Gratuitousness as a characteristic of taking possession of entrusted property

The study of scientific literature and law enforcement practice on the question of defining the characteristic of gratuitousness when taking possession or committing embezzlement of the entrusted property enable us to make a conclusion about the exact interpretation of it. It is worth noting that the object of criminal law protection of crimes against property is property as a social economic relation which has a complicated content. An unlawful seizure of property always inflicts a loss to this object. Even if a subject of crime leaves any equivalent (whether equal or not equal, sufficient or insufficient) instead of the stolen property, this does not exclude the criminality of the committed act. It is necessary to presume the right of the injured party to a subjective estimation of the committed "voluntary exchange", it is up to him to decide whether a loss was inflicted or not. The owner of the property is to decide whether he is an injured party by himself but not under the imposed "criteria of equivalency". We should not consider the characteristic of gratuitousness in isolation from all other characteristics, "out of the context" of a generic notion of embezzlement given in Note 1, Article 158 of the Criminal Code of the Russian Federation. As it can be seen, the characteristic of gratuitousness in course of embezzlement is closely connected with the following characteristics of this illegal act: inflicting damages to the owner; the intent to seize another person's property illegally, in the guilty person's favor. Each characteristic of embezzlement has its place i.e. has its meaning. The characteristic of gratuitousness outlines social danger of the consequences of embezzlement, the infliction of loss to the injured party. Therefore, the notion "gratuitousness" should have both economic and monetary (financial) content and a criminal one. It means that a criminal misappropriates the property of another person against his will and thus inflicts pecuniary loss to the owner or another proprietor of the property. However, when speaking about the definition of embezzlement, it is not enough to mention only a lucrative purpose and the consequences in terms of damage. Being the characteristic of embezzlement, gratuitousness points out a pecuniary feature of the crime and becomes an essential one.

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