Seizure of other people's property in case of theft committed using electronic means of payment: features of qualification

Ushchekin Stanislav Nikolaevich Postgraduate student, Faculty № 3 "Training of scientific and scientific-pedagogical personnel", Academy of Management of the Ministry of Internal Affairs of Russia 125171, Russia, Moscow, Zoya and Alexandra Kosmodemyanskikh, 8 stanislav.ushekin@yandex.ru

Currently, due to the progressive implementation of the results of scientific and technological progress in all spheres of social activity, a person has received ample opportunities to use any of the forms of non-cash payment available on the digital market. This greatly increases the risks of unauthorized access by the criminal contingent to the funds of citizens and organizations stored in non-cash form. In the context of the digital transformation of the banking sector and the integration of digital technologies in the field of banking operations, embezzlement committed using electronic means of payment (hereinafter referred to as ESP) is one of the most common types of crimes against property.

As a result of the analysis of statistical data for the period from 2019 to 2023, an increase in the number of registered crimes committed using information and telecommunication technologies was found. If in 2019 the total number of such crimes amounted to 294.4 thousand, then in 2023 this figure reached 676.9 thousand, which is an increase of 56.5%.

The structure of crimes committed using modern technologies is mainly represented by theft and fraud, which account for 70.2% of the total number of such crimes. The main instrument for committing such crimes are various forms of ESP, of which payment cards are the most widespread - 19.6%.

In addition, the study revealed a significant increase in the number of crimes provided for in paragraph "d" of Part 3 of Article 158 of the Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation), from 98.8 thousand in 2019 to 119.2 thousand in 2023, which is an increase of 17.1% ^[1]. The presented data emphasize the need to pay special attention to the problem of preventing and minimizing such crimes within the framework of the evolving digital landscape.

In view of the existing features of the subject of embezzlement committed using ESP, the specifics of the means of implementing a criminal plan, it is necessary to consider certain elements of the objective side of the crime provided for in paragraph "d", part 3 of Article 158 of the Criminal Code of the Russian Federation. In particular, it is necessary to turn to the study of the term "seizure" as one of the constituent elements that form a mandatory feature of the objective side of the crime – a criminally punishable act in the form of theft.

At the same time, it is worth noting that the specified qualified corpus delicti was introduced by Federal Law No. 111-FZ dated 04/23/2018 "On Amendments to the Criminal Code of the Russian Federation", and to this day establishes criminal liability for theft committed "from a bank account, as well as in relation to electronic money." Prior to the amendments to Article 158 of the Criminal Code of the Russian Federation, the crimes in question were classified under Articles 159, 159.3, 159.6 of the Criminal Code of the Russian Federation, depending on certain features of the objective side and the established judicial and investigative practice ^{[2, p. 18]}.

The changes made have not been ignored by the scientific community. So, in the works of P. S. Yani ^[3], E. A. Russkevich ^[4], S. M. Kochoi ^[5], A. P. Peretolchin ^[2] and E. A. Markova ^[6] investigated the characteristics of the objective side of the crimes under consideration, including the features of the object of encroachment and the means of realizing the criminal intent. Special attention is paid to the definition of the content of the term "seizure" of someone else's property in the works of A.V. Arkhipov ^[7], V. V. Hilyuta ^[8] and E. A. Solovyova ^[9].

However, despite the importance of scientific developments, the ineffectiveness of criminal law measures to protect property indicates the need for further study of the issues of qualification of theft using ESP. In particular, there is a high research potential in expanding the criteria for the "seizure" of other people's property in the qualification of theft using ESP.

The presented research is based on a comprehensive methodological approach, which is determined by the specifics of the subject of research, including general and particular methods of scientific cognition. Among the methods used, there is a legal analysis of legislation and judicial practice, a logical approach for the formation of hypotheses and concepts, as well as a systematic approach for considering "withdrawal" in the context of the general theory of criminal law.

The research materials were the norms of the criminal legislation of the Russian Federation, statistical data, the provisions of the resolutions of the Plenum of the Supreme Court of the Russian Federation, as well as scientific literature related to the research topic.

The application of the described methodological approach will optimize the concept of "seizure" in the case of theft using ESP, substantiate the concept of legal seizure of property, identify gaps in legislation, and develop recommendations on the qualification of the above acts. Thus, the methodological basis of this publication is aimed at ensuring the objectivity, reasonableness and completeness of the analysis of the problems of "seizure" of other people's property in the field of criminal law related to the use of ESP.

Having entered into the research process, it should be noted that it is the seizure of someone else's property from the owner (owner) and its conversion in favor of the guilty person or another person that are necessary components of theft. Without these elements, theft cannot be considered not only completed, but also committed in general, including in cases where the perpetrator performs some other actions aimed at seizing and handling someone else's property (for example, fraud) ^{[7, p. 203]}.

It seems that legal scholars and practitioners ambiguously interpret the term "seizure" of someone else's property. For example, N. A. Lopashenko defines seizure as the exclusion of property from the possession of the owner or the rightful owner, the elimination (removal) of the latter ^{[10, p. 129]}. Other researchers consider two sides of the seizure – the actual (physical possession of property) and the legal (violation of property rights or other proprietary rights to property). At the same time, these parties to the seizure are inextricably linked and represent two aspects of a single process of illegal seizure of other people's property ^{[11, p. 27]}.

In accordance with paragraph 1 of the note to Article 158 of the Criminal Code of the Russian Federation, the objective side of theft includes a mandatory material attribute of property as an object of theft. Traditionally, the term "seizure" was understood as the physical movement of stolen property by a person in space, as a result of which the legislator built a theft structure, suggesting that in one case movable property is physically withdrawn from the possession of the victim and then appropriated, and in the other – the property is turned in favor of the perpetrator or other persons without its physical movement, that is without withdrawal ^{[7, p. 203]}.

At the same time, the author believes that the established traditional understanding of the term "seizure" as the physical movement of property in space does not correspond to modern realities, which is especially evident in the context of the disembodied nature of electronic money. In this regard, there is a need to expand the concept of seizure in the field of legal regulation of theft committed using ESP.

The widespread and widespread use of digital technologies dictate the need for the legislator to rethink the concept of theft, taking into account the intangible nature of electronic money. So, in modern conditions, the seizure of someone else's property can be carried out by moving it in virtual space (for example, through unauthorized transactions on a bank account) ^{[9, p. 35]}. Thus, the physical attribute of property as an object of theft loses its primary importance, and the concept of "seizure" acquires a broader meaning, also covering actions to seize electronic money in a virtual environment.

Speaking about the subject of the type of crimes under consideration, the author is based on the opinion of S. M. Kochoi, who includes the concept of "right to property" in the concept of "property", meaning by the latter things, including money and securities, other property, including property rights ^{[5, p. 91]}. Such an expanded understanding of the subject of theft corresponds to the tendency to cover all possible ways of seizing other people's property and is supported by a number of other authors ^{[6, p. 87]}; ^{[2, p. 108]}; ^{[12, p. 77]}. It also takes into account the peculiarities of modern property relations, the development trends of which increase the role of intangible benefits and binding rights.

In a certain aspect, one should agree with researchers who believe that in relation to such situations, we are not talking about the physical seizure of property, but about its legal seizure (sometimes formal), which means the replacement of the owner of the property, "that is, as if the stolen property is in the same spatial place, but the record of its the owner or the accounting data of the ownership of this property to a specific person" ^{[8, p. 70]}. However, with regard to theft, the specified replacement of the owner of the property occurs as a result of obtaining unauthorized access to the ESP, in connection with which the property is located in the same spatial location, but there is an illegal substitution of the client of the money transfer operator, thereby the owner is deprived of authority in relation to the property.

Thus, when talking about the seizure of property from the lawful possession of the owner or other owner of funds in relation to the secret theft of other people's property using ESP, one should agree with A. I. Boytsov, stating that the interpretation of seizure as a narrow process of external influence on the stolen property, involving its physical extraction from a certain location and movement, is outdated and it does not correspond to modern realities ^[13].

To date, withdrawal from a bank account, as well as electronic money, implies the need to move funds in the form of an unauthorized transaction caused by the illegal use of financial management tools, the amount of damage is determined by the amount of money transferred from the owner's account to the account of the perpetrator. The author of this publication sees this approach as not entirely correct, thereby causing the need for its rethinking.

Thus, it should be noted that the legal owner of the property is endowed with the rights of ownership, use and disposal in relation to it. At the same time, at the time of concluding an agreement on the use of an ESP with a money transfer operator, the owner of the property acquires alternative powers due to the use of financial management tools in the form of drawing up, certifying and transmitting orders in order to transfer funds within the framework of the applicable forms of non-cash payments. In the case under consideration, we are talking about the fact that there is an information and telecommunications separation of the rights of the owner, as a result of which the client of the money transfer operator exercises his rights in relation to the property using varieties of ESP ^{[14, p. 259]}.

It should be noted that from the moment of concluding an agreement on the use of ESP and performing banking operations to deposit funds into a bank account or transfer funds electronically, the owner exercises his powers with respect to the property through alternative, certified ESP (to make, certify and transfer orders). From this moment on, the owner can make payments for goods and services, withdraw cash from ATMs and otherwise dispose of his property in a digital environment within the framework of the applicable forms of non-cash payments.

The analysis of forensic investigative practice allows us to conclude that theft using ESP implies a phased implementation of the criminal intent to steal money. So, at the initial stage, the actions of the perpetrator are aimed at obtaining illegal access to the ESP. In criminal activity, this is expressed, in particular, in the form of illegal receipt of confidential data of the owner, payment card details that allow access to remote banking services, or in obtaining data necessary to confirm transactions, such as a PIN code and other user identifiers.

As an illustration of the problem under study, we can cite a criminal case of theft of someone else's property, during which the full name, acting out of selfish motives and seeking personal enrichment, took advantage of the fact that K. I left my mobile phone with a bank card in its case unattended. Realizing his criminal intent to steal other people's property, FULL NAME took a bank card belonging to K. from the phone case and entered its number to log into the Sberbank Online application installed on his own mobile phone. After receiving an incoming SMS message with a password to log in to the application, the full name entered it and thereby gained access to the funds held in K.'s accounts ^[15].

A similar example is one of the criminal cases in which S., posing as a bona fide tenant, allegedly for the purpose of transferring funds received from the victim the details of his bank card and confirmation codes coming in an SMS message, as a result of which he remotely gained access to funds ^[16].

In the cases under consideration, the actions of the perpetrator are aimed at obtaining illegal access to an unspecified amount of money, since often the offender does not know the amount of money to which the ESP opens access, with the exception being the use of an ESP with contactless payment (payment for goods and services with a payment card), where there is no need to confirm financial transactions. For example, as part of one of the criminal cases, the full name found a bank card of Sberbank of Russia PJSC on the ground, after which, realizing his criminal intent to steal someone else's property, he used it to make purchases in trading organizations through the contactless payment system PayPass^[17].

These types of embezzlement are characterized by a lack of criminal professionalism and bypass the stage of obtaining illegal access to the ESP, which is expressed in the use of financial management tools with pre-established tolerances for the amount of funds to be disposed of without confirmation by an identifier. It is necessary to agree with the opinion of V. V. Hilyuta, who notes that in part such criminal behavior resembles causing property damage without signs of theft (Article 165 of the Criminal Code of the Russian Federation) ^{[8, p. 75]}, since there is no intention to turn the stolen funds to one's own benefit or to third parties in case of misuse of someone else's bank card. The guilty person uses the card to pay for his own expenses, without pursuing the goal of seizing someone else's property.

The second stage of the implementation of criminal intent to steal using ESP is the direct disposal of other people's property. This stage is characterized by the illegal use of ESP by excluding the owner's access to the property by intercepting his powers, certified by the financial management tool.

In the first of the above examples, the subject of the full name committed theft of funds belonging to the victim K. by carrying out a financial transaction to transfer these funds to the bank account of his friend ^[15]. A similar method of embezzlement of funds was used in the second crime under consideration ^[16]. At the same time, a characteristic feature of both acts is that they began with the actions of intruders aimed at obtaining illegal access to the victims' ESP. This stage should be considered as necessary and logical in the process of implementing the intent to commit theft using ESP.

Based on the above, it seems fair to note that it is from the moment of obtaining illegal access to the ESP that a person has a real opportunity to dispose of other people's property at his discretion, which, within the meaning of paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/27/2002 No. 29 "On judicial practice in cases of theft, robbery and robbery" should be recognized as completed theft Since from this moment on, a person has the opportunity to turn the stolen property in his favor or in favor of other persons (to carry out an operation to transfer funds to another account), to dispose of it for selfish purposes in another way (to pay for goods and services).

The damage in this case is equal to the amount of monetary units to which the person gained access through illegal actions to intercept the rights of the owner. It is from this moment that someone else's property should be considered seized, and the perpetrator has a real opportunity to dispose of someone else's property, which is a kind of legal seizure of property.

It is worth recognizing that the stated position in paragraph 25.2 above of the said Resolution describes only a general option for disposing of someone else's property in the form of withdrawing funds from the bank account of their owner or electronic funds.

As an attempted theft using an ESP, the author finds it necessary to consider intentional actions of a person directly aimed at stealing someone else's property, if the theft was not completed due to circumstances beyond the control of this person, such as blocking the ESP, changing access identifiers, including blocking accounts, electronic wallets, etc. In such cases, despite the illegal access to the ESP, the person does not have a real opportunity to dispose of someone else's property, since the owner of the property or a credit and financial organization temporarily blocks the powers of the owner of electronic means of payment to make orders for the transfer of funds. It should be borne in mind that an attempted theft is qualified by the amount of money to which the guilty person has obtained unlawful access.

Based on the above, there are signs of formalization of the composition of theft committed using ESP, since in fact we are talking about equating real damage to potential damage, which generally contradicts the understanding of the material composition of theft.

However, obtaining illegal access to the ESP is a necessary condition for the realization of criminal intent – it is from this moment that a person acquires the opportunity to dispose of someone else's property at his discretion. In this regard, it seems that the commission of such acts already entails a violation of the rights and legitimate interests of the owners of the property, since from the moment of obtaining illegal access to the ESP, the owner is deprived of the opportunity to dispose, use and own it. In addition, the encroaching person gets a real opportunity to dispose of the specified property at any time (in most cases, the period of time for illegal disposal of other people's property is quite short).

Thus, in this study, the features of the seizure of other people's property are analyzed, taking into account the specifics of the object of theft and the means of implementing a criminal plan in case of theft committed using ESP. In the course of the research, both previously identified problems and others that had not previously been discussed in the scientific field were studied.

The specifics of the research are mediated by the author's approach to the problems of determining the content of the concept of "seizure" of someone else's property, which have already been identified by the scientific community. The study is based on a review of various scientific positions and taking into account the analysis of forensic investigative practice.

We can conclude that the study contributes to the development of the theoretical foundations of the qualification of theft using ESP and puts forward specific proposals for improving legislation and law enforcement practice in this area. In particular, the study suggests:

Firstly, since from the moment of illegal access to the ESP, the encroaching person gets a real opportunity to dispose of someone else's property, and the owner is deprived of the opportunity to dispose, use and own it, the definition of seizure of someone else's property, set out in paragraph 25.2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/27/2002 No. 29 "On judicial practice in cases of about theft, robbery and robbery." The author proposes to state this paragraph in the following wording: "25.2. Theft, the responsibility for which is provided for in paragraph "d" of part 3 of Article 158 of the Criminal Code of the Russian Federation, should be considered completed from the moment of obtaining illegal access to electronic means of payment, as a result of which the rights of the client of the money transfer operator were intercepted.".

Secondly, as an attempted theft using ESP, it is necessary to consider intentional actions of a person directly aimed at stealing someone else's property, if the theft was not completed due to circumstances beyond the control of this person (blocking ESP, changing access identifiers, including blocking accounts, electronic wallets, etc.).

Thirdly, the damage caused by theft, the responsibility for which is provided for in paragraph "d" of Part 3 of Article 158 of the Criminal Code of the Russian Federation, should be considered equal to the amount of funds to which the person has obtained unlawful access.