One of specific tasks criminal proceedings is the task of compensating for harm to a person if such harm was caused as a result of a crime. According to part 3 of Art. 42 of the Code of Criminal Procedure, the victim has the right to compensation for property damage caused by the crime. According to the claim of the victim for compensation in monetary terms, caused to him moral damage the amount of compensation is determined by the court when considering a criminal case or in civil proceedings (part 4 of article 42 of the Code of Criminal Procedure). If a person (individual or legal entity) who has suffered harm from a crime files a civil claim for compensation within the framework of a criminal case, the investigator, interrogating officer, prosecutor issues a decision, and the court determines that this person is recognized as a civil plaintiff. Thus, the legislator allows considering a civil claim for damages together with a criminal case 1 .

A person guilty of a crime, violating objective law, that is, the law, and thereby giving rise to a criminal legal relationship with the state, in some cases simultaneously violates the subjective rights of citizens and legal entities, which leads to the emergence of a legal relationship regulated by the norms of civil, labor and other branches of substantive law. There is a so-called cumulation of offenses 2 . So, for example, the secret theft of another's property (theft) is not only a crime, but at the same time a violation of the subjective right of ownership, and malicious evasion of payment by a court decision of funds for the maintenance of minor children is not only a crime, but also a violation of the subjective right of a minor to receive maintenance from parents, that is, relations regulated by family law. Therefore, the perpetrator of the crime, on the one hand, puts himself in a certain relation to the state represented by special bodies, for which both the right and the obligation to apply the penalties provided for by law to the offender are thereby created. On the other hand, a legal relationship arises between the perpetrator and the victim, which consists in the obligation of the person to compensate for the harm caused to them. If in the first case, the participants in the legal relationship act as carriers of criminal law rights and obligations, then in the second case, the rights and obligations are of a civil law nature.

The state, having the exclusive right to prosecute citizens who have committed crimes, at the same time assumes a legal obligation to ensure the restoration of the property status of an individual or legal entity that has suffered damage from a criminal encroachment. It “ensures that victims have access to justice and compensation for the damage caused” 1 . This goal is achieved, in particular, by a civil action in criminal proceedings, that is, a claim of a citizen or a legal entity based on the norms of substantive law for compensation for harm caused by a crime or a public offense prohibited by the Criminal Code. dangerous act insane, brought in a criminal case to the accused or to persons bearing property liability under the law for the actions of the accused or insane person.

Civil lawsuit in criminal proceedings — the claim of a person (physical or legal) who has suffered material or moral harm from a crime, his representative (legal representative) or a prosecutor, considered together with a criminal case, against a person who, in accordance with civil law, is liable for harm caused by a crime 2 .

The legal fact that gives rise to the emergence of civil law relations between the person responsible for the harm caused and the victim is the fact of the commission of a crime. Thus, the commission of a crime entails the emergence of two types of legal relations: criminal law and civil law. Civil law relations can be implemented in the order of civil proceedings or through criminal procedural relations. In the latter case, it is necessary that a civil action be filed during criminal proceedings. Criminal procedural relations, within which the civil law relation is implemented, are determined by the existence of the latter.

There is an opinion that the civil law relations that have arisen in connection with the commission of a crime do not give rise to the corresponding criminal procedural relations, but only cause the appearance of a second, derivative task in procedural relations - the establishment and implementation of civil law relations 1.

In addition, the civil law relation in criminal proceedings can be a determinant of some civil procedural relations in cases where the rules of civil procedural law are applied on issues related to a civil claim and not regulated by criminal procedural legislation. 2

Regulating the behavior of the participants in criminal proceedings, the institution of a civil suit in a criminal process is a criminal procedure institution. At the same time, determining the behavior of the participants in a dispute about civil law, the institute of civil action in criminal proceedings includes the features of the civil procedural method of regulation. Thus, it is a complex legal institution that combines a crime case (criminal case) and a damages case (civil case) in one proceeding. This provides obvious advantages both from the point of view of organizing the preparation for the examination and the examination itself, and from the point of view of protecting the legitimate interests of a civil or legal person affected by a crime. Eliminates the need to defend the rights and interests violated by the crime twice - in the criminal and civil proceedings, to pay the state fee in a civil case, and most importantly - to prove the validity of their claims according to the rules of civil proceedings, where the burden of such proof is placed on the plaintiff. The proof of a civil claim brought in a criminal case is carried out according to the rules established by the Code of Criminal Procedure. This means that the burden of such proof lies with the one in whose proceedings the criminal case is at the stage of preliminary investigation (investigator, investigator, prosecutor).

The consideration of a civil claim in the framework of criminal proceedings makes it possible to more effectively restore the rights of a person who has been harmed by a crime than a similar claim filed in civil proceedings. A civil claim in criminal proceedings is not subject to state duty (Part 2, Article 44 of the Code of Criminal Procedure). In addition, the grounds for the claim, the nature and extent of the harm caused are an element of the subject of proof in a criminal case, i.e. its proof is the responsibility of the state bodies conducting the preliminary investigation, in contrast to civil proceedings, where the burden of proof lies with the plaintiff. Moreover, persons recognized in the manner prescribed by law as civil plaintiffs and civil defendants, by their participation in the process, can provide officials with significant assistance in establishing significant circumstances in a criminal case. Consideration of a civil claim together with a criminal case contributes to the saving of procedural funds, allows the use of more effective ways to secure a claim and speed up its consideration.

1.2. The subject of a civil claim in criminal proceedings

From the content of the first part of Article 44 of the Code of Criminal Procedure, it is clear that in a criminal process, that is, together with a criminal case, claims can be considered for: compensation for property damage caused by a crime; property compensation for moral damage caused by a crime.

The subject of a civil claim in a criminal process is a claim for compensation for property damage or monetary compensation for moral damage caused by a crime. At the same time, the concept of “harm” covers not only direct damage, i.e. loss, deterioration or reduction in the value of property, the costs necessary to restore, acquire lost property (causing such harm may be the purpose of the person who committed the crime, or be of a concomitant nature), and losses in the form of lost profits. As you know, lost profits are not included in the amount of property damage when qualifying a crime. However, according to Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated has the right to demand full compensation for his losses, including lost profits. Therefore, it may constitute the subject of a civil suit in criminal proceedings 1 .

There is an opinion that the issue of compensation for lost profits as an element of the subject of a civil claim in criminal proceedings can be considered only in cases where the victim himself substantiated and submitted the necessary documents, evidence confirming the nature and amount of income not received by him, otherwise the dispute is transferred to sphere of civil legal proceedings 2 . It seems that the establishment of the nature and extent of the harm caused by the crime, in any case, is the responsibility of the bodies and officials conducting the proceedings on the case (investigator, interrogating officer, prosecutor), regardless of whether the harm caused affects the qualification. But, of course, without the help of a civil plaintiff, it is extremely difficult to establish the existence and amount of lost profits 1 .

A civil claim can be filed both for the purpose of compensation for material damage caused by a crime, and for property compensation for moral damage. Moral harm is moral and physical suffering, which may include feelings of fear, indignation, resentment arising from the act, feelings of loss of relatives, the inability to continue active public life or pain, choking, dizziness, nausea, etc.

Property damage (harm caused to property; a concept close in content is losses) is the difference in the property status of the victim before and after the offense (in criminal proceedings - crimes), as well as a defect in property and lost profits. It is reimbursed on the basis of articles 1064-1094 of the Civil Code of the Russian Federation, as well as the norms of other branches of law providing for special cases of property liability. According to the rules of the same chapter of the Civil Code of the Russian Federation (Articles 1084-1094), civil claims for compensation for harm caused to life and health can also be satisfied in the criminal process, when such harm has a property expression.

Moral harm is physical or moral suffering caused to a citizen by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen (Part One of Article 151 of the Civil Code of the Russian Federation), in particular life, health, honor, dignity, business reputation, personal freedom, personal inviolability, privacy, etc. According to the terminology of the Civil Code (Articles 1099-1101), moral damage is not compensated, but compensated in cash.

Plenum of the Supreme Court Russian Federation in his decision of December 20, 1994 No. 10 “On Some Issues of the Application of the Legislation on Compensation for Moral Damage” (paragraph 9 of part 2) he gave the lower courts a general explanation, according to which “... the victim, that is, the person who was inflicted moral damage by the crime , physical or property damage (Article 53 of the Code of Criminal Procedure of the RSFSR), has the right to bring a civil claim for compensation for moral damage in the course of criminal proceedings” 1). Even later, in the decision of April 29, 1996 "On the Judgment" 2 (p. 18), the Plenum of the Supreme Court of the Russian Federation indicated that a person who has suffered moral, physical or property damage by a crime is also entitled to file a civil claim for compensation for moral damage , which, in accordance with the law, is carried out in cash, regardless of the property damage subject to compensation. When resolving such claims, one should be guided by Articles 151, 1099, 1100, 1101 of the Civil Code of the Russian Federation, according to which, when determining the amount of compensation for moral damage, it is necessary to take into account the nature of the physical and moral suffering caused to the victim associated with his individual features, the degree of guilt of the defendant, his financial situation and other specific circumstances of the case that affect the decision of the court on the claim. In all cases, when determining compensation for harm, the requirements of fairness and proportionality must be taken into account. Recovery of amounts in compensation for moral and material damage is carried out separately. Relatively common are civil claims for monetary compensation for non-pecuniary damage to victims in criminal cases of murder, rape, abuse of power that resulted in death, and hooliganism.

The current Code of Criminal Procedure does not contain grounds for recovering criminal profit in the absence of property damage. And in the resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery” 3, the possibility and admissibility of applying to the state code and the amount of a bribe is no longer mentioned. Civil lawsuits by a non-property actor are also not allowed in the criminal process, for example, on the refutation of discrediting information, otherwise yelling, on the protection of honor and dignity, on the deprivation of parental rights, etc. Despite the fact that they may be closely related to the crime, such Claims are brought, secured, proved, examined and resolved on a general basis in civil proceedings.

The civil plaintiff in the statement of claim himself determines the amount of compensation for non-pecuniary damage in monetary form. The final amount of compensation is determined by the court in the verdict based on the results of the trial.

A civil claim together with a criminal case can be considered only in cases where the damage is caused directly by the crime, i.e. actions constituting the objective side of the corpus delicti. Consideration of recourse claims in criminal proceedings general rule not allowed. An exception is, for example, reimbursement of funds spent on the treatment of citizens who have suffered from criminal acts. 1

It is impossible to consider, together with a criminal case, claims for recognition, and not for awarding, i.e. on deprivation of parental rights, on eviction, on the recognition of a marriage as invalid, on the recognition of an invalid transaction, etc. There have been proposals in the literature to expand the scope of civil action in criminal proceedings by considering recourse and recognition claims. 2

The grounds for a civil claim are the legal facts by which the plaintiff substantiates his claims. These facts include: 1) commission of a crime; 2) causing harm to the plaintiff; 3) causality between crime and harm.

If a person who has suffered damage as a direct result of a crime has not filed a civil claim in the course of criminal proceedings, then he has the right to do so in civil proceedings.

2. CIVIL PROCEEDINGS IN CRIMINAL PROCEEDINGS

2.1. Filing a civil lawsuit in a criminal case

According to Article 44 of the Code of Criminal Procedure, both an individual and a legal entity have the right to bring a civil claim in a criminal case. According to civil law (and the norms of this industry in this case are of paramount importance), an individual is a citizen who has the ability to have civil rights and bear obligations (civil capacity), by his actions to acquire rights and create legal obligations for himself, as well as be responsible for offenses committed (civil capacity). A legal entity is an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this Property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, has an independent balance sheet or estimate (Article 48). Civil Code of the Russian Federation). Civil action to protect the interests of minors, persons; recognized incapable or partially capable in the manner prescribed by the civil procedural legislation, persons who for other reasons cannot protect their rights and legitimate interests themselves, may be brought against them legal representatives or a prosecutor, and in defense of the interests of the state - a prosecutor (third part of Article 44 of the Code of Criminal Procedure). Representatives of a civil plaintiff - an individual may be lawyers, and representatives of a civil plaintiff - a legal entity - also other persons authorized in accordance with the Civil Code of the Russian Federation to represent his interests. By decision of the justice of the peace, one of the close relatives or another person, whose admission is applied for by the civil plaintiff, may also be admitted as a representative of the civil plaintiff. Representatives of a civil plaintiff have the same procedural rights as the represented subject (Article 45 of the Code of Criminal Procedure).

A civil action may be filed after the initiation of a criminal case before the end of judicial investigation(Part two of Article 44 of the Code of Criminal Procedure). At any moment in this segment of the biography of the criminal case, the one in whose proceedings it is, having seen that the committed crime caused material or moral damage subject to monetary compensation, is obliged to explain to the citizen, enterprise, institution or organization the right to bring a civil claim in criminal proceedings, about than (in the case of the personal appearance of the injured citizen, the head of the legal entity or their representatives) a protocol is drawn up. In case of filing a civil claim, the inquirer, investigator, prosecutor and judge issue a decision, and the court - a ruling on recognition as a civil plaintiff, notify this participant in the process and explain to him (or his representative) his rights.

It seems that in the case of a civil claim in the course of the trial, the burden of proving the grounds for the claim in accordance with the adversarial principle lies with the participants in the process from the side of the prosecution. If the nature and extent of the harm is of criminal law significance, then the burden of presenting evidence lies with the public prosecutor. If the subject of the civil claim also includes a claim for property compensation for lost profits, the civil plaintiff must submit evidence to the court confirming this element of the subject of the claim. 1

According to article 44 of the Code of Criminal Procedure, a civil plaintiff has the right:

support a civil claim;

present evidence;

to give explanations on the brought claim;

make motions and challenges;

testify and explain mother tongue or the language he speaks;

use the help of an interpreter for free;

refuse to testify against himself, his spouse (wife) and other close relatives;

have a representative

get acquainted with the protocols of investigative actions carried out with his participation;

to participate, with the permission of the investigator or interrogating officer, in investigative actions carried out at his request or at the request of his representative;

withdraw from their civil suit. Prior to accepting the waiver of the civil claim, the inquirer, investigator, prosecutor, filing a civil claim in a criminal case, explain to the civil plaintiff the consequences of the waiver of the civil claim, provided for by part five of this article;

at the end of the investigation, get acquainted with the materials of the criminal case relating to the civil suit filed by him, write out any information from the criminal case and in any volume;

know about decisions taken affecting his interests, and receive copies of procedural decisions relating to the civil suit filed by him;

participate in litigation criminal case in the courts of first and appeal instances;

to speak in court debates to substantiate a civil claim;

get acquainted with the protocol of the court session and submit comments on it; file complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor and court;

appeal against the verdict, ruling and decision of the court in the part relating to the civil claim;

to know about the complaints and presentations brought in the criminal case and to file objections to them; participate in the judicial consideration of complaints and submissions.

An official conducting a preliminary investigation, having established that property or moral damage has been caused to an individual or legal entity, is obliged to explain to him the right to file a civil claim. At the same time, recognition of a person as a victim as a result of causing him physical, material or moral harm as a result of a crime does not “automatically” put him in the procedural position of a civil plaintiff.

If the statement of claim is received by the investigator, then he issues an independent decision on recognizing the person as a civil plaintiff (Appendix 115 to Article 476 of the Code of Criminal Procedure). Despite the possibility of filing a civil claim within the framework of criminal proceedings in the cases specified above and for property compensation for moral damage, in the form of this decision, the subject of the claim is unreasonably narrowed down: we are talking only claiming compensation for property damage. In the descriptive and motivating part of this decision, the investigator sets out the grounds for recognizing a person as a civil plaintiff. If a claim is brought in a court session, the judge issues a decision, and the court a ruling on recognizing the person as a civil plaintiff. The civil plaintiff must be explained the rights and obligations provided for, respectively, parts 4 and 6 of Art. 44 Code of Criminal Procedure.

In defense of the interests of minors, persons recognized as incapable or of limited capacity, as well as persons who, for other reasons, cannot defend their rights themselves, a claim may be brought by their legal representatives or a prosecutor, and in defense of the interests of the state, by a prosecutor.

If a natural or legal person is found to be liable in accordance with civil law for the harm caused by a crime, such person, on the basis of a decision of an investigator, interrogating officer, prosecutor, judge, or on the basis of a court ruling, is involved as a civil defendant. The civil defendant is explained the rights and obligations provided for, respectively, in Parts 2 and 3 of Art. 54 Code of Criminal Procedure.

A civil claim may be waived by a civil plaintiff at any time during the criminal proceedings, but before the court retires to the deliberation room for a verdict, the waiver of a civil claim entails the termination of proceedings on it. If the civil plaintiff agrees to testify, he must be warned that his testimony can be used as evidence in a criminal case, including in the event of his subsequent refusal to testify. This participant in the process is not entitled to evade appearance when summoned and disclose the data of the preliminary investigation, if he was warned about this in advance. The civil plaintiff is liable for the disclosure of data from the preliminary investigation in accordance with Article 310 of the Criminal Code of the Russian Federation.

If, in a criminal case, a civil claim is filed in the absence of the necessary material or procedural grounds and prerequisites, the one in whose proceedings this case is located is obliged to issue a decision (determination) on the refusal to recognize it as a civil plaintiff and announce it to the person concerned, explaining the procedure for appealing. The grounds for such refusal are the following:

Causing property damage by a crime is not confirmed by the materials of the criminal case;

the application is not subject to consideration in the judicial authorities;

the application is not subject to consideration in criminal proceedings, since the claim for compensation for property damage is not caused by the occurrence of damage as a result of the crime or is addressed not to the accused and persons who are financially responsible for the actions of the accused;

there is a court decision or court ruling that has entered into force, issued in a dispute between the same parties, on the same subject and on the same grounds, on accepting the plaintiff's waiver of the claim or on approving the settlement agreement of the parties;

the application is submitted by a person who does not have procedural legal personality;

the application on behalf of the plaintiff was filed by a person who does not have the authority to conduct the case.

Moreover, the existence of a claim in a dispute between the same parties, on the same subject and on the same grounds, declared in civil proceedings, does not prevent the filing of a claim in a criminal process, provided that the civil case is terminated at the appropriate request of the plaintiff. It is not grounds for refusing to recognize as a civil plaintiff the fact that this moment the crime has not been solved, no one has been brought as an accused, and there is not even a suspect in the case, in a word, there is no one who is supposed to be the defendant in the suit. To establish it, to expose and prove the validity (or groundlessness) of the claim for compensation for harm is the procedural duty of the inquirer, investigator, prosecutor and court.

A special prerequisite for the right to bring a civil action in criminal proceedings is the filing of a claim against the proper defendant. As a general rule, a civil claim in a criminal proceeding may only be brought against a person who is the defendant in the given criminal case. If the damage is caused by the joint actions of several defendants, all of them will act as co-defendants in a civil suit in this criminal proceeding. However, a civil claim in criminal proceedings cannot be brought against a person who causes property damage, who is not the accused, despite the fact that this damage is of criminal origin. In particular, in cases where harm is caused by the joint actions of the defendant in this criminal case and another person in respect of whom the criminal case was terminated on non-rehabilitating grounds or separated into a separate proceeding, the obligation to compensate them in full lies with the defendant. All subsequent regressions this person who compensated the damage, with the co-defendants, as a rule, are taken out of the scope of the criminal process. However, when subsequently passing a guilty verdict against a person whose case was separated into a separate proceeding, the court has the right to impose on him the obligation to compensate for the damage jointly with those previously convicted.

There is an exception to the general rule that in a civil action in a criminal proceeding the defendant is the defendant himself. If, by virtue of the law, material responsibility for the actions of the accused is borne by other subjects, a claim in a criminal case may be brought against these persons who are involved in the case as civil defendants. We are talking about parents, guardians and trustees.

The accused, who does not have civil capacity, the owners of sources of increased danger (car fleets, Railway etc.), as well as about enterprises, organizations that are obliged to compensate for property damage caused by their employees in the performance of their labor (official, official) duties, including law enforcement agencies states whose mines are accused of serious malfeasance with personal injury. Having established that the parents, trustees or other persons or enterprises, institutions, organizations, should bear material responsibility for the damage caused by the criminal actions of the accused, by law, follow (the interrogating officer) issues a reasoned decision on involving the relevant person or enterprise, institution, organization as a civil defendant. The decision is announced to the civil defendant or his representative. At the same time, they are explained the rights provided for in Article 54 of the Code of Criminal Procedure. The civil defendant has the right:

know the essence of claims and the circumstances on which they are based;

object to a civil claim; give explanations and testimonies on the merits of the claim; refuse to testify against himself, his spouse) and other close relatives, the circle of which is defined by paragraph 4 of Article 5 of the Code of Criminal Procedure. If the civil defendant agrees to testify, he must be warned that his testimony can be used as evidence in a criminal case, including in the event of his subsequent refusal to testify;

to testify in his native language or in a language he speaks and to use the assistance of an interpreter free of charge; have a representative collect and present evidence; make motions and challenges;

after the completion of the preliminary investigation, get acquainted with the materials of the criminal case relating to the civil suit filed, and make appropriate extracts from the criminal case, make copies at his own expense from those materials of the criminal case that relate to the civil suit, including using technical means;

participate in the trial of a criminal case in the courts of first and appeal instances; to speak in judicial debates;

bring complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor, court in the part relating to the civil claim, and take part in their consideration by the court;

get acquainted with the protocol of the court session and submit comments on it;

appeal against the sentence, ruling or ruling of the court in the part relating to the civil claim, and participate in the consideration of the complaint by a higher court;

be aware of the complaints and presentations brought in the criminal case and file objections to them if they affect his interests.

A civil defendant may not:

avoid appearing when summoned by an interrogating officer, investigator, prosecutor or in court. Otherwise, it may be driven;

disclose the data of the preliminary investigation, which became known to him in connection with participation in the criminal proceedings, if he was warned about this in advance in the manner prescribed by Article 161 of the Code of Criminal Procedure. For disclosure of preliminary investigation data, the civil defendant is liable in accordance with Article 310 of the Criminal Code.

The civil defendant, like the plaintiff, may use the services of a representative. Representatives of a civil defendant who is an individual may be lawyers, and representatives of a civil defendant who is a legal entity may also be other persons authorized in accordance with the Civil Code of the Russian Federation to represent his interests. By a court ruling or a decision of a judge, prosecutor, investigator, interrogating officer, one of the close relatives of the civil defendant or another person whose admission is requested by the civil defendant may also be admitted as a representative of the civil defendant. A representative of a civil defendant has the same rights as the person he represents. Personal participation in the criminal proceedings of a civil defendant does not deprive him of the right to have a representative.

A special subject composition of legal relations develops in connection with the infliction of harm as a result of crimes of a terrorist nature, which, according to the Federal Law of July 3, 1998 "On the fight against terrorism" 1, include acts provided for in Article 205 of the Criminal Code (terrorism in the narrow sense this concept), article 206 of the Criminal Code (hostage-taking), article 207 of the Criminal Code (knowingly false report of an act of terrorism), article 208 of the Criminal Code (organization of an illegal armed formation or participation in it), article 277 of the Criminal Code (encroachment on the life of a state or public figure) and article 360 ​​of the Criminal Code (attack on persons or institutions that use international protection), as well as other crimes if committed for terrorist purposes. Compensation for such damage is made at the expense of the budget of the constituent entity of the Russian Federation on whose territory the terrorist act was committed, or (in special circumstances specified in the said law) at the expense of the budget of the Russian Federation, with the subsequent recovery of the amount of this compensation from the tortfeasor (Article 17 of the Federal Law "On the fight against terrorism").

2.2. Measures to ensure a civil claim in criminal proceedings

In order to ensure the execution of a sentence in part of a civil claim, the prosecutor, as well as the inquirer or investigator, with the consent of the prosecutor, file a petition with the court to seize the property of the suspect, the accused or persons who are legally liable for their actions. The court considers the petition in the manner prescribed by Article 165 of the Code of Criminal Procedure. Attachment of property consists in a prohibition addressed to the owner of the property to dispose of and, if necessary, use it, as well as in the seizure of property and its transfer to storage.

The procedure for seizing property, including securities, is regulated by Art. 115 and 116 of the Code of Criminal Procedure. This procedural action may be carried out by a court decision, which is adopted at the request of the official conducting the preliminary investigation, agreed with the prosecutor.

In the event of a civil action being filed in preparation for court session or at the stage of the trial, seizure of property (including securities) is possible on the basis of a judge's decision or a ruling of the court at the request of the victim, the civil plaintiff, their representatives or the prosecutor.

Seizure may be imposed on property held by other persons, if there are sufficient grounds to believe that it was obtained as a result of the criminal actions of the suspect, the accused. When seizing the money and other valuables belonging to the suspect, the accused, which are on the account, in the deposit or in storage in banks and other credit organizations, operations on this account are completely or partially terminated within the limits of the money and other valuables on which the arrest is imposed. . Heads of banks and other credit institutions are required to provide information on these cash and other valuables at the request of the court, as well as the prosecutor or investigator or interrogating officer with the consent of the prosecutor.

A protocol is drawn up on the seizure of property. At the same time, special attention is paid to the protocol for seizing securities and their certificates. This protocol must include:

the total number of seized securities, their category (type) or series; nominal cost; state registration number;

Information about the issuer or persons who issued the securities or registered the rights of the owner of the securities, as well as the place of registration;

information about the document certifying the ownership of the securities on which the seizure is imposed.

The procedure for performing actions to redeem the seized securities, pay out income on them, convert them, exchange them or take other actions with them is established by federal law.

Seizure cannot be imposed on property, which, in accordance with the Civil Procedure Code of the Russian Federation (Article 446), cannot be levied. The seized property shall be transferred, at the discretion of the person conducting the investigation, to a representative of the village or settlement administration or house administration, or to the owner of this property, his relative or other person, for safekeeping. The obligation to keep it intact is explained to persons who have been transferred for storage of property subjected to arrest, and it is announced that criminal liability is provided for embezzlement, alienation or concealment of property subjected to an inventory or arrest.

Attached property may be confiscated by the person conducting the investigation. First of all, the following are subject to seizure: valuables and securities, savings books, sums of money and especially valuable things. This property is not material evidence, it is not attached to the criminal case, and this circumstance serves as the main feature that determines the special procedure for handling it in comparison with the seizure and storage of material evidence. The owner of the seized property is deprived of all three powers of the owner in relation to this property: he no longer owns it, and he can neither use nor dispose of the property. However, there is still no transfer of ownership here, or, as the civilists say, the state of belonging (assignment) has not yet ceased, there remains a “clot” of ownership rights. Therefore, the investigating body that seized the property is obliged to keep it until the court verdict. He is responsible for the integrity and safety of this property. The rules for the storage of property seized in a criminal case are established by the Instruction on the procedure for the seizure, accounting, storage and transfer of valuables and other property by the bodies of preliminary investigation, inquiry and courts of 1989 and the Regulations on the procedure and conditions for the storage of arrested and seized property of 1998 (the last regulates the activities of bailiffs in this area). The usual place of storage of arrested and confiscated property is the evidence chambers. For some types of property, departmental regulations establish a special procedure. Seizure of bank cash deposits means the termination of any operations on them.

Attachment of property is canceled if the application of this measure is no longer necessary. Further need for seizure of property may disappear both during the investigation and when the case is dismissed:

a) when it is established that the arrest has been imposed on property that, in accordance with the current legislation, cannot be subjected to arrest (meaning the things indicated in the List of property not subject to confiscation by a court verdict);

b) if the committed crime did not cause material damage;

c) if it is not confirmed that the property of "other persons" was acquired by criminal means.

The arrest of property is also canceled in the case when the accused has compensated for the harm caused by returning to the victim (civil plaintiff) individually defined or identical things (in-kind compensation) or by means of monetary compensation for losses. In this case, relations are formed directly between the accused and the victim (civil plaintiff). The investigator should not enter into them, his duty is limited to explaining to the accused that, in accordance with the law, voluntary compensation for property damage caused is a circumstance mitigating responsibility for the crime committed.

But sometimes the investigating authorities accept from the repentant accused the property presented by him to the investigating authority, the money intended for compensation for damage, keep them, and then, at the request of the accused, transfer or transfer them even before the trial to the victim (civil plaintiff). These actions, although they are caused by considerations of immediate and real compensation for the damage caused by the crime, cannot be considered irreproachable from a legal point of view. The competence of the investigating authorities does not include the restoration of the violated property right by transferring property from the “owning non-owner” to the “non-owning owner” (vindication legal relations). This is a judicial prerogative, especially since by such actions, contrary to the presumption of innocence, the investigating body prejudges the conclusion about the guilt of the accused and demonstrates this predetermination by legally significant actions. If the property that was seized and seized turned out to be lost or damaged, and as a result of the criminal case it is subject to return to the owner, the property damage caused in such cases is subject to compensation to the citizen, regardless of whether he was convicted or rehabilitated 1 .

According to article 1069 of the Civil Code of the Russian Federation, harm caused to a citizen or an individual as a result of illegal actions (inaction) of state bodies, bodies local government or officials of these bodies, is subject to compensation at the expense of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury, respectively municipality. It is this civil law norm that serves as the legal basis for the claim of a citizen whose property, confiscated in the course of a criminal case, turned out to be lost or damaged, and, as a result of the criminal process, is subject to return to the owner. From the canopy of the treasury, as provided for by Article 1071 of the Civil Code, the relevant financial authorities act. At the same time, in accordance with paragraph 3 of Article 125 of the Civil Code, in cases provided for by law and other legal acts, other bodies, legal entities and citizens may act on behalf of the Russian Federation, a constituent entity of the Russian Federation or a municipal formation on their behalf. Article 1069 of the Civil Code does not refer to any special grounds (conditions) for the responsibility of the Russian Federation, a subject of the Russian Federation or a municipality, which allows us to conclude that the general rules of tort liability, that is, liability for guilt (in this case, for the guilty actions of state and municipal bodies and their officials) 2 .

2.3. Consideration and resolution of a civil claim in criminal proceedings

A civil claim is subject to resolution by the court in a judgment based on the results of the trial.

In a criminal case brought under jurisdiction with an indictment or an indictment, the judge, in preparation for the court session, among other issues, is obliged to find out whether measures have been taken to ensure compensation for the harm caused by the crime (paragraph 5 of article 228 of the Code of Criminal Procedure). At the request of the victim, the civil plaintiff or their representatives or the prosecutor, he has the right to make a decision on taking measures to ensure compensation for the harm caused by the crime. The execution of such a decision is entrusted to bailiffs (Article 230 of the Code of Criminal Procedure).

At the stage of the trial, the court, guided by the general rules of criminal procedural proof, investigates the circumstances of the case, including those related to the civil claim filed, which is supported by the civil plaintiff in the court session, and if this is required by the protection of the rights of citizens, public or state interests - the prosecutor (Part six of Article 246 of the Code of Criminal Procedure). The court has the right to consider a civil claim in the absence of a civil plaintiff if:

the civil plaintiff or his representative solicits this; the civil suit is supported by the public prosecutor;

The defendant fully agrees with the civil claim.

In other cases, the court, if the civil plaintiff or his representative fails to appear, has the right to leave the civil claim without consideration. At the same time, the civil plaintiff retains the right to file a claim in civil proceedings (parts two and three of Article 250 of the Code of Criminal Procedure).

If a civil claim is not filed, the court is deprived of the opportunity to own initiative compensate for property damage or compensate for moral damage caused by the crime. 1

If it is necessary to make additional calculations related to the civil claim, requiring the adjournment of the trial, the court may recognize the right of the civil plaintiff to satisfy the civil claim and refer the issue of the amount of compensation for consideration in civil proceedings (part 2 of article 309 of the Code of Criminal Procedure).

When issuing a guilty verdict, the court, depending on the proof of the grounds and the amount of the civil claim, satisfies the claim in full or in part, or refuses to satisfy it. If it is necessary to make additional calculations related to a civil claim, requiring the adjournment of the proceedings, the court may recognize the civil plaintiff's right to satisfy the claim and refer the issue of its size for consideration in civil proceedings (paragraph 1 of part one and part two of Article 309 of the Code of Criminal Procedure) .

When issuing a verdict of not guilty, issuing a decision or ruling on the termination of a criminal case due to the absence of an event of a crime, or termination of a criminal investigation due to the non-involvement of the defendant in the commission of a crime, the court refuses to satisfy the civil claim. In steel cases, the court leaves the civil claim without consideration, leaving the civil claim without consideration by the court does not prevent its subsequent presentation and consideration in civil proceedings (part two of Article 206 of the Code of Criminal Procedure).

If in the same criminal case there are grounds for recovery of property damage caused by a crime, at the same time for other property penalties (confiscation of property used as an additional criminal punishment - Article 52 of the Criminal Code; a fine used as the main additional criminal punishment - - Article 46 of the Criminal Code; the so-called special confiscation of the instruments of crime, for example, a car that was used in the theft of other people's property, as well as the transfer to the state of money and valuables acquired by criminal means that served as material evidence, priority is given to satisfying the property claims of the civil plaintiff. First of all, the consequences of the crime must be eliminated.Therefore, the accused with all his property is responsible first of all to the civil plaintiff, while confiscation measures in favor of the state are applied to the rest.

When a decision is made to terminate a criminal case in connection with an amnesty act, a civil claim is also left without consideration. A person who has suffered damage from a crime has the right to demand compensation for damage in civil proceedings. However, in this case, the burden of proving the grounds for the claim lies with the plaintiff, which significantly complicates the effectiveness of compensation for harm. In this regard, the Constitutional Court of the Russian Federation took revenge that, although the state, if there are appropriate grounds and conditions, may refuse to carry out criminal prosecution, it is not entitled to leave unfulfilled those obligations that are assigned to it by the Constitution of the Russian Federation. In particular, the state is not exempted from the need to provide victims of crimes with access to justice and compensation for the damage caused (part 2 of article 45, part 1 of article 46, article 52 of the Constitution of the Russian Federation). In the case of an amnesty, the court must provide the victim with procedural guarantees for the exercise of his rights to access to justice and compensation for the damage caused, similar to those provided to victims in cases in which the amnesty is not subject to application or is applied after the verdict is passed, i.e. the victim should be assisted by the state represented by its authorized bodies in obtaining evidence confirming the fact of causing harm as a result of an unlawful act. In this regard, the legislator has the right to adopt a special normative act providing for such compensatory mechanisms 1 .

Consideration of a criminal case in a special order according to the rules of Ch. 40 of the Code of Criminal Procedure (a special procedure for making a court decision if the accused agrees with the charge brought against him) is possible only if the accused fully agrees with both the charge and the civil claim.

If damage is caused by several persons who committed a crime in complicity and found guilty by the court, then compensation for such damage is assigned to them jointly and severally. If the harm was caused by the defendant jointly with another person, in respect of whom the criminal case is separated into a separate proceeding, the court imposes full compensation for the harm on the defendant. In the event of a subsequent guilty verdict against an accomplice, the court has the right to impose on him the obligation to compensate for the harm jointly with the previously convicted.

A court verdict in the part relating to a civil claim may be appealed by a civil plaintiff, a civil defendant, their representatives in the appellate and cassation procedure (part five of Article 354 of the Code of Criminal Procedure). The verdict of the part relating to the civil action that has entered into legal force may be reviewed by way of judicial supervision. In addition, the court of the cassation or supervisory instance has the right to itself, without sending the case for a new trial, to change the verdict in part of the civil claim, provided that the case does not require the collection of additional evidence and that a change in the amount of material damage will not affect the confiscation of the crime and the change in the volume accusations of standing, worsening the situation of the convict.

LIST OF USED LITERATURE

Resolution of the Constitutional Court of the Russian Federation K? 7-P of April 24, 2003 in the case of checking the constitutionality of the provision of paragraph 8 of the decision State Duma dated May 26, 2000 “On the announcement of an amnesty in connection with the 55th anniversary of the Victory in the Great Patriotic War of 1941-1945” in connection with the complaint of citizen L.M. Zaporozhets // SZ RF. 2003. No. 18. Art. 1748.


Decree of the Plenum of the Supreme Court of the Russian Federation "On the Judgment" dated April 29, 1996 No. 1 // BVS. 1996. No. 7. pp. 376 - 388


Decree of the Plenum of the Supreme Court of the Russian Federation in its resolution of December 20, 1994 No. 10 "On some issues of the application of legislation on compensation for moral damage" // BVS RF. 1995. No. 3.


Decree of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 "On judicial practice in cases of bribery and commercial bribery" // Russian newspaper. Feb 23, 2000


Determination of the Constitutional Court of the Russian Federation of December 6, 2001 No. 297-O on the complaint of citizen M.E. Kostrova on the violation of her constitutional rights of the fourth article 29 of the Code of Criminal Procedure of the RSFSR and the complaint of citizen P.A. Shlykov to the violation of his constitutional rights by paragraph 7 of the first part of Article 303 of the Code of Criminal Procedure of the RSFSR // СЗ RF. 2002. No. 8. Art. 893.


Bagautdinov F.N. Ensuring the property rights of the individual in the investigation of crimes. M., 2002.


Bezlepkin B.T. Commentary on the Code of Criminal Procedure of the Russian Federation. Article by article. M., 2006.


Bezlepkin B.T. Criminal process of Russia.–M.: KNORUS, 2006.


Grigoriev V.N., Pobedkin A.V., Yashin V.N. Criminal process. –M.: Eksmo, 2005.


Gros L. Institute of procedural complicity: connection between procedural and substantive law // Russian justice. 1998. No. 3.


Gurvich M.A. The doctrine of the claim. M., 1981, S. 7.

One of the specific tasks of criminal proceedings is the task of compensating for harm to a person if such harm was caused as a result of a crime. According to part 3 of Art. 42 of the Code of Criminal Procedure, the victim has the right to compensation for property damage caused by the crime. At the claim of the victim for compensation in monetary terms for the moral damage caused to him, the amount of compensation is determined by the court when considering a criminal case or in civil proceedings (part 4 of article 42 of the Code of Criminal Procedure). If a person (individual or legal entity) who suffered harm from a crime files a civil claim for compensation within the framework of a criminal case, the investigator, interrogating officer, prosecutor issues a decision, and the court - a ruling on recognizing this person as a civil plaintiff. Thus, the legislator allows considering a civil law claim for compensation for harm together with a criminal case.

A civil claim in criminal proceedings is a claim of a person (physical or legal) who has suffered material or moral harm from a crime, his representative (legal representative) or a prosecutor, considered together with a criminal case, against a person who, in accordance with civil law, is liable for harm caused by a crime .

The legal fact that gives rise to the emergence of civil law relations between the person responsible for the harm caused and the victim is the fact of the commission of a crime. Thus, the commission of a crime entails the emergence of two types of legal relations: criminal law and civil law. Civil law relations can be implemented in the order of civil proceedings or through criminal procedural relations. In the latter case, it is necessary that a civil action be filed during criminal proceedings. Criminal procedural relations, within which the civil law relation is implemented, are determined by the existence of the latter. In addition, the civil law relation in criminal proceedings can be a determinant of some civil procedural relations in cases where the rules of civil procedural law are applied on issues related to a civil claim and not regulated by criminal procedural legislation.

However, it must be borne in mind that the consideration of a civil claim is essentially a separate proceeding, the procedure for which is regulated in detail by the rules of civil procedure. The fact that the legislator allowed the possibility of combining criminal and civil proceedings within the framework of a criminal case does not in itself exclude the expediency of taking into account the provisions of the Code of Civil Procedure. At the same time, their application should be carried out within the limits that do not contradict the norms of the criminal process (which in this case are priority). So, as a general rule, the plaintiff's refusal to file a claim or an amicable agreement of the parties are the grounds for terminating the proceedings in a civil case (clauses 4 and 5 of article 219 of the Code of Civil Procedure). However, when considering a criminal case, the implementation of a settlement agreement is possible only in cases of private prosecution.

Thus, when resolving a civil claim, together with a criminal case, the court is bound by the rules that determine the procedural order at all stages of the criminal process in the interests of creating appropriate conditions for considering, first of all, a criminal charge. As a result, the judge, guided by the timeframe for considering the issue of scheduling a court session - no later than 14 days from the date the case was received by the court (if the accused is in custody) and within a month - in other cases - Art. 223.1 of the Code of Criminal Procedure, as well as the norm of Art. 239 of the Code of Criminal Procedure that the case must be started by consideration no later than 14 days from the date of the court's decision to schedule a court session, it is practically impossible to be guided by the rules of the Code of Civil Procedure, which determine the actions of a judge when preparing a case for trial.

At the same time, the norms of the Code of Civil Procedure (Chapter 12 "Bringing a claim"; Chapter 13 "Securing a claim"; Chapter 14 "Preparation of civil cases for trial" and some others) must be taken into account.

Within 28 days, i.e. the period established by the procedural law before the start of the consideration of the criminal case, the judge, having studied the statement of claim, the documents attached to the case and having clarified the essence of the material and other claims of the plaintiff, is obliged to send a copy of the statement of claim to the defendant (if this is not done by the preliminary investigation bodies) and, if necessary, to offer the plaintiff submit additional documents to justify both the right to meet certain requirements and their amount.

At the stage of appointing a court session, it is advisable for the judge to be guided, in addition to the requirements of Art. Art. 221 - 234 of the Code of Criminal Procedure as well as Art. Art. 129, 219 and 141 - 143 of the Code of Civil Procedure, to the extent that they do not contradict the criminal procedural legislation.

With regard to this, it seems mandatory to make a decision on a civil claim in a resolution on the appointment of a court session. As a rule, this is an indication of the acceptance of the statement of claim for consideration. In addition, the decision must reflect measures to secure the claim (seizure of the defendant's property, etc.), if they are not taken during the preliminary investigation. Without a mandatory indication in the decision, the judge has the right to demand Additional materials both on their own initiative and at the request of the plaintiff or defendant (of course, if they went to court at this stage).

Criminal proceedings should not be hindered by the consideration of a claim. If in a lawsuit the judge first decides whether to accept or refuse to accept the application (Article 129 of the Code of Civil Procedure), then issues a ruling on the preparation of the case for trial, and only after that the ruling on appointing him for trial in a court session, then the criminal procedural order does not provide for such procedural actions of the judge in the interests of the civil claim filed in the case. The reason for this is that the judicial stage is preceded by a preliminary investigation, which is practically obliged to perform the same amount of preparatory actions in relation to the interests of the victim regarding compensation for the harm caused to him.

However, the judge, having established the incompleteness of the preliminary investigation in this part, has the right to decide whether to refer the case to additional investigation(as a rule, only in cases where the incompleteness of the study of issues of harm and its compensation is related to the volume of the accusation and its legal assessment), or, within the possibilities of the pre-trial stage, to resolve the issue of measures to replenish the investigative materials, ensuring the interests of the parties in the stated claim.

Therefore, without the risk of making a premature decision and, as a rule, in conditions of insufficiently complete data on the claim, a judge at the stage of scheduling a court hearing in a criminal case is practically deprived of the opportunity to refuse to accept a statement of claim (Article 129 of the Code of Civil Procedure) in a case that is in its proceedings. Although this possibility is not excluded, if the claim, for example, is not subject to consideration in court, it refers to the episodes of the accusation, for which the preliminary investigation was terminated by the decision of the investigator or upon approval of the indictment, as well as in other cases provided for by Art. 129 Code of Civil Procedure.

In cases of termination of the case on the grounds provided for in Art. 234 of the Code of Criminal Procedure, the judge must decide to leave the claim without consideration in order not to deprive the plaintiff of the opportunity to file a claim in civil proceedings.

At the stage of appointing a court session, the judge is also obliged to analyze the questions about the proper defendant and co-defendants (Article 142 of the Code of Civil Procedure). In accordance with paragraph 1 of this article, the judge at this stage interrogates the plaintiff on the merits of his claims, suggests, if necessary, submit additional evidence, and explains to the plaintiff his procedural rights and obligations. The practice of considering civil claims together with a criminal case shows that the judge is not deprived of the opportunity to be guided by this norm of the Code of Civil Procedure in this case, but only if there is an initiative on the part of the plaintiff, since his summons to court at the stage of appointing the case is not provided and court costs are not paid.

Thus, the consideration in the decision on the appointment of a court session of issues related to the claim filed during the preliminary investigation, and even more so after the case has been sent to court, is an important guarantee of ensuring the rights of the plaintiff. If the statement of claim has already been received directly by the court at the stage of scheduling a court session or pre-trial preparation, it seems necessary to immediately notify the defendant (other defendants) about this, who should be able to prepare to defend their interests in full and on the claim filed against them. In the course of pre-trial preparation, the judge needs to study the regulatory framework in relation to the subjects of claims, familiarize himself with the relevant judicial practice.

In accordance with Part 2 of Art. 29 of the Code of Criminal Procedure, a civil action may be brought only before the commencement of a judicial investigation.

The order of actions of the court in relation to the plaintiffs and defendants is regulated by Ch. 21 Code of Criminal Procedure " General terms trial" and Chapter 22 "The preparatory part of the court session". The features of these actions depend on whether the claim is accepted for consideration by a decision on the appointment of a court session or the claim is filed in the preparatory part of the court session.

In the second case, it is necessary to act in such a way as to accept claims that can really be considered in this court session, at least from the point of view of recognizing the right to satisfy them. For these purposes, the judge has the right, before the start of the court session, after verifying the appearance of the plaintiff, to briefly talk with him on the claims, to make sure that the minimum necessary documents are available, and in the absence of data for examining the claim, to offer the plaintiff to decide this question in civil litigation. (I believe that such a conversation in the presence of a court secretary does not contradict the requirements of judicial ethics.) If the plaintiff does not agree with such a position, or in the preparatory part, contrary to the agreement during the conversation, declares unsupported claims, then the court is obliged to consider the issue of accepting them for consideration or refusal to do so with the issuance of a ruling on the spot or with removal to the deliberation room.

In this case, the court must consider the possibility of accepting each claim separately. He, apparently, will agree with the acceptance of a claim for reimbursement of expenses for burial within reasonable limits, bearing in mind that specific data on the costs incurred can be obtained on the basis of the testimony of the victim (plaintiff), which are admissible as a source of evidence of such expenses (as well as in the claim on moral hazard). On the contrary, to accept for consideration a claim for reimbursement of expenses in the event of the loss of a breadwinner without submitting the necessary documents on dependency, size wages and other data is not possible. An exception can be made only if the plaintiff declares a real opportunity to present these documents before the end of the judicial investigation.

In the preparatory part, the prospect of voluntary satisfaction of the defendant's claims is often clarified. In this case, if the claims are fully satisfied and the plaintiff refuses to file them in court, the latter, in the absence of doubts about this, accepts the plaintiff's refusal and issues a ruling to terminate the proceedings on these claims. However, the plaintiff must first be warned of the consequences of such a refusal. In case of partial compensation for damages, the court accepts the plaintiff's application to reduce the volume of claims and the price of the claim, or further takes them into account when determining the final amount to be recovered from the defendant.

It is necessary to provide equal conditions for the defendant - to give him real opportunity object to the stated claims, provide explanations and present documentary materials. If the defendant is the defendant, then, under the weight of the criminal charge, he naturally experiences certain moral difficulties and, as a rule, agrees with the demands of the plaintiff without delving into their essence. If the defendant objects (for example, considers the amount of compensation for non-pecuniary damage to be too high), then this does not prevent him from recognizing his sincere repentance for his deed as a mitigating circumstance.

The consideration of a civil claim in the framework of criminal proceedings makes it possible to more effectively restore the rights of a person who has been harmed by a crime than a similar claim filed in civil proceedings. A civil claim in criminal proceedings is not subject to state duty (Part 2, Article 44 of the Code of Criminal Procedure). In addition, the grounds for the claim, the nature and extent of the harm caused are an element of the subject of proof in a criminal case, i.e. its proof is the responsibility of the state bodies conducting the preliminary investigation, in contrast to civil proceedings, where the burden of proof lies with the plaintiff. Moreover, persons recognized in the manner prescribed by law as civil plaintiffs and civil defendants, by their participation in the process, can provide officials with significant assistance in establishing significant circumstances in a criminal case. Consideration of a civil claim together with a criminal case contributes to the saving of procedural funds, allows the use of more effective ways to secure a claim and speed up its consideration.

The subject of a civil claim in a criminal process is a claim for compensation for property damage or monetary compensation for moral damage caused by a crime. At the same time, the concept of “harm” covers not only direct damage, i.e. loss, deterioration or reduction in the value of property, the costs necessary to restore, acquire lost property (causing such harm may be the purpose of the person who committed the crime, or be of a concomitant nature), but also losses in the form of lost profits. As you know, lost profits are not included in the amount of property damage when qualifying a crime. However, according to Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated has the right to demand full compensation for his losses, including lost profits. Therefore, it may constitute the subject of a civil action in a criminal proceeding.

There is an opinion that the issue of compensation for lost profits as an element of the subject of a civil claim in criminal proceedings can be considered only in cases where the victim himself substantiated and submitted the necessary documents, evidence confirming the nature and amount of income not received by him, otherwise the dispute is transferred to the field of civil justice. It seems that the establishment of the nature and extent of the harm caused by the crime, in any case, is the responsibility of the bodies and officials conducting the proceedings on the case (investigator, interrogating officer, prosecutor), regardless of whether the harm caused affects the qualification. But, of course, without the help of a civil plaintiff, it is extremely difficult to establish the existence and amount of lost profits.

A civil claim can be filed both for the purpose of compensation for material damage caused by a crime, and for property compensation for moral damage. Moral harm is moral and physical suffering, which may include feelings of fear, indignation, resentment, feelings due to the loss of relatives, the inability to continue an active social life, or pain, suffocation, dizziness, nausea, etc. that have arisen as a result of the act.

The Plenum of the Supreme Court of the Russian Federation indicated that compensation for moral damage in accordance with the law is carried out in cash, regardless of the property damage subject to compensation. When resolving such claims, one should be guided by the provisions of Art. 151, 1099-1101 of the Civil Code of the Russian Federation, according to which, when determining the amount of compensation for non-pecuniary damage, it is necessary to take into account the nature of the physical and moral suffering caused to the victim, as well as other circumstances of the criminal case that affect the decision of the court on the brought claim. However, not every crime committed entails the possibility of property compensation for the moral damage caused. When resolving claims for compensation for moral damage in monetary form, it is necessary to be guided by the indicated provisions of civil law, according to which (in particular, Article 151 of the Civil Code of the Russian Federation), moral damage caused by an encroachment on intangible benefits belonging to a citizen (life, health, honor, dignity), otherwise the possibility of compensation for non-pecuniary damage should be expressly provided for by law. Thus, if moral damage is caused by a crime infringing on the property rights of an individual, compensation for moral suffering seems impossible.

The civil plaintiff in the statement of claim himself determines the amount of compensation for non-pecuniary damage in monetary form. The final amount of compensation is determined by the court in the verdict based on the results of the trial.

A civil claim together with a criminal case can be considered only in cases where the damage is caused directly by the crime, i.e. actions constituting the objective side of the corpus delicti. As a general rule, consideration of recourse claims in criminal proceedings is not allowed.

It is impossible to consider, together with a criminal case, claims for recognition, and not for awarding, i.e. on deprivation of parental rights, on eviction, on the recognition of a marriage as invalid, on the recognition of an invalid transaction, etc.

The grounds for a civil claim are the legal facts by which the plaintiff substantiates his claims. These facts include:

1) committing a crime;

2) causing harm to the plaintiff;

3) a causal relationship between crime and harm.

If a person who has suffered damage as a direct result of a crime has not filed a civil claim in the course of criminal proceedings, then he has the right to do so in civil proceedings.

A civil claim in a criminal process can be brought from the moment a criminal case is initiated until the end of the judicial investigation during the consideration of a criminal case in a court of first instance (part 2 of article 44 of the Code of Criminal Procedure). The statement of a civil claim is also possible in the case when such a participant as a suspect, an accused, and, consequently, a person who is financially responsible for his actions, has not yet appeared in criminal proceedings.

It seems that in the case of a civil claim in the course of the trial, the burden of proving the grounds for the claim in accordance with the adversarial principle lies with the participants in the process from the side of the prosecution. If the nature and extent of the harm is of criminal law significance, then the burden of presenting evidence lies with the public prosecutor. If the subject of a civil claim includes a claim for property compensation for lost profits, the civil plaintiff must submit evidence to the court confirming this element of the subject of the claim.

A civil claim may be waived by a civil plaintiff at any time during the proceedings in a criminal case, but before the court retires to the deliberation room for a verdict. The refusal of a civil claim entails the termination of proceedings on it.

An official conducting a preliminary investigation, having established that property or moral damage has been caused to an individual or legal entity, is obliged to explain to him the right to file a civil claim. At the same time, recognition of a person as a victim as a result of causing him physical, material or moral harm as a result of a crime does not “automatically” put him in the procedural position of a civil plaintiff.

If the statement of claim is received by the investigator, then he issues an independent decision on recognizing the person as a civil plaintiff (Appendix 115 to Article 476 of the Code of Criminal Procedure). Despite the possibility of filing a civil claim within the framework of criminal proceedings in the cases specified above and for property compensation for moral damage, the form of this decision unreasonably narrows the subject of the claim: it is only a requirement to compensate for property damage. In the descriptive and motivating part of this decision, the investigator sets out the grounds for recognizing a person as a civil plaintiff. If a claim is brought in a court session, the judge issues a decision, and the court - a ruling on recognizing the person as a civil plaintiff. The civil plaintiff should be explained the rights and obligations provided for, respectively, parts 4 and 6 of Art. 44 Code of Criminal Procedure.

In defense of the interests of minors, persons recognized as incapable or of limited capacity, as well as persons who for other reasons cannot defend their rights themselves, a claim may be brought by their legal representatives or a prosecutor, and in defense of the interests of the state - by a prosecutor.

If a natural or legal person is found to be liable in accordance with civil law for the harm caused by a crime, such person, on the basis of a decision of an investigator, interrogating officer, prosecutor, judge, or on the basis of a court ruling, is involved as a civil defendant. The civil defendant is explained the rights and obligations provided for, respectively, in Parts 2 and 3 of Art. 54 Code of Criminal Procedure.

The main procedural action aimed at ensuring the execution of a sentence in terms of a civil claim filed or possible in the future is the seizure of property. The procedure for seizing property, including securities, is regulated by Art. 115 and 116 of the Code of Criminal Procedure. This procedural action may be carried out by a court decision, which is adopted at the request of the official conducting the preliminary investigation, agreed with the prosecutor.

If a civil claim is filed at the stage of preparation for a court session or at the stage of trial, attachment of property (including securities) is possible on the basis of a judge’s decision or a court ruling at the request of the victim, civil plaintiff, their representatives or the prosecutor.

Seizure of property consists in a prohibition addressed to the owner or possessor of property to use and (or) dispose of it. Attached property may be confiscated and transferred for storage to other individuals or legal entities.

The collection, verification and evaluation of evidence in support of the grounds for a civil claim is the duty of officials conducting criminal proceedings. However, as noted above, in a certain part this seems impossible without the active participation of the civil plaintiff.

A civil claim is subject to resolution by the court in a judgment based on the results of the trial. When passing a guilty verdict or issuing a decision on the application of a compulsory measure of a medical nature, the court, depending on the proof of the grounds for the claim, satisfies it in full or in part or refuses to satisfy it. When passing a verdict of not guilty, the court refuses to satisfy the claim, except for cases of acquittal due to the absence of corpus delicti in the act of the defendant. In the latter case, the court leaves the civil claim without consideration, and the plaintiff has the right to bring it in civil proceedings.

If a civil claim is not filed, then the court is deprived of the opportunity, on its own initiative, to compensate for property damage or compensate for moral damage caused by the crime.

If the civil plaintiff fails to appear in the court proceedings, the court has the right to leave the civil claim without consideration. In this case, the civil plaintiff retains the right to file a claim in civil proceedings. However, the court has the right to consider a civil claim even in the absence of a civil plaintiff, if:

1) the civil plaintiff or his representative applies for it;

2) the civil suit is supported by the public prosecutor;

3) the defendant fully agrees with the civil suit filed (Article 250 of the Code of Criminal Procedure).

If it is necessary to make additional calculations related to the civil claim, requiring the adjournment of the trial, the court may recognize the right of the civil plaintiff to satisfy the civil claim and refer the issue of the amount of compensation for consideration in civil proceedings (part 2 of article 309 of the Code of Criminal Procedure).

If the criminal case is terminated by the court due to the refusal of the public prosecutor from the charge, as well as the change of the charge during the trial, a civil claim may be brought in civil proceedings (part 10 of article 246 of the Code of Criminal Procedure).

When a decision is made to terminate a criminal case in connection with an amnesty act, a civil claim is also left without consideration. A person who has suffered damage from a crime has the right to demand compensation for damage in civil proceedings. However, in this case, the burden of proving the grounds for the claim lies with the plaintiff, which significantly complicates the effectiveness of compensation for harm. In this regard, the Constitutional Court of the Russian Federation noted that, although the state, if there are appropriate grounds and conditions, may refuse to carry out criminal prosecution, it is not entitled to leave unfulfilled those obligations that are assigned to it by the Constitution of the Russian Federation. In particular, the state is not exempted from the need to provide victims of crimes with access to justice and compensation for the damage caused (part 2 of article 45, part 1 of article 46, article 52 of the Constitution of the Russian Federation). In the case of an amnesty, the court must provide the victim with procedural guarantees for the exercise of his rights to access to justice and compensation for the damage caused, similar to those provided to victims in cases in which the amnesty is not subject to application or is applied after the verdict is passed, i.e. the victim should be assisted by the state represented by its authorized bodies in obtaining evidence confirming the fact of causing harm as a result of an unlawful act. In this regard, the legislator has the right (it seems that he should) adopt a special normative act providing for such compensatory mechanisms.

Consideration of a criminal case in a special order according to the rules of Ch. 40 of the Code of Criminal Procedure (a special procedure for making a court decision if the accused agrees with the charge brought against him) is possible only if the accused fully agrees with both the charge and the civil claim filed.

If damage is caused by several persons who committed a crime in complicity and found guilty by the court, then compensation for such damage is assigned to them jointly and severally. If the harm was caused by the defendant jointly with another person, in respect of whom the criminal case is separated into a separate proceeding, the court imposes full compensation for the harm on the defendant. In the event of a subsequent guilty verdict against an accomplice, the court has the right to impose on him the obligation to compensate for the harm jointly with the previously convicted.

The verdict of the court may be appealed by the civil plaintiff, his representative and legal representative, the civil defendant, his representative in the appellate or cassation procedure only in part of the civil claim.

According to Art. 402 of the Code of Criminal Procedure, the said participants in the process are not endowed with the right to appeal against a sentence that has entered into legal force, even in terms of a civil claim (except in cases where the civil plaintiff is also a victim). However, at the initiative of the civil plaintiff, his representative and legal representative, as well as the civil defendant, his representative, the prosecutor may bring a supervisory submission.

LIST OF USED LITERATURE

1. Aivar L. K. Criminal procedure law. Lawyer. 2005

2. Grigoriev V.N. Criminal process. Eksmo. 2005

3. Smirnov A.V., Kalinovsky K.B. Criminal process. Peter. 2004

Civil lawsuit in criminal proceedings- this is a complex criminal procedural legal institution, representing a set of norms governing social relations regarding the property consequences of a crime, and including elements of the civil procedural method of regulation; on the other hand, it is the claim of a citizen or legal entity declared during the proceedings on a criminal case for compensation for property and moral damage caused by a crime to the accused or persons who are financially responsible for the actions of the accused.

History of a civil claim in Russian law

The institution of a civil suit in criminal proceedings appeared long ago and was provided for by the Charter of Criminal Procedure of 1864 (UUS). In Soviet times, the Code of Criminal Procedure of the RSFSR (1923 and 1960) provided for the possibility of considering, within the framework of criminal proceedings, a civil claim for compensation for harm caused by a crime.

Presentation procedure

A civil claim may be filed after the initiation of a criminal case and before the end of the judicial investigation during the consideration of this criminal case in the court of first instance. When filing a civil claim, the civil plaintiff is exempted from paying the state fee. It is important to note that when filing a claim in civil proceedings, the plaintiff must pay the stamp duty. Although there exceptions on payment of the state duty by the plaintiff, a similar example may be the presentation of claims against the defendant, within the framework of the Law on the Protection of Consumer Rights, in case of violation of consumer rights, the plaintiff is exempted from paying the state duty. The amount of the state fee and the list of persons exempted from paying the state fee are specified in Chapter 25.3 of the Tax Code of the Russian Federation (Part Two)

Civil plaintiff - an individual or legal entity that has filed a claim for compensation for property damage if there are grounds to believe that this damage was caused to him directly by a crime (Article 44 of the Code of Criminal Procedure). The decision on recognition as a civil plaintiff is formalized by a court ruling or by a decision of a judge, investigator, interrogating officer. A civil plaintiff may also bring a civil claim for property compensation for moral damage. A civil claim is filed after the initiation of a criminal case, but before the end of the judicial investigation, while it is exempt from paying the state fee. In defense of the interests of minors, incapacitated or partially capable, other persons who cannot protect their rights and legitimate interests themselves, a civil claim may be filed by their legal representatives or a prosecutor, and in defense of the interests of the state - by a prosecutor.

At the end of the investigation, the civil plaintiff does not get acquainted with all the materials of the criminal case, but only with those related to the civil suit, and can write out any information from the case in any volume.

The investigating authorities take measures to ensure not only the declared, but also the possible civil claim. The court, only at the request of the civil plaintiff, the victim (their representatives) or the prosecutor, can also take measures to secure a civil claim (seizure of property, seizure of securities).

The civil plaintiff may not participate in the trial if the defendant fully agrees with the civil claim filed.

civil defendant

As a civil defendant, an individual or legal entity may be involved, which, in accordance with the Civil Code of the Russian Federation, is liable for the harm caused by the crime: according to Article 1064

The obligation to compensate for harm may be assigned to a person who is not the tortfeasor.

For example, the obligation to pay damages may be assigned to a legal entity - the employer. According to Article 1068 of the Civil Code:

A legal entity or a citizen compensates for the harm caused by its employee in the performance of labor (service, official) duties.

An inquirer, investigator or judge shall issue a decision on the involvement of a natural or legal person as a civil defendant, and the court shall issue a ruling.

Opinions on the advisability of a civil suit in criminal proceedings

The positions of scientists differ on the advisability of a civil suit in a criminal process.

Against

Supporters of the separation of the civil suit from the criminal process believe that the civil proceedings do not correspond to the nature and, in general, the whole essence of the criminal process, which is aimed at the implementation of criminal liability or exemption from it, they also give arguments about what such proceedings are, as well as any other consideration of civil law dispute, should be based on the presumption of guilt, in which each of the parties is obliged to prove the circumstances to which it refers, while criminal proceedings are based on the presumption of innocence of the accused, and the criminal justice authorities are not entitled to shift the burden of proof on him.

In addition, the procedure for considering a civil claim together with a criminal case requires more complete legal regulation, or forces the court to use, by analogy, the rules of civil procedural law (which is not very desirable).

Behind

Supporters of the civil suit in criminal proceedings, they believe that it is necessary and guarantees the protection of the rights of the victim. In addition, a civil lawsuit does not contradict the criminal process, and is appropriate for consideration in it, since the actions of the guilty party violate the norms of both criminal and civil law. The consideration of a civil claim ensures the most rapid restoration of the violated rights of the victim, helps to prevent conflicting conclusions on the same issues. Permission in the criminal process of a civil claim helps to clarify the qualification of the crime, choose the right measure of punishment, establish the civil law consequences of the crime, and take measures to eliminate them. Elucidation of these consequences in the course of a criminal case makes it possible to more correctly determine the nature and gravity of the criminal act, to draw a conclusion about the identity of the offender.