Commentary to Art. 157 of the Criminal Code of the Russian Federation
The object of the crime under Art. 157 of the Criminal Code of the Russian Federation are social relations that provide the material conditions for the normal physical, intellectual and moral formation of the personality of a minor, the material conditions for the normal existence of adult but disabled children and disabled parents, as well as the interests of the family.
According to Art. 38 of the Constitution of the Russian Federation: motherhood and childhood, the family are under the protection of the state (Part 1); caring for children and raising them is an equal right and responsibility of parents (Part 2); able-bodied children who have reached eighteen years of age must take care of disabled parents (Part 3).
Developing this provision, the RF IC imposes on parents the obligation to support their minors, as well as disabled adult children in need of help (Articles 80, 85). Parents are not exempt from this obligation either in the case when children are placed in children's institutions and are fully supported by the state (Article 84 of the RF IC), or in the case of deprivation of parental rights (clause 2 of Article 71 of the RF IC).
The RF IC also establishes the obligation of able-bodied adult children to support their disabled parents who need help (Article 87).
In legal literature, maintenance is understood as material provision by one person to another at his own expense. Maintenance by a parent of his children, as well as by the children of his parents, is carried out, firstly, in the form of maintaining a common household with him and a common family budget; secondly, in the form of regular provision of certain material goods necessary for life (cash, food, clothing, etc.). Regular payments of funds are called alimony, and the funds themselves are called alimony, which are paid voluntarily or collected on the basis of a court decision in civil proceedings and are a way of enforcing the right to receive maintenance by one family member from another.
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Savelyeva V.S. Crimes against family and minors // Criminal law of the Russian Federation. Special part: Textbook. / Ed. A.I. Raroga. 2nd ed., revised. and additional M., 2004.
The objective side of the crime in question is expressed in the form of inaction and consists of:
1) in malicious evasion of a parent from paying, by a court decision, funds for the maintenance of minor children, as well as disabled children who have reached the age of eighteen (Part 1 of Article 157 of the Criminal Code of the Russian Federation).
In the theory of criminal law and in practice, the evasion of parents from paying court-ordered funds for the maintenance of children is traditionally understood as not only a direct refusal to pay child support awarded by the court, but also a person’s concealment of his actual earnings, change of job or place of residence in order to avoid withholding according to a writ of execution, evasion from work for the same purpose and other actions indicating evasion of payment of funds for child support by court decision.
The question of whether evasion of payment of child support by court decision is malicious is decided by the court in each specific case, taking into account the duration and reasons for the person’s failure to pay child support and all other circumstances of the case. Malicious evasion of payment of alimony by a court decision may be evidenced, in particular, by the repetition of a similar crime, evasion of payment of alimony by a court decision despite appropriate warnings from the bailiff, the search for a person obliged to pay alimony due to his concealment of his location and etc.;
2) malicious evasion of adult able-bodied children from paying, by court decision, funds for the maintenance of disabled parents (Part 2 of Article 157 of the Criminal Code of the Russian Federation).
Disabled parents (adoptive parents) are women who have reached fifty-five years of age, men over sixty years of age, as well as persons recognized (regardless of age) in the prescribed manner as disabled people of the first and second groups. The fact that parents receive a pension does not matter for deciding the issue of collecting funds from adult children for the maintenance of disabled parents, but is taken into account when determining the amount of funds collected. In this regard, the presence of a pension is not a basis for refusing a court decision on the payment of funds for the maintenance of parents. Accordingly, malicious evasion of their payment constitutes a crime under Part 2 of Art. 157 of the Criminal Code of the Russian Federation, if it turns out that parents receiving a pension really need such help.
The crime provided for in Art. 157 of the Criminal Code of the Russian Federation is considered completed from the moment the actions aimed at evasion are committed, which are set out above. The corpus delicti according to the legislative structure is formal.
The subjective side of the crimes provided for in parts 1 and 2 of the article in question is characterized by guilt in the form of direct intent. The person realizes that he is maliciously evading payment of maintenance funds, and wants to do so.
The subject of the crime provided for in Part 1 of Art. 157 of the Criminal Code of the Russian Federation, are parents, i.e. persons recorded by the father and mother of the child in the birth register, including those whose paternity has been established in the manner prescribed by Part 3 of Art. 48 and art. 49 RF IC. In addition, persons who legally adopt a minor are subject to criminal liability. Since deprivation of parental rights does not relieve parents from the obligation to support children, the question of the responsibility of such parents and adoptive parents under Part 1 of Art. 157 of the Criminal Code of the Russian Federation is decided on a general basis. If the adoption is cancelled, the mutual rights and obligations between the adopted child and the adoptive parent are terminated, but the court has the right to oblige the former adoptive parent to pay funds for the maintenance of the minor (Part 4 of Article 143 of the RF IC). Liability under Part 1 of Art. 157 of the Criminal Code of the Russian Federation occurs only when these persons have the opportunity to pay alimony. Disability (as well as other valid reasons) excludes the liability of parents and adoptive parents under this article.
The subject of the crime provided for in Part 2 of Art. 157 of the Criminal Code of the Russian Federation - an able-bodied person who is the son or daughter of a person (indicated in the child’s birth certificate), in whose favor funds are subject to recovery by a court decision, regardless of whether this person is deprived of parental rights, as well as an adopted child. Thus, the subject of the crimes in question is special.
Judicial practice under Article 157 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 09/05/2018 N 82-APU18-6 on
September 29, 2021 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 3 months of imprisonment, released on December 13, 2021 after serving the sentence, convicted under paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation to 12 years in prison with restriction of freedom for 1 year 6 months,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 27, 2018 N 82-APU18-9
- 12/13/2013 under Part 1 of Art. 119 of the Criminal Code of the Russian Federation to 1 year of restriction of freedom; on the basis of Art. The Criminal Code of the Russian Federation partially added the unserved sentence under the sentence of October 14, 2013, according to which he was convicted under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 5 months of correctional labor, a final sentence of 1 year 1 month of restriction of freedom was imposed;
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 24, 2019 in case No. 45-APU18-33
October 24, 2021 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to correctional labor for a period of 8 months with the withholding of 5% of earnings, the punishment has not been served, sentenced to imprisonment under clauses “a”, “c”, “d”, “g”, “h”, part 2 of Art. . 105 of the Criminal Code of the Russian Federation to 19 years with restriction of freedom for 1 year 6 months; according to paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation by 9 years.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 27, 2019 N 18-UD19-6
- December 14, 2009 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to correctional labor for a period of 1 year with the withholding of 20% of earnings to the state, on November 22, 2010 the punishment was replaced by 3 months 11 days of imprisonment, the punishment was not served,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 04.04.2019 N 19-APU19-4sp
Gizatullin Nadir Nagilevich, ... convicted: July 3, 2014 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 8 months of correctional labor with a deduction of 10% to the state income with the replacement on February 5, 2015 of the unserved sentence by imprisonment for 2 months 16 days, released on May 26, 2015 upon completion of the sentence; February 24, 2021 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 4 months of imprisonment, released on September 19, 2021 upon completion of the sentence,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 5, 2019 N 81-APU19-17
EVSIKOV Viktor Vladimirovich, ..., on May 4, 2021, convicted by the magistrate of judicial district N ... of the Rudnichny judicial district of Prokopyevsk, Kemerovo region, under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 6 months of correctional labor (the punishment has not been served),
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 28, 2019 N 25-КГ19-9
Thus, by the verdict of the magistrate of the judicial district No. 2 of the Kharabalinsky district of the Astrakhan region dated November 26, 2008, which entered into force on December 9, 2008, and by the verdict of the magistrate of the judicial district No. 1 of the Kharabalinsky district of the Astrakhan region of August 6, 2013, which entered into force into force on August 19, 2013, Tulegenov B.E. was found guilty of committing a crime under Part 1 of Article 157 of the Criminal Code of the Russian Federation (malicious evasion of payment of funds for the maintenance of children or disabled parents).
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 12, 2019 N 44-КГ19-17
By the verdict of the magistrate of judicial district No. 3 of the Krasnokamsk municipal district of the Perm Territory dated April 18, 2021, Lobashev A.I. found guilty of committing a crime under Part 1 of Article 157 of the Criminal Code of the Russian Federation - failure by a parent to pay funds for the maintenance of minor children without good reason (case file 12).
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 8, 2017 N 74-APU17-8
1) On March 26, 2014, by the verdict of the magistrate for judicial district No. ... of the Mountain District of the Republic of Sakha (Yakutia) under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 8 months of correctional labor with the withholding of 5% of wages to the state,
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 14, 2017 N 20-UD17-14
December 24, 2013 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 3 months 10 days of correctional labor with the withholding of 10% of earnings to the state, by a resolution of February 20, 2014, correctional labor was replaced by imprisonment for a period of 1 month 2 days, on the basis of Art. The Criminal Code of the Russian Federation decided to consider the punishment suspended with a probationary period of 6 months,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 30, 2017 N 32-APU17-19sp
Korsakova Elizaveta Viktorovna, ... convicted on October 15, 2010 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to a fine of 2,500 rubles, - convicted under: - clause “a”, part 2 of Art. 126 of the Criminal Code of the Russian Federation for 8 years in prison;
Procedure for the claimant in case of malicious evasion of the payer
If there are signs of malicious non-payment, the claimant needs to:
- Apply for prosecution to the head of the FSSP department.
- The bailiff will check the grounds and hand over the documents to a senior department head for signature.
- After a series of events, the documents are transferred to the prosecutor's office and the court.
- Court hearings are held, a verdict is passed and announced in court.
- The sentence is executed after it enters into force after 10 days (Article 389.4 of the Code of Criminal Procedure of the Russian Federation).
Even if the debtor is deprived of his freedom, this does not cancel alimony obligations. Most of the convicts work and receive a salary, and payments will be calculated from it.
