Some of the problems of legal assessment of a person’s actions to take possession of the property he found

Mironchik Anna Sergeevna PhD in Law Associate Professor of the Department of Criminal Law at Siberian Federal University 660049, Russia, Krasnoyarskii krai, g. Krasnoyarsk G, ul. Maerchaka, 6, aud. 319 ansmiron@mail.ru Other publications by this author

Kachina Natal'ya Veniaminovna PhD in Law Associate Professor of the Department of Criminal Law at Siberian Federal University 660075, Russia, Krasnoyarskii krai, g. Krasnoyarsk, ul. Maerchaka, 6, of. 319 kachinan@bk.ru Other publications by this author

Currently, questions often arise about the legal assessment of the actions of a person who turns the property he has found to his advantage or to the benefit of others. This problem in the theory of criminal law was the subject of discussion even before the time when the norm on liability for misappropriation of property found or accidentally found in the possession of the guilty ceased to apply (Art. 148.4 of the Criminal Code of the RSFSR) ^{[1, pp. 88-92.; 2, pp. 406-408]}, and continues to be relevant to the present ^{[3, p. 218--225-92; 4; 5, pp.47-48; 6, pp. 247]}. This issue is completely unresolved both in law enforcement and in the doctrine of criminal law.  

Resolution No. 2-P of the Constitutional Court of the Russian Federation dated January 12, 2023 "On the case of Checking the Constitutionality of Article 227 of the Civil Code of the Russian Federation, Part One and paragraph 1 of the Notes to Article 158 of the Criminal Code of the Russian Federation, Articles 75, 87 and 88 of the Code of Criminal Procedure of the Russian Federation in connection with complaints of citizens A.V. Galimyanova and V. S. Puzryakov".

The Constitutional Court considered essentially two situations related to the legal assessment of a person's taking possession of property that had left the owner's possession against his will. The first situation occurs when there is a secret seizure of someone else's thing by a person who observed its loss by the owner and had a real opportunity to immediately inform the owner (or other owner) about the loss or return the thing to him. The qualification of the culprit's actions as theft in the described situation is beyond doubt, since the culprit obviously has an intention to steal the property that has left the possession of the owner (or other owner) against his will.

A.V. Arkhipov, considering the assessment of these actions as theft to be absolutely correct, justifies it as follows: if a thing has fallen out of the hands, clothes or hand luggage of its owner, this does not mean at all that it has dropped out of the sphere of his property possession, the owner, who is next to the dropped thing, has not yet lost the opportunity to detect the loss and immediately return the item ^{[7, p. 5]}.

Of course, such a justification seems to be correct, but without a subjective component, an assessment of this situation is impossible. It is necessary to establish that the person is aware of the accidental loss of property by the owner (or other owner) against his will, and is also aware, as A.V. Arkhipov rightly notes, of the incomplete rupture of the actual connection between the lost property and its owner ^{[7, p. 5]}. At the same time, as the Constitutional Court of the Russian Federation clarifies, a person must have a real opportunity to immediately inform about the loss and return the thing to the owner (or another owner).

But the second situation, considered by the Constitutional Court of the Russian Federation, still has not been fully resolved. The question is the legal assessment of the actions of the person who took possession of the property found by him, when the circumstances of the loss of this property from the possession of the owner (or other owner) are not known to him.

An analysis of law enforcement practice allows us to conclude that an approach has already been developed, according to which the theft of found property took place in two situations:

- if the item is lost in a place known to the rightful owner, and he has the opportunity to return or receive it;

- according to the individual properties of the item, its rightful owner can be identified and there is no reason to believe that the item is abandoned.

The attention of the courts is particularly drawn to the fact that these circumstances must be realized by the offender, and this aspect, of course, is beyond doubt. That is, the perpetrator must be aware that the victim has the opportunity to return to a place known to him for the thing to pick it up, or otherwise get it back. The culprit may conclude that the owner (other owner) is aware of the place where the property is forgotten or left, based on the characteristics of these places. For example, it can be a hotel, a taxi, a shopping mall, a train, etc., that is, places that the owner (another owner) can remember and return there for lost property, which should be obvious to the person who takes possession of this property.

So, S., came to the ATM to withdraw money. P. stood in front of him, after he left, he went to the ATM, inserted a bank card into the terminal, but before he could enter the PIN code, the ATM issued funds in the amount of 65,000 rubles. S. realized that the funds were issued at the request of the person standing in front of him near the ATM, but he decided to take them away.

As can be seen, in this case, the victim accidentally left the money in a place that he could later remember and return for them, therefore, the assessment of S.'s actions as theft is beyond doubt.

At the same time, if a person finds property, for example, on the street, then it may be clear to him that the place of loss to the owner (or other owner) of this property is unknown and therefore he may assume that the actual connection between the owner (or other owner) and the property has been permanently lost. Accordingly, in this case there is no reason to talk about the criminality of the actions of the person who turned the property he found to his advantage, due to the absence, mainly, of the subjective side of theft.

In this regard, attention should be paid to the provisions of civil legislation regulating the procedure for handling the found thing. Thus, in accordance with Article 227 of the Civil Code of the Russian Federation, the finder of a lost thing is obliged to immediately notify the person who lost it, or the owner of the thing, or someone else known to him who has the right to receive it, and return the found thing to this person. If an item is found in a room or on transport, it must be handed over to a person representing the owner of this room or means of transport. In this case, the person to whom the find was handed over acquires the rights and responsibilities of the person who found the thing. If the person who has the right to demand the return of the found thing, or the place of his stay is unknown, the finder of the thing is obliged to report the find to the police or to the local government. In this case, the finder has the right to keep it at home or deposit it with the police, a local government body or a person specified by them.

Thus, the finder of the item is obliged to inform about the find and return the item to the owner. At the same time, the legislator has not directly established liability for non-fulfillment of this obligation - neither administrative nor criminal. And, as the Constitutional Court of the Russian Federation notes in the above-mentioned ruling, failure to fulfill the obligation established in Article 227 of the Criminal Code of the Russian Federation, although it is illegal as a general rule, does not predetermine the conclusion that there are signs of a crime. Therefore, it is necessary to understand when the actions of a person who has not fulfilled this duty will be criminal in nature.

From the point of view of the criminal law, in order to bring a person to justice for embezzlement, it is necessary to have all its signs. First of all, in this situation, the question arises about the presence of all the mandatory signs of the object of theft – material, economic and legal. The establishment of these signs in the found object makes it possible, in the presence of other signs of theft, to qualify cases of the culprit turning the found property in his favor as theft.

For the existence of an economic feature, it is necessary to establish the consumer and exchange value of a thing ^{[6, pp. 132-133]}. Therefore, low-value, worn-out items that have lost their consumer value are not the subject of theft. However, it should be borne in mind that a thing that has lost its consumer properties for one person may have them for another person. It is also important whether the owner has abandoned the property that has lost its original consumer properties or not. In this regard, it is important to establish the presence or absence of a legal attribute - the property must be alien to the person committing the theft. It clearly must have an owner, an owner. It should not be ownerless. If the owner has renounced ownership of the thing, then such a thing is called abandoned in the doctrine of criminal law and is not considered an object of theft.

As V. V. Hilyuta notes, an abandoned thing, as a rule, can be distinguished by its appearance, it has lost its consumer useful properties, or by the place of discovery – it is located in a landfill or in a garbage collector ^{[4, p. 149]}. Such a thing does not have the economic and legal characteristics of the object of the crime, therefore, taking possession of it does not constitute theft.

In this regard, interesting from the point of view of qualification are cases of appropriation of garbage - property that the owner stored on his territory on a garbage site or in a garbage can for further export.

 So, a citizen found torn bags of building mixes in a trash can behind the Leroy Merlin store in Krasnoyarsk, as well as a damaged OSB sheet, and decided to take this garbage for himself. The representative of the store, who discovered the seizure actions, forbade taking this garbage, saying that it belongs to the store and must be disposed of. But since the citizen continued to commit these actions, the employee reported to the police. The police, having detained a citizen while trying to take out garbage, subsequently opened a criminal case on the grounds of attempted theft.

The question arises: is it possible in this situation to consider garbage as an object of theft? Does this property have economic and legal characteristics? According to Article 1 of the Federal Law of 06/24/1998 No. 89-FZ "On Production and Consumption Waste", production and consumption waste are substances or objects that are formed during production, performance of works, provision of services or in the process of consumption that are disposed of, intended for disposal or subject to disposal ...". Disposal, in turn, forms all the waste management actions listed in the law. In relation to the analyzed situation, the concept of recycling should be given. It means the use of waste for the production of goods (products), the performance of works, the provision of services, including the reuse of waste, including the reuse of waste for its intended purpose (recycling), their return to the production cycle after appropriate preparation (regeneration), the extraction of useful components for their reuse (recovery), and also, the use of municipal solid waste as a renewable energy source (secondary energy resources) after extracting useful components from them ...".

Accordingly, waste does not always lose its consumer properties (it is possible to reuse it, including for profit) and the owner does not always refuse them, even placing them on his territory on a garbage site. And in such cases, both the economic and legal signs of the object of theft remain.

In the example given, an attempt by the owner's representative to stop the seizure is already enough to understand that the property is not ownerless. But even if the representative of the organization did not appear, the culprit should understand that the removal of waste occurs from the territory of the owner and these wastes may still represent a certain value for the owner and the owner has not yet stopped owning this property. The location of this property indicates that it is not an abandoned owner.

The analysis of judicial practice made it possible to identify cases of criminal prosecution of persons for the appropriation of seemingly ownerless property.

Thus, the Krasnodar Regional Court, considering the issue of the presence of signs of ownerless property in the appropriated thing, indicated that the fact that garbage was in the public domain at the time of the crime could not indicate that the specified property was ownerless. In the court of first instance, it was established that the victim But. He did not renounce ownership of the property stolen from him and did not commit actions that definitely indicate his removal from possession, use and disposal of this property. In accordance with Part 1 of Article 225 of the Civil Code of the Russian Federation, an orphan is a thing that does not have an owner or whose owner is unknown or, unless otherwise provided by law, the owner has renounced ownership of it. In this regard, the perpetrator should have taken actions aimed at establishing the ownership of the stolen property, but he did not do this. In this regard, the found property was recognized as the subject of theft.

Thus, taking into account the approach of the law enforcement officer, it should be stated that a person who wants to turn to his advantage property that is not obviously abandoned for him needs to make sure that the owner of the property has abandoned it. Otherwise, signs of theft are seen in the actions of the person.

Cases of seizure should be considered as theft, although not from the owner's territory, but in a place where the property cannot be regarded as clearly abandoned, for example, it is stored along a road under repair, near a suburban area, near an apartment building, etc.

Thus, the actions of the perpetrator were qualified by the court as open theft of someone else's property. It was established that after the completion of landscaping works by the contractor, at the request of residents, a curb stone in the amount of 12 pieces was left and stored near the apartment building for its subsequent use to create flower beds. B., having the intention to turn this stone in his favor, began loading it into his car. At that time, the residents of this house appeared and demanded to stop the actions to remove the stone, since it belongs to them. Despite this, B. left with a submerged stone in front of the residents of the house.

Such an assessment of B.'s actions should be recognized as correct, since obviously the curb stone had a consumer value and was alien to the perpetrator, about which he was notified by the residents during the seizure process. If, initially, the location of the stone would have given him reason to believe that it was abandoned property, and therefore lost its consumer value, then he had to make sure that there was no owner (or other owner) of this property. And only after making sure of this, he could seize the property and not be held criminally responsible for it, since such property would obviously be abandoned for him. And the seizure of temporarily abandoned property forms the composition of theft.

In this regard, it is worth agreeing with V. V. Hilyuta, who divides the property found by a person into several types: abandoned, lost, forgotten, abandoned and accidentally found by a person. Based on this division, the author gives a different assessment of the acquisition of such property ^{[4, p. 115]}.

Since the abandoned property does not leave the owner's possession, but is temporarily left by him in a place known to him, the seizure of such property should be qualified as theft ^{[5, p. 48; 8, p.140]}. As N.A. Lopashenko notes, property temporarily left unattended by the owner or the rightful owner in a place known to him (on the beach, in the sauna, transport left at the store during his visit, etc.) without any restrictions can be the subject of theft ^{[9, p. 38]}. We analyzed these situations above and assessed them as theft based on the fact that the seized items had signs of the object of theft.

However, most often there are controversial issues regarding a lost item that was lost against the will of the owner (or other owner) of the property. And here, the assessment of the possession of such a thing may depend, firstly, on whether the thing has individually defined properties. As for the property possessing these properties, the Constitutional Court of the Russian Federation expressed its unequivocal position, according to which the seizure of this property should be assessed as theft. Therefore, property that can be identified and identified by its owner (for example, a car by registration numbers, a phone by identification numbers, etc.) is rightly considered at present as an object of theft.

There are many examples of criminal prosecution of persons who found a phone in a taxi, both taxi drivers and passengers who were traveling after a passenger who forgot his phone.

So, according to the cassation ruling of the Supreme Court of the Chuvash Republic – Chuvashia dated 04/24/2012, the acquittal against T. was canceled, taking into account the fact that the stolen object, a cell phone of a certain model, has identification differences, IMEI, phone data are in the database of a cellular company, the presence of a place known to the victim – a taxi, where the victim forgot the phone, and also, that he had the opportunity to go back for the phone and get it, which he subsequently did, which was denied to him.

As can be seen, in the above definition, two circumstances were taken into account in order to recognize signs of theft in actions: firstly, the presence of individual signs in the property that allow determining its owner and, secondly, the alleged knowledge of the victim of the place where he could have forgotten the phone. But in order to recognize the actions of the guilty person for the seizure and circulation of the found property as theft, it is enough to have one of the above circumstances, for example, that the property has individually defined properties. So a phone, laptop and other gadget is a property that has identification features that allow you to identify the owner. Therefore, the appeal in their favor by a person who has found such things left or forgotten by the owner (or other owner) in any place (both known and unknown to the victim) should be assessed as theft.

For example, hunters went to the forest in the autumn, the car got stuck, could not leave, decided to return when the weather improved, as a result, they returned for it only in the spring, and the vehicle was no longer there. The car has

identification signs, registration numbers, engine numbers, etc. A local resident found the car in the forest, pulled it out and began to use it. In this case, the deed should be qualified as theft based on the presence of individual signs of the seized property.

The issue of assessing a person's possession of property that does not have identification properties and has left the possession of the owner (or other owner) against his will is more complicated. Such an act can be assessed as a find that does not form signs of a criminally punishable act, but only if there are additional conditions. The first condition is that the property must be removed from the possession of the owner (or other owner) against his will (accidental loss by the owner), without active actions on the part of the culprit to seize it. It is worth clarifying here: the seizure of property by a person should occur only when the ownership of the owner (or other owner) of the property has finally ceased.

If a person commits active actions to seize property and turn it in his favor until the moment of loss of the actual connection of the owner (or other owner) with the property, when the moment of ownership of the property is still ongoing, then there are signs of theft.

So, B. was found guilty of theft. It was established that B. saw how the victim, who came out of the cellular communication salon located in Tavda, had a wallet fall out of the pocket of the jacket he was wearing on the ground. After waiting for the victim to leave, B. picked up the wallet and stole money from it, causing significant material damage to the victim totaling 16,158 rubles.

As E. V. Khromov notes, distinguishing theft from a find solely by determining the degree of activity of a person's action seems unpromising ^{[10, p. 86]}. Indeed, it is not only the fact of active actions that is important, but the moment when these actions are performed. For theft, it is necessary that these active actions to seize property be carried out until the final loss of ownership of this property by its owner (or other owner).

In another case, the Cassation Ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation overturned the decisions of lower instances that found A. guilty of theft. It was established that A., while in the hypermarket, passing by the department with toys, saw two banknotes with a face value of 5,000 rubles each on the floor of the hypermarket. Thinking that she was lucky, she picked up the specified funds and put them in the pocket of her jacket. She was not going to report her discovery to the hypermarket's security service, working staff, or the police, and decided to keep the specified funds for herself. The Judicial Board, referring to the provisions of the Constitutional Court of the Russian Federation, noted that the objective side of theft in the form of theft of found property, knowingly belonging to another person and having no signs of being abandoned, forms a single complex act consisting of taking possession (establishing actual possession) of a discovered alien thing, coupled with its concealment or concealment of the source of its receipt, its belonging to another person or its identifying features, for the secret conversion of it in their favor or in favor of other, unauthorized persons, which causes damage to the owner or other lawful owner of this property, as well as the secret seizure of someone else's thing for the same purposes, when the person who took possession of it observed its loss by the owner or other lawful owner and it had a real opportunity to immediately inform the latter about the loss and return the item to him.

Based on this, it can be stated that if A. had observed the loss of funds by the owner and, waiting for the right moment, seized them, then theft would obviously have taken place.

At the same time, it is not entirely justified to recognize the approach expressed in the theory of criminal law that for criminal liability to occur, it is necessary to establish signs of a complex act: not only inaction (failure to fulfill obligations due to the fact of discovery), but also active actions to conceal the very fact of its discovery and (or) belonging to another person ^{[11, p. 13]}. It should be noted that theft consists in seizure and circulation, therefore, it seems superfluous to include in the acts to be established during theft, also inaction. It is important to establish precisely the illegal nature of the seizure and circulation of the found property when the culprit realizes this circumstance.

As A. Y. Sichkarenko rightly notes, it is impossible to identify failure to report a find with signs of the objective side of theft, since in addition to turning someone else's property in favor of the perpetrator, it is necessary to establish its illegal withdrawal from the actual possession of the owner or other owner of this property ^{[12, p. 55]}.

The second condition for evaluating actions to seize a found thing as a find is that the property that has been removed from the possession of the owner (or other owner) is located in a place unknown to him. If the property is accidentally left by a person in a known or supposed place to which he has the opportunity to return for it or otherwise return it (as discussed above), then this is forgotten property, the possession of which should be qualified as theft. In this case, the connection with the property has not yet been terminated, which should be obvious to the perpetrator.

At the same time, a person's property that happened to be in possession of a person should be distinguished from a find. We are talking about the property that came into his possession as a result of a random combination of circumstances (for example, by mistake, the cashier issues a larger amount of money than is owed to the person, as a result of a request at an ATM, the person receives a bill of a higher denomination than he requested, etc.). In this case, the perpetrator does not commit any special actions, to receive this property, and there is no intent to steal before the seizure of this property from a person, therefore, it is wrong to assess such actions as theft. As V. V. Hilyuta correctly notes, there is unjustified enrichment here. According to the author, it is impossible to raise the issue of bringing a person to criminal responsibility only for violating the norms of morality and morality. There is a civil tort here ^{[4, p. 162]}. One should agree with this opinion.

Another assessment will be given to those actions that were committed by a person upon repeated request from an ATM with intent to seize property and turn it in his favor when the person realized that due to a technical error, the ATM was issuing a large amount.

So, it was established that the accused decided to withdraw money from his bank card at night. He went to a 24-hour ATM and asked for 500 rubles. However, instead of the requested one, the device issued a banknote with a face value of one thousand rubles. The accused, having only two thousand rubles in his personal account, repeatedly performed cash withdrawal operations. He, requesting 500 rubles each and receiving twice as much, replenished the account with this money and withdrew it again. Having performed 104 operations overnight, he stole 52 thousand rubles belonging to the bank.

It is worth agreeing with A. A. Turyshev that if a person, realizing the erroneous actions of an ATM, repeats an attempt to withdraw money from an account through an ATM, then from this moment on we can talk about the occurrence of intent to steal ^{[13, p. 49]}.

Therefore, based on the analysis of the above example, it can be noted that the first receipt by a person at an ATM of a larger amount than he requested would not form signs of theft, but already a repeated request for a sum of money when the person realizes the error of the ATM and, accordingly, when there is intent to illegally withdraw funds and, accordingly, subsequent withdrawal and circulation of them to the composition of the theft will form its benefit.

Taking into account the above, it is worth making the following conclusion: taking possession of a find does not qualify as theft of property if there are three necessary conditions:

- the absence of individually defined characteristics of the property, which can be used to identify the owner (or other owner) of the property;

- the person who discovered the find does not take active actions to withdraw it until the final termination of ownership of the thing by the owner (or other owner)

- possession of the thing has been definitively terminated, which is reliably known to the person who discovered the find (for example, it is located in a place unknown to the owner (or another owner), or the thing is abandoned, which the owner (or other owner) refused, which is reliably known to the person who discovered the find).