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Social and economic and political preconditions of fastening in the criminal legislation of special kinds of swindle

From 29.11.2012 № 207-FZ «About modification in UK the Russian Federation and separate acts of the Russian Federation» in the Criminal code of the Russian Federation (further - UK the Russian Federations) are entered by the federal act item 159 UK the Russian Federations providing responsibility for separate kinds of swindle, such, as: in sphere of enterprise activity, at reception of payments, with use of payment cards, in sphere of the computer information, in insurance sphere, in crediting sphere.

As authors of the bill have specified in an explanatory note, the given law is directed on differentiation of various kinds of the swindle which necessity is caused by that the specified crimes are made in the most various spheres of public relations, infringe on interests both separate citizens, and the big groups of citizens and do to public relations essential harm [5]. Already at a stage of an adoption of law in the State Duma of the Russian Federation the opinion that the bill brings elements of unnecessary bulkiness in definition of concept "swindle", unsystematic character and instability [6] was expressed. And now, when from the moment of introduction in operation of law there has passed a certain time interval when judiciary practice has started to be formed, even more often there are statements about presence of essential complexities of realisation
New criminally-rules of law about swindle. Among them competition problems criminally-rules of law, providing various kinds of swindle, otgranichenija swindle from adjacent structures of crimes are specified, for example, to qualification of swindle on set with other crimes, definitions of the maintenance of the new terms opening signs of special kinds of swindle, a problem of differentiation of punishment under criminal law for various kinds of swindle [7], etc.

As the initiator of the given bill the Supreme Court of the Russian Federation which on the basis of the analysis pravoprimenitelnoj the practice which have developed by that period, has considered necessary has acted to offer separate kinds of swindle depending on sphere. Actually for that period has developed anomija round swindle, therefore criminals with ease ducked out, being covered with "unsuccessful" enterprise activity or feigned civil-law transactions. Allocation of special kinds of swindle as a matter of fact was the first step in "putting in order" in rules of conducting enterprise activity in Russia, area of insurance, crediting, etc.

Initial edition of new norms looked is quite justified and is consecutive, proceeding from those purposes which were pursued by the Supreme Court of the Russian Federation: maintenance of protection of citizens from swindle, differentiation of responsibility for swindle of different kinds, leaving from grazhdansko - justiciable disputes in the presence of swindle signs by more lacking general rules reflexion of norms about swindle in the criminal law.

Limits of possible punishment in the form of imprisonment which were provided by the bill, in comparison with the limits of punishment provided in the basic norm about swindle were identical. Difference of the norms stated in the bill from item 159 UK the Russian Federation was only in
Set of qualifying signs. As a result of the amendments brought by Committee of the State Duma under the civil, criminal, arbitration and remedial legislation of the sanction and the sizes of a causal damage have been essentially changed, and the become effective law does not criticise today only the lazy.

The given criticism had small, but nevertheless positive result. During revision of all structures of swindle in June, 2016 the legislator has partially changed sanctions and the sizes of the caused damage, that on the one hand has a little corrected a situation. At the same time the given law has brought more chaos in system of special structures of swindle. As a result swindle in sphere of enterprise activity is not allocated in separate norm like other special kinds of swindle, and reflected in ch. 5-7 items 159 UK the Russian Federation, and the new sizes of the caused damage do not give in to an explanation.

Swindle division on its spheres was how much expedient?

Any changes of the legislation cannot have chaotic character, and should be inseparably linked with key rules of legislative technics which are developed by a criminal law science. Accordingly, for the permission of a question on validity brought in UK the Russian Federation the Federal act from 29.11.2012 № 207-FZ changes it is necessary to analyse the given rules concerning structures of the crimes provided by the item of item 159 UK the Russian Federation.

In the scientific literature it is noticed, that modification of the law should correspond to 3 basic criteria:

1) necessity of a legal regulation (in other words, presence of requirement for an interdiction establishment);

2) an admissibility of such regulation proceeding from a various sort of circumstances (political, legal, social etc.);

3) real possibility (practical practicability) decisions which is supposed to be accepted [8].

We only are partly solidary with those scientists who approve, that the criterion of necessity of introduction of special kinds of swindle is absent [9]. At the same time social and economic and political preconditions for acceptance of such decision took place, since the "parent" norm (item 159 UK the Russian Federation) has become outdated, and roguish encroachments in the conditions of the changed economic situation in the country have essentially changed. Expansion of bank sphere, sphere of insurance, etc. has led to occurrence of new criminal schemes, and the criminal legislation was not ready to answer adequately. As a result swindlers, being covered with civil-law transactions, could duck out. The statement of the President of Russia in 2012 about necessity of specification of such corpus delicti as swindle with a view of a manipulation exception became the political precondition of introduction of special structures

3 corresponding norms [10].

Last criterion consisting in practical practicability of the instruction, takes place at introduction in UK the Russian Federation special kinds of swindle as in the presence of certain explanations pravoprimenitelnym to bodies the norms provided by item 159 UK the Russian Federation, will be applied in practical activities uniformly, having reduced to an error minimum at qualification. In an explanatory note to a bill the concrete definition of structures of swindle «depending on sphere of legal relations in which they are made is underlined, that, will lower number of errors and abusings during excitation of criminal cases about swindle, will promote work improvement of quality on
To revealing and investigation of such crimes, correct qualification sodejannogo... »[11].

Differently, so far as the legislator has provided separate structures of swindle, to criticise them from positions of necessity of existence in the criminal legislation has no practical sense. It is much more important to formulate scientifically proved criteria otgranichenija the given structures, their competition to adjacent structures of crimes, delimitation of those spheres where special structures of swindle, definition of separate objective signs of special kinds of swindle are provided, considering them blanketnyj character.

It is necessary to note, as in the doctrine of criminal law the idea of differentiation of swindle on spheres far is not new, uchennye engaged in the given problematics suggested to differentiate swindle on spheres.

So, M.J.Hmeleva suggested to provide the norm establishing responsibility for causing of a property damage by use of means of the computer technics and communication. In its opinion from plunder the given act followed delimit in an encroachment subject: in plunders by a subject the thing acts, a subject of causing of a property damage by use of means of computer technics and communication are non-cash money resources. Differentiation with article 165 UK the Russian Federation followed spend on the detrimenting mechanism, and also on absence in offered norm of a fraudulent way of fulfilment of act [12]. L.E.Sunchalieva also specified in necessity of allocation of the swindle made with use of means of the computer technics and computer-network technologies as the qualifying sign in item 159 UK the Russian Federation, giving reason for the position presence of additional object of an encroachment, bolshej injuriousness and

Difficulties of investigation and disclosing. However, proving the same arguments the position, the author offered swindle in bank sphere and in insurance sphere to allocate as independent structures - 159.1 and 159.2 UK the Russian Federation [13]. In separate norm of the law of D.N.Aliev recommended to allocate telephone, computer, electronic, insurance swindle [14]. R.B.Osokin resulted arguments on introduction of especially qualified kinds of the swindle made at the non-cash form of calculations, with use of computer technics, swindle

3 at fulfilment of civil-law transactions with dwelling [15].

Some authors suggested to allocate market swindle (swindle with use of laws of market economy); the swindle connected with default from obligations; accounting swindle; swindle with use of the false documents granting the right to acquisition or reception of property [16].

Besides, division of swindle into special kinds depending on sphere is characteristic and for the western legislation. For example, the criminal legislation of Germany allocates swindle with computer use (§ 263а), the swindle interfaced to reception of the grant (§

264), investment swindle (§ 264a), insurance swindle (§

265), reception of services by means of a deceit (§ 265a), swindle in crediting sphere (§ 265b). UK Switzerland defines such special kinds as computer swindle (item 147), the swindle interfaced to procedure of bankruptcy and arrestment on property (item 163), elective swindle (item 282). Austrian criminal legislatively separately allocates "professional" swindle, calling it
Craft [17], and also exclusive structure when swindle is made on the forced circumstances [18]. UK France the deceit in sphere of services (313-5) provides separately, fraud at market places (313-6), a deceit interfaced to transfer of real estate for the purpose of residing, in the absence of the permission of the proprietor (313-6-2), a deceit interfaced to sale pravoustanavlivajushchego of the document (ticket), without the permission of the organizer (313-6-2). In UK Switzerland computer swindle (item 147), the swindle interfaced to procedure of bankruptcy and arrestment on property (item 163), the swindle acceptance wrongful pravoustanavlivajushchego the document (item 170) becomes which result is allocated; document certification fraudulently (item 253), elective swindle (item 282). It is interesting, that UK Canada provides special kinds of swindle not only in crediting sphere (the item 362 (1) or at acquisition of securities (item 363), reception of services fraudulently (item 364), but also and simulation of magical activity (item 365). Separately UK Canada differentiates swindle in economic activities on swindle in sphere of market places (item 380 (2)), swindle by means of use of mail (item 381), roguish broker activity (item 384), swindle in sphere of sale of the real estate (item 387), the swindle interfaced to use of the false receipt (item 388), the swindle interfaced to the order by the goods, providing an advance payment (item 389) etc. According to F.N.Bagautdinova and h.p. Hafizovoj, swindle in the legislation of the USA is divided into five kinds: 1) a roguish deceit/introduction in error/breach of confidence; 2) swindle on the credit
To cards/swindles with use of cash dispenses; 3) «theft of the person» (personation, delivery of for other person); 4) swindle in social security sphere; 5) swindle with use of electronic communication media [19].

It is necessary to agree with a position of those authors which approve, that the made changes in the criminal law have not solved questions on the maintenance of the term "swindle", its signs [20]. Moreover, the concept of swindle of special structures "has lost" some obligatory signs. For example, well-known, that the deceit at fulfilment of roguish actions can have passive or active character. However, in item 159.1 UK the Russian Federation the legislator has excluded possibility of fulfilment of such crime by means of a passive deceit, having entered in a disposition a following word-combination: «.putem grantings to bank or other creditor false and (or) doubtful data», and a crime subject can be only money resources. At the committing a crime, provided by item 159.6 UK the Russian Federation the addressee of a deceit can act not only the person, but actually and the COMPUTER.

In the criminal law doctrine it is possible to meet following definitions of swindle. Swindle is a profit-motivated crime against the property, similar to plunder. Thus the subject of the given act is much wider, than at the last. As a result of fulfilment of the present act the guilty pursues the aim to receive any property benefit, thus to the victim can be caused as a real damage in the form of property cost, and at a rate of the loss of profit [21]. Some authors believe, that swindle is not one of plunder forms, and understand it as
Independent legal category [22]. The big group of scientists, recognising swindle by the plunder form, specify in wider subject of an encroachment [23]. Others say, that swindle is necessary for understanding as plunder and swindle as buying another's property [24].

It is necessary to delimit household and legal understanding of swindle. Actually concepts "swindle" and "deceit" are perceived as synonyms. So, at selection of phraseological units, reprezentirujushchih kontsept lie/deceit in modern Russian, all correspond kontseptu "swindle".

The analysis of the legal literature of various branches of law shows, that scientists understand swindle much more widely, rather than it is treated by the criminal law doctrine. So, in modern publications it is possible to see concept of the academic swindle which is understood as swindle in a science, expressed in a fabrication (an inventing of data), falsification of data (a manipulation them for manufacture of invented scientific results) and plagiarism (representation of work of other researchers as own) [25]; «obshcheugolovnoe swindle» and «economic swindle» [26], defining the last as made concerning public formations (the state, subjects of federation, municipal unions), the enterprises, establishments, the organisations,
Individual businessmen or the big group of people, swindle [27].

Separately it is necessary to allocate swindle in the professional sphere, most "popular" in which recently is so-called «corporate swindle» [28], consisting in plunder of actives, reporting and corruption falsification, that also mismatches swindle doctrinal interpretation in criminal law. For example, the Federal standard of auditor activity (FSAD 5/2010) «Duties of the auditor on consideration of unfair actions during audit» enters the term «unfair drawing up of the fiscal accounting», as a synonym to concept "swindle". Unfair drawing up of the fiscal accounting is characterised as the deliberate distortion of the fiscal accounting including neotrazhenie numerical data or neraskrytie of the information in the fiscal accounting, for the purpose of deception of users of this reporting [29].

Considering, that the given legal definition is known absolutely to all legal systems in the world, reasonably interestingly to address to experience of the foreign states since «.sravnenie the Russian and foreign criminal law, invariably expands a criminal law object of science, enriching its new knowledge. The comparative jurisprudence shows, how the same legal problem in the different countries dares, expands horizons of legal researches, allows to consider, both positive, and negative foreign legal experience» [30].

So, the criminal legislation of France has lacking general rules enough and bulky definition of swindle. «Swindle is
Made by use of a false name or the false status, or by abusing the valid status, or by use of fraudulent receptions deception of any physical or legal person and its declination thus to that it to the detriment of itself or the third parties has transferred money resources, securities, material assets or any other property, has rendered services or has made the transaction attracting occurrence of a duty or clearing of it »[31], that, in our opinion, does honour to the domestic legislator, which smog more short and capaciously to formulate the given corpus delicti. Not less kazuistichno norms about swindle in the Dutch criminal legislation are stated:« The person whom on purpose to receive illegal incomes for itself or somebody another, appropriating a false name or by skilful dodge, or by means of a web of lies declines sustained to refuse the property, to make accessible the data having monetary cost in commerce, to take up a debt or to refuse claims, is guilty of deliberate deception and comes under. »[32]. It is necessary to support S.V.Shilovsky, that the given legislation contains inappropriate metaphors for the criminal law in this connection not quite answers modern realities of the given structure of swindle as unfairly limits sphere of action of article and the ways applied guilty at fulfilment of criminal action [33]. Swindle in UK Finland is foggy enough defined:« Deceit or use of error of other person as advantage for the purpose of extraction of illegal financial benefit for itself or other person, or with a view of detrimenting to other person therefore the victim has made or
Has refrained from fulfilment of any actions to the detriment of itself or persons, it represents whose interests »[34].

The German legislator defines swindle as follows: «Who, intending to receive for itself or the third party illegal property benefit, harms property of other person to that misleads or supports this error, approving the false facts either deforming, or hiding the original facts, is punished.» [35 [36]. Thus, the German legislation understands swindle only as a deceit. Separate authors consider, that the criminal legislation of Germany operates with the term breach of confidence in § 266 where there is a speech about abuse of authority under the order the stranger

3

Property, that, in our opinion, is not absolutely correct, since the given norm of the general with swindle has no anything.

The criminal code of Austria and the Spanish legislator to similarly Russian legislation define swindle as a profit-motivated crime made by means of a deceit [37].

The separate countries of an English-Saxon legal family provide independent laws on swindle. So, in the Great Britain in 2006 the Law on swindle »where the accent is made on fulfilment of criminal trespasses by means of fulfilment of unfair actions whereas presence of the fact of error of the victim is not required [38] has been accepted«.

The arch of the federal legislation of the USA considers as synonyms swindle and fraud (ч.1 chapter 63 section 18). Obligatory elements of swindle is the fact of distortion of the true, deceived
Physical or the legal body who being based on the false facts, makes the actions, led losses. Thus actions of the victim necessarily should have lawful character.

The Komparativistsky approach allows to draw a conclusion, that the concept of swindle of the domestic legislation most full reflects essence of such criminal trespasses, avoiding, nevertheless, lacking general rules formulations. Allocation of special structures of swindle is not "invention" of the Russian legislator, and is quite characteristic as for English-Saxon, and the romano-German legal family. We believe, that swindle interpretation in the domestic doctrine of criminal law is the most accurate both full, and the most comprehensible the understanding of swindle as the plunder made by means of a deceit [39] sees.

But before to argue on perfection of the offered designs, it is necessary to be defined with classification of kinds of modern swindle.

The analysis of the scientific literature shows, that swindle provided by item 159 UK the Russian Federation separate authors consider as exclusive structures [40], others as special provisions. In all cases of fulfilment of swindle at the present stage, pravoprimenitel it is obliged from five norms [41] about swindle to choose it is unique the correct. Thus for one act application at once several norms about swindle as it is a question not of cumulative offences, and about a competition of norms is inadmissible. Thus act will be correctly qualified only in that case when that from competing norms which will be truly selected
Most full reflects is social-legal sense sodejannogo. Qualification sodejannogo on set of competing norms is inadmissible, as it would lead to artificial creation of plurality of crimes there where it is not present, and to unreasonable strengthening of the criminal liability of the guilty.

So, in case the specified kinds of swindle to consider as exclusive structures, qualification should is spent by rules of application of exclusive structure.

If to recognise, that the specified kinds of swindle are special in relation to the general provision provided by item 159 UK the Russian Federation pravoprimenitel at a competition of the general and the special provision is obliged to apply last (ч.3 item 17 UK the Russian Federation).

There is, that a terminological mismatch of understanding of "new" kinds of swindle, at qualification forces pravoprimenitelja to apply in the presence of necessary additional signs corresponding "new" article of swindle, instead of item 159 UK the Russian Federation.

It is necessary to notice, that arguments and those authors who approve, that considered norms are exclusive structures, and those who establish, that is a question of special structures, are quite convincing. So, the analysis of sanctions of articles about swindle partially proves N.I.Prjahinoj and V.F.ShChepelkova's position [42] that special structures of swindle are exclusive.

Almost all parts of "simple" swindle and «new kinds» swindle concern one category of crimes (ч.1 - to crimes of small weight, ч.2 - to crimes of average weight, ч.3, 4 - to grave crimes). The Russian Federation was an exception of the given rule item 159.4 UK, on as the Constitutional Court of the Russian Federation in the has paid attention
The decision [43]. Owing to the given circumstance to recognise a parity of considered structures as exclusive and the general it is impossible.

Separately so-called enterprise swindle, for not clear reason provided by the legislator in "parent" norm in ch here looks. 5-7. The given kind of swindle does not provide responsibility for fulfilment of the given act without qualifying signs, therefore responsibility for swindle in sphere of enterprise activity penal only at causing of a considerable damage (not less than 10 thousand rbl.).

In our opinion, it is necessary to support those authors who the swindle provided by item 159 UK the Russian Federation, carry to special structures. Additional argument is the decision of the Constitutional Court of the Russian Federation in which it is specified, that in special (is allocated by the author) the norms establishing the criminal liability for swindle, additional signs of this act [44] contain. Similar explanatories are given by the Supreme Court of the Russian Federation.

By working out of the bill of introduction in action of special kinds of swindle, its authors have divided them on separate spheres of economic activities in which swindle is made, on ways of committing a crime, and also in special subjects of an encroachment. Thus, in a basis of ordering of special kinds of swindle three classification bases have been put in pawn.

As a result, it is possible to carry the facts of swindle provided by the item to specialised spheres of economic activities

159.1, 159.2, 159.5, 159.6 UK the Russian Federation, and also swindle in sphere
Enterprise activity (ch.5-7 item 159 UK the Russian Federation). We believe, that there is no especially protected sphere in item 159.3 UK the Russian Federation. Its N.A.Lopashenko has designated as sphere of use of payment cards [45] with what we cannot agree [46].

A.V.Shesler, taking of a similar position, also specifies, that as a criminalisation basis roguish actions have served in separate spheres of economy or other spheres of a public life (item 159.1, 159.2, 159.4, 159.5 UK the Russian Federation), in others - means of fulfilment of roguish actions (item 159.3 UK the Russian Federation - payment cards, and since 2018 - electronic instruments of payment), thirdly - sphere of a public life and means of fulfilment of roguish actions (in item 159.6 UK the Russian Federation - sphere of the computer information and means of storage, processing or transfer of the computer information or information-telecommunicative networks) [47]. Not denying the fact of that in item 159.6 UK the Russian Federation the sphere is defined, nevertheless, it is possible to assume, that special means of an encroachment - the COMPUTER, was dominating circumstance in decision-making of the legislator on allocation of the given norm in independent.

At first sight, to divide special kinds of swindle on a way of committing a crime there is necessity as at all it one - a deceit or breach of confidence, if to start with understanding of a way as set of actions or system of the actions applied at execution of any work, at realisation no something [48] or «this or that order, a line of action, a method in execution of any work,
In achievement of any purpose »[49]. In the doctrine of criminal law definition of a way of swindle is defined similarly [50].

At the same time the detailed analysis of separate special structures of swindle allows to approve, that the deceit and breach of confidence as a way of committing a crime take place not everywhere. For example, in item 159.1 UK the Russian Federation as a way of a crime the active deceit is provided only; the crimes provided by item 159.2, 159.3, 159.5 UK can make the Russian Federation only by means of a deceit - both passive, and active; the way of the committing a crime provided by item 159.6 UK the Russian Federation consists in introduction, removal, blocking, updating of the computer information.

As a special subject of an encroachment it is necessary to allocate only money resources (item 159.1 UK the Russian Federation), the state-owned property (item 159.2 UK the Russian Federation), non-cash money resources (item 159.3 UK the Russian Federation), the computer information (item 159.6 UK the Russian Federation) is exclusive. In other special kinds of swindle the specific subject of committing a crime is absent.

The told testifies what to classify special structures of swindle by any one criterion it is not obviously possible. Undoubtedly, any classification grows out of some ogrublenija the valid sides between kinds since they are always conditional and relative. For example, to divide sphere of crediting with enterprise, insurance with social sphere extremely inconveniently not only theoretically, but also practically. However, refusal of swindle division as it will be shown further, can lead to errors in qualification.

It is possible to recognise classification correct only at observance of certain conditions: completeness of division (all members of division should be listed) and cleanliness (members of division are not crossed concepts). Apparently in case of swindle division on spheres any of classification rules is not carried out.

The considered classifications by the set criteria force to come to conclusion, that the uniform classification basis for kinds of swindle is not present. Just as the criminal law theory divides all signs of a crime into subjective and objective conventions with a certain share, with the same measure of convention we can divide all kinds of swindle on two groups: the swindle, made in certain sphere and swindle where one of kriminoobrazujushchih signs is committing a crime means. From positions of classification groups it would be possible to recognise the given division defective, in view of crossing of separate kinds of swindle, however such division we will base on our further research proceeding from especially methodological reasons. Therefore in our opinion, it is more expedient to talk not about classification, and about ordering of the crimes called in the criminal law by swindle, as about procedure of association of homogeneous structures in the functional purposes on the basis of existing internal and external relations.

Thus, told allows to draw following conclusions.

Introduction in the criminal legislation in 2012 of special structures of swindle is dictated by desire of the legislator to define more accurate frameworks of realisation of the norms providing responsibility for swindle. Such approach is not a short story of the domestic criminal legislation, and is characteristic for the majority of criminal legislations both English-Saxon, and the romano-German legal family.

We adhere doktrinalnogo tokovanija to the term "swindle" which is understood as plunder. The swindle made in what or sphere is necessary for considering as special provisions in relation to item 159 UK the Russian Federation.

The legislator has tried to put in pawn three classification groups in a basis of ordering of special kinds of swindle: on economic activities spheres, on ways of committing a crime, and also in special subjects of an encroachment. However to generate any classification group it is impossible, therefore the given norms can to try be systematised only. With a certain share of convention all kinds of swindle are offered for dividing on two groups: the swindle, made in certain sphere and the swindle, made by specific means. Given we will base on our further research proceeding from especially methodological reasons.

As a whole critically estimating division of swindle taking place in the criminal legislation into six independent structures, we start with objective necessity of search of optimum ways of perfection pravoprimenitelnoj practice. As has neatly noticed N.A.Lopashenko «... pravoprimenenie puts the new questions caused by awkwardness of the legislator, and they demand answers, and not so awkward, and correct, exact.»

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A source: MUSJAL Irina Aleksandrovna. the DIFFERENTIATED KINDS of SWINDLE: THEORETICAL And PRACTICAL PROBLEMS. The dissertation on competition of a scientific degree of the master of laws. Kursk - 2018. 2018

More on topic Social and economic and political preconditions of fastening in the criminal legislation of special kinds of swindle:

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  7. § I. SOCIAL AND ECONOMIC And POLITICAL predyoposylki REFORMS.
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