loan agreement, except for the obligation to repay the debt within the time stipulated by the transaction. At the same time, if it is proven that a certain citizen, borrowing money, from the very beginning had the intention not to return it to the owner and to use it free of charge, for selfish purposes, in his own favor, he commits fraud (see commentary to Article 159 of the Criminal Code) . If the debtor has no intention to steal the borrowed money and not return it to the owner, it gives rise to civil law relations between the creditor and the debtor, which are resolved by filing a corresponding claim with the former.

10. Part 2 art. 160 of the Criminal Code provides for liability for qualified misappropriation or embezzlement of someone else’s property if they are committed by a group of persons by prior conspiracy and causing significant damage to a citizen. These signs coincide with similar signs of qualified theft, which were discussed above.

11. Part 3 art. 160 formulates the characteristics of especially qualified elements of misappropriation or embezzlement, if they are committed: a) by a person using his official position; b) on a large scale. The listed signs textually exactly coincide with the signs of the same name for especially qualified theft (see commentary to Article 158 of the Criminal Code).

12. In part 4 art. 160 of the Criminal Code refers to the misappropriation or embezzlement of someone else’s property if it is committed by an organized group or on a particularly large scale. These signs are also commented on above when analyzing the elements of theft.

Article 160 of the Criminal Code of the Russian Federation. Misappropriation or embezzlement.

1. Misappropriation or embezzlement, that is, theft of someone else’s property entrusted to the guilty person, -

shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a term of up to two hundred and forty hours, or by corrective labor for a term of up to six months, or by restriction of freedom for a term of up to two years, or forced labor for up to two years, or imprisonment for the same period.

2. The same acts committed by a group of persons by prior conspiracy, as well as causing significant damage to a citizen, -

shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to three hundred sixty hours, or by corrective labor for a term of up to one year, or by forced labor for a term of up to five years. with restriction of freedom for a term of up to one year or without it, or imprisonment for a term of up to five years with restriction of freedom for a term of up to one year or without it.

3. The same acts committed by a person using his official position, as well as on a large scale, -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by forced labor for a term up to five years with restriction of freedom for a term of up to one and a half years or without it, or imprisonment for a term of up to six years with a fine in the amount of up to ten thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one month or without it and with restriction of freedom for a period of up to one and a half years or without it.

4. Actions provided for parts of the first, second or third of this article, committed by an organized group or on an especially large scale, -

shall be punishable by imprisonment for a term of up to ten years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to three years and with or without restriction of freedom for a term of up to two years.

The court finds the qualification of the actions of the defendant by the preliminary investigation authorities under Art. 160 part 2 of the Criminal Code of the Russian Federation is justified and qualifies the actions of the defendant under Art. 160 part 2 of the Criminal Code of the Russian Federation - as misappropriation and embezzlement, that is, the theft of someone else’s property entrusted to the culprit, causing significant damage to a citizen.

Art. 160, Part 3 of the Criminal Code of the Russian Federation This part provides for punishment for persons who have committed embezzlement or misappropriation of property, using their official position, or on a large scale. Sanctions under Art. 160, part 3 of the Criminal Code of the Russian Federation are as follows: Fine 100-500,000 rubles. or in the amount of income/salary for 1-3 years. A ban on holding positions established by the court or engaging in certain activities for up to five years. Up to 5 years of forced labor. In addition to this punishment, the perpetrator may be limited in freedom for a period of up to 1.5 years. Up to 6 years in prison. Additionally, a fine of up to 10 thousand rubles may be imposed. or the subject’s income/salary for 1 month, as well as restriction of freedom for up to 1.5 years.

Norm 160 of the Criminal Code of the Russian Federation: comments Misappropriation or embezzlement, provided for in the general composition, is equated to theft and has all its signs. They act as ways of unlawfully taking possession of someone else's property. Embezzlement or misappropriation is characterized by the fact that material assets are in the lawful use of the perpetrator due to his official or official status. Possession can also be based on an agreement (for example, on financial liability), or other special assignment. All this determines the exercise by the guilty party of powers to manage, deliver, store, use, dispose of someone else’s property. Possession in in this case must be distinguished from having access to material assets as part of the work performed or due to other circumstances. Theft of property in these situations will be classified as theft. It is also necessary to distinguish cases in which the subject, having converted material values ​​in favor of other persons, acts to exercise an alleged or actual right. For example, a person appropriates property to secure obligations not fulfilled by the owner. If there are grounds established by Art. 330 of the Code, the behavior of the perpetrator can be qualified as arbitrariness.

Embezzlement This is the second method of theft provided for in Art. 160 of the Criminal Code of the Russian Federation. Embezzlement should be understood as illegal expenditure. Money the person to whom they were entrusted. It also includes any other forms of unlawful direct consumption by the subject of the property transferred to him for his own purposes. As a result, money is literally wasted and material assets are spent. These actions may also involve the transfer of property to third parties. Embezzlement is recognized as a completed crime from the moment of illegal alienation or consumption. If the subject has spent part of the property (for example, money) and appropriated the rest (fuel and lubricants, for example), then the actions do not form a totality.

Object Acts included in Art. 160 of the Criminal Code of the Russian Federation, are aimed at public relations, which develop within the framework of the redistribution and distribution of material goods. The objective side of embezzlement or appropriation consists in taking possession of the property of other persons through its direct expenditure. If, in this case, things are replaced with less valuable ones, then the damage will be determined in accordance with the value of what was actually seized. -

Subjective part For crimes provided for in Article 160 of the Criminal Code of the Russian Federation, a capable citizen over the age of 16 can be held accountable. The subjective side usually consists of specific intent. By appropriating or wasting someone else's property, a person understands the gratuitous, illegal nature of his behavior. The direction of intent in each case of theft is indicated by the lack of a real opportunity for the subject to timely return the property to the owner, as well as attempts to conceal illegal actions.

Particularly qualified types Article 160, Part 3 of the Criminal Code of the Russian Federation formulates the sign of the use of official position in the commission of a crime. Such subjects include officials who have the characteristics specified in paragraph 1 note. to Art. 285 of the Code. In addition, they should be understood as municipal or state employees who do not act as officials, and others who meet the requirements defined in clause 1 note. To Art. 201. Actions of accomplices, instigators, organizers of embezzlement or misappropriation, committed by the subject knowingly for them, using their status, are not qualified by norm 160, part 3 of the Criminal Code of the Russian Federation. In this case, the provisions of Art. 33 and 159 (part three). Embezzlement or misappropriation on a large scale is considered theft of property worth more than 250 thousand rubles. Organized group It is understood as a stable association created in advance to commit one or more illegal acts. Such a group is distinguished by the presence of an organizer and the stability of its composition. The participants are assigned roles in the preparation and actual commission of crimes. Part four of the article under consideration also provides for such a feature as particularly large-scale theft. The question of its presence as part of a crime is resolved in accordance with clause 4 note. to Art. 158 of the Criminal Code.

Thus, the qualifying feature - a person committing misappropriation using his official position occurs in cases where he exercises the functions of a government representative or performs organizational, administrative, and economic functions in organizations, state and municipal institutions, and local government bodies.

working on the basis of decision No. adopted by the sole founder of LLC "Company GRIOS" on November 17, 2008, and the order of the sole founder of the specified company No. dated November 17, 2008 in the position of general director with the duties of chief accountant of LLC "Company GRIOS", located at address:<адрес>, building 3, being the sole executive body of the company and carrying out management functions in the organization, as well as functions in the organization accounting and reporting, having access to the company’s only current account opened with JSCB SOFIA (CJSC), and a checkbook issued by LLC “Company GRIOS” by the specified bank, with the intent to steal funds entrusted to it, belonging to LLC “Company GRIOS” ", using his official position, having the authority to manage the current activities of the company and operational management affairs of the company, in order to conceal the theft of the company's funds, prepared the following documents:

Misappropriation or embezzlement is one of the forms of theft, which is understood as the theft of someone else's property entrusted to the culprit; liability for this is provided for in Art. 160 of the Criminal Code of the Russian Federation. The subject of misappropriation or embezzlement may not be any property, but only that which is entrusted to the perpetrator.

Embezzlement is the illegal actions of a citizen who has used up the property entrusted to him or transferred it to third parties without the permission of the owner.

Composition of the crime The object of misappropriation and embezzlement corresponds to the object of theft, these are property relations. However, the subject of the crime can only be the property that was entrusted to the guilty person. In this case, we are talking about property in relation to which the criminal has acquired certain powers. The grounds for them are: civil contracts (storage, transportation, rental); official or labor relations; special powers.

If a person did not have the authority to own the property, it was transferred under the protection or supervision of a random person, then the property is not recognized as entrusted. Secret theft in this case, it is qualified under Article 158 of the Criminal Code of the Russian Federation. Thus, the significant difference between appropriation and theft is that the criminal does not take property from the owner, but acquires rights to it legally. Misappropriation and embezzlement of property are crimes that are carried out in two ways. The first method is the commission of a certain action (for example, when the perpetrator uses property that was transferred to him for safekeeping). The second is inaction (for example, when the person to whom the property was entrusted declares to the legal owner that it burned down in a fire). The corpus delicti in the case of misappropriation or embezzlement is material. The appropriation is considered completed from the moment when the rights to own the entrusted property are transferred to the guilty person and he begins to take actions to enrich the property in his favor. Embezzlement is considered completed from the moment of illegal withdrawal of the entrusted property. The subject of these crimes is a citizen who has the following characteristics: reaching the age of majority; financially responsible person; a citizen to whom the stolen property was entrusted by the owner on the basis of a document. If a group of persons participated in the misappropriation or embezzlement, only those citizens who have the characteristics of special subjects are recognized as executors. They bear criminal liability under Articles 33 and 160 of the Criminal Code of the Russian Federation as organizers, instigators or accomplices. It must be proven in court that the subject of the misappropriation or embezzlement had direct intent and selfish purpose. Direct intent is aimed at causing property damage to the victim. This is facilitated by the implementation of a selfish goal, which is characterized by the intention to use someone else’s property for personal purposes, deriving financial benefit from it. The difference between appropriation and embezzlement

The main difference between appropriation and embezzlement is that in the first case, the person illegally owns, and in the second, he turns the property entrusted to him into his own benefit through spending, consumption, and alienation. Each case of misappropriation and embezzlement is investigated for intent. In this case, the specific circumstances of the case are taken into account, including whether the citizen has a real opportunity to return the property to the owner and attempts to hide his actions through forgery or other means. Many lawyers consider embezzlement to be the next stage of appropriation of entrusted property. They explain that in order to begin to turn property into your favor, you must first decide that it will not be returned to its owner. On the other hand, in judicial practice this approach to crime is not applied, otherwise the same theft would have 2 end points: the end of the appropriation and the end of the embezzlement. Both types of theft of entrusted property are characterized by its presence in the hands of the perpetrator at the time the crime ends. At the moment the appropriation ends, the culprit has the opportunity to dispose of someone else’s property, and at the moment the embezzlement ends, he puts this opportunity into practice. There is no time period between lawful possession and unlawful seizure of property during which the offender exercises unlawful possession of it. Difference between embezzlement and fraud

Difference between embezzlement and fraud

According to the PPVS on fraud, embezzlement and embezzlement, in the case of fraud there is a breach of trust of the victim. It is expressed in the use for personal gain of trust relationships established with the owner of property or a person authorized to transfer this property to other persons. Trust is determined by various circumstances - for example, the official position of the perpetrator or family relations with the victim. Theft is qualified under Article 160 of the Criminal Code of the Russian Federation if there was a legally established relationship between the owner and the person to whom he entrusted his property. Thus, the main difference between fraud and embezzlement is that in the first case the subject of the crime is in a legal relationship with the owner of the property, which is based on trust, and in the second - not.

According to the version of the criminal code in force in 2017, the qualifying feature in the case of misappropriation or embezzlement is the infliction of significant property damage on the victim. Its minimum amount is 2500 rubles. To establish the presence of a qualifying characteristic, the court must determine the real value of the embezzled or wasted property, as well as the property status of the victim, which is measured in: the availability of sources of income; amount of income; frequency of income receipt; presence of dependents; total income of all family members. The court listens to the opinion of the victim himself about the significance of the damage caused to him, but also takes into account the case materials, which serve as confirmation of the value of the stolen property and demonstrate the property status of the victim. Several thefts of property, the total value of which is more than 250,000 rubles, are classified as grand theft. When misappropriation and embezzlement of property with a total value of 1,000,000 rubles or more is recorded as theft on an especially large scale. In both cases, all facts of theft must be committed using a single method under circumstances that indicate the presence of selfish intent on the part of the perpetrator. Actions of accomplices

If a group of people took part in the misappropriation or embezzlement, the court must establish the roles of each of them. Incitement is proven when a person induces another person to commit criminal acts by bribery, threat, persuasion or other methods. Complicity consists of facilitating the implementation of illegal actions with the help of instructions, advice, providing any data, tools or means for committing a crime, or removing obstacles. An accomplice is also recognized as a citizen who promised in advance to hide the identity of the perpetrator and traces illegal actions or intended to purchase and sell stolen property. Arbitrariness Separately, the law specifies such a concept as arbitrariness. This is the seizure and (or) conversion in one’s own favor or in favor of other persons of someone else’s property by a citizen who sought to realize his actual or perceived right to this property. An example of arbitrariness is the appropriation by a citizen of property entrusted to him in order to pay the debts of the property owner. From a legal point of view, arbitrariness is not theft. In this case, the culprit is held accountable under Article 330 of the Criminal Code of the Russian Federation.

Responsibility For misappropriation or embezzlement of budget funds, the Criminal Code of the Russian Federation provides for several types of punishments: a fine of 120,000 rubles or in the amount of the income of the convicted person for a one-year period; up to 24 hours of mandatory work; up to six months of correctional labor; up to 2 years of restriction of freedom; up to 2 years of forced labor; up to 2 years of imprisonment. Punishment of a group of people

If it is proven that a group of persons by prior conspiracy participated in the embezzlement or embezzlement, and the victim suffered significant property damage, this is considered an aggravating circumstance. The following types of punishment are provided for members of a criminal group: a fine of up to 300,000 rubles or the amount of the convicted person’s income for a two-year period; up to 360 hours of compulsory work; up to 1 year of correctional labor; up to 5 years of forced labor; up to 1 year of restriction of freedom; up to 5 years of imprisonment. If property was stolen on an especially large scale, the maximum term of imprisonment increases to 10 years, and maximum amount The fine increases to 1,000,000 rubles or up to the amount of the convicted person’s income for a period of up to 3 years. Abuse of official position Abuse of official position is another aggravating circumstance. In case of misappropriation or embezzlement of property on a large scale, the court may impose the following types of punishment on the convicted person: a fine of 100,000 to 150,000 rubles or in the amount of income for a period of one to three years; deprivation of the right to hold a number of positions or engage in certain activities for up to 5 years; up to 5 years of forced labor; up to 1.5 years of restriction of freedom; up to 6 years of imprisonment. Property is the economic basis for the existence of society. It largely determines political, legal, moral, ideological and other types of relations between people. Therefore, types of crimes such as embezzlement and embezzlement are contrary to the public interest and are subject to criminal prosecution. Those convicted under Article 160 of the Criminal Code of the Russian Federation are punished with large fines and realistic deadlines conclusions. At the same time, participation in a crime by a group of persons by prior conspiracy and theft on a large and especially large scale are aggravating circumstances that significantly increase criminal liability.

Misappropriation or embezzlement

Commentary on Article 160 of the Criminal Code of the Russian Federation:

1. The commented article regulates liability for two independent forms of theft of someone else's property - its appropriation and embezzlement, each of which has its own objective features inherent in these methods of seizure and circulation of the objects of encroachment in favor of the culprit or other persons.
When qualifying misappropriation and embezzlement, it is necessary to use the explanations of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 “On judicial practice in cases of fraud, misappropriation and embezzlement” (website of the Supreme Court of the Russian Federation: www.supcourt.ru).

2. Appropriation as an independent form of theft, from the objective side, represents active actions, ultimately expressed in the seizure, separation of inventory items entrusted to the perpetrator and their circulation in one’s own favor or in favor of other persons by establishing their illegal possession over them. The essence of appropriation is that property legally entrusted to the offender is economically transferred from the possession of the owner, who thereby loses his power over him, into the illegal physical possession of the criminal, who receives the actual opportunity to dispose and use it at his own discretion. The subjective powers of the owner to own, use and dispose of property criminally transform into the illegal actual ability of the subject of appropriation to act in relation to the property entrusted to him in the same way, against the will of the person to whom it belongs by right of ownership or title ownership based on it.
In the case when the culprit steals the property entrusted to him, in order to turn it to his advantage, it is first inevitably necessary to isolate it from the rest of the owner’s property fund, move the stolen property in space and add it to his personal property, i.e. the criminal must first seize the object of the attack, and then turn it to his advantage. Therefore, contrary to widespread belief, appropriation is not just “withholding”, “non-return”, “evading return” of entrusted property, which, in their psychophysical situation, in their operational content and form, are always passive behavior, a typical type of human inaction. However, it is practically and theoretically impossible to steal something through inaction, as is generally accepted. Appropriation is also a form of active behavior consisting of isolation, i.e. confiscation and conversion of stolen property to one’s own benefit.

3. The defining feature of appropriation as an independent form of theft is the special legal attitude of the subject to the stolen property, which does not affect the economic and legal nature of the very subject of the encroachment, which continues to remain the material substrate of someone else’s property.
Article 160 of the Criminal Code, characterizing this relationship, speaks in general terms about property “entrusted to the perpetrator.”

This should be considered property that is in the legal possession of a person who is vested with certain powers in relation to this property. Revealing the content of the analyzed form of theft, the Plenum of the Supreme Court of the Russian Federation explained that the misappropriation or embezzlement of property entrusted or under the control of a person should be qualified as the illegal gratuitous circulation in one’s own favor or in the favor of another person of property that is in the lawful possession of the perpetrator, who, by virtue of his official duties, contractual relations or special instructions of the owner exercised powers of disposal, management, delivery or storage in relation to this property (storekeeper, forwarder, supply agent, seller, cashier and other persons).
This essentially correct explanation related to the theft in these forms only of state or public property, and therefore, as bearers of powers - possible special subjects of crime, the Resolution of the Plenum of the Supreme Court names some full-time or part-time employees of the relevant organizations who, by appropriating or wasting what the organization entrusted to them property, inevitably must use their official position. The situation has changed dramatically due to the introduction of criminal liability for the misappropriation or embezzlement of property belonging to individual citizens by the new Criminal Code of the Russian Federation. This category of victims can also entrust their property to private individuals who are not employees of any organization, giving them certain powers to dispose, manage, deliver or store property. Such powers, to one degree or another, can be transferred by the citizen who owns the property to other citizens on the basis of civil law contracts for work, lease, commission, rental, rental of vehicles, including contracts for the provision of management and technical operation services (Art. Art. 626 - 641 Civil Code), transportation and storage, etc. It is clear that private individuals who have received certain powers from the owner under a civil contract can criminally abuse them and appropriate property values ​​or sums of money transferred to them in order to implement the contractual rights and obligations of the parties.

It seems that it is precisely these cases of selfish gratuitous misappropriation or waste of property values ​​entrusted by the owner to a private person that Part 1 of Art. 160 CC. The subject of the crime, who exercises certain powers in relation to the property entrusted to him in connection with his position (foreman, forwarder, supply agent, official, etc.), appropriating the values ​​transferred to him, always uses his official position by virtue of that they would not have been under his control and disposal without the fact of his position. This criminal situation is covered, in our opinion, by Part 2 of Art. 160 of the Criminal Code on the basis of embezzlement or embezzlement by a person using his official position, and this subject of a qualified type of crime under comment can be either an official (see commentary note to Article 285 of the Criminal Code) or ordinary employees who nevertheless exercised powers in regarding the property entrusted to them. This fundamentally new situation, arising from the literal interpretation of the text of Parts 1 and 2 of Art. 160 of the Criminal Code, one must keep in mind when qualifying the actions of persons who have committed misappropriation or embezzlement of someone else’s property.

4. One of the central issues in the practical application of the commented article of the Criminal Code is the question of whether the subject has or does not have certain powers in relation to the inventory assets transferred to him by the owner, bearing in mind that the exact qualification of the actions of the culprit depends on its correct resolution by the investigative authorities and the court according to the relevant article ch. 21 of the Criminal Code of the Russian Federation. In this regard, the subjects of this crime, along with officials of agricultural enterprises, organizations and institutions, should include forwarders, delivery drivers, managers of currents, warehouses and other employees who exercised powers in relation to stolen property (BVS RSFSR. 1979. T 9. P. 7).
At the same time, the actions of drivers, tractor drivers, combine operators, drivers of horse-drawn transport, drivers of small-scale river vehicles (boats, boats, ferry ferries), expressed in the selfish, gratuitous seizure of harvested grain and other agricultural products during their transportation to places of warehousing or storage, should be qualify as theft of someone else's property. If these categories of workers, in addition to purely production functions of transporting products, also performed the duties of a freight forwarder, i.e. were provided with a waybill or other official reporting document indicating the name, assortment, quantity (weight), and sometimes the value of the property, their actions in such cases should be considered as theft of valuables entrusted to them in the form of misappropriation or embezzlement (BVS USSR. 1985 . T. 1. P. 7).
As a general rule, certain powers of a person in relation to the property entrusted to him are secured in a certain documentary form: the form of distribution of rights, duties by position, contract, agreement, order or written instruction of the management of the organization, waybill or receipt issued by an authorized official on the name of their specific artist.

5. The special subject of appropriation is the financially responsible persons who are directly entrusted with inventory assets and who, therefore, permanently or temporarily exercise certain powers in relation to them. The subject of the crime in question can be both officials, which in practice is much more common, and non-officials, both full-time and non-staff employees of various organizations, including commercial structures, who have reached the age of 16. The subject of this crime can also be an ordinary citizen who has received certain powers in relation to specific property from the same ordinary citizen, but only the owner. But even in this case, an “ordinary” citizen receives the criminal legal status of a special subject of a crime, which gives him special powers in relation to stolen property.

6. Appropriation as a form of theft is considered completed from the moment of seizure and separation of someone else’s property from the rest of the inventory belonging to the owner, and its simultaneous addition to the personal property of the subject of the crime in order to dispose of it as one’s own. Subsequent actions of the perpetrator in the form of one or another unlawful use of already appropriated property, over which he has established his illegal possession, lie outside the scope of the crime and do not transform appropriation into another form of theft - embezzlement. Otherwise, we would have to recognize the combination of two independent acts of theft, and qualify the second of them on the basis of the repetition of its commission. There is no need to say that such a decision is legal nonsense, i.e. complete nonsense.

7. Embezzlement is an independent form of theft, in which property entrusted to the culprit for the exercise of certain powers is illegally and free of charge spent, spent, sold, consumed and otherwise alienated by him through active actions, for example, transferred to third parties.
If the elements of embezzlement of property are established, this automatically means that the actions of the perpetrator do not contain the elements of misappropriation of the same property.

8. Embezzlement is recognized as a completed crime at the moment of illegal disposal of property entrusted to the perpetrator, i.e. when the process of its complete alienation in one form or another has been completed (consumption, expenditure, sale, transfer to other persons, etc.). Most often, when committing a crime in the form of embezzlement, the beginning and end of the act merge into a single act of alienation of stolen property, which, due to the very physical nature of the development process of this crime, excludes the very possibility of saying that for a certain time the perpetrator illegally owned the stolen property. For example, a warehouseman at a wholesale commodity warehouse sells to citizens the material assets entrusted to him, and turns the money he receives into his own property. In another case, a senior fur store salesman donated a nutria coat to his sister. It is precisely this point that embezzlement differs from embezzlement, which always presupposes illegal actual possession of stolen property by an authorized person - the subject of the named crime for a certain period of time.
The process of illegal disposal of property may not be of a one-time and one-act nature, but rather consist of several episodes of its alienation, extended over time. This, however, does not change the nature of embezzlement as an act not related to the establishment of unlawful possession of those material assets that have not yet been alienated to the perpetrators. Embezzlement, consisting of several episodes covered by a single intent of the subject, and having a common goal of illegal enrichment at the expense of someone else’s property, should be recognized as completed at the time of the commission of the last criminal act of alienation of valuables, as is typical for a single ongoing theft.

9. Appropriation and embezzlement of someone else's property should be distinguished from theft. The main distinguishing feature of these forms of theft is the attitude of the subject of the crime to the stolen property. In case of misappropriation or embezzlement, the property is not only entrusted to the culprit and is in his lawful possession, but he is also endowed with certain powers in relation to this property. In case of theft, the subject either has nothing to do with the stolen property at all, or only gains access to it to perform purely technical, production functions, which, however, do not give rise to any powers of ownership, use, disposal or responsible protection. A debtor who has borrowed a certain amount of money from someone is not a subject of misappropriation or embezzlement, since their owner does not grant the other party any powers in the loan agreement, except for the obligation to repay the debt within the time stipulated by the transaction. At the same time, if it is proven that a certain citizen, borrowing money, from the very beginning had the intention not to return it to the owner and to use it free of charge, for selfish purposes, to his own benefit, he commits fraud (see.