Topical issues of qualification of embezzlement of non-cash money

In the article the problem of qualifying embezzlement of non-cash money according to the existing criminal legislation of the Russian Federation is considered. Wide distribution of non-cash money increases the number of crimes connected with the illegal acquisition of such money in all spheres, including private life. The problem of the qualification of such actions is ambiguously resolved both in practice and in the theory. The main distinctive feature of non-cash money from other property is the lack of physical signs. Cashless money is not a thing, it exists only in the form of entry in accounting documents of a bank. This property determines the specificity of its attachment and circulation, which are possible only by means of banking operations: attachment by writing-off money from the victim's account, circulation by transferring money into the account of the guilty person. In the doctrine of criminal law, a point of view prevails according to which property which does not have a physical sign cannot be subject of a theft, a robbery or a plunder. It seems that the legal basis is not available for the exclusion of non-cash money from the subject of specified embezzlement forms only in the view of the absence of a physical sign. At the same time, according to the current legislation non-cash money cannot be stolen by ways specified in Section 158 and Section 161 of the Criminal Code of the Russian Federation. Non-cash money can be stolen only by means of bank operations which can be executed by a bank's employee having an appropriate authority, or by an automatic computer program. In the first case, to transfer money from the victim's account to the account of the offender it is required to mislead a bank's employee or to force the victim to make such an order. In the second case, it is possible to write off money from the victim's account and to transfer them to the account of the guilty person only by the input of the computer information, so, such actions have to be qualified according to Section 159.6 of the Criminal Code of the Russian Federation. And so, if the guilty person secretly steals four thousand rubles cash from the victim, such actions should be qualified according to Part 1 of Section 158 of the Criminal Code of the Russian Federation. If the same sum is stolen by the guilty person under similar circumstances in the form of non-cash money, such actions will be qualified according to Part 1 of Section 159.6 of the Criminal Code of the Russian Federation. If the guilty person takes away the same four thousand rubles from the victim under the threat of violence, but not threatening life and health, these actions will be qualified according to Item "g" of Part 2 of Section 161 of the Criminal Code of the Russian Federation. If the guilty forces the victim to immediately transfer the same sum to their account in the non-cash way, their actions will be qualified according to Part 1 of Section 163 of the Criminal Code of the Russian Federation, and if the guilty, threatening with violence, temporarily borrows the cell phone of the victim and transfers the same sum from the victim's account to their account via the phone, even at the presence of the victim, their actions cannot be qualified differently than according to Part 1 of Section 159.6 of the Criminal Code of the Russian Federation. Thus, nowadays there is a situation when actions similar in fact are differently punished depending on whether the offender stole cash or non-cash money. But the public danger of stealing cash and non-cash money is identical. It is obvious that such a situation does not correspond to the principle of justice.

Keywords

Authors

References