Criminal act- this is a socially dangerous illegal conscious active or passive manifestation of human behavior in the outside world, causing harm public relations.
The action must be:
1) specific - committed by a specific person at a specific place and time;
2) should always be a manifestation of human behavior in the outside world;
3) always an act of conscious behavior, therefore, an act committed under the influence of force majeure (an extraordinary circumstance, which in this case excludes the voluntariness of the act) is not an act in the criminal law sense.
O-O forms deeds:
- Action- active form external manifestation O-O behavior person. At the heart of any action is the body movement. An action can consist of 1 body movement, a complex of body movements, the use of various tools, forces of nature. Not every action has criminal legal significance. Properties of an action necessary for its recognition as a sign of the objective side of the corpus delicti:
Awareness - in the process of committing an action, a person is aware of the nature of the action and its social danger;
The action must be volitional, i.e. active actions or refraining from fulfilling the obligation to act actively.
Action types
1) depending on the method of their commission (form):
a) an action that is performed in the form of a complex of body movements aimed at achieving a criminal result:
i) direct commission- this is the performance of an act by a personally guilty person, including with the use of tools, etc.
ii) Mediocre infliction- this is the commission of a crime through the use of another natural person who is not subject to criminal liability. With a mediocre infliction, the actions of 3 persons and the victims themselves can be used. Depending on who the subject uses, there are:
(1) when juveniles are used
(2) the use of insane persons
(3) the use of persons who act under circumstances precluding the criminality of the act (6 circumstances in chapter 8)
(4) the use of persons acting in a state of good faith and other persons.
b) action in the form of gestures (Articles 130, 134 of the Criminal Code of the Russian Federation);
c) verbal action (Article 283 of the Criminal Code of the Russian Federation);
d) written form of action.
Thus,
Criminal legal action is an active, conscious, volitional behavior that is dangerous to the interests of the individual, society, state, manifested in the form of body movements, gestures, in oral or written speech.
- Inaction- passive form of OO human behavior. It must also be OO, conscious, volitional.
Terms of criminal liability for failure to act:
Actual (objective) - means that the person had an obligation to perform some action. Sources for this responsibility:
§ professional or official functions (the doctor is obliged to provide assistance),
§ contractual relations (educator kindergarten must supervise the children
§ the previous behavior of the person who created a threat of harm to any interests (the driver is obliged to provide assistance to the person who knocked down),
§ the position of the person as a member of the family (parents are obliged to take care of the children),
§ the position of members of society in general (citizens are required to pay taxes);
Subjective - assumes that the person had the opportunity to fulfill his duties, whether there were any obstacles; sometimes, in addition to the conditions of criminal liability, the criminal law eliminates the limits of liability for inaction (Article 270 of the Criminal Code of the Russian Federation).
At the same time, the obligation to act itself arises earlier than the danger that should be prevented. It is assigned to the subject as predictable real opportunity prescribed by criminal law.
Types of inactivity:
1) pure- the person does not perform any action at all; we punish the very fact of inaction, regardless of the consequences that have occurred (failure to provide assistance, tax evasion);
2) mixed- along with non-fulfillment of any duties, a person performs a number of actions; inaction is punishable when it entailed the ensuing consequences provided for in the disposition of the article (Article 293 of the Criminal Code of the Russian Federation - negligence).
Thus,
Criminal Law Omission- this is a passive, OO, conscious and volitional behavior of a person, expressed in not performing actions that a person was obliged to perform.
Signs of OOD: 1) Wrongfulness of the act, i.e. prohibition acts of UZ under threat of punishment(this is a formal (normative) sign of an act).
2) Societies. danger of an act, i.e. the act must either cause harm or create a risk of harm protected by UZ societies. relations (material sign of an act, revealing its social essence).
3) Consciously-volitional nature of the act, i.e. the act must controlled by the mind and will of the person who committed it (i.e. reflex movements do not involve an angle. answer-ty).
OOD Forms: 1) Action- This active behavior, and as a sign of the objective side of the crime is not a simple mechanical bodily movement, but a conscious-volitional act person. Corner right action is a system of interrelated body movements that form the OO behavior of the subject, and connected with the use of various means, tools, mechanisms, technical devices to achieve the goal.
criminal act can be expressed as: 1) single action(theft (Article 158), committed once); 2) continued action, i.e. a series of successively repeated actions, forming in their totality one act, which is typical for ongoing crimes; 3)ongoing action, which is typical for ongoing prestige, which represent actions or inaction associated with the last. long-term failure to fulfill the obligations imposed on the guilty by law under the threat of ug. persecution; 4) repeated actions, forming in combination single composition of the prestige(illegal use of someone else's trademark, if this act has been committed repeatedly or caused major damage (Article 180)); 5) alternative actions, listed in the disposition of one or another norm of the Criminal Code (Ug.-right. Prohibition on illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, ammunition, explosives and explosive devices (Article 222)).
2) Inaction- This passive behavior, expressed in the intentional or careless failure by a person to fulfill the specific duties assigned to him. A person's duty to act may arise from A: 1.requirements of the law; 2. obligations assumed by a person in his service; 3. obligations assumed by the person under the contract; 4.kinship relations; 5.the previous behavior of the perpetrator.
Criminal omission m. expressed as: 1) a single inaction (refusal of a witness to testify; 2) a system of criminal inaction (characteristic of continuing inaction - malicious evasion of paying funds for the maintenance of children or disabled parents; 3) mixed inaction, with k-m face, ultimately, does not fulfill the duties assigned to him, however, along with this, he commits a certain. Actions.
Socially dangerous consequences: concept and types.
The concept of OOConsequences - this is the result, harm from socially dangerous acts (action or inaction), which is caused to public relations protected by the KM (i.e., the result of such activity). The essence of the PLO is determined by the significant harm caused by a criminal act protected by the UZ gen. rel.
Types of socially dangerous consequences:
A) According to its composition:
1) simple OOP- those in which harm is caused to one object of the crime;
2) complex OOP- those in which harm is caused to several objects of the crime
b) In terms of quality:
1) material OOP:
§ property damage can take the form real damage And lost profit(for example, in case of crimes against property (Ch. 21)); property damage measurable, and in the law this is reflected in such characteristics as: "major damage", " large size", "especially large size", "significant damage";
§ personal physical harm- this is harm that is caused to the life and health of a person, which is classified as follows: death of a person, serious harm to health, harm moderate health, minor harm to health, harm to human health, mass disease or poisoning of people, infection with a venereal disease, infection with HIV infection; personal physical harm is quantifiable. measurements;
2) intangible PLO as personal non-physical harm, which represents harm mental, moral (for example, harm caused to the basic personal rights and freedoms of citizens (Article 140)); personal non-physical harm away not always measurable.
C) Depending on the degree and moment of implementation:
1) actual harm;
2) real possibility of harm("torts of creating danger") - the distinction between the actual infliction of harm and real danger its infliction does not mean that the threat does not produce objective changes in social relations; also under threat harmful changes occur in the state of objects: changing the situation of their safe functioning; the reality of such a danger must be proved, as well as the actual harm that has occurred.
socially dangerous act- this is an illegal, volitional and conscious active or passive behavior of the subject in the outside world, which harms public relations protected by criminal law.
A socially dangerous act provided for in a particular article may be expressed in the form of:
Socially dangerous action (for example, Art. 116 of the Criminal Code "Battery");
Socially dangerous inaction (for example, Art. 125 of the Criminal Code “Leaving in danger”);
Both actions and inaction (for example, Art. 105 of the Criminal Code "Murder").
Traditionally, in criminal law and in the theory of criminal law, action and inaction are considered as active and passive forms. criminal behavior. At the same time, the problem of distinguishing between action and inaction exists, and there are different points of view on this issue. This was noted by Russian criminologists before 1917, but they never came to a consensus.
Currently, some forensic scientists believe that there is no significant difference between action and inaction as active and passive forms of criminal behavior.
Criminal law does not contain a general concept of action and inaction. However, a distinction is made between these forms of criminal behavior. In particular, about action and inaction as different forms criminal-illegal behavior say Art. 5, part 2, art. 9, part 2, art. 14, part 2 of Art. 25 of the Criminal Code of the Russian Federation.
The most numerous group of crimes provided for by the Special Part of the Criminal Code are those whose objective side can be carried out only by criminal act.
Under the influence in criminal law, socially dangerous, illegal, conscious and volitional active behavior of a person is understood.
The final moment of a criminal act is the onset of a harmful consequence specified in the law, or the final moment of a criminal act is the last act of body movements, the totality of which forms its action.
Depending on the relationship of a criminal act to the passage of time, it is customary to distinguish crimes: a) one-time; b) multi-moment; c) continued; d) lasting; e) criminal acts with long-term results.
In one-time crimes their beginning and end are almost the same. The duration of such actions in time is very small, they can be called instantaneous.
Miscellaneous crimes characterized by the fact that in them the beginning of the action is distant in time from its end. Such an action takes place when fraud is committed (Article 159 of the Criminal Code).
In ongoing crimes the first act of body movement from the total set of body movements that form a criminal act will be its beginning, and the last one will be its end.
In ongoing crimes the beginning and end of a criminal act may coincide or be distant in time. The peculiarity of these actions is that, having been carried out, they continue to last until circumstances stop them.
Forms of external expression of action used by the legislator, it is a physical impact, a word and a gesture.
physical impact- the most common form of criminal behavior, as a rule, is described in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation (for example, article 116 of the Criminal Code “Beatings”). In some cases, the law prohibits only the consequences, without describing the method of physical impact on the object (Article 219 of the Criminal Code “Violation of the rules fire safety"). Consequently, in these cases, the mode of action, taken without regard to the consequences prohibited by criminal law, has no legal significance.
Gesture as a form of criminal action is relatively rare in criminal law. Basically, it takes place with complicity in the commission of a crime.
The next form of criminal action is word (for example, articles 129, 130 of the Criminal Code, which provide for criminal liability for slander and insult). The power of the word in its effect in some cases is many times greater than the physical effect and can cause the most serious consequences, up to death.
Inaction- socially dangerous, illegal, conscious and volitional passive behavior of a person, which consists in not taking actions that, according to the law, he should have and could have done.
The source of the criminal law prohibition of inaction can be not only criminal laws. For example, evading military and alternative service is a crime under Art. 328 of the Criminal Code of the Russian Federation. Malicious evasion from paying funds for the maintenance of children or disabled parents is a crime under Art. 157 of the Criminal Code of the Russian Federation. The criminal law may directly impose certain obligations on citizens, the failure to fulfill which constitutes criminal inaction (for example, Article 125 of the Criminal Code “Leaving in danger”).
The obligation to perform certain actions may arise from professional or service functions, from contractual relationships. So, the doctor is obliged to provide assistance to the patient, and failure to fulfill this duty forms a criminal inaction (Article 124 of the Criminal Code).
In the theory of criminal law, there are two forms of criminal omission:
Net idle ("omission"), that is, failure to perform the actions specified in the law that form the crime itself. This form of inaction is typical for formal offenses in which it is enough to establish the very fact of non-commission of actions specified in the law, regardless of the harmful consequences. Thus, “pure inaction” is considered to be evasion from military and alternative service (Article 328 of the Criminal Code), malicious evasion from paying funds for the maintenance of children or disabled parents (Article 157 of the Criminal Code), etc.
Mixed dormancy takes place in cases where the occurrence of the consequences provided for by law is necessary. It is possible only in material compositions. The essence of "mixed inaction" is the failure to prevent socially dangerous consequences by a person who should have and could do it. The law punishes in these cases not the very fact of failure to fulfill a special legal obligation, as is the case with "pure inaction", but the failure to prevent harm or the danger of its occurrence. For example, breaking the rules traffic and operation Vehicle(Article 264 of the Criminal Code).
An act is an obligatory sign of the objective side of the corpus delicti. The concept and content of this feature are determined by a combination of properties and features of a criminal law nature.
The act must be socially dangerous, illegal, conscious and strong-willed, complex and specific in content.
Two signs of an act - public danger and wrongfulness - are directly provided for in the law. Article 14 of the Criminal Code defines
Kurinov B.A. Scientific basis for the qualification of crimes M, 1984 C 61
defines a crime as a socially dangerous act prohibited by the Code under threat of punishment. And in Art. 2 of the Criminal Code expressly states that this Code determines which acts dangerous to the individual, society or state are recognized as crimes. The content of public danger is determined by the fact that the act causes harm to public relations protected by law or creates a real threat of causing such harm. If the act (action or inaction) is insignificant and therefore does not pose a public danger, i.e. does not cause harm and does not create a threat of harm to the individual, society and the state, then such an act is not recognized by law as a crime (part 2 of article 14 of the Criminal Code), and within the framework of the crime, such an act cannot be a sign of the objective side.
The illegality (illegality) of an act is determined by the fact that a specific action or inaction is prohibited by law under pain of punishment, and the commission of such an act always violates the norm of the Criminal Code.
A socially dangerous and illegal act is a sign of the objective side of a crime only if it is committed consciously.
Awareness of an act means that it is done under the control of consciousness. actor. On the contrary, the body movements of a person in a dream, in a state of morbid delirium, hypnosis and other similar states, in which the physical essence of the act is not reflected by the consciousness of the person, are not conscious.
Defining awareness as a sign of an act, it should be borne in mind that the Criminal Code connects the definition of such a circumstance as an innocent infliction of harm with this sign. If a person did not realize and, due to the circumstances of the case, could not realize that the act he committed is socially dangerous, then such an act is recognized as committed innocently, and because of this, the person is not subject to criminal liability (Article 28 of the Criminal Code).
A socially dangerous and illegal act, forming an objective side, must be not only conscious, but also volitional. An act never expresses the will of the person who committed it, if this person was not aware of its character. So, the actions performed by a sick person in a state of delirium have no criminal legal significance. However, there are situations when a conscious act is not an expression of the will of the person who performs it. 1 What situations arise under the influence of force majeure, physical or mental coercion, when the will of a person is paralyzed.
§2 Socially dangerous act Concept and forms
Force majeure is defined in law as an emergency and unavoidable event under given conditions - disaster(flood, earthquake, sudden change in weather, etc.) or social events (for example, hostilities, a state of civil war).
An act committed by a person under the influence of force majeure cannot have criminal legal significance. It is impossible, for example, to hold accountable for illegal logging if trees were cut down during a flood and rafts were built from them to save people and animals. A doctor is not responsible if he did not provide assistance to a patient whom he could not reach during an earthquake, due to a forest fire, etc.
Physical coercion excludes criminal liability for committing a socially dangerous act, if it completely suppresses the will of the person who committed this act, and excludes the possibility of choosing behavior. According to Art. 40 of the Criminal Code, it is not a crime to cause harm to interests protected by criminal law as a result of physical coercion, if as a result of such coercion a person could not control his actions (inaction).
Physical and mental coercion, by its legal nature, refers to circumstances precluding the criminality of the act. The legislator has provided for these circumstances in Chapter 8 of the General Part of the Criminal Code "Circumstances precluding the criminality of the act." However, according to the law, coercion is not always the basis for recognizing an act as not criminal. According to part 2 of Art. 40 of the Criminal Code, the issue of criminal liability for causing harm to interests protected by criminal law as a result of mental or physical coercion is resolved taking into account the provisions of Art. 39 of the Criminal Code, which defines the institution of extreme necessity. Mental coercion affects the assessment of the act in different ways. If mental coercion is expressed in a threat that can be immediately realized, then in such a situation it is necessary to compare the object to which the threat was directed with the object that was harmed in order to eliminate the threat. For example, a cashier gives a large amount of money to criminals who threaten firearms. In this case, the will of the person is paralyzed by the threat of deprivation of life. Among the objects of criminal law protection, the person, in particular, human life, is more significant, priority, and not property. Therefore, the issuance of money must be regarded as an act committed in
state of emergency, and mental coercion excludes the criminal-legal assessment of this act
We give a different criminal legal assessment to an act if mental or physical coercion makes it difficult to choose behavior, but does not paralyze the will of the person. For example, a bank employee discloses information constituting a trade secret under the threat of disclosure of information that compromises him and may lead to dismissal. Such mental coercion cannot exempt from criminal liability, since the perpetrator is left with the choice of one of the following two behaviors, either to give out information constituting a trade secret of the bank, or to seek help from law enforcement agencies
According to part 2 of Art. 40 of the Criminal Code, according to the rules of the institution of extreme necessity, the issue of physical coercion is resolved, as a result of which a person retained the opportunity to control his actions.
At the same time, both mental and physical coercion, which does not exempt a person from criminal liability who, under the influence of such coercion, has committed a socially dangerous and unlawful act, refers to circumstances mitigating punishment - paragraph "e" of Art. 61 of the Criminal Code.
A specific socially dangerous act can be committed under the influence of hypnosis. For example, a hypnotized woman, being in the house of acquaintances and knowing where the jewels of the mistress of the house lie, takes them and passes them on to the criminal who applied hypnosis to her. Hypnosis is a special form of mental coercion that can completely paralyze the will of a person who has committed a socially dangerous act in a state of hypnotic suggestion. Therefore, a socially dangerous and illegal act committed in such a state cannot be recognized as volitional.
A socially dangerous act as a sign of the objective side of the corpus delicti must be complex and specific in content. Each act includes several body movements. For example, killing with a firearm involves aiming and shooting in the direction of the victim. Killing with a cold weapon looks even more difficult: you need to get closer to the victim, point the knife at the right direction and strike at a vital organ.
Sometimes the disposition of a criminal law norm provides for a set of acts of human behavior to determine a socially dangerous act. For example, causing physical or mental suffering by systematically inflicting
Chapter VII. The objective side of the crime
§ 2 Socially dangerous act. Concept and forms
fights or other violent actions (art. 117); financial transactions and other transactions (Article 174 of the Criminal Code); carrying out illegal banking activities (Article 172 of the Criminal Code); illegal use of a trademark (Article 180 of the Criminal Code).
A socially dangerous act committed by a person must have a specific content. It is impossible, for example, to bring a person to criminal liability for libel, limiting himself to defining an act as an infringement on the honor and personal dignity of another person. It is necessary to establish and describe what specific information the person disseminated and how the dissemination of this information was specifically expressed. It is not enough, bringing a specific person to responsibility under Art. 143 of the Criminal Code, confine itself to defining a specific act as a violation of labor protection rules. It is necessary to describe which particular safety or labor protection rules were violated and how this violation was specifically expressed. Only in this case it is possible to speak about the specific content of a socially dangerous act.
Having determined all the signs that reveal the concept and content of a socially dangerous act, it is necessary to distinguish between the forms in which the act can be committed. The Criminal Code provides and defines two forms of a socially dangerous act: active form- action and passive - inaction (Article 14 of the Criminal Code).
Most crimes are committed in the form of action. A significant number of crimes can be committed both in the form of action and in the form of inaction. And a small number of crimes are committed only in the form of inaction.
Criminal legal action in most cases is expressed in the form of physical impact on people, animals or objects of the material world. For example, murder (Articles 105-109 of the Criminal Code), unlawful imprisonment (Article 127 of the Criminal Code), trafficking in minors (Article 152 of the Criminal Code), theft of another's property (Articles 158-162 of the Criminal Code), violent acts of a sexual nature (Article 132 UK).
Another form of criminal law action is verbal or written, when a person pronounces or writes words, phrases, speeches (for example, insulting with a word or slander in oral or written form, entering knowingly false information into the prospectus of securities; entering into official documents knowingly false information and corrections, etc.).
Sometimes, but very rarely, a criminal action can be expressed in the form of a gesture. For example, an insult by an action in the form of a gesture - a slap in the face, or the commission of indecent acts with gestures against a person under the age of fourteen.
Inaction is a passive form of behavior. Inaction must be socially dangerous and illegal, conscious and strong-willed. However, this is not enough to recognize inaction as a sign of the objective side of a particular crime. Inaction acquires criminal legal significance only if the following is established in aggregate: 1) it is necessary to determine what exactly the inaction was expressed in, what specific actions the person did not commit; 2) it is necessary to establish that the person who did not perform a specific action should have performed it; 3) it is necessary to determine the real possibility of committing this particular action.
For example, Art. 124 of the Criminal Code provides for liability for failure to provide assistance to the patient. Having established what specific actions to provide assistance to the patient were not performed by the guilty person, it is necessary to establish the obligation of the person to provide such assistance. Such an obligation is imposed on a specific person in accordance with the law or a special rule. Having established this, it is necessary to determine that the perpetrator had a real opportunity to provide such assistance and did not provide it without good reason.
Article 293 of the Criminal Code provides for criminal liability of an official for negligence. To attract specific person to criminal liability, it is necessary to establish which specific actions were not committed by the official, then to establish that the commission of these actions was within the official competence of the person, and, finally, to establish that the official had a real opportunity to commit these actions. Only such a specific content of inaction gives grounds to hold the official liable for negligence.
The obligation to act in a certain way may arise due to the following circumstances:
1. Direct indication of the law or by-law. For example, members of the election commission are obliged to be guided by the provisions of the Constitution of the Russian Federation, laws on elections and provide citizens with the opportunity to exercise the right to vote. A person driving a motor vehicle is obliged to comply with the Rules of the Road.
2. Obligations assumed under the contract.
3. The official position of the person or the profession carried out. So, the doctor is obliged to help the patient by virtue of his profession. Failure to do so will result in criminal liability.
Chapter VII The Objective Side of the Crime
4. Kindred (family) relations. Due to these circumstances, parents are obliged to support minor children, and children are obliged to provide funds for the maintenance of disabled parents. Avoiding supporting children or helping parents is a criminal offense.
5. The obligation to perform certain actions may arise as a result of the previous actions of the person. For example, an adult undertakes to teach a teenager to swim, helps him swim to the middle of the river, and then swims away from him and does not return to help when the teenager begins to drown and call for help. In Art. 125 of the Criminal Code, such inaction is defined as knowingly leaving without help a person who is in a life-threatening condition and deprived of the opportunity to take measures for self-preservation due to infancy, old age, illness or due to his helplessness, if the perpetrator had the opportunity to provide assistance to this person and was obliged to have information about him care or put him in a life-threatening or health-threatening condition.
Having established that a person was obliged to act in a certain way, it is then necessary to establish that he had a real opportunity to commit specific actions. This sign is directly provided for by a number of criminal law norms. For example, in the same article. 125 of the Criminal Code expressly states: "... if the perpetrator had the opportunity to provide assistance."
The most fully socially dangerous act committed in the form of inaction can be revealed using the example of Art. 293 of the Criminal Code, providing for liability for negligence. Defining the signs of negligence, the legislator points to both non-performance and improper performance by an official of his duties. Consequently, the objective side of the crime in question is determined by the commission of a socially dangerous act, when an official either does not fulfill his duties at all, or performs them improperly. The interpretation of the law allows us to conclude that negligence can be expressed both in action and inaction. However, criminal liability under Art. 293 of the Criminal Code, an official can be involved only for failure to fulfill his duties in the service. To do this, it is necessary to establish what specific actions the perpetrator did not perform. Further, it is necessary to clearly define the official competence of an official - a set of rights and obligations, which was included in the terms of reference in accordance with the position held. The service competence of the perpetrator must have legal regulation (determined by law, decree,
§ 2. Socially dangerous act. Concept and forms
instructions, charter or contract). Further, it should be established that those duties that the perpetrator did not fulfill were within his official competence. Thus, we have established an identity between those specific actions that an official did not perform and his duties in the service. If the actions that the official did not commit are not within his official competence, there are no signs of the objective side of the composition of negligence. Similarly, the issue should be resolved in situations where there is no clear regulation by legal means of official activities of an official, i.e. the performance of specific duties, the failure to fulfill which is imputed to the responsibility of an official, is not provided for by the relevant legal act that determines the official position of the perpetrator in accordance with the position held. In such situations, there is also no element of negligence.
Bring an official to criminal liability under Art. 293 of the Criminal Code is possible only if it is established that there was a real opportunity for the perpetrator to fulfill his duties. This possibility is determined by a combination of objective and subjective factors. Objective factors include external conditions in which an official carries out his official activities. These can be, for example, the actual conditions of production, market conditions, the activities of officials of specific departments and state bodies, the availability of material and financial resources and labor. Finally, it may be the action of the elemental forces of nature, such as an earthquake, or other circumstances. The subjective factor is formed by the personal qualities of an official: his education, qualifications, work experience, etc. In the criminal law literature, it was noted that negligence in every fourth case was largely determined by the lack of necessary qualifications among officials. And according to the results of separate scientific studies, persons who do not have sufficient special training among those convicted of negligence amounted to 63 percent1.
In criminal law, the concept of mixed inaction is used. These are cases when criminal law inaction, having a complex nature, is not always expressed in absolutely passive behavior. The law also provides for criminal liability in cases where a person, exercising the legal
1 See: Prapestis I.I. Criminal-legal fight against negligence. Abstract diss. ... cand. legal Sciences. M., 1982. S. 16.
Chapter VII The Objective Side of the Crime
§ 3. Socially dangerous consequences. Concept and types
duties, performs them either incompletely or improperly.
An example of mixed inaction is negligence, when an official does not properly perform his duties. Article 287 of the Criminal Code provides for liability for refusal to provide information to the Federal Assembly or the Accounts Chamber. The objective side of this crime is also characterized by mixed inaction, which is expressed in the fact that an official unlawfully refuses to provide or evades providing information, or provides incomplete or false information.
Sometimes a person, in order to evade the legal obligations assigned to him, needs to take specific actions. Such a situation will take place, for example, in the event of a serviceman evading the performance of duties. military service by feigning illness or causing injury to oneself (self-mutilation), or forgery of documents, or other deceit – Art. 339 of the Criminal Code. Mixed inaction also takes place here, when a person evades the duties assigned to him and does not fulfill them using a specific method that takes the form of an action. In this case, the method is general concept socially dangerous act, and the act itself has the form of inaction.
Thus, an act as a sign of the objective side should be socially dangerous, illegal, conscious and volitional, complex1 and specific in terms of the content of the acts of behavior that form it, and can be expressed in one of two forms: active - action or passive - inaction.
A criminal act is, as already noted, an obligatory sign of the objective side of any crime * (237). An act is always specific and is committed by the guilty in certain conditions, place, time, i.e. is always a manifestation of human behavior in the outside world. In cases where such behavior is prohibited by the Criminal Code, it is recognized as socially dangerous and illegal. An act, even if it is objectively socially dangerous and causes some harm, cannot be recognized as a crime if it is not provided for by the Criminal Code. And although this sign is formally normative, according to some scientists, when defining an act as an element of the objective side, it should be put in the first place. An objectively dangerous act that is not provided for by criminal law cannot be a sign of the objective side.
At the same time, such a sign as public danger is necessary element actions as a sign of the objective side. Public danger is a material sign of a criminal act, revealing its social essence.
Most often, a socially dangerous act manifests itself in the form of physical impact on other people or on various objects of the outside world. For example, beating a person, resulting in causing grievous harm health (Article 111 of the Criminal Code), or destruction or damage to someone else's property (Article 167 of the Criminal Code).
In some cases, a socially dangerous act is carried out by writing or pronouncing words. For example, in Art. 119 of the Criminal Code provides for liability for the threat of murder or infliction of grievous bodily harm. Extortion is also recognized as a completed crime from the moment a certain demand is presented to the victim (part 1 of article 163 of the Criminal Code).
Sometimes the commission of some specific gestures is recognized as a crime. For example, insulting participants judicial trial(Article 297 of the Criminal Code) can be expressed both in the utterance of swear words and in the commission of indecent gestures.
Finally, the crime may consist in failure to perform the actions that the subject was obliged to perform in a particular case (inaction).
Any act, being a manifestation of human behavior in the outside world, always involves the conscious activity of a person * (238).
A negative attitude towards law-protected interests that is not expressed in the commission of a specific act, a way of thinking, an expressed intention to commit a crime, is not covered by the concept of an act.
Thus, the Plenum of the Supreme Court of the Russian Federation in its resolution dated February 10, 2000 "On judicial practice in cases of bribery and commercial bribery" noted that the intention to give a bribe, receive a bribe, or carry out commercial bribery is not a crime "... in cases where the person did not take any specific actions to implement the expressed intention" * (239).
Action, i.e. active behavior is the most common type of socially dangerous act. Over 2/3 of all crimes provided for by the Special Part of the Criminal Code can be committed through action. 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. So, going to commit fraud (Article 159 of the Criminal Code), K. prepared a “doll” * (240) in advance, made false documents, found a car seller, brought him to a previously rented apartment, etc.
However, in some cases it may seem that the criminal act is carried out by a single body movement. For example, the implementation of the explosion by using the remote control. It would seem that the action is just a button press. However, it is not. In order to blow up the intended object, the perpetrator must put explosives in a certain place, mark the place and time of the explosion, ensure that the remote control is in good condition and ready, etc.
Consequently, action as a sign of the objective side is a system, a complex of interrelated body movements that form a socially dangerous behavior of the subject.
A very important issue is the question of the objective boundaries of a criminal act. Being an external act of the unlawful socially dangerous behavior of the subject, the action begins from the moment the first conscious and volitional movement is made. Such actions are not only those that are aimed at causing harm to protected public relations and are described in the articles of the Special Part of the Criminal Code as completed crimes, but also actions that create essential conditions conducive to the commission of a crime: preparatory actions, finding accomplices, etc.
In the theory of criminal law, different opinions regarding the limits of criminal activity. So, some authors believe that the action covers not only the body movement of a person, but also those forces that he uses, and those laws that he uses * (241).
"Action, - it is noted in one of the textbooks on criminal law, - also includes the use of various forces of nature, mechanisms, devices, radioactive substances, etc., which are used by a person who commits a crime ..." * (242).
Other authors believe that human action is limited to conscious body movement and therefore it is wrong to include in the concept of the action of forces that a person uses in his activity, and even more so the laws of the objective world * (243).
It seems that this issue cannot be resolved unambiguously. On the one hand, it is impossible to limit the concept of a criminal act only to the own body movements of the person committing the crime. K. Marx, analyzing the labor process, noted that a person uses the mechanical, chemical, physical properties of things in order, in accordance with his goal, to use them as instruments of influence on other things, that they become "an organ of his activity, which he attaches to organs of his body, thus lengthening, contrary to the Bible, the natural dimensions of the latter "* (244).
The use of the forces and laws of nature, the actions of mechanisms, etc. is a kind of way a person influences the outside world, and the way is inseparable from the action, as the form from the content.
Creature this issue not in the physical division of a person's behavior into parts, but in establishing the framework in which his attitude to the impact as a result of his behavior on social relations protected by law is manifested.
As long as the forces and patterns used are subject to and controlled by the person, we can talk about a criminal act in the criminal law sense.
However, on the other hand, the actions of forces and regularities sometimes turn out to be outside the limits of human actions, which are limited to certain body movements, so the use of forces and regularities may also be outside the limits of the act.
Thus, the action of a person who pushed his victim under a train is limited to certain body movements and does not include such an objective pattern as, for example, the movement of a train. But the action of a person who deliberately crushed his victim includes the use of a mechanism * (245). The end point of the action will be either its termination, including due to circumstances beyond the control of the perpetrator, or the onset of socially dangerous consequences, or the decriminalization of the act.
The issue of defining the boundaries of a criminal act has great importance for the qualification of an act: recognition of the existence of necessary defense or voluntary refusal, as well as the detention of a criminal; resolving the issue of statute of limitations, etc.
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 * (246).
In the UK series foreign countries there is a definition of inaction. The most detailed definition of inaction is given in the Spanish Criminal Code: “Crimes and misdemeanors are committed by inaction, when failure to fulfill a special legal obligation imposed on the perpetrator is equated by law with the execution of a crime. Inaction is equated with action:
a) when there is a special obligation to act arising from law or contract;
b) when the perpetrator, by his previous action or inaction, endangered a legally protected right" (Article 11).
IN modern conditions when in labor and other social processes many people are involved, using the most complex mechanisms and powerful sources of energy, failure by individuals to fulfill the duties assigned to them can lead to serious harmful consequences. This follows from the interdependence and interconnectedness of people in society, in the sphere of labor activity, since any modern production process involves the division of social labor, the proper behavior of the participants in the production process.
Inaction can be expressed in a single fact of refraining from performing the required action. For example, the refusal of a witness to testify (Article 308 of the Criminal Code). In most cases, inaction is a system of criminal behavior, which usually occurs with malicious evasion from paying funds for the maintenance of children or disabled parents (Article 157 of the Criminal Code), etc.
Inaction can entail criminal liability only in cases where it is illegal and socially dangerous. In addition, a prerequisite for holding liable is the existence of a duty and the ability to act in a certain way, for example, to prevent a danger that threatens law-protected interests.
The obligation to perform specific actions in a certain situation is due to legally fixed obligations. It may occur:
1) from a requirement of a law or a by-law. Thus, violation of safety rules by a person who was responsible for observing these rules (for example, failure to conduct safety briefings, failure to provide workers with overalls, etc.) (Article 143 of the Criminal Code) means non-compliance with the Federal Law "On the Basics of Occupational Safety in Russian Federation and the legislative and by-laws issued in accordance with it;
2) from the nature of the profession or official position. So, non-compliance by an official with the relevant instructions, which entailed certain specified in Art. 293 of the Criminal Code, consequences, can be recognized as an official crime (negligence);
3) from the decision of the judicial authorities. For example, non-execution of a court verdict, court decision or other judicial act;
4) from previous behavior. In these cases, inaction is usually preceded by some action that creates a threat of harm to a particular legally protected interest. For example, Art. 125 provides for liability for knowingly leaving without help a person who is in a situation dangerous to life or health, by a person who put him in such a state.
In the literature, it was proposed to include in this list "the position of a person in the system of social ties - family relations, as well as the need to comply with the norms of morality and morality" * (247). As confirmation of this thesis, Art. 157 of the Criminal Code (malicious evasion of the payment of funds for the maintenance of children or disabled parents).
However, it is difficult to agree with this for the following reasons: one of the signs of a crime, including socially dangerous inaction, is a sign of unlawfulness. Only a certain circle of persons, on whom the law (and not only morality!) is charged with the obligation to perform certain actions, can bear criminal responsibility for inaction. Of course, violation of the norms of morality and morality can lead to serious consequences if the person who is able to prevent them is inactive. However, if this person was not assigned a legal obligation to prevent or prevent such consequences, he cannot be held criminally liable.
Thus, the Supreme Court of the Russian Federation dismissed the case of the chief engineer of the plant K., who was held liable for violation of labor protection rules, indicating that the obligation to ensure compliance with safety rules at the site where these rules were violated was assigned to another person.
Link to Art. 157 of the Criminal Code in support of the previously proposed thesis is not entirely justified, since the obligation to provide assistance to children and disabled parents follows from the law, in particular, the Family Code.
The existence of a duty to act cannot entail responsibility for inaction if the person was unable to act in the required manner.
The ability to act is determined on the basis of a subjective criterion, i.e. opportunities are taken into account this person located in a particular setting. If the necessary actions were not performed by a person due to circumstances beyond his control, he cannot be held liable for inaction. The decision of the question of whether the person who was entrusted with such a duty could or could not act in a particular situation is left to the discretion of the court, which, when resolving this issue, must take into account both objective circumstances (situation, time, specific situation, etc.), and the subjective possibilities of a citizen.
In some cases, the legislator itself establishes conditions that limit the obligation to act. Thus, the captain of a ship who has not provided assistance to those in distress at sea cannot be held liable under Art. 270 of the Criminal Code, if such assistance could not be provided without serious danger to the vessel, its crew or passengers.
When inactive, it is not necessary for the subject to behave passively. On the contrary, he can show increased activity, perform various kinds of actions. So, for example, by evading payment of funds for the maintenance of children or disabled parents, the subject can move from place to place, change jobs, surnames, housing, etc., i.e. be physically active. However, the main thing remains his failure to fulfill the obligation imposed on him by law and by a court decision - the payment of funds (Article 157 of the Criminal Code).
Active actions of this kind are considered by some scientists as a kind of inaction, which received the name of mixed inaction * (248). However, proper clarity on this issue is lacking. Some scientists believe that we can talk about mixed inaction in cases where "a person, exercising the legal duties assigned to him, performs them either not to the end, or in an improper way" * (249). In other cases, it is considered as such "inaction, for the completion of which the onset of consequences is necessary (ie, inaction in crimes with a material composition)" * (250).
At last, the third believe that the mixed inactivity represents "... a combination of active and passive forms of action when for maintenance of inactivity the person makes any active actions" * (251).
Analyzing the objective side of the crime, it can be noted that in life the sharp difference between action and inaction is largely smoothed out and intermediate, mixed forms appear, in which both active and passive behavior are combined. Therefore, inaction in its pure form is extremely rare. The allocation of such a concept as "mixed inaction", in our opinion, does not have any significant criminal law significance. However, for theoretical analysis this concept can be used. Mixed inaction is the failure to fulfill a legal obligation assigned to a person, accompanied by active actions to ensure this failure. The composition of negligence cited in the literature as an example of mixed inaction involves both active and passive behavior.
The type of behavior in this case is indifferent for the legislator. Consequently, this crime, committed both by action and by inaction, cannot be classified as a crime characterized by mixed inaction.
There are quite a lot of such crimes in the Criminal Code. These are malicious evasion of repayment of accounts payable (Article 177 of the Criminal Code), failure to return funds in foreign currency from abroad (Article 193 of the Criminal Code), various violations of safety rules (Articles 215, 216, 217, 219 of the Criminal Code) and a lot others. However, in the theory of criminal law, these crimes are usually not classified as crimes characterized by mixed inaction.
It is quite rightly proposed to consider as an example of mixed inaction the evasion of military service duties by feigning illness or causing injury to oneself (Article 339).
When characterizing inaction as a type of socially dangerous act, the question arises whether these crimes can be ongoing and continued * (252).
Continuing crimes are an action or inaction, coupled with the subsequent long failure to fulfill the duties assigned under the threat of criminal punishment to the perpetrator * (253). The same definition of a continuing crime is given in the doctrine of criminal law. Based on the definition, it is clear that crimes committed by inaction can be ongoing. First of all, these are various kinds of evasion from fulfilling legal obligations (Articles 157, 198, 312 of the Criminal Code, etc.).
As for continued crimes, here, in our opinion, the situation is somewhat different.
Continued crimes are the commission by the guilty of a number of homogeneous actions, characterized by a common goal (unity of intent), as a result of which they constitute a single crime * (254). Some scientists supplement this definition with an indication of the onset of a number of homogeneous consequences * (255). All definitions of a continuing crime refer only to an act, in contrast to a continuing crime, which refers to both an act and an omission in the definition.
It is very difficult to imagine a continued crime committed by inaction.
The beginning of criminal inaction is the moment when a person who is obliged and has the opportunity to perform certain actions does not do this, as a result of which harm is caused to public relations protected by law.
A certain inaction is terminated at the moment of suppression of this act law enforcement, surrender, termination of the obligation to act in a certain way, the emergence of circumstances that make it impossible to perform the required actions or decriminalize the act. The question of the beginning and end of criminal inaction, as well as in the case of a crime committed through action, is of great importance for resolving issues of complicity, voluntary renunciation, parole, etc.
