Special criminal offenses are acts that are committed intentionally or accidentally, but in any case pose a danger to society. These include, first of all, such type of activity as drug trafficking. Medical practice and the sale of pharmaceuticals in the absence of the necessary licenses is also prohibited by law. Crimes that could harm the health of consumers include acts referred to in Art. 238 of the Criminal Code. What is this criminal article talking about? What punishment can be incurred by someone whose guilt is proven in a case instituted under Art. 238 of the Criminal Code?
Comments on the article
The law prohibits the storage, transport and marketing of products that do not meet safety requirements, that is, can harm the consumer. The same should be said about the provision of services. In h. 1 Article. 238 of the Criminal Code says that for such actions a citizen is punished by a fine or imprisonment of up to two years. The Criminal Code also provides for forced labor and restriction of liberty for such acts . The maximum fine for this crime is three hundred thousand rubles.
The second and third parts of this criminal article deal with qualified features, the presence of which makes the punishment more severe than that specified in part 1 of article 238 of the Criminal Code.
Up to six years
Imprisonment for this period threatens the accused or a group of those who organized the sale of products that do not meet safety standards, by prior agreement. In h. 2 Article 238 of the Criminal Code, it is also said that if such actions or the provision of any services led to the death of a person, the organizers are liable and, depending on the decision, the court may be sentenced to imprisonment or a fine. Imprisonment in this case, as a rule, cannot be avoided. The maximum term is six years.
Up to ten years
In h. 3 Article. 238 of the Criminal Code refers to a crime that entailed the death of two or more people, i.e., a group). That is, if during the sale of products or the provision of services, the provision of which was organized with obvious violations, people died, the initiator of such an activity can spend ten years behind bars. There is another type of punishment - forced labor. Penalties for the perpetrator of the act referred to in Part 3 of Art. 238 of the Criminal Code, not assumed.
Features
Subject under Art. 238 of the Criminal Code is the owner or head of the organization. It may also be an individual entrepreneur. Unlawful issuance of documents that do not correspond to the real quality of goods or services is a crime for which an employee of the bodies composing such certificates is responsible.
The manager will be held liable if the fact of production, storage or transportation of goods for marketing purposes is proved. And in the event that these products are capable of harming the health of the population. The court will also have to answer the owner of the enterprise, which was performed work that does not meet mandatory requirements.
In Art. 238 of the Criminal Code (with comments it will be useful to familiarize each entrepreneur or the head of the enterprise) an exhaustive definition of this crime is given. The act is completed upon the occurrence of the consequences specified in the article. That is, if the organization is engaged in the production of products, but then there is no marketing, the owner cannot be suspected of a crime under Art. 238.
Intent
Such a crime cannot be committed by accident. If the head of the company starts the production of any product, he cannot but be aware of the requirements that apply to it. The Law on Consumer Rights addresses this issue extremely. Thus, direct intent is a characteristic feature of the subjective side of the crime, referred to in Art. 238 of the Criminal Code. The verdict of the court, of course, cannot be mitigated due to the fact that the accused was not aware of consumer rights. The manufacturer, as stated in regulatory documents, is required to ensure the safety of his products.
Production and other concepts
You should also determine the meaning of terms that at first glance may seem extremely clear.
Production is the exit of finished goods, which are equipped with a certificate, outside the enterprise. Storage is the placement of the same products in a warehouse for the purpose of subsequent marketing. If, at the direction of the head, these goods were transported from the enterprise to the store’s warehouse, then in the future, when they are found to be inconsistent with safety standards, he will also be involved in accordance with Art. 238 of the Criminal Code.
Practice shows that to determine the fact of the commission of such acts, an operational measure such as a test purchase is often used. With the help of these actions it is possible to prevent the consequences of the crime.
Work and Services
Judicial practice under Art. 238 of the Criminal Code of the Russian Federation is a consideration of not only those cases that are based on the illegal sale of goods. The head of an organization that performs various works and provides services to the public can also play the role of an accused under this article. If such an activity does not meet the established requirements, the organizer bears criminal liability. In the event that the consequences of this act resulted in death, the leader is subjected to very severe punishment.
Safety requirements
What are they? In what cases are these norms not observed? A product that has the following characteristics does not meet the specified requirements:
- it received a refusal to obtain a certificate;
- failed certification;
- the expiration date or storage rules is violated.
Certification
In order to receive an official document that certifies the conformity of the goods with the necessary requirements, the company must go through a difficult procedure. As a result, the management / owner will either be issued a certificate or refused to receive it. This document is a statement of compliance with requirements and standards. The procedure for issuing it is sometimes fraught with certain difficulties, as a result of which criminal violations often occur under article 238.
Entrepreneurship and crime
One of the effective ways to overcome the manifestations of criminal activity in economic activity is to use the funds provided for by the Criminal Code, as evidenced by court cases, the consideration of which is based on Art. 238 of the Criminal Code.
The Plenum of the Supreme Court in 2004 issued a ruling related to judicial practice in cases of illegal business. Since then, the courts of Russian cities annually examine cases of crimes related to the illegal production of various goods or the provision of services, which were accompanied by clear violations. As a rule, the culprit is charged under Part 1 of Art. 238. But in some cases, violations lead to tragic consequences. And then the head of the organization has to answer in all severity of the law.
Service
The owner of the organization that provides entertainment services should take care to comply with all necessary safety standards. Restaurant and hotel type establishments are visited by an unlimited number of people. And any violations can entail quite serious consequences.
The owner or director of a restaurant and entertainment company is required to monitor the security system. Any violations can result in a fine in the form of a large fine. As a result of the organization of entertainment events, which are often held in nightclubs and other entertainment venues, a fire can break out. It goes without saying that, in order to avoid such misfortunes, any deviations from the rules are excluded.
The fire system contains a number of standards, according to which visitors have the opportunity to leave the building in a matter of minutes. Violations in this system can lead to tragedy. And in this case, the owner will be held liable in accordance with the measure specified in the second or third parts of Article 238.
In the event that a fire broke out on the territory of the institution and there are victims among visitors, on the basis of the third part of the mentioned article, the owner can be sentenced to imprisonment for almost ten years. The defense’s arguments that the incident was the result of a series of random circumstances would hardly impress the judge.
But it should be said that usually not only the owner of the organization is guilty of such incidents. In the event of a fire or emergency, both directors and other senior managers would be involved. As for the pyrotechnic show, which is a common occurrence in entertainment venues, or any other similar events, in such a situation its organizers are also responsible, however, under a different criminal article.
And, as already mentioned, the employees of the bodies issuing the relevant permits and certificates, in such cases do not go unpunished. For negligent actions, one of them can spend about five years in a penal colony.
Production
In Russia, such activities as home brewing have long been popular and widespread. There is no article in the Criminal Code for her. But perhaps every consumer knows that the production of alcoholic beverages cannot be carried out without obtaining the necessary permission and certificates.
One who produces moonshine at home cannot be prosecuted until he tries to sell his products. If the fact of the sale of alcohol in court is proved, the perpetrator may be punished with a fine of up to three hundred thousand rubles. But if people have suffered from the use of this drink, the producer will be punished more severely.
If the court would hear the case of a citizen convicted of storing and selling home-brewed home-brew, but there were no victims among the buyers, the judge would be limited to a small fine when sentencing. Mitigating circumstances such as guilty pleas and positive characteristics at the place of residence have a favorable effect on the court decision. The punishment in this case may take the form of a fine in the amount of twenty-five to thirty thousand rubles.
Case Studies
The owner of the organization is obliged to ensure proper working conditions for employees who are responsible for safety. This is especially true for enterprises with increased danger. In case of violation of the rules that led to the death of a person, the owner of the organization is punished with imprisonment of up to six years and a fine of five hundred thousand rubles.
To entertainment establishments of increased danger include water parks. In such establishments, the safety of visitors is ensured by specially trained staff. If the instructor does not notice a drowning person, does not take appropriate rescue measures, the director of the water park will be responsible. Even if the death in the entertainment complex was due to the fault of an inexperienced employee. It is the director of the organization that must ensure the proper training of all his staff. In such a situation, the director may face up to six years in prison because of a violation of the rules guaranteeing safety, and therefore, he will be punished in accordance with part 3 of 238 Art. Criminal Code of the Russian Federation.
In the second part of the criminal article under consideration, there is also a clause defining the crime committed in the provision of services to children under the age of six. According to Part 2 of Art. 238, a kindergarten employee or any other specialist who provides meals in kindergartens and has committed obvious violations in the security system may be held criminally liable. In the absence of extenuating circumstances, the suspect may be sentenced to six years in prison.