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Criminal law is the most important branch of jurisprudence. Criminal law Criminal law refers to

He wrote about this: “A criminal act as a legal relationship contains two separate moments: the relationship of the offender to a legal interest protected by law - a crime and the attitude of the state to the criminal caused by the criminal act committed by him - punishment; therefore, criminal law can be constructed in two ways: either a criminal act is put in the foreground, in relation to which punishment or punishment is a more or less inevitable consequence, or the punitive activity of the state is put forward and the criminal act is considered only as the basis of this activity. Hence the dual name of science ... "

The name of this branch of law in Russian has an indirect relation to both crime and punishment. The adjective "criminal" was introduced into the legal lexicon in the last quarter of the 18th century. Its origin is twofold: on the one hand, it goes back to the legal monuments of Ancient Rus', which used such terms as “head” (a murdered person), “golovnik” (murderer), “golovshchina” (murder), “headache” (rewarding relatives killed), on the other hand - to the Latin adjective capitalis(from caput- head, person, individual), which in Roman law was included in the names of the most severe types of punishments associated with the death penalty, imprisonment or Roman citizenship. In Russian medieval literature (XVI century), the word “criminal” was in use with the meaning of “deprivation of life”, “deprivation of the head”:

Give the city of Volok without a fight,
Without a fight and without a great fight
Without that corners mortal!
…
Defense of Pskov from Stefan Batory. // Library of World Literature. Epics. - Moscow, Eksmo, 2008, p. 470.

History of development

Criminal Law of the Ancient World

Character traits:

Criminal law is not singled out as a separate branch of law, the rules on crimes and punishments coexist with the rules governing property relations
The severity of punishments, the principle of talion is applied (" an eye for an eye a tooth for a tooth»)
Significant influence of religious and moral rules on the rule of law
Absence of general norms, there are only norms establishing responsibility for specific acts
Objective imputation (the basis of responsibility is the commission of an act, regardless of guilt).

Criminal Law of the Middle Ages

Character traits:

Criminal law is not singled out as a separate legal branch, the rules on crimes and punishments coexist with the rules governing property relations
Most punishments are of a property nature (“vira”)
The rules of law acquire a secular character, church law is singled out as a separate branch
Despite the absence of general norms, a unified terminology is beginning to be developed to refer to the main categories of criminal law.
Casuistry (legal norms tend to cover all possible variants of criminal behavior)
The first ideas about the subjective side of the crime appear, however, the establishment of guilt is often formalized in ritual forms (for example, a duel)

Criminal law of modern times

Character traits:

Criminal legal norms are separated in separate sections of the codes of laws
Severe punishments, widespread use of simple and qualified (performed in a painful way) death penalty
Widespread use of unified terminology (the emergence of definitions of the concepts of "crime", "punishment", etc.), general rules are arranged in an associative order, but are not yet singled out in a separate block
The casuistry of law is reduced, the norms on crimes are brought into the system, the allocation of a generic object as a systematization criterion
The doctrine of the subject of a crime (including sanity) is being developed.

Criminal law of modern times

Character traits:

Codification of criminal law
The main punishment is imprisonment.
Separation of the general and special parts.
The norms become abstract, only general signs of this type of crime are fixed.
Subjective imputation (for bringing to responsibility, in addition to the fact of committing an act, the establishment of guilt is required).

Subject of regulation

The subject of regulation of the legal branch is a set of social relations that are regulated by this branch. It is generally believed that the subject of regulation in criminal law are the following types of social relations:

Protective legal relations Arise between the state represented by law enforcement agencies on the one hand, and the person who committed the criminal act, on the other hand. The state in this legal relationship has the right and is obliged to bring the perpetrator to responsibility for this act and impose a punishment on him, apply other measures of criminal law, or, if there are grounds, release him from the adverse consequences associated with the commission of a crime. A person who has committed a criminal act is obliged to be subjected to coercive influence by the state and has the right to ensure that his actions receive a correct legal assessment. Regulatory legal relations Associated with granting citizens the right to cause harm or create a threat of harm to public relations, benefits and interests protected by criminal law under certain conditions (for example, when defending against encroachment, under the influence of coercion or other circumstances precluding the criminality of the act).

There is another point of view, according to which criminal law does not have its own subject of regulation, since other branches of law are engaged in the regulation of social relations, and criminal law only establishes responsibility, a sanction for their violation, acts as a mechanism for their protection; this point of view was held by K. Binding, O. E. Leist, A. A. Piontkovsky, V. G. Smirnov. Opponents of this point of view (N. S. Tagantsev, N. D. Durmanov) note the existence of many criminal law prohibitions that are unknown to other branches of law; these include, for example, prohibitions relating to many offenses against the person.

The question of the moment of the emergence of a protective legal relationship and its subjects in criminal law theory is controversial. In addition to those described above, the following points of view were expressed in this regard:

The moment of the emergence of a protective legal relationship is the moment the court verdict comes into force, and its subjects are the convict and the court that passed the sentence (V. G. Smirnov).
The moment of the emergence of a protective legal relationship is the moment of initiation of a criminal case, and the subjects are the accused and the preliminary investigation body (Ya. M. Brainin).
The subjects are society as a whole and the person who committed the criminal act (G. O. Petrova).

Some scientists (in particular, A. V. Naumov) propose to expand the definition of regulatory criminal law relations, including also general preventive (general preventive) relations that arise when a criminal law is adopted and impose on citizens the obligation to refrain from committing criminal acts under the threat of punishment . This position is criticized on the grounds that the proposed construction does not fit into the traditional scheme of absolute legal relations (in which the right of one particular person is protected from encroachment by an indefinite circle of persons), they do not have their own method of regulation (since the threat of punishment can be realized only through protective legal relations ) and refer to methods of legal influence, not legal regulation.

Regulation Method

Tasks and functions

The task of the criminal law of most states is to protect the interests of society from criminal encroachments and prevent crimes. Specific wording may differ in detail (for example, the New York State Penal Code states these objectives as "to prohibit conduct that unjustifiably and inexcusably causes or threatens to cause significant harm to individual or public interests" and "to ensure public safety by preventing the commission of offenses through a deterrent the impact of imposed punishments, the social restoration of the personality of convicts, as well as their isolation, when this is required in the interests of protecting society”), but their essence is generally the same.

Solving these problems, criminal law performs the following functions:

The protective function is the main and traditional for criminal law and is expressed in the protection of the normal way of public life from violation by establishing the criminality of specific acts, the application of criminal punishment and for their commission. When implementing this function, protective criminal law relations arise and the method of coercion is used. Preventive (preventive) function It is expressed in creating obstacles to the commission of crimes by establishing a criminal law prohibition, in encouraging law-abiding citizens to actively oppose criminal acts, and criminals - to refuse to bring the crimes started to the end, to restore the benefits and interests violated by their act. Allocate general prevention(preventing the commission of crimes by any persons) and special prevention(preventing the re-commission of crimes by persons who have previously committed a crime). Educational function It is expressed in the formation among citizens of respect for public relations protected by criminal law, interests and benefits, an intolerant attitude towards offenses. According to the nature of the impact of criminal law on them, all people can be conditionally divided into three parts: for the first, the presence of criminal law prohibitions is not mandatory, since the commission of crimes is contrary to their worldview, including ideas of good and evil, the latter do not commit crimes out of fear of punishment , and the third consciously commit crimes . The educational function of criminal law is aimed at forming in all citizens beliefs that make the commission of crimes internally unacceptable for them. It should be noted that the implementation of this function is impossible by purely criminal-legal means; to achieve its goals, the coordinated work of all legal and other public institutions is necessary.

The importance of the educational function is emphasized by the fact that the effectiveness of criminal law significantly depends on the criminal sense of justice prevailing in society: if the majority of citizens consider such phenomena as bribery, theft of state property, etc., to be acceptable, then laws aimed at combating them, no matter how severe they are, they will not achieve their goal.

It is debatable whether any of these functions should be prioritized; however, it can be concluded that all of them are quite important.

System

In the criminal law of most states, there are general and special parts. The general part contains norms that define the content of the basic concepts of criminal law (“crime”, “punishment”, etc.), common grounds for criminal liability for all crimes, a list and content of types of punishment, other measures of a criminal law nature, etc. e. The norms of the special part fix the signs inherent in specific types of crimes. In some states (France, Turkey) there is a special part, the norms of which fix the signs inherent in specific types of administrative offenses in the absence of a code of administrative offenses, or if such a code is adopted, the norms of the special part fix criminal offenses with less public danger, than crimes, but more than administrative offenses, called criminal offenses (USA, Canada).

Correlation with other branches of law

The implementation of the protective function of criminal law ensures the normal course of socially useful public relations, regulated by other branches of law: civil law, labor law, environmental law, etc. In addition, often criminal law norms contain references to the norms of other branches of law: for example, criminal law may establish liability for crimes related to the violation of the procedure for carrying out entrepreneurial activities, but the establishment of the lawful procedure for such activities is included in the subject of civil law).

There are two possible approaches to resolving situations where the norms of criminal law come into competition with the norms of administrative or civil law. Priority may be given to criminal law or other disciplines; the latter is one of the manifestations of the principle of economy of criminal repression, which suggests that criminal liability should be applied only in cases where it cannot be dispensed with.

It should also be noted the doctrine of the “criminal sphere” (matiere penal), which is applied by the European Court of Human Rights and covers criminal law, criminal procedure and a part of administrative legal relations; in fact, it includes all restrictions of human rights and freedoms similar to criminal law. The need to single out such a sphere is due to the fact that some states do not fulfill their obligations to protect human rights, referring to the fact that responsibility is administrative, not criminal in nature.

Some norms of criminal law make reference to international law: when determining the territorial limits of the national criminal legislation, deciding on the prosecution of persons performing the duties of a diplomatic and consular mission, on the extradition of persons who have committed a crime, on crimes against the peace and security of mankind, it is necessary to follow the rules of international treaties.

Finally, criminal law is closely related to some non-branch legal sciences:

Criminology studies crime in general, the means and methods of its prevention and control.
Forensic science considers the mechanisms of committing specific crimes and ways to solve them.
Forensic psychology explores the causes of criminally unlawful behavior and methods of corrective influence on persons who have committed crimes.
Forensic psychiatry addresses the issue of the impact on human behavior (including criminally illegal) of mental illness and other pathological states of the psyche.
Forensic medicine is engaged in establishing the nature and degree of harm to health caused to a person by criminal encroachments.

Principles

The principles of criminal law are the main stable legal provisions that are the basis for all its norms, which determine the content of both the entire criminal law as a whole and its individual institutions.

The basic principles of criminal law, as a rule, are enshrined in criminal law. The specific content of the principles may vary from country to country, but some of them are known in almost all countries of the world.

The principle of legality

This principle was explicitly formulated for the first time in criminal law by Anselm Feuerbach in the Bavarian Criminal Code of 1813 in the form of a requirement that punishments be imposed only for crimes provided for by the current criminal law and only on the basis of the current criminal law ( Nullum crimen, nulla poena sine praevia lege poenali, often quoted in the form nullum crime sine lege And nulla poena sine lege) and was accepted in most countries, including the Russian Federation.

This principle received international legal consolidation in paragraph 2 of Art. 11 of the Universal Declaration of Human Rights: “No one shall be convicted of a crime on account of any act or omission which, at the time it was committed, did not constitute a crime under national or international law. Nor shall a heavier penalty be imposed than that which could have been applied at the time when the crime was committed.”

As a rule, in modern states the principle of legality includes the following elements:

Prohibition of the application of criminal law by analogy.
The requirement for the certainty of legal norms (lex certa), which implies that the criminal law prohibition must be formulated clearly so that the law enforcer cannot arbitrarily interpret it.
Non-application of punishment more severe than provided for when committing a crime.
Procedural legality - the possibility of bringing to criminal liability only in a certain procedural order and by a court verdict.

The principle of equality of citizens before the law

At the same time, the law may provide for certain socially determined features of the criminal liability of certain categories of persons: for example, women, minors, the elderly.

In addition, certain categories of persons may be granted diplomatic immunity from the criminal jurisdiction of the host State. Such persons (for example, employees of diplomatic missions and consulates) continue to be subject to the criminal jurisdiction of the country of which they represent.

The principle of humanism

The fact that the application of criminal law should be based on the principles of humanism was also written by legal theorists of the modern era: Cesare Beccaria, Charles Louis Montesquieu and others.

This principle has also found expression in international legal norms. Yes, Art. 5 of the Universal Declaration of Human Rights states that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.

The principle of the prohibition of double liability

Often this principle is supplemented by the principle of economy of criminal repression: criminal legislation is used only when it is impossible to solve the problem using other mechanisms of social control, and to the minimum necessary extent.

A broad codification of criminal law takes place in Germany, where, in addition to the Criminal Code (German. Strafgesetzbuch) there is a system of additional criminal law (German. Nebenstrafrecht), the exact number of norms in which is unknown, but in any case exceeds 1000; in France, in addition to the criminal code, there are ordinances adopted by the government and establishing liability for criminal offenses.

In the countries of the Anglo-American legal family, such a source of law as judicial precedent is also used. In some legal systems, criminal law norms may also be established in texts of a religious nature.

Criminal law policy

Criminal law policy is a part of criminal policy within which:

The main principles and directions of criminal law regulation are determined
There is a criminalization (recognition of an act as criminal) and decriminalization of acts
There is penalization (determination of a specific measure of punishment for the commission of a certain act) and depenalization (establishment of conditions under which coercive measures related to the commission of a crime are not applied)
Establishes alternative and applied along with punishment other measures of a criminal law nature
An interpretation of the existing norms of criminal law is given in order to clarify their meaning in the current historical context.
Law enforcement agencies are guided by the practical application of norms and criminal law.

Features of the criminal law of the countries of the world

Although the criminal law of each of the states of the world has its own characteristics, as a rule, features can be distinguished that allow it to be attributed to one of the legal systems or families existing in the world. Regarding the number and composition of such families in science, there are disputes. So, A. V. Naumov identifies the following systems of criminal law: Romano-Germanic (continental), Anglo-Saxon, socialist and Muslim. A. A. Malinovsky, depending on the role and place of criminal law coercion, divides criminal law systems into humanistic, punitive and repressive; he also distinguishes between religious and secular systems. O. N. Vedernikova identifies the Romano-Germanic, Anglo-American, Muslim, socialist and post-socialist types. G. A. Esakov identifies criminal law families of general, continental, religious, communal and customary law. V. N. Dodonov, pointing out that the socialist system as such has already disappeared, singles out the Romano-Germanic, Anglo-Saxon, Muslim and mixed (hybrid) systems.

Legal families on the world map

Criminal law in the countries of the continental legal family

Main article: Criminal law in the countries of the continental legal family

The abstract nature of legal norms (describes the features common to all crimes of a certain type)
Codified nature of normative acts
Restriction or prohibition of judicial lawmaking
Virtually no fiction

Criminal law in the countries of the Anglo-American legal family

Main article: Criminal law in the countries of the Anglo-American legal family

Modern trends in the development of criminal law

Significant social, political and economic changes that began in the 1980s around the world led to the fact that a global renewal of criminal legislation began. Since 1990, new criminal codes have been adopted in more than 50 countries around the world. The criminal codes of the countries of the socialist bloc underwent fundamental changes. V. N. Dodonov identifies three trends that are common to the vast majority of countries in the world: the humanization of criminal law, the criminalization of new types of criminal activity, and.

Humanization of criminal law

The humanization of criminal law is one of the most "long-playing" trends in its development. As early as the 18th century, the first initiatives appeared to abolish or limit the use of the death penalty; Thus, in England from 1826 to 1861 the number of crimes for which these penalties were established decreased from 200 to 4.

Although in the first half of the 20th century there was some departure from this trend (both in countries with democratic and authoritarian regimes), from the mid-1950s, criminal law begins to be humanized, both in the West and in the countries of the socialist camp. The main trends of this period of humanization are:

Abandoning the death penalty - currently the death penalty completely abolished in 95 countries, applied in practice only in 58.
Refusal of corporal punishment - applied only in 33 countries.
Refusal from hard labor - in many countries of Europe and in the USA were excluded from the legislation.
Refusal of the general confiscation of property - canceled in France, many countries of the post-Soviet space and Eastern Europe
The emergence of punishments that can be used instead of imprisonment: in addition to the traditional types of such punishments (fine, forced labor, probation), such types as community service, restriction of liberty, house arrest, etc. have appeared.
An increase in the number of cases when a person can be exempted from liability: the possibility of reconciliation with the victim became widespread, the limits of necessary defense were expanded, an institution of reduced sanity appeared.
Decriminalization of many acts, which, in connection with the development of the system of administrative responsibility, were transferred to the category of administrative offenses. Among such decriminalized acts are the appearance in public places in a state of intoxication, many offenses against the moral foundations of society, religion, violations of marriage laws, voluntary homosexual contacts, abortions, petty theft, vagrancy, adultery, etc.

Criminalization of new types of criminal activity

Society is a dynamic system in which new types of social relations constantly appear and old ones are modified. In this regard, new types of crimes appear, and the social danger of old ones can change up or down, or disappear altogether.

At the end of the 20th century, when the dynamics of social relations in connection with globalization, the complication of social organization, the emergence of new technologies and types of economic activity, these processes accelerated significantly. The following acts have been criminalized:

Crimes of a terrorist nature, which have acquired mass forms and received international status. Such acts as the financing of terrorism, the promotion of terrorism, the hijacking of aircraft, etc., began to be recognized as criminal.
Organized criminal activity: the very creation of gangs or criminal organizations began to be considered an independent crime, a set of administrative, criminal law and procedural norms aimed at countering organized crime was introduced.
economic crimes. The wave of criminalization of new types of economic crimes passed in connection with the transition of the countries of the socialist camp to a market economy. In addition, the institution of criminal liability of legal entities began to spread in modern criminal law.
Money laundering: This act was criminalized in the vast majority of states in the 1990s.
Corruption crimes. In 2003, the UN Convention against Corruption was signed, which establishes the need to criminalize various types of bribery and the provision of undue advantages by public officials. The criminalization of international corruption has spread, the concepts of “corruption” and “trafficking in influence” have been enshrined in criminal law.
Environmental crimes that began to stand out as a community united by a common object of protection.
Computer crimes: norms about them appeared in most criminal codes in the 1980s and 1990s.
Sexual exploitation of minors: in many criminal codes, special provisions have appeared that establish liability for trafficking in child pornography, and the fight against pedophilia and child prostitution has become tougher.
Crimes in the field of nuclear and radiation safety: the rules on them appeared in connection with a number of major accidents at nuclear power plants.
Medical crimes: illegal organ transplantation and trafficking, illegal gene manipulation, illegal human medical experiments, illegal artificial insemination and embryo manipulation, human cloning, etc.

International criminal law

Responsibility for certain types of crimes (such as crimes against the peace and security of mankind, apartheid, genocide, piracy, the slave trade, war crimes) is provided not only in national criminal law, but also in international treaties.

These crimes are called crimes with international jurisdiction. The persons who committed them may be convicted by the court of any state that recognizes the relevant international treaties. In addition, special international judicial bodies (courts and tribunals) are being created to deal with cases of such crimes. The most significant among them at the moment is the International Criminal Court.

Science of criminal law

The science of criminal law is a system of ideas, views and theoretical provisions relating to all problems of criminal law as a legal branch. The science of criminal law deals with generalizing the experience of designing criminal law norms and the practice of their application, evaluating their effectiveness and solving the problems of improving criminal law, predicting the ways of its development. It also performs ideological functions: it faces the task of legal education of citizens.

There are several directions in the science of criminal law: educational-humanistic, classical, anthropological, sociological.

Notes

Tagantsev N. S. Russian criminal law. Part General. T. 1. Tula, 2001. S. 27.
Russian criminal law. General part / Ed. V. S. Komissarov. SPb., 2005. S. 9.
Golik Yu., Eliseev S. The concept and origin of the name "Criminal Law" // Criminal Law. - 2002. - No. 2. - S. 14-16. - ISBN 5-87057-363-7.
Tagantsev N. S. Russian criminal law. Lectures. The part is common. - St. Petersburg, 1902. - T. 1.
Naumov A. V. Russian criminal law. Lecture course. In two volumes. T. 1. General part. 3rd ed., revised. and additional M., 2004. S. 9-10.
Naumov A. V. Russian criminal law. Lecture course. In two volumes. T. 1. General part. 3rd ed., revised. and additional M., 2004. S. 10.
Criminal law of Russia. Practical course / Under the general. ed. A. I. Bastrykin; under scientific ed. A. V. Naumova. 3rd ed., revised. and additional M., 2007. S. 4.
Lyapunov Yu. Criminal law: the subject and method of regulation and protection // Criminal law. - 2005. - No. 1. - S. 50-51. - ISBN 5-98363-001-6.
Nazarenko G. V. Criminal law: a course of lectures. - M.: Os-89, 2005. - S. 5. - ISBN 5-98534-216-6.
Golik Yu.V. Method of criminal law // Journal of Russian law. - 2000. - No. 1.
Naumov A. V. Russian criminal law. Lecture course. In two volumes. T. 1. General part. 3rd ed., revised. and additional M., 2004. S. 13.
Kulygin V. Criminal Law, Legal Consciousness, Justice // Criminal Law. - 2003. - No. 1. - P. 120. - ISBN 5-87057-399-8.
Naumov A. V. On the legislative and law enforcement assessment of social values protected by criminal law // Actual problems of criminal law. M., 1988. S. 31-37.
Fletcher J., Naumov AV Basic concepts of modern criminal law. M., 1998. S. 31.
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 48. - 448 p. - ISBN 978-5-93295-470-6
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 46. - 448 p. - ISBN 978-5-93295-470-6
Criminal law of Russia. Practical course / Under the general. ed. A. I. Bastrykin; under scientific ed. A. V. Naumova. 3rd ed., revised. and additional M., 2007. S. 2.
Klepitsky I. A. Crime, administrative offense and punishment in Russia in the light of the European Convention on Human Rights // State and law. - 2000. - V. 3. - S. 66.
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 49. - 448 p. - ISBN 978-5-93295-470-6
Criminal law of Russia. Practical course / Under the general. ed. A. I. Bastrykin; under scientific ed. A. V. Naumova. 3rd ed., revised. and additional M., 2007. S. 12.
November 14 . RIA Novosti (November 14, 2005). Archived from the original on August 23, 2011. Retrieved August 14, 2010.
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 56. - 448 p. - ISBN 978-5-93295-470-6
Universal Declaration of Human Rights. Adopted and proclaimed by General Assembly resolution 217 A (III) of December 10, 1948.
Criminal law of Russia. Practical course / Under the general. ed. A. I. Bastrykin; under scientific ed. A. V. Naumova. 3rd ed., revised. and additional M., 2007. S. 18.
Marx K., Engels F. Works. 2nd ed. T. 8. S. 530.
Criminal law. General part / Resp. ed. I. Ya. Kozachenko, Z. A. Neznamova. 3rd ed., rev. and additional M., 2001. S. 51-52.
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 67. - 448 p. - ISBN 978-5-93295-470-6
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 80. - 448 p. - ISBN 978-5-93295-470-6
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 81. - 448 p. - ISBN 978-5-93295-470-6
Criminal law course. A common part. Volume 1: The doctrine of crime / Ed. N. F. Kuznetsova, I. M. Tyazhkova. M., 2002. S. 1.
Criminal law course. A common part. Volume 1: The doctrine of crime / Ed. N. F. Kuznetsova, I. M. Tyazhkova. M., 2002. S. 2.
Criminal law of Russia. Part General / Resp. ed. L. L. Kruglikov. 2nd ed., revised. and additional M., 2005. § 1.7 chapter 1.
Naumov A.V. Rapprochement of legal systems as a result of the development of criminal law in the 20th century. and its perspective in the 21st century. // State and law. - 1998. - V. 6. - S. 50-58.
Malinovsky A. A. Comparative jurisprudence in the field of criminal law. - M .: International relations, 2002. - S. 12-17.
Vedernikova O. N. Modern criminal law systems: types, models, characteristics // State and law. - 2004. - V. 1. - S. 68-76.
Esakov G. A. Fundamentals of comparative criminal law. - M .: Elit, 2007. - S. 28.
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 32. - 448 p. - ISBN 978-5-93295-470-6
V. V. DIAKONOV Textbook on the Theory of State and Law.
Esakov G. A. Comparative jurisprudence in the field of criminal law and typology of criminal law systems of the modern world // Russian Law on the Internet. - 2006. - No. 2. ISSN 1729-5939
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 11-12. - 448 p. - ISBN 978-5-93295-470-6
The World History state and law. Encyclopedic Dictionary. - M .: Infra-M, 2001. - S. 312.
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 12-17. - 448 p. - ISBN 978-5-93295-470-6
Dodonov V.N. Comparative criminal law. A common part. Monograph / Ed. and scientific ed. S. P. Shcherby. - M .: Yurlitinform, 2009. - S. 17-23. - 448 p. - ISBN 978-5-93295-470-6

Literature

References

Russian criminal law. General part / Ed. V. S. Komissarov. - St. Petersburg: Peter, 2005. - 560 p. ISBN 5-469-00606-9.
Criminal law of Russia. Parts General and Special: Textbook / M. P. Zhuravlev, A. V. Naumov and others; ed. A. I. Raroga. - M.: TK Velby, Prospekt, 2004. - 696 p. ISBN 5-98032-591-3.
Criminal law Russian Federation. General part: Textbook. Workshop / Ed. A. S. Mikhlin. - M.: Jurist, 2004. - 494 p. ISBN 5-7975-0640-8.

Criminal law course. T. 1: General part. The doctrine of crime / Ed. N. F. Kuznetsova, I. M. Tyazhkova. - M.: Zertsalo-M, 1999. - 592 p. ISBN 5-8078-0039-7.
Maltsev VV Principles of criminal law and their implementation in law enforcement. - St. Petersburg: Legal Center Press, 2004. - 692 p. ISBN 5-94201-323-3.
Naumov A. V. Criminal Law // Legal Encyclopedia / Otv. ed. B. N. Topornin. - M.: Jurist, 2001. ISBN 5-7975-0429-4.
Pudovochkin Yu. E., Pirvagidov S. S. The concept, principles and sources of criminal law: Comparative legal analysis of the legislation of Russia and the CIS countries. - St. Petersburg: Legal Center Press, 2003. - 297 p.

Criminal law as an independent branch is a set of homogeneous norms, and this homogeneity is due to their content. The content of these norms is focused, on the one hand, on an act that (according to the current criminal legislation) is recognized as a crime, and on the other hand, on a law enforcement officer who is obliged to assess the committed act as criminal only in accordance with the requirements of the criminal law and on the basis of its . In addition, the homogeneity of the norms is expressed in their general functional orientation. Ultimately, these norms are intended to affect the relationship of people with each other, their relationship with the state (represented by the relevant authorities) in the event of a criminal act; prevent similar acts in the future.

The criminal law has the following characteristics:

general obligatoriness implies, on the one hand, that everyone who has committed a crime is obliged to suffer the impact of criminal liability on himself, and on the other hand, that the law enforcer in this case is obliged (and not entitled) to use criminal law norms;
the coerciveness of the norms of criminal law, coupled with their general binding nature, implies a property of two kinds: firstly, to protect the victim (offended), i.e., to restore or compensate for his rights and interests violated by the crime; secondly, to bring the criminal (offender) to reason, i.e., to force him to undergo those undesirable consequences that he must (by duty voluntarily imposed on himself by the fact of committing a crime) suffer. In other words, the mechanism of criminal legal protection of the interests of society from criminal encroachments is a kind of satisfaction of the needs of each person and all people together in the safe conditions of their existence. If law in general, including criminal law, does not satisfy these needs (regardless of the reasons), then it, as a social regulator, loses its moral and factual positions and loses its authority among the population, turning into ballast. Satisfaction of these needs, as it were, connects criminal law to life-giving social sources that feed and affirm it as a necessary and sufficiently effective state-legal regulator of relations between people.

Criminal law establishes, first of all, the basis and limits of criminal liability for those acts that are recognized as crimes, and provides for the possibility of applying a certain punishment to the guilty person.

Thus, criminal law is an independent branch of a single legal system, which is a set of homogeneous norms of the highest body of state power, which contain a description of the signs that allow the law enforcer to recognize an act as a crime, and determine the basis and limits of criminal liability, as well as the conditions for exemption from criminal liability and punishment. .

The criminal law system consists of the General and Special Parts. The General Part contains norms defining: tasks and principles of criminal law; grounds for criminal liability and exemption from it; limits of action of criminal laws on a circle of persons, in time and space; the concept of crime, guilt, sanity, insanity, stages of committing a crime, complicity, prescription, circumstances precluding the criminality of the act. The system of punishments, general and special grounds for sentencing and release from it, etc. are given.

A special part of criminal law specifies the scope and content of criminal liability in relation to each element of the crime.

The subject of legal regulation is always public relations. Relations regulated by criminal law organically fall into two groups that are ambiguous in social and value perception: into necessary, positive, and therefore socially useful relations and deviant, negative and therefore socially harmful relations. If the first group of relations (in which the whole society or the vast majority of its representatives are interested) must be protected (protected), along with criminal law, by the whole set of moral, social and legal regulators, then the second group (the interest of criminally minded people) necessitates an imperious (coercive) ) state intervention through the application of criminal law influence. These groups, as a result of their legal registration, acquire the status of legal relations, including criminal ones.

Principles of criminal law:

The principle of legality, which follows from the provisions of the Universal Declaration of Human Rights, establishes that no one can be convicted of a crime and subjected to criminal punishment except by a court verdict and in accordance with the law. In addition, the principle of legality is manifested in the fact that a person can be convicted only for the act committed by him, which contains the corpus delicti provided for by the criminal law. Further, the principle of legality requires that only the punishment prescribed by the criminal law for this crime be applied to him. And, finally, exemption from criminal liability (punishment) is possible only if there are grounds and conditions specified in the law.
The principle of equality of citizens before the criminal law. The offender is subject to criminal liability regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances. Only one basis of criminal liability is possible - the presence in the committed act of signs of a specific corpus delicti. All persons who have committed the same crime shall be subject to the same criminal law. At the same time, the equality of all before the criminal law must be preceded by social equality.
The principle of the inevitability of criminal liability is that the person who committed the crime is subject to punishment in the criminal law order. The latter should be understood as the timely bringing of the offender to justice, and the fact that no one should have privileges before the criminal law.
The principle of personal responsibility finds its expression in the fact that a person is responsible only for what he has committed, and the operation of this principle does not contradict criminal liability with complicity, in the presence of which all perpetrators are criminally liable for a jointly and concertedly committed crime “in solidarity”. Only a natural person can bear criminal liability.
The principle of culpable liability implies that a person is responsible only for the act and its consequences, caused by it intentionally or by negligence.
The principle of justice means that the criminal punishment or other measure of criminal legal influence applied to the offender must correspond to the severity of the crime, the degree of his guilt and the personal characteristics that manifested in the criminal act he committed. This principle should also be understood in the sense that no one can bear criminal liability twice for the same crime.
The principle of democracy, although not in full, is manifested in criminal law in various forms of participation of representatives of public associations and individuals in the imposition of a criminal sanction, its execution and, in particular, in the release from criminal liability and punishment.

Crimes: concept and classification

The Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ (hereinafter referred to as the Criminal Code of the Russian Federation) defines a crime as a guilty socially dangerous act, prohibited by the Criminal Code of the Russian Federation under threat of punishment (Article 14 of the Criminal Code of the Russian Federation).

An act is a behavior (act) of a person in the form of action or inaction. Action - active volitional behavior.

Inaction is characterized by passive volitional behavior, expressed in the failure to fulfill the obligation to act.

The formal sign of a crime means the legislative expression of the principle "there is no crime without an indication of it in the law." It means that under Russian criminal law it is not allowed (forbidden) to apply the criminal law by analogy. Law enforcement agencies can detect socially dangerous acts that have fallen out of the legislator's field of vision and therefore are not recognized as criminally punishable. In addition, the social danger of an act does not remain something unchanged, given once and for all. The development of social relations, scientific and technological progress can make adjustments to the criteria for recognizing acts as socially dangerous and punishable. What is socially dangerous today may lose this quality tomorrow, and, conversely, it may be necessary to prohibit new acts by criminal law. However, such filling of gaps in criminal law belongs to the competence of the legislator himself. The court, the prosecutor, the investigator, the body of inquiry are not entitled to attach criminal legal significance to an act that is outside the scope of criminal legal regulation. The duty of law enforcement agencies in this case is to discover a new type of socially dangerous acts and raise the question of their legislative prohibition, the establishment of criminal liability for their commission.

Public danger is the ability of an act provided for by criminal law to cause significant harm to objects (interests) protected by criminal law.

In accordance with Part 1 of Art. 14 crime is a socially dangerous act prohibited by criminal law, necessarily committed guilty, that is, with a certain mental attitude to the act and its consequences on the part of the person who committed this act. If the actions of a person innocently caused socially dangerous consequences, his behavior is not a crime. A crime is a punishable act. In the Special Part, each article of the Criminal Code provides for a certain punishment for the commission of an act prohibited by criminal law. However, this does not mean that the punishment established in the sanctions of the articles of the Special Part should be applied always and under all circumstances. The Criminal Code also provides for cases of exemption from punishment. Most often this applies to minor crimes.

Thus, a crime under Russian criminal law is a socially dangerous, guilty and punishable act prohibited by criminal law.

The material sign of a crime (its public danger) suggests that an act that formally falls under the signs specified in the article of the Special Part of the Criminal Code, but due to its insignificance does not pose a public danger (for example, stealing a box of matches) is not a crime. The issue of recognizing this or that act as insignificant is a matter of fact and is within the competence of the investigation and the court. A criminal case on such an act should not be initiated, and the initiated one should be terminated due to the absence of corpus delicti. An insignificant act, which, due to the absence of public danger, does not contain the corpus delicti of a crime, may form the corpus delicti of another offense (for example, administrative or disciplinary), and in this case, measures of administrative, disciplinary or social influence may be applied to the person who committed it, not being a punishment.

The classification of crimes is the division of them into groups according to certain criteria. The classification of crimes can be based on the nature and degree of public danger of acts or a separate element of the crime. Three types of differentiation of crimes are adopted in the Russian criminal legislation. Firstly, categorization according to the nature and degree of public danger into four large groups of crimes (Article 15 of the Criminal Code of the Russian Federation). Secondly, classification according to the generic object of encroachments provided for in 6 sections and 19 chapters of the Special Part of the Criminal Code of the Russian Federation. For example, crimes against life and health, against the peace and security of mankind, military crimes. Thirdly, crimes that are homogeneous in the nature of public danger are differentiated according to the degree

public danger into simple, qualified, privileged. Thus, murders differ in composition: qualified with aggravating elements, simple, i.e. without aggravating and mitigating signs, and with mitigating signs (in a state of passion, when the limits of necessary defense are exceeded, infanticide).

Article 15 of the Criminal Code of the Russian Federation subdivides all crimes into four categories:

minor gravity (intentional and reckless with a maximum sanction of up to two years in prison);
medium gravity (intentional with a maximum penalty of up to 5 years in prison and reckless with a maximum sanction exceeding 2 years in prison);
serious (intentional) crimes with a maximum sanction of up to ten years in prison);
especially grave (intentional crimes with a sanction of more than ten years in prison or more severe).

The nature of public danger is its content side, reflecting mainly the homogeneity or heterogeneity of acts. The nature of public danger is formed by four subsystems of crime elements. First, the object of encroachment. Generic objects, according to which sections and chapters of the Special Part of the Criminal Code of the Russian Federation are classified, determine the nature of the social danger of crimes, dividing them into homogeneous and heterogeneous. Thus, homogeneous crimes against life are obviously dissimilar in content to state or economic crimes. Secondly, the nature of the social danger of crimes is influenced by the content of criminal consequences - economic, physical, disorganizational, socio-psychological, and so on. Thirdly, the form of guilt - intentional or careless - separates these crimes into two groups. Finally, fourthly, social danger substantively forms ways of committing crimes - violent or without violence, deceitful or without these signs, group or individual, with or without the use of official position, with the use of weapons or unarmed.

The degree of public danger is a quantitative expression of the elements of the crime. Most of all, the degree of public danger varies depending on the damage caused and harm to the objects of encroachment - the individual, society, and the state. Then it is influenced by subjective elements - the degree of guilt (premeditation, sudden intent, gross negligence), as well as the degree of baseness of the motivation of the act and its purposefulness. The danger of methods of encroachment also quantifies the degree of public danger: a crime is committed, for example, by a group of persons without prior conspiracy or by conspiracy by an organized group or a criminal community. In other words, the ratio of the nature and degree of social danger is the interaction of the quality and quantity of it. The degree of public danger quantitatively varies the danger of the components of the nature of public danger in each corpus delicti.

Corpus delicti

The corpus delicti is a system of mandatory objective and subjective elements that form and structure a socially dangerous act, the features of which are described in the dispositions of the criminal law norms of the General and Special Parts of the Criminal Code of the Russian Federation.

Like any system, the corpus delicti covers an integral set of subsystems and elements. The “elements” of the corpus delicti are the components, the primary components of the “corpus delicti” system. They are included in four subsystems of the composition:

an object;
objective side;
subject;
subjective side.

The object of the crime and the object of criminal law protection includes public relations, social interests. Their list is given in Art. 1 of the Criminal Code of the Russian Federation - these are the interests of the individual, his health, social rights, political and economic interests of the state and society, the rule of law as a whole. The object is described in addition to the titles of chapters and articles in the Special Part

of the Criminal Code of the Russian Federation, also through the characterization of the subject of encroachment and damage. Damage is a harmful, anti-social change in the objects of encroachment, and therefore the nature of the object and damage are closely interrelated. For example, the disposition of the norm on theft speaks of the secret theft of someone else's property. The description of the object of the theft gives information about the object of the theft - someone else's property. Chapter title. 21 of the Criminal Code of the Russian Federation “Crimes against property” directly characterizes the object of criminal law protection.

The subsystem of the “objective side” composition includes elements with the signs of an act described in the dispositions of the criminal law, i.e. actions and inactions that encroach on a particular object and cause harm (damage) to it, it also includes the attributes of external acts of an act - a place, a method, a situation, tools for committing a crime.

The subsystem of the “subject of the crime” composition describes such signs as the physical properties of the person who committed the crime - his age, mental health (sanity). In some compositions, the subject of the crime is a special person, for example, an official, a soldier.

Finally, the fourth and last subsystem of the composition - the “subjective side” - includes such elements as guilt, motive, purpose, emotional state (for example, affect).

The elements of the offense are divided into mandatory and optional. Mandatory elements include elements that are indispensable for the presence of corpus delicti. These are elements that form in their integrity (system) that minimally sufficient and necessary social danger of an act, which is criminal. The absence of at least one of these elements means the absence of the entire system of corpus delicti. These elements are: the object of the crime; in the objective side of the composition - this is an action (inaction), harmful consequences associated with an action (inaction) by a causal relationship; in the subject - elements with signs of a physical sane person of a certain age; in the subjective side - guilt in the form of intent and negligence.

Optional elements of the corpus delicti in the subsystem "object" - items; in the “objective side” subsystem - time, place, method, environment, tools and other circumstances of the external environment for the commission of a criminal act; in the “subject” subsystem, these are signs of a special subject, narrowing the circle of subjects of a crime according to certain properties (most often due to the professional activity of the subject); in the “subjective side” subsystem - motive, goal, emotional state.

The listed elements are optional in nature, because they can be indicated in the disposition of the criminal law norm as elements of the composition or not. For example, in theft, a mercenary purpose is a mandatory element of the composition. Without such a purpose, there is no element of theft. However, selfish purpose is not listed as grievous health damage. But it is provided as a mandatory element of the murder with qualifying signs (the so-called qualified composition of the murder).

The subject of the crime by nature is an optional element of the composition. It is far from being indicated in all compositions, and compositions without an object at all are possible, for example, desertion. But in a number of compositions, it plays an important role as an obligatory element of the composition, to establish the signs of which even special forensic examinations are required. For example, in the composition of crimes related to drug trafficking, the subject is an obligatory element of the composition. A drug test is often required to determine if a drug is a drug. A similar situation with the object in the form of firearms. In the composition of crimes related to the illegal circulation of weapons, the subject is an obligatory element of the compositions (Articles 222-226 of the Criminal Code of the Russian Federation).

Optional elements do not affect the fact of the presence of offenses and do not participate in the qualification of crimes. However, they play a role in the individualization of punishment. In Art. 61, 63 of the Criminal Code of the Russian Federation lists the circumstances mitigating and aggravating punishment. Most of them are connected with the objective side of the crime - the method, the situation, etc. committing an act. The new Criminal Code of the Russian Federation clearly separated the mandatory (qualifying elements of offenses) and optional (“punitive”) elements. So, in part 3 of Art. 61 of the Criminal Code of the Russian Federation states that “if a mitigating circumstance is provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation as a sign of a crime, it in itself cannot be taken into account again when sentencing.” A similar prescription is contained in Part 2 of Art. 63 of the Criminal Code of the Russian Federation in relation to aggravating circumstances. In the articles of the Special part of the disposition of the norms on specific elements of crimes, it is precisely the mandatory elements of the composition that are indicated. Optional elements not specified in the dispositions of the norms and their features play the role of mitigating or aggravating circumstances.

The object of the crime is what the encroachment is aimed at, what is harmed or may be harmed as a result of the commission of the crime. The most important social values, interests, benefits protected by criminal law from criminal encroachments are recognized as the object of a crime. The General Part of the Criminal Law (Article 2 of the Criminal Code of the Russian Federation) provides a generalized list of objects of criminal law protection. These include the rights and freedoms of man and citizen, property, public order and public safety, the environment, the constitutional order of the Russian Federation, peace and security of mankind. This generalized list is specified in the Special Part of the Criminal Law, primarily in the titles of sections and chapters of the Criminal Code, since the Special Part of the Criminal Code of the Russian Federation is built on the basis of the generic object of the crime. It indicates the specific rights and freedoms of a person and a citizen protected by criminal law (life, health, freedom, honor and dignity of the individual, sexual inviolability and sexual freedom, constitutional rights and freedoms of citizens, etc.), as well as the most important public and state interests, which are caused or significant harm may be caused as a result of criminal encroachments (property, economic interests of society and the state, public health and public morality, state power and the interests of public service, interests of justice, management procedures, military service, etc.).
The objective side of a crime is an external act of a socially dangerous encroachment on an object protected by criminal law.

The behavior of people, including criminal, has a lot of individualizing features. Some of these signs characterize the objective side of the crime. These are signs such as action or inaction and the harmful consequences that are in a causal relationship with them, as well as the method, place, time, situation, means and instruments of committing a crime.

The features of the objective side include:

an action or inaction that encroaches on a particular object;
socially dangerous consequences;
causal relationship between action (inaction) and consequences;
way, place, time, situation, means and instruments of committing a crime.

The legislator establishes that a crime is an act that is socially dangerous and illegal, i.e. characterizes such an objective feature as an act. At the same time, a socially dangerous act can take place in the form of an action (i.e., the commission of specific volitional acts) or inaction (i.e., failure to perform actions that the subject was obliged to perform in a particular case).

Action, i.e. active behavior is the most common type of socially dangerous act. At the heart of any action is a body movement, consciously directed by a person to achieve a specific goal. A feature of a criminal act is that, as a rule, it does not correspond to the concept of a single human action, but is composed of a number of separate, interconnected acts of a person's behavior.

Inaction is the second type of unlawful socially dangerous behavior. In its social and legal properties, inaction is identical to action. It, like action, is capable of objectively influencing and causing changes in the external world. In contrast to action, inaction is passive behavior, which consists in the failure of a person to perform such actions that he, for certain reasons, should have and could have performed under specific conditions. In practice, criminal inaction occurs in no more than 5% of all criminal cases.

Mandatory features of many crimes are consequences and causation. There are certain rules and stages for establishing a causal relationship between an action (inaction) and a socially dangerous consequence. First, the objectivity of the causal relationship involves the study of it regardless of guilt. First, the existence of an objective connection between the action and the consequence is ascertained, and only then guilt is established in the form of intent or negligence due to the intellectual-volitional attitude to the causal effect.

The subject of the crime is the person who committed the criminal act. In a narrower, special sense of the word, the subject of a crime is a person who is able to bear criminal responsibility if he commits, intentionally or carelessly, a socially dangerous act provided for by criminal law. Of all the numerous personality traits of a criminal, the law singles out those that testify to his ability to bear criminal responsibility. It is these signs that characterize the subject of the crime.

Age and sanity are the most common features required for recognition individual the subject of any crime. Therefore, a person who meets these requirements is called a “general subject”. A person who meets the special characteristics of the subject, provided for by the relevant criminal law norm, is usually called a “special subject”.

According to Art. 20 of the Criminal Code of the Russian Federation, a person who, as a general rule, has reached the age of sixteen by the time the crime is committed, is subject to criminal liability. In part 2 of Art. 20 of the Criminal Code of the Russian Federation lists certain crimes, in the commission of which responsibility comes from the age of 14. The exhaustive list includes the following three groups of formulations:

serious crimes against a person: premeditated murder and intentional infliction of severe or moderate bodily harm (Articles 105, 111, 112 of the Criminal Code of the Russian Federation), kidnapping (Article 126 of the Criminal Code of the Russian Federation), rape and violent acts of a sexual nature (Art. Art. 131, 132 of the Criminal Code of the Russian Federation);
most property crimes: theft, robbery, robbery, extortion, taking possession of a vehicle without the purpose of theft, intentional destruction or damage to property with aggravating signs (Articles 158, 161, 162, 163, 166, part 2 of Article 167 of the Criminal Code of the Russian Federation );
some of the crimes against public safety: terrorism, hostage taking, knowingly false reporting of an act of terrorism, aggravated hooliganism, vandalism, theft of weapons, ammunition, explosives and drugs, rendering vehicles or means of communication unusable (art. 205, 206, 207, part 2, article 213, articles 214, 226, 229, 267 of the Criminal Code of the Russian Federation).

The subject of a crime can only be a sane person. Sanity, along with reaching the established age, acts as a condition of criminal liability and is one of the common features of the subject of the crime.

Responsibility (from the word “impute”, in the sense of “to impute guilt”) - in the broad, commonly used meaning of this word means the ability to be responsible before the law for one's actions. In criminal law, this concept is used in a narrower, special sense, as an antithesis to the concept of "insanity". It is this latter concept that the criminal law operates on. Part 1 Art. 21 of the Criminal Code of the Russian Federation states “A person who, at the time of committing a socially dangerous act, was in a state of insanity, that is, could not realize the actual nature and social danger of his actions (inaction) or manage them due to chronic mental disorder, temporary mental disorder, dementia or other morbid condition of the psyche”.

An insane person cannot be held criminally responsible for his actions that are objectively dangerous to society, primarily because his consciousness and (or) will did not participate in them. The socially dangerous acts of the mentally ill are due to their morbid condition. No matter how much harm they cause to society, society has no grounds for imputing this harm to them. The application of punishment to the insane would be unfair and inappropriate also because in relation to them the goals of criminal punishment are unattainable - the correction of the convicted person and the prevention of the commission of new crimes.

The subjective side is the inner essence of the crime. It represents the mental attitude of a person to a socially dangerous act committed by him, characterized by guilt, motive, purpose and emotions. Each of these concepts characterizes the mental essence of the crime from different angles. Guilt reflects the mental attitude of the perpetrator to the socially dangerous act (action or inaction) committed by him and the resulting socially dangerous consequences. It can be intentional or reckless. A motive is an impulse that causes the determination to commit a crime.

The purpose of the crime is the idea of the desired result, which the person who commits the crime seeks to achieve.

The main component of the subjective side is guilt, which is the mental attitude of a person to a socially dangerous action or inaction and its consequences, expressed in the form of intent or negligence. The principle of responsibility only for acts committed guilty has always been fundamental in the criminal law of our state.

The forms of guilt in specific crimes are either directly indicated in the dispositions of the articles of the Special Part of the Criminal Code of the Russian Federation, or are implied and established when analyzing the structure of the norm of the Criminal Code of the Russian Federation. So, if the purpose of a crime is called in the law, then it can only be committed with direct intent (having set a goal, it can be achieved only if desired, which is typical for direct intent). The intentional form of guilt is also evidenced by such signs as the maliciousness of the act, a special motive (special cruelty in the murder, for example), knowingness, illegality of actions, etc.

The forms of guilt are intent and negligence.

A crime committed intentionally is an act (action or inaction) committed with direct or indirect intent (Article 25 of the Criminal Code of the Russian Federation).

A crime is recognized as committed with direct intent, if the person was aware of the social danger of his act,

foresaw the possibility or inevitability of the onset of socially dangerous consequences and desired their onset. This legislative definition of direct intent refers to crimes with a material composition, in which not only an act is punishable, but also socially dangerous consequences indicated in the disposition of a particular article as a mandatory feature. Therefore, the description of direct intent includes the foreseeing of consequences and the desire for their occurrence.

Direct intent provides for two options for foresight: the inevitability or the real possibility of socially dangerous consequences. The specification of the options depends on the situation of the crime being committed, the method and degree of preparedness of the person to commit it (shooting point-blank from a proper, proven weapon, the perpetrator foresees the inevitability of the death of the victim; the same shot at a considerable distance from the victim creates only a real possibility of deprivation of life).

Indirect intent in accordance with the law means that the person was aware of the social danger of his act (action or inaction), foresaw the possibility of socially dangerous consequences, did not want, but consciously allowed these consequences or treated them indifferently.

A crime committed through negligence is an act committed through thoughtlessness or negligence (Article 26 of the Criminal Code of the Russian Federation).

As a general rule, a crime with a careless form is less dangerous than an intentional one, because the person does not intend to commit a crime at all. More often there is a violation of any instructions (on safety, fire prevention, handling of weapons, traffic safety on vehicles, etc.), which entails socially dangerous consequences that turn misconduct into a crime.

A crime is recognized as committed with criminal frivolity if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds arrogantly counted on preventing these consequences.

1. The intellectual criterion of criminal frivolity consists of:

awareness by the guilty of the public danger of the action (inaction) being committed;
foresight of the abstract possibility of socially dangerous consequences.

Abstract foresight means that a person is aware of the illegality of his actions, understands (foresees) that such actions in general, in principle, may entail socially dangerous consequences, but considers their occurrence impossible in this particular case.

2. The volitional criterion does not want the consequences to occur, moreover, it seeks to prevent them with the help of some really existing factors (forces). First of all, the guilty person has in mind his own personal qualities - experience, skill, strength, dexterity, professionalism; further - the actions of other persons, mechanisms, even the forces of nature. However, his calculations turn out to be frivolous, presumptuous. The guilty person either does not know the laws of development of the causal relationship between the act and the threatening consequences, or, which is more common in judicial practice in cases with this type of guilt, does not take into account any incidental circumstances that significantly change the development of the causal relationship. The mechanisms do not work, the forces that the person counted on do not turn on.

The concept and types of punishment

Punishment is a measure of state coercion applied to a person guilty of a crime by a court verdict. Coercion acts as a means of ensuring compliance with the norms of criminal law and is provided by the power of state power. Only the court, in a sentence pronounced on behalf of the state, can impose a sentence for a crime committed after the guilt of a particular person has been established in the course of the trial. This principle is constitutional (articles 49, 118 of the Constitution of the Russian Federation) and means that in the absence of a guilty verdict of the court, no one can be subjected to criminal punishment. A court verdict that has entered into legal force is generally binding and

is subject to execution throughout the territory of the Russian Federation. The verdict of the court expresses a negative assessment of both the committed act and the guilty person on the part of the state.

The purpose of punishment is:

restoration of social justice,
correction of the convict;
prevention of new crimes.

The goal of reforming a convict is to change his personality in such a way that he becomes harmless to society and returns to this society as a citizen who does not violate the criminal law and respects the rules of human society. For non-custodial punishments, the goal of correction is often achieved by the very fact of their application. Deprivation of liberty requires the use of certain measures - the establishment of a regime for serving a sentence, engaging the convicted person in useful work, general education and vocational training, etc. Moreover, if the goal of correction is set before punishment in the criminal law, then the convicted person has the right to receive assistance aimed to adapt him to a normal life, and to be in such conditions while serving a sentence that would not aggravate his separation from society and consolidate the negative properties of his personality.

The purpose of preventing the commission of new crimes in its content consists of preventing such crimes on the part of persons who did not commit them (general warning) and on the part of the convicted themselves (special warning). The general preventive effect of punishment is manifested, firstly, in the very fact of issuing a criminal law and in establishing specific punishments for specific socially dangerous acts, and secondly, in imposing a specific punishment on a specific person guilty of a crime.

Types of punishment in accordance with Art. 44 of the Criminal Code of the Russian Federation are:

fine;
deprivation of the right to hold certain positions or engage in certain activities;
deprivation of a special, military or honorary title, class rank and state awards;
compulsory work;
correctional work;
restriction on military service;
restriction of freedom;
arrest;
maintenance in a disciplinary military unit;
deprivation of liberty for a specified period;
life imprisonment;
the death penalty.

A fine is a monetary penalty imposed within the limits provided for by the Criminal Code of the Russian Federation, in an amount equal to a fixed monetary amount, or in the amount of the salary or other income of the convicted person for a certain period.

The amount of the fine is determined by the court, taking into account the gravity of the crime committed and the property status of the convicted person and his family, as well as taking into account the possibility for the convicted person to receive wages or other income. Subject to the same circumstances, the court may impose a fine with payment by installments in certain installments for up to three years.

A fine as an additional type of punishment may be imposed only in cases provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation.

Deprivation of the right to hold certain positions or engage in certain activities consists in the prohibition to hold positions in the public service, in local governments, or to engage in certain professional or other activities. Deprivation of the right to hold certain positions consists in terminating, as a result of a guilty verdict and the imposition of the specified punishment, an employment contract with the convicted person by the administration of an enterprise, institution or organization (either state, public or private) and making an entry in the work book of the convicted person on what basis, on how long he is deprived of a certain position. The court in the verdict must specifically indicate what positions he is deprived of the right to occupy (for example, those related to the disposal of monetary or other material values, raising children, engaging in medical activities, etc.).

Deprivation of the right to engage in certain activities is a prohibition by a court sentence on a convict to work in any area in a certain specialty. The deprivation of both rights is applied in cases where, due to the nature of the crime committed by the guilty person, the court considers it impossible for the convicted person to occupy a certain position or certain activities. The punitive property of this type of punishment lies in the fact that it deprives the convict of his subjective right to free choice of position, certain occupations during the time specified in the sentence. In addition, deprivation of the right to occupy certain positions or engage in certain activities may lead to the loss or limitation of legal benefits and benefits associated with the former position or activity of the convicted person, may lead to a break in the special work experience, and finally, may lead to a decrease in the amount of his earnings.

Deprivation of a special, military or honorary rank, class rank and state awards consists in the deprivation of a convicted person of a special, military or honorary rank, class rank and state awards for committing a grave or especially grave crime, taking into account the identity of the perpetrator.

The punitive property of this punishment is manifested in the moral impact on the convict and depriving him of possible advantages and privileges established for persons with military, special or honorary ranks.

Military ranks are ranks adopted in the Armed Forces of the Russian Federation, other troops (for example, border troops), foreign intelligence agencies, federal security agencies, established by the Federal Law “On military duty and military service” (private, sailor, corporal, sergeant, foreman , warrant officer, lieutenant, senior lieutenant, captain, major, etc.).

Special titles are awarded to employees of internal affairs bodies, diplomatic, customs, tax services, etc. Honorary titles include: Honored or People's Artist, People's Teacher, Honored Scientist of the Russian Federation, etc. Class ranks are those assigned to civil servants holding public office - active state adviser of the Russian Federation, state adviser of the 1st, 2nd and 3rd class, civil service adviser of the 1st, 2nd and 3rd class, etc.

The state awards of the Russian Federation are: the title of Hero of the Russian Federation, orders (for example, the Order of Merit for the Fatherland, the Order of Courage, etc.), medals (for example, “For Courage”, “For Saving the Dead”), insignia of the Russian Federation , honorary titles of the Russian Federation.

Compulsory work consists in the performance by the convict in his free time of the main work or study of free socially useful work, the type of which is determined by local governments. This can be work on the improvement of cities and towns, cleaning streets and squares, caring for the sick, loading and unloading and other similar work that does not require special qualifications.

Compulsory work is not assigned to persons recognized as disabled of the first or second group, pregnant women, women with children under the age of eight, women who have reached the age of fifty-five, men who have reached the age of sixty, as well as conscripted military personnel.

Correctional labor consists in the fact that deductions are made from the earnings of a person sentenced to corrective labor to the state in the amount established by a court verdict, ranging from five to twenty percent. They are appointed for a period of two months to two years and are served at the place of work of the convict.

Restriction on military service is imposed on convicted servicemen doing military service under a contract for a period of three months to two years in cases provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation for committing crimes against military service, as well as convicted servicemen doing military service under a contract, instead of correctional labor provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation.

The restriction on military service consists in the fact that from the financial allowance of a person sentenced to such a punishment, deductions are made to the state in the amount established by the court verdict, but not more than twenty percent. During the serving of the sentence, the convict cannot be promoted in position, military rank, and the term of punishment is not included in the length of service for the assignment of the next military rank.

Restriction of freedom consists in the maintenance of a convicted person who has reached the age of eighteen by the time the court passes the sentence, in a special institution without isolation from society, but under conditions of supervision. The content of restrictive measures and the procedure for their implementation are provided for in the penal legislation.

Restriction of freedom is assigned:

persons convicted of intentional crimes and not having a criminal record,
for a period of one to three years;
persons convicted of crimes committed through negligence - for a period of one to five years.

Restriction of freedom is not imposed on persons recognized as disabled of the first or second group, pregnant women, women with children under the age of eight, women who have reached the age of fifty-five, men who have reached the age of sixty, as well as conscripted military personnel.

Arrest consists in keeping the convict in conditions of strict isolation from society and is established for a period of one to six months. The conditions and procedure for serving this punishment are determined in the penal legislation. Arrest may be appointed not only in the case when it is provided as the main (usually alternative) punishment in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, which provides for liability for the corresponding crime, but also in the case of replacement of compulsory work or corrective labor (in case of malicious evasion from serving them), as well as (instead of deprivation of liberty) when imposing a milder punishment than provided for a given crime (Article 64 of the Criminal Code of the Russian Federation), and when replacing the unserved part of the punishment with a milder type of punishment (Article 80 of the Criminal Code of the Russian Federation). In this case, compulsory labor or corrective labor by arrest, he may be appointed for a period of less than one month.

Arrest is not imposed on persons who have not reached the age of sixteen by the time the court pronounces the sentence, as well as pregnant women and women with children under the age of fourteen. Soldiers are serving their arrest in the guardhouse.

Detention in a disciplinary military unit is assigned to servicemen undergoing military service by conscription, as well as to servicemen undergoing military service under a contract in the positions of privates and sergeants, if at the time of the court's sentence they have not served the term of service established by law by conscription. This punishment is established for a period of three months to two years in cases provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation for committing crimes against military service, as well as in cases where the nature of the crime and the identity of the perpetrator indicate the possibility of replacing deprivation of liberty for a term of not more than two years of keeping the convict in a disciplinary military unit for the same period.

Deprivation of liberty consists in isolating the convict from society by sending him to a colony-settlement or placing him in an educational colony of a general, strict or special regime, or in prison. Persons sentenced to deprivation of liberty, who have not reached the age of eighteen by the time the court passes the sentence, are placed in educational colonies of general or enhanced regime.

This type of punishment is used when, based on the severity of the crime committed and the personality of the perpetrator, in order to achieve the goals of punishment (especially the correction of the convicted person), his isolation from society is necessary. The Supreme Court of the Russian Federation directs the courts to the need to apply to persons who have committed crimes for the first time that do not pose a great public danger, instead of short terms of imprisonment, punishments that are not related to the isolation of the convict from society. In accordance with the criminal procedure legislation, the court in a guilty verdict is obliged to motivate the imposition of a sentence of imprisonment, if the sanction of the criminal law also provides for other punishments not related to deprivation of liberty.

The severity of punishment in the form of deprivation of liberty is determined by the type of correctional institution in which the convicts serve this type of punishment. In turn, the type of correctional institution depends on the severity of the crime committed by the convict and the data characterizing the identity of the perpetrator.

Serving of imprisonment is appointed:

persons convicted of crimes committed through negligence, as well as persons sentenced to imprisonment for committing intentional crimes of small and medium gravity, who have not previously served imprisonment, in settlement colonies. Taking into account the circumstances of the commission of the crime and the identity of the perpetrator, the court may appoint the said persons to serve their sentences in correctional colonies of general regime, indicating the reasons for the decision;
men sentenced to imprisonment for committing grave crimes who have not previously served a prison sentence, as well as women sentenced to imprisonment for committing grave and especially grave crimes, including in case of any type of relapse, in penal colonies of general regime;
men sentenced to deprivation of liberty for committing especially grave crimes, who have not previously served a deprivation of liberty, as well as in case of relapse or dangerous relapse of crimes, if the convicted person has previously served deprivation of liberty, in strict regime correctional colonies;
men sentenced to life imprisonment, as well as in case of especially dangerous recidivism of crimes in special regime correctional colonies.
For men sentenced to imprisonment for committing especially grave crimes for a term of more than five years, as well as for especially dangerous recidivism of crimes, part of the sentence may be served in prison, while the court counts the time the convicted person was held in custody until the conviction comes into force while serving a prison sentence.

Life imprisonment is established for the commission of especially grave crimes encroaching on life, as well as for the commission of especially grave crimes against public safety.

Life imprisonment is not assigned to women, as well as to persons who have committed crimes under the age of eighteen, and to men who have reached the age of sixty-five by the time the court passes the sentence.

The death penalty, according to Art. 59 of the Criminal Code of the Russian Federation, is an exceptional measure of punishment can be established only for especially serious crimes encroaching on life.

Article 20 of the Constitution of the Russian Federation establishes that the death penalty “until it is abolished, may be established by federal law as an exceptional punishment for especially grave crimes against life, provided that the accused has the right to have his case heard by a jury.” This constitutional provision is developed and specified in Art. 59 of the Criminal Code of the Russian Federation. Part 1 of this article states that the death penalty as an exceptional measure of punishment can be provided only for especially grave crimes that encroach on life. In the Special Part of the Criminal Code of the Russian Federation, the death penalty is provided for crimes under Art. 105, part 2 (aggravated murder), 277 (assault on the life of a statesman or public figure), 295 (assault on the life of a person administering justice or preliminary investigation), 317 (assault on the life of a law enforcement officer) and 357 (genocide ). All of them are a kind of especially serious crimes encroaching on life.

The death penalty is not assigned to women, as well as to persons who have committed crimes under the age of eighteen, and to men who have reached the age of sixty-five by the time the court passes the sentence.

The death penalty by way of pardon may be replaced by life imprisonment or imprisonment for a term of twenty-five years. The procedure for the execution of the death penalty is regulated in the penal legislation.

The Criminal Code divides all types of punishments in the order of their appointment into three groups:

basic;
additional;
penalties that can be imposed both as basic and as additional.

Basic punishments can only be applied on their own and cannot be added to other punishments. In accordance with Part 1 of Art. 45 of the Criminal Code of the Russian Federation, these include: compulsory work, corrective labor, restriction in military service, restriction of freedom, arrest, detention in a disciplinary military unit, imprisonment for a certain period, life imprisonment and the death penalty.

Additional punishments are assigned only in addition to the main ones and cannot be assigned independently. These include the deprivation of a special, military or honorary title, class rank and state awards.

Other types of punishment, i.e. a fine, as well as deprivation of the right to occupy certain positions or engage in certain activities, can be applied both as main punishments and as additional ones.

Circumstances precluding criminality of the act

For the first time in Russian legislation, six circumstances excluding the criminality of an act are separated in a separate chapter.

The expansion of these circumstances from two to six and the clarification of their legal nature is associated with the adoption of the Criminal Code of the Russian Federation of 1996. The conditions for the legality of these actions change periodically, which is associated with their evaluative formulations and the desire to introduce greater certainty into them for law enforcement.

In accordance with Ch. 8 of the Criminal Code of the Russian Federation, the circumstances excluding the criminality of an act, according to the current criminal legislation, include: necessary defense; urgent need; infliction of harm during the detention of a person who has committed a crime; physical or mental coercion; reasonable risk; execution of an order or command.

In all these cases, despite the fact that some harm is caused, there is no unlawfulness, and sometimes there is no guilt (when executing an order or order). Undoubtedly, the consequences of actions in conditions of necessary defense and detention of a criminal are recognized as socially useful. However, many jurists do not recognize the existence of this property in other circumstances. Meanwhile, it seems that in other cases, as a rule, socially beneficial consequences occur for the individual, society and the state, expressed in preventing threatening harm or in preventing more harm by causing less (if absolutely necessary). Causing harm at a reasonable risk is not only justified, but also contributes to the development of science, the introduction of advanced technologies, whose benefits will affect the future.

1. Infliction of harm during the detention of a person who has committed a crime. In accordance with Part 1 of Art. 38 of the Criminal Code of the Russian Federation “it is not a crime to cause harm to a person who has committed a crime during his detention in order to deliver him to the authorities and prevent the possibility of committing new crimes by him, if it was not possible to detain such a person by other means and at the same time it was not allowed to exceed the necessary measures for this” .

The social utility of detaining a criminal, even with causing him harm, consists in striving to comply with the principle of the inevitability of responsibility for the deed and contributes to the suppression and prevention of crimes.

Detention will be lawful if it was not possible to detain such a person by other means and if the measures necessary for this were not exceeded.

When detaining a criminal, the goal is to bring him to the authorities and prevent him from committing new crimes. The purpose of revenge or lynching excludes the legitimacy of causing harm and entails criminal liability of the perpetrator on a general basis.

Harm must be forced. If a person has committed even a serious crime, but does not resist, causing harm to him is unacceptable. At the same time, the personality of the detainee also matters. As a rule, infliction of death or serious bodily harm in the process of detention is permissible only in cases where the detention develops into a necessary defense.

Infliction of harm to the criminal will be lawful, if the excess of the necessary measures for this was not allowed. In accordance with Part 2 of Art. 38 of the Criminal Code of the Russian Federation, the excess is recognized as a clear inconsistency with the nature and degree of public danger of the crime committed by the detainee and the circumstances of detention, when the person is unnecessarily inflicted with clearly excessive harm not caused by the situation. Such excess entails criminal liability only in cases of intentional harm.

The nature of harm can be varied: property (damage to clothing), physical (causing bodily harm), associated with restriction or deprivation of liberty (binding, holding, forced transportation). The more dangerous the crime committed by a person, the more harm can be caused to the criminal during his arrest. The nature and extent of the harm caused are also determined by the behavior of the offender.

So, the excess of detention measures can be of two types. 1. A person guilty of a minor crime (for example, of minor or medium gravity) suffered serious harm during detention, significantly exceeding the danger of the crime committed by him.

2. When detaining a guilty person who does not offer significant resistance, inadequate measures are applied that are associated with causing significant harm.

1. Urgent need

One of the circumstances excluding the criminality of an act is extreme necessity. In accordance with Part 1 of Art. 39 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to interests protected by criminal law in a state of emergency. The infliction of harm is carried out to eliminate the danger that directly threatens the person and the rights of this person or other persons, the legally protected interests of society or the state.

The extreme necessity is the confrontation of law-protected interests. To prevent the onset of harm to one of them is possible only by causing harm to the other. For example, in order to prevent flooding of a settlement, it is necessary to use building materials intended for other purposes to strengthen the coastal embankment.

A state of emergency often arises as a result of a person's inaction (failure to provide assistance, failure to perform official duties, etc.). For example, bribery of a doctor who refuses to perform an operation on a seriously ill person, performed in a state of emergency, should be recognized.

It can also be due to the clash of two or more responsibilities. For example, rescuers, helping one person, leave another without timely help, which is due to extreme necessity. The clash of several responsibilities forces one to decide on the priority performance of one of them to the detriment of the other.

Thus, sources of danger in case of emergency can be:

intentional or careless actions of a person (arson of a building, creation of an emergency by a pedestrian on the road);
elemental forces of nature (earthquake, flood, avalanche, hurricane, fire);
faulty equipment, mechanisms (an explosion in a mine, a sinking ship);
animals (dog attack, predators escaping from the cage);
physiological processes occurring in the human body (hunger, thirst, disease);
conflicts of several duties.

The protection of law-protected interests is connected with the individual, society, and the state. It is impossible, therefore, to protect their interests at the expense of equivalent strangers. Thus, the theft of livestock feed on a farm to save one's own cow from death cannot be assessed as an act of extreme necessity. It is also forbidden to cause harm to protect illegal interests, for example, to help a criminal hiding from law enforcement agencies.

Harm in case of emergency, as a rule, is caused to third parties who are not guilty of creating danger. However, it is possible to cause less and prevent more harm to the same subject. Thus, cutting down trees in the path of a forest fire causes certain environmental and property damage, but prevents the spread of the fire, i.e. the onset of much more significant similar harm.

When assessing harm, its nature is taken into account. Saving life and health by causing damage to property is always legal. The priority of objects is, in principle, reflected in the arrangement of sections and chapters in the Special Part of the Criminal Code of the Russian Federation, with the exception of the peace and security of mankind, crimes against which are illogically placed at the end of the Code.

You cannot save the life of one person, especially yourself, at the expense of causing the death of another. The deprivation of human life can be recognized as an act of extreme necessity only in exceptional cases, when only in this way can the death of many people be prevented. For example, a driver of a car with a passenger directs the car to an immovable obstacle to prevent a collision with a bus carrying a large number of passengers.

Necessary defense and emergency are similar circumstances. The differences between them are shown in the diagram.

Scheme.
Differences in the state of emergency and necessary defense.

It can be seen from the diagram that only human behavior can be a source of danger in case of necessary defense, the list of sources of danger in case of emergency is wider. The choice of possible behavior is wider with the necessary defense. When absolutely necessary, causing harm is the only possible way out. The proportionality between causing harm in extreme necessity and necessary defense is understood in different ways. In the first case, it is unlawful to cause more harm than was prevented. And finally, the difference is related to the object of harm. With the necessary defense, this is the encroaching, in case of emergency, these are third parties.

3. Necessary defense.

This is a lawful protection by a person of his rights and interests or the rights and interests of other persons, society and the state from socially dangerous encroachment by forced infliction of harm to the attacker.

There are conditions for the legitimacy of a necessary defense related to an attack: the public danger of an encroachment, its existence and reality, and related to protection: its implementation by causing harm to the attacker, the timeliness of protection and the proportionality of protection to the nature and degree of public danger.

Only intentional actions that clearly do not correspond to the nature and degree of public danger of the encroachment are recognized as exceeding the limits of necessary defense.

4. Physical and mental coercion may be a circumstance excluding the criminality of an act.

Signs of physical and mental coercion: causing harm with a limited or paralyzed will; absence of socially useful danger.

Physical violence is expressed in the direct contact effect on the human body.
Mental coercion is directed at the volitional sphere of the personality, and not at the human body.

5. Reasonable risk.

This is the legitimate creation of the danger of the onset of the consequences provided for by the criminal law in order to achieve a socially useful result in any field of human activity that cannot be obtained by conventional means and methods.

The conditions for the legitimacy of the risk are as follows: the risk must pursue the achievement of a socially useful goal, this goal cannot be achieved in other ways; a person who takes a risk must take all necessary measures to prevent harm to legally protected interests, etc.

6. Execution of an order or order.

It is a circumstance excluding the criminality of the act. There are the following conditions for the application of Art. 42 of the Criminal Code of the Russian Federation: an order or instruction is mandatory for a subordinate if they are given in the prescribed manner and in compliance with the proper form; they must be lawful, be of a legal nature; person must create their illegal nature.

For damage caused as a result of the execution of an illegal order or instruction, the person who gave it is liable.

A person who refuses to carry out a criminal order known to him shall be released from criminal liability.

Historically, criminal law is one of the oldest branches of law, although initially it was not isolated as an independent branch of the legal system. The exact origin of the name "criminal law" in Russian has not yet been clarified. The most plausible is the explanation that in ancient times they began to call such laws criminal, for the violation of which responsibility was provided for by the “head”, that is, by life. Now under criminal law is understood as a set of legal norms established by law and determining the criminality and punishability of acts, the grounds for criminal liability, the system of punishments, the procedure and conditions for their appointment, exemption from criminal liability and punishment.

The subject of criminal law is public relations protected by law, the encroachment on which occurs as a result of the commission of a crime. The subjects of criminal law relations are the persons who committed the crime and the state. The form of regulation of these relations is manifested in the establishment of criminal prohibitions, the violation of which should be brought to criminal responsibility, the use of other measures of state coercive influence and punishment. This is unique to criminal law. Its basis, like any other right, is the Constitution of the Russian Federation. The main normative source is the Criminal Code of the Russian Federation. Russian criminal law, for purely methodological reasons, is divided into two categories.

parts that make up a single inseparable whole: General and Special. The General Part sets out the main tasks, principles and institutions of criminal law, and the Special Part sets out specific offenses and penalties for each crime.

The tasks of criminal law are: the protection of human and civil rights and freedoms, property, public order and public safety, the environment, the constitutional order of the Russian Federation from crime, ensuring the peace and security of mankind, preventing crime. The successful implementation of these tasks is ensured by the observance of its principles, that is, the fundamental ideas enshrined in the norms of criminal law. Legislative confirmation was received by the principle of legality (Article 3 of the Criminal Code of the Russian Federation), equality of citizens before the law (Article 4 of the Criminal Code of the Russian Federation), the principle of guilt (Article 3 of the Criminal Code of the Russian Federation), justice (Article 6 of the Criminal Code of the Russian Federation) and humanism (Article 7 of the Criminal Code). RF).

essence principle of legality consists in the fact that only the criminal law in force at the time of the commission of the crime (Criminal Code of the Russian Federation) determines which acts are recognized as criminal, establishes their punishability and other criminal legal consequences (Article 3 of the Criminal Code of the Russian Federation).

The principle of equality of citizens before the law determines that persons who have committed a crime are equal before the law and are subject to criminal liability regardless of any conditions, circumstances, social status, etc. There are no privileges here for anyone. Everyone is equal before the law.

The principle of guilt is manifested in the fact that a person is subject to criminal liability for those crimes for which his guilt has been established (Article 5 of the Criminal Code). Subjective imputation (responsibility only in the presence of personal fault) is the cornerstone of modern criminal law in all democratic states. The imposition of criminal liability for innocent acts means a transition to the position of objective imputation, which is strictly prohibited by the current Criminal Code of the Russian Federation. Part 2 Art. 5 of the Criminal Code of the Russian Federation states: “Objective imputation, i.e., criminal liability for innocent infliction of harm, is not allowed.”

The principle of justice(Article 6 of the Criminal Code of the Russian Federation) is manifested in the fact that punishment and other measures of a criminal law nature must correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator. The manifestation of justice in the theory of law is interpreted in one of two aspects: how justice leveling (corresponds to the principle of equality of citizens before the law), and how distributive justice, which is consistent with the principle of justice, enshrined in Art. 6 of the Criminal Code of the Russian Federation. "Distributive justice" is that no one can be held criminally liable twice for the same crime. Therefore, the criminal liability of Russian citizens for crimes committed abroad is excluded if they have already been punished for it by the verdict of a court of a foreign state.

The principle of humanism interpreted in two ways:

Humanism for the victim, that is, the priority protection of a person, his life, health, dignity, property, implies the minimum of repression that is necessary to ensure the protection of the interests of a person and society from criminal encroachments and achieve the goals of correcting and re-educating a criminal;

And humanism in relation to the criminal. Punishment and other measures of a criminal law nature applied to a person who has committed a crime cannot be aimed at causing physical suffering or humiliation of human dignity.

The principle of humanism is clearly embodied in section V of the Criminal Code of the Russian Federation “Criminal liability of minors”, which, taking into account the age and psychology of juvenile offenders, provides for a significant mitigation of repressive methods of influence up to complete exemption from criminal liability. It is implemented in Art. 75-77, 79, 82 of the Criminal Code of the Russian Federation and others.

2. CONCEPT CRIMESANDHISCOMPOUND

The concept of a crime and the composition of a crime are two inextricably linked With other concepts characterizing the same phenomenon - a criminally punishable act. On the one hand, only a crime can have a set of legal characteristics that together form a crime. And on the other hand, only the presence of all legal features, the totality of which forms the corpus delicti, may indicate that the act assessed from the point of view of the criminal law is a crime. Thus, the concept of a crime is characterized mainly by the social essence of a criminally punishable act, and the corpus delicti reveals its legal structure, its necessary characteristics (properties, qualities).

The concept of a crime is one of the fundamental categories of criminal law. In the current Criminal Code of the Russian Federation in Art. 14 the definition of a crime is given: "A crime committed by a guilty socially dangerous act, prohibited by this Code under the threat of punishment." Thus, the legislator identifies four mandatory interrelated features: public danger (material feature); wrongfulness (formal sign); guilt and punishment.

It is emphasized that a crime is always a specific act of human behavior, which can be expressed in the form of action or inaction. A thought, an opinion, no matter how negatively they are assessed by the state and society, is not a crime.

Public danger - an objective property of a crime, which manifests itself in causing or possibly causing harm to social relations. Public danger has a quantitative and qualitative side. Quantitative - characterized by the degree of social danger. It is determined by the amount of harm caused (the amount of property damage, the severity of bodily harm), the degree of guilt (premeditated or suddenly arose intent), the degree of baseness of motives and goals. The nature of the public danger (qualitative side) is manifested in the content of the objects of criminal encroachment and the harm caused to them (material, physical, moral, organizational and managerial), features of the encroachment method (violent, non-violent, simple, qualified), types of guilt (intent or negligence), the content of the motives and goals of the crime (mercenary, personal, vile).

Wrongfulness means that a specific socially dangerous act is provided for in a separate article of the criminal law. If there is no article in the criminal law, then the act cannot be recognized as a crime. Since 1958, the application of the analogy of the law has been excluded from the criminal law.

Guilt implies a certain mental attitude of a person to a socially dangerous act and its consequences. Guilt is manifested in two forms: intent (direct and indirect); negligence (frivolity and negligence).

Under Punishment It implies not only the actual implementation of the punishment, but also the possibility of its appointment for the crime committed. It is not the punishment itself that matters, but the threat of punishment.

for the person who committed the crime. In real life, this manifests itself when a crime has been committed but not solved, nevertheless, the threat of punishment hangs over the criminal until the statute of limitations for the crime has expired, or the state, represented by the competent authorities, has considered that it is possible to re-educate the criminal without applying criminal sanctions to him. punishment.

All crimes are divided into different categories depending on the nature and degree of public danger and are divided into crimes of small gravity of medium gravity grave and especiallyserious crimes. Intentional and reckless acts are recognized as crimes of minor gravity, for the commission of which the maximum punishment provided for by the code does not exceed two years of imprisonment. Medium-gravity crimes are intentional and reckless acts, for which the maximum punishment provided for by the Code does not exceed five years in prison.

Serious crimes are intentional and reckless acts, for which the maximum punishment provided for by the Criminal Code does not exceed ten years of imprisonment. Especially grave crimes are intentional acts, for which the code provides for punishment in the form of imprisonment for a term of more than ten years or more severe.

punishment.

The category of a crime indicates the signs inherent in any crime. These signs make it possible to distinguish a crime from other types of offenses, but they cannot be used to distinguish specific crimes from each other, since these signs are common to all types of crimes. In order to single out a specific crime within the total mass of crimes, there is composition conceptva crime, which is a legislative model of presteps of a certain kind.

G Corpus delicti - it is a set of objective and subjective features provided for by the criminal law that characterize the social danger of an act. The significance of the corpus delicti lies in the fact that, firstly, this is the only basis for criminal liability; secondly, the corpus delicti serves as a tool for qualifying crimes. The science of criminal law knows four signs of a crime: the object, the objective side, - the subject, the subjective side.

The object of the crime this is what the crime encroaches on - a social relationship protected by criminal law. In accordance with the current Criminal Code of the Russian Federation, objects are divided vertically into general, integrated, generic, direct. The theoretical classification provides for a five-link structure, where the place between the generic and the immediate object is occupied by the specific object. Horizontally, a direct object can be of the following types: main, additional, optional. All objects protected by criminal law are presented in sections, chapters and articles of the current Criminal Code.

The general object of the crime - it is the totality of all social relations protected by criminal law from criminal encroachments. An exhaustive list of social relations that form a common object of criminal law protection is quantitatively commensurate with the number of articles of the Special Part of the Criminal Code of the Russian Federation.

Integrated object- this is a group of social relations close in economic and socio-political content. At its core, it occupies an intermediate position between the general and generic object and serves as the basis for dividing the Criminal Code into 12 sections. It is the order of location of integrated objects that makes it possible to identify the priorities of the state in the criminal law protection of public relations.

Thus, in the current Criminal Code of the Russian Federation, the priorities of criminal law protection have shifted towards the protection of the individual. It is the personality that is currently acquiring the greatest social significance in public relations protected by criminal law, therefore, a group of these relations is placed in the first section of the Special Part of the Criminal Code of the Russian Federation (Section VII of the Criminal Code of the Russian Federation “Crimes against the Person”).

generic object - it is a set of homogeneous and interconnected social relations, taken under protection by a specially provided group of norms of the criminal law. The sign of a generic object is, first of all, the basis for the construction of the Special Part of the Criminal Code of the Russian Federation and its division into 19 chapters.

Theoretical (scientific) classification presupposes the presence of a specific object, which occupies a subordinate position relative to the generic and dominant in relation to the immediate. It covers a system of homogeneous interconnected social relations that are or may be harmed by a crime.

view object serves as the basis for the subsequent legal allocation of a generic object. Thus, a long scientific discussion about such a specific object of economic crimes as economic social relations protected by criminal law led to the fact that Chapter 26 “Environmental crimes” appeared in the current Criminal Code of the Russian Federation. Thus, a new generic object received legal consolidation.

The main object of the crime is the social relation, the change of which constitutes the social essence of this crime and for the protection of which a criminal law norm has been issued providing for responsibility for its commission 1 .

Additional object is such public relations that, in principle, deserving independent criminal law protection, in relation to the goals and objectives of issuing this norm, are protected by criminal law only in passing, since these relations are inevitably put in danger of causing harm when an encroachment on the main object is committed.

Without violation of the additional object, the criminal-legal assessment of the act is impossible. In order for a socially dangerous act to be qualified as a criminal one, an encroachment on the main and additional objects is necessary. The difference between the additional object is that it lies in the plane of a different generic (integrated) object than the main one, when creating this norm, the legislator did not mean it in the first place, but was placed under the protection of the criminal law only in passing with the main object. Encroachment on an additional object does not constitute the social essence of this crime, although it infringes on it along with the main object.

Under Optional Object it is customary to understand such social relations that, when committing a given crime, quite often, although not necessarily, are threatened with harm, its violations are more or less typical for this type of criminal behavior, and its presence only affects the individualization of punishment, but does not change the qualification the main element of the crime.

The difference between an additional object and an optional object is that an additional object is always provided for within the framework of the main composition or qualifying features provided for by a specific article of the Criminal Code of the Russian Federation, and an optional object is taken into account when recognizing a punishment, but is not described in the disposition of the article.

Under the objective side of the crime is understood as a system of signs that determine the external form of a criminal act. Mandatory features include a criminal act (action, inaction), criminal consequences, a causal relationship between them, and optional (additional) features include time, place, method, tools, environment, and other external circumstances of the crime.

A criminal act is a conscious, volitional act of human behavior, the external side of which is either the commission of an act prohibited by law (action) or refraining from it (inaction).

Under the method of committing a crime understand the techniques and methods used by the offender. A situation is a situation, circumstances, conditions for the existence of someone or something. Time is characterized by the duration or duration of something. A place is a space that is occupied by someone or something.

Third sign composition, crime is the subject - sane natural person who has reached the age of 16 years established by criminal law, and beyond certain types crimes - 14 years (Art. 20 UKRF). The main features of the subject include: an individual;

sanity; reaching the legal age.

Sanity is such a state of a person's psyche, in which at the moment of committing a crime he was able to realize the socially dangerous nature of his behavior and manage it. In connection with the adoption of the new Criminal Code of the Russian Federation and the appearance of part 3 of Art. 20 and Art. 22 of the Criminal Code of the Russian Federation, two institutions still insufficiently developed by the science of criminal law received legislative confirmation: age-related sanity (Article 22 of the Criminal Code of the Russian Federation); reduced (limited) sanity (Article 22 of the Criminal Code of the Russian Federation). Age sanity is the basis for the release of a criminal from criminal liability. So, part 3. Art. 20 of the Criminal Code of the Russian Federation states: “If a minor has reached the age provided for by parts one or two of this article, but due to mental retardation not associated with a mental disorder, during the commission of a socially dangerous act, he could not fully realize the actual nature and social danger of his actions (inaction) or manage them, he is not subject to criminal liability. Age sanity is a state of the psyche of a minor associated with mental retardation, in which, at the time of the commission of a crime, the perpetrator was not fully aware of the actual nature and social danger of his behavior or could not control him.

Limited sanity is such a mental state of a person in which the offender had a limited ability to realize the actual nature and social danger of his behavior or to control it due to a mental disorder or other mental anomalies. It should be emphasized that such a state does not exclude criminal liability and punishment.

The subjective side of the crime includes as a mandatory element fault in the form of intent or negligence. Guilt is the mental attitude of the subject of the crime to the act committed by him. Intent comes in two forms - direct and indirect. A crime is recognized as committed with direct intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence. A crime is recognized as committed with indirect intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility of socially dangerous consequences, did not want, but consciously allowed these consequences or treated them indifferently.

Negligence also appears in two forms - frivolity and negligence. A crime is recognized as committed due to frivolity if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds, presumptuously counted on preventing these consequences. A crime is recognized as committed through negligence if the person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should have and could have foreseen these consequences. Today, 91 percent of detected crimes in the country are committed with intent, the rest by negligence.

Optional features of the subjective side of the crime are motive and purpose. Motive - driven by internal needs motives that make a person determined to commit a crime. The goal is the desired criminal outcome.

The disposition of the article and the corpus delicti are not the same thing.

For example, the disposition of Part 1 of Art. 160 of the Criminal Code: "Assignment or embezzlement of another's property entrusted to the guilty" - does not reveal the entire content of this corpus delicti. She directly speaks of only two groups of signs: the objective side (appropriation or embezzlement) and the subject of the encroachment (other people's property, which is entrusted to the guilty).

For a complete picture of the composition of appropriation or embezzlement, it is imperative to find out the content of other features of the composition: the subject and the subjective side. For this, it is necessary to refer to the articles of the General Part of the Criminal Code, in particular to Art. 19 and 20. From them it is clear that any sane person who has reached the age of 16 can be the subject of embezzlement or embezzlement.

The subjective side of the theft can be revealed on the basis of an analysis of other elements of the composition and the entire act as a whole. In particular, it follows from this analysis that theft of property can only be a deliberate activity aimed at seizing someone else's property (seizure) in order to treat it as if it were your own, in order to derive material benefit for yourself or others. As a result of the interpretation of the law, other signs of misappropriation or embezzlement are also established: infliction of material damage to the victim, gratuitous seizure and the absence of the perpetrator's intention to return this property at the time of the crime (see note to Article 158 of the Criminal Code of the Russian Federation).

If we collect all these signs together, then we can say that misappropriation or embezzlement is an unlawful, for mercenary purpose, deliberate seizure of property entrusted to the guilty person, committed by a materially responsible person who has reached the age of 16.

The above example quite clearly indicates that the corpus delicti is a much deeper concept than the disposition of the article of the Special Part.

3. PUNISHMENT AND CRIMINALRESPONSIBILITY

The concept of criminal liability is a fundamental concept of criminal law. In science, there are various definitions of this category, but all of them are united by the fact that criminal liability is a criminal legal relationship that arises between the state represented by its law enforcement agencies and the person who committed the crime. In connection with the commission by a person of a crime provided for by a specific article of the Criminal Code of the Russian Federation, the state has the right to subject the offender to state

coercive influence and the obligation to apply state-coercive influence, provided for precisely by the article that the offender violated. A person who has committed a socially dangerous act has an obligation to bear responsibility to the state, i.e. to be subjected to state-coercive influence, and the right to apply exactly the impact that is provided for by the criminal law norm that he has violated.

There are different points of view on the issue of liability. Some authors associate this moment with the initiation of a criminal case 1 , while others - with the involvement as a defendant 2 . The most correct one seems to be the one where this moment is connected with the moment of entry into force of the guilty verdict. Criminal liability ends at the moment of repayment and removal of a criminal record. In view of the foregoing, it is possible to define criminal liability as state-coercive influence for a crime committed by a person, provided for by the criminal law norm and associated with a conviction that has entered into legal force.

The only exclusive basis for criminal liability is the commission of an act containing all the elements of a crime under the Criminal Code. The basis of criminal liability arises from the moment of committing a socially dangerous act containing the corpus delicti. We can agree that from this moment criminal liability arises, but only as the right of the state to subject the alleged offender to state-coercive influence. In this case, criminal liability has not yet received its full content. To impose it on a specific person, a legal document is needed on behalf of the state - a court conviction that has entered into legal force, which is a necessary legal form for the implementation of criminal liability in full, taking into account the mutual rights and obligations of the state and the criminal. /Punishment - a measure of state coercion, provided for by the Criminal Code, applied by a court sentence on behalf of the state to a person found guilty of a crime. A feature of criminal punishment is that it, in the cases provided for by law, gives rise to a criminal record.

Punishment is applied in order to restore social justice, as well as to correct the convict and prevent the commission of new crimes.

The current Criminal Code has 13 types of punishment, which are divided into two groups: main (applied independently), and additional (used only in combination with the main ones) and measures applied as both main and additional.

Compulsory labor, corrective labor, restriction in military service, restriction of liberty, arrest, detention in a disciplinary military unit, deprivation of liberty for a certain period, life imprisonment, and the death penalty are applied only as the main types of punishment.

A fine and deprivation of the right to hold certain positions or engage in certain activities are applied as both basic and additional types of punishment.

Deprivation of a special, military or honorary title, class rank and state awards, as well as confiscation of property, are applied only as additional types of punishment.

Sentencing is a lawful determination in accordance with the law in a court verdict that has entered into legal force to a specific person found guilty of this crime by the same court, the type and amount of repression necessary and sufficient to achieve the goals of repression, with the obligatory consideration of all legally significant features of the crime and the person who did it.

General principles of sentencing - these are the rules by which punishment should be applied to a specific person for a specific crime. These rules are based on the principles of criminal law.

The general principles of sentencing, expressed in Art. 60 of the Criminal Code, is not a declaration, but specific, generally binding directives for the court that imposes punishments: when imposing a punishment, take into account the nature and degree of social danger of the crime committed, the personality of the subject and the circumstances mitigating and aggravating punishments, as well as the impact of punishment on the correction of the convicted person and on living conditions.