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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of December 27, 2007 No. 51

About court practice on cases on fraud, assignment and waste

Due to the questions which arose in court practice by consideration of criminal cases about fraud, assignment and waste, the Plenum of the Supreme Court of the Russian Federation decides to make to courts the following explanations:

1. Draw the attention of courts to what unlike other forms of plunder provided by Chapter 21 of the Criminal Code of the Russian Federation is swindled by deception or confidence abuse as a result of which the owner of property either the other person or authorized body of the power transfer property or the right to it to other persons or do not interfere with withdrawal of this property or acquisition of right to it by other persons.

2. Deception as method of making of plunder or acquisition of right to alien property, responsibility for which is stipulated in Article 159 Criminal Code of the Russian Federation, can consist in the conscious message of obviously false, untrue data or in default about the true facts, or in the intentional actions (for example, in provision of counterfeited goods or other subject of the transaction, use of different fraudulent acceptances when calculating for goods or services or in case of playing gamblings, in imitation of cash calculations, etc.) directed to introduction of the owner of property or the other person in delusion.

The false data reported in case of fraud (or data which it is held back) can belong to any circumstances, in particular to dispositive facts and events, quality, property value, the identity of the guilty person, its powers, intentions.

3. Confidence abuse in case of fraud consists in use with a mercenary motive of trusting relationships with the owner of property or the other person, the representative to make decisions on transfer of this property to the third parties. The trust can be caused by different circumstances, for example official position of person either the personal or related relations of person with the victim.

Confidence abuse also takes place in acceptance cases on itself person of obligations in case of notorious lack of intention at it them to execute for the purpose of the non-paid address in own favor or for benefit of the third parties of alien property or acquisition of right to it (for example, receipt by physical person of the credit, advance payment for performance of works, services, advance payment for delivery of goods if it did not intend to repay debt or otherwise to fulfill the obligations).

4. Fraud, that is the plunder of alien property committed by deception or confidence abuse is recognized ended since the moment when the specified property arrived in adverse possession of the guilty person or other persons and they had real opportunity (depending on consumer properties of this property) to use or dispose of it at discretion.

If it is swindled in the form of acquisition of right to alien property, crime it is considered ended from the moment of origin at the guilty person of legally enforceable opportunity to enter ownership or to dispose of someone else's property as own (in particular, from the moment of registration of the property right to the real estate or other rights to property which are subject to such registration according to the law; since the conclusion of the agreement; from the moment of making of endorsement (endorsement) on the bill of exchange; from the date of entry into force of the judgment to which behind person the right to property, or from the date of adoption of other title decision by the authorized bodies of the power or person misled concerning availability at the guilty person or other persons of legal causes for ownership, use or the order by property is recognized).

5. In cases when person receives alien property or acquires the right to it, without intending to fulfill at the same time the obligations connected with conditions of transfer to it of the specified property or the right therefore material damage is caused to the victim, the deeds should be qualified as fraud if the intention directed to plunder of alien property or acquisition of right to alien property arose at person before receipt of alien property or the right to it.

About availability of the intention directed to plunder can witness, in particular, notorious absence at person of real financial opportunity to fulfill the obligation or the necessary license for activities directed to execution of its agreement obligations, use by person of fraudulent statutory documents or false guaranty letters, concealment of information on availability of debts and pledges of property, creation of the pseudo-companies acting as one of the parties in the transaction.

Courts should consider that the specified circumstances in itself cannot determine conclusions of court about guilt of person in fraud making. In each case it is necessary to determine taking into account all facts of the case that person obviously did not intend to fulfill the obligations.

6. Plunder of alien property or acquisition of right to it by deception or the confidence abuses made with use of the official document counterfeited by this person granting the rights or exempting from obligations is qualified as cumulative offenses, provided by part 1 of article 327 Criminal Code of the Russian Federation and the corresponding part of article 159 Criminal Code of the Russian Federation.

If person counterfeited the official document, however owing to circumstances actually did not use this document, the deeds should be qualified as regards 1 article 327 Criminal Code of the Russian Federation. The deeds shall be qualified according to part 1 of article 30 Criminal Code of the Russian Federation as preparation for fraud if the facts of the case demonstrate that the intention of person covered use of the counterfeited document for making of the crimes provided by part 3 or part 4 of article 159 Criminal Code of the Russian Federation.

If person used the forgery document made by him for the purpose of plunder of alien property by deception or confidence abuse, however owing to circumstances could not withdraw property of the victim or acquire the right to alien property, the deeds should be qualified as cumulative offenses, provided by part 1 of article 327 Criminal Code of the Russian Federation, and also part 3 of article 30 Criminal Code of the Russian Federation and, depending on circumstances of specific case, the corresponding part of article 159 Criminal Code of the Russian Federation.

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