Controversial issues of qualifying the circulation of falsified, substandard and unregistered medicines, medical devices and the circulation of counterfeit dietary supplements

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Federal Law No. 532-FZ dated December 31, 2014, the Criminal Code of Russia was supplemented with a new article 238.1, which establishes criminal liability for the circulation of counterfeit, substandard and unregistered medicines, medical devices and the circulation of counterfeit dietary supplements committed on a large scale, that is, in amount exceeding 100,000 rubles, which is expressly stated in Article 238.1 of the Criminal Code of the Russian Federation [1]. products and turnover of falsified dietary supplements. It should be noted that there is no such sign as “large size” as part of an administrative offense, which primarily distinguishes it from the crime provided for by Article 238.1 of the Criminal Code of the Russian Federation. Thus, if the act does not have the sign of a large size of the subject of the crime, then it should be qualified according to the relevant part of Article.6.33 of the Code of Administrative Offenses of the Russian Federation. For example, by the Resolution of the Judicial District No. 103 of the Avtozavodsky Judicial District of the city of Tolyatti, K. was found guilty of an administrative offense under Part 1 of Art. 6.33 of the Code of Administrative Offenses of the Russian Federation. According to the materials of the administrative case, citizen K. sold falsified medical products to citizen X. - condoms in the amount of 1 (50 * 50 * 50 cm in size) boxes worth 24,000 rubles [2]. However, it is hardly possible in all cases to distinguish between the relevant criminal offense and administrative offense on the basis of the size of the object. So, if the subject did not have a specific intent to produce a large-scale item, for example, he produced it without paying attention to the final size, and this activity was interrupted by law enforcement agencies when the size of the produced crime objects did not cross the large-scale line, such an act should be qualified as an attempt to commit a crime under Art. 238.1 of the Criminal Code of Russia, or as a completed administrative offense under the relevant part of Article 6.33 of the Code of Administrative Offenses of the Russian Federation? in the field of public health protection in the circulation of medicines and medical devices were put under a real threat of causing significant harm, which is characteristic of a crime. directly aimed at committing a crime, if at the same time the crime was not brought to an end due to circumstances beyond the control of this person. intends to commit an act on a large scale. It seems that if the intent of a person was specified to commit a crime on a large scale, then the act should be qualified as an attempted crime, but if the person had an indefinite intent, then the act should be qualified under Art. 6.33 of the Code of Administrative Offenses of the Russian Federation as an administrative offense. It is difficult to prove the presence of a specific (specified) intent, the main evidence, in this case, may be the presence of a large amount of raw materials in the suspect, sufficient for the production of objects of crime on a large scale. Other evidence may be the presence of agreements between the suspect and potential buyers of the subject of the crime on sale on a large scale. If there is no such information, then the intent should be recognized as unspecified and such an act should be qualified as an administrative offense. It seems that if a person has an unspecified intent, if socially dangerous consequences have not occurred, the act should be qualified as an attempt on the least serious crime within the object that could have been harmed. Such an approach is consistent with the principle of interpreting irremovable doubts in favor of the person who committed the relevant act. In connection with the circulation of counterfeit, substandard and unregistered medicines, medical devices and the circulation of counterfeit biologically active additives, the legislator does not provide for a less serious crime. At the same time, there is Article 6.33 of the Code of Administrative Offenses of the Russian Federation, which provides for administrative liability for such acts. In view of the fact that the Code of Administrative Offenses of the Russian Federation does not contain the institution of attempt, such an act should be qualified as a completed administrative offense. Thus, in order to qualify an act as a crime under Art. 238.1 of the Criminal Code of the Russian Federation, there must be intent to commit an act on a large scale. However, sp

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Maksim E. Timonin

Author for correspondence.
Email: maks.timonin.99@mail.ru
Russian Federation, 443086, Samara region, Samara, Moscow highway, 34

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