Theft qualification in the Criminal Code of the Russian Federation.
Theft qualification in the Criminal Code of the Russian Federation
Clause 1 of Article 158 of the Criminal Code of the Russian Federation provides the following definition of the concept of «theft» — secret theft of someone else's property» The main difference between theft and other forms of theft is the method of seizure and taking possession of property. This method is characterized as secret, which corresponds to the generally accepted idea of theft. Secret is the seizure of property that occurs without the knowledge and consent of the owner or the person in whose custody the property is, and, as a rule, unnoticed by outsiders.
Theft should be distinguished from robbery, which is committed openly. If the criminal mistakenly believed that he was secretly stealing property, but in reality his actions were realized by the victim or observed by other persons, then in accordance with the direction of intent, the act should be qualified as theft. Theft is a non-violent crime. Theft in the articles of the Criminal Code of the Russian Federation is understood as the unlawful gratuitous seizure and (or) conversion of someone else's property for the benefit of the perpetrator or other persons, committed with a mercenary purpose, causing damage to the owner or other holder of this property.
Criminal-legal issues of qualification of thefts committed with penetration into a home, premises, or other storage are among the most complex.
Qualification of theft is complicated by constant changes occurring in the economic policy of our state. Thus, former state and public property has almost completely passed into private ownership. Both citizens and various legal entities (LLP, CJSC) have become owners of houses, summer cottages, enterprises and organizations. Qualification of theftand its investigation are complicated by the fact that in some cases the subjects of this type of crime are foreign citizens. When qualifying such crimes, it is necessary to take into account the citizenship of these persons, current treaties between countries, and the principles of international law.
Article 158 of the Criminal Code of the Russian Federation provides for the following types of theft:
simple (main element) Part 1 of Article 158 of the Criminal Code of the Russian Federation; qualified (Part 2 of Article 158) and especially qualified (Part 3 of Article 158). Qualification of theftdepends largely on a correct understanding of the features that distinguish one type of theft from another, which ultimately comes down to a correct understanding of aggravating circumstances. The size of the theft is the main criterion that determines the degree of public danger of the crime and affects the nature and size of the punishment.
Large amounts are one of three circumstances that particularly aggravate theft. Along with theft committed by an organized group or by a person previously convicted two or more times for theft or extortion, large amounts of theft are considered serious crimes (according to Article 15 of the Criminal Code of the Russian Federation). Large amounts in the articles of Chapter 21 of the Criminal Code of the Russian Federation are recognized as the value of property that is five hundred times greater than the minimum wage established by the legislation of the Russian Federation at the time the crime was committed.
Theft with entry into a dwelling
A dwelling is a building intended for permanent or temporary residence. Theft with entry into a dwellinginvolves a secret entry into a home, premises or storage facility with the purpose of seizing someone else's property. This refers to illegal secret access to property, unauthorized entry into a home, premises or storage facility against the will of the person in charge of the property located therein or guarding it. Burglary is characterized by the fact that the purpose of seizing someone else's property must precede entry into the home, premises or storage facility. This feature cannot be seen if the intent to steal arose after the person found himself in someone else's home, premises or storage facility for another reason. Penetration must be recognized not only as the physical entry of the culprit into the home, premises or storage facility, but also the seizure of property using various techniques and devices (for example, hooks, «fishing rods», magnets, suction hoses, etc.), allowing the culprit to extract the stolen items without entering the relevant premises. It cannot be considered as penetration, the fact when the theft is committed by a person who has access to a dwelling, premises or storage facility by virtue of his official position or by virtue of the work performed, as well as by a person who has one-time access to the said premises.
Criminal liability for apartment burglaries
Theft committed with illegal entry into a home, premises or other storage facility shall be punishable by a fine of seven hundred to one thousand minimum wages or in the amount of the convicted person's wages or other income for a period of seven months to one year, or by imprisonment for a term of two to six years with or without a fine of up to 50 minimum wages or in the amount of the convicted person's wages or other income for a period of up to one month. (Criminal Code of the Russian Federation, Article 158, Part 2). Criminal liability for apartment burglaries may be applied to sane persons who have reached the age of 14 at the time of the crime.
In cases where entry into a home (premises or other storage facility) was accompanied by breaking into locking devices, damaging walls, safes, etc., the act must be additionally qualified as destruction of or damage to property under Article 167 of the Criminal Code.
Penetration into a dwelling, premises or other storage facility may be committed by one or more persons. The liability of two or more persons under this criterion occurs not only when they all entered the premises together, but also in cases where one person entered there and the other assisted in the penetration or took part in the removal of property from the premises.
In cases of theft with penetration into a dwelling, premises or other storage facility in complicity, the commission of a crime, its concealment is facilitated, more significant material damage is often caused, and the methods of entry are more sophisticated and dangerous. In the case of thefts committed in complicity, entry was most often expressed in breaking locks, roofs, walls, doors, and picking keys.
When assessing the activities of accomplices in this case, it is necessary to establish the fact that they contributed to the activities of the perpetrator, were causally related to his actions, and also contributed to the occurrence of a criminal result. The goal and motives of the organizer, instigator and accomplice may not coincide with the goals of the perpetrator. The perpetrator always acts out of selfish motives, and the goal of the instigator may be different, which does not affect the classification of the crime. Those guilty of committing a crime in this case are subject to criminal liability under Art. 34 and Part 3 of Article 158 of the Criminal Code of the Russian Federation.
Theft committed by breaking into a home in the presence of aggravating circumstances provided for in Part 2 of Article 158 is qualified only under Part 3 of Article 158, and other qualifying features are noted in the sentence. But if a person commits two thefts, one of which involves breaking into a home, then both of these thefts are qualified independently.