The central place among the signs of the objective side of the crime is occupied by social dangerous act. As already noted, this is a mandatory feature of the objective side. The concept and content of this feature are based on a set of properties of a criminal law nature.
Russian criminal law does not provide for the occurrence of criminal liability for the thoughts, views, intentions of a person or the properties of his personality. Only the commission of an act in the form of action or inaction gives grounds to raise the question of the possibility of criminal liability.
An act that constitutes the objective side of a crime differs from other human actions in a number of ways. In particular, the act must be socially dangerous, illegal, conscious and volitional; it can be complex or simple, specific in content. Some of these signs (for example, social danger and wrongfulness) are directly indicated in the criminal law as signs of a crime (part 1 of article 14 of the Criminal Code of the Russian Federation), others - for example, awareness and volitional nature of an act - are mediated through such a sign of a crime as guilt.
The most significant among these signs of an act is public danger. The content of public danger is that the act causes harm to legally protected relations, benefits, values and interests, or creates a real threat of causing such harm. Therefore, an action (inaction) is not a crime, although it formally contains signs of any act provided for by the Criminal Code. Russian Federation, but due to its insignificance it does not pose a public danger (part 2 of article 14 of the Criminal Code of the Russian Federation).
Further, only such socially dangerous act, which is expressly provided for by criminal law, can entail criminal liability. This means the criminal wrongfulness (illegality) of an act, which is determined by the fact that a particular act is prohibited by law under the threat of punishment and the commission of such an act always violates the norm (article) of the Criminal Code of the Russian Federation.
A criminal act must have a conscious and strong-willed character. The behavior of a person, if it was not realized by him and was not an expression of his will, cannot be considered a crime, regardless of the consequences. This means that the consciousness of a person who commits a specific act should cover the social danger of this act, including the nature and degree of public danger, as well as the foreseeing the onset of criminal consequences (harm).
A criminal act must be not only conscious, but also volitional. This means that criminal liability arises only in cases where the perpetrator could and should not act, or, conversely, act in a certain way. Therefore, it is necessary to establish the actual possibility of refraining from a criminal act or performing a required act in order to prevent harmful consequences. The subject, deprived in a particular situation of the actual opportunity to show his will and act in a certain way, in the criminal law sense, cannot be held responsible for either action or inaction. Such situations can arise under the influence of force majeure, physical and mental coercion, when the will of the person is paralyzed.
Force majeure is a general legal concept. It is understood as an emergency and unavoidable event under given specific conditions: disaster(earthquake, flood, fire, epidemic, etc.), social phenomenon(military attack from outside, state of emergency, etc.) or a condition caused by the influence of other people (crash, accident, etc.). An act committed by a person under the influence of force majeure does not have criminal legal consequences and does not entail criminal liability. For example, a driver-forwarding agent who, due to a flood, did not deliver the goods to their destination, as a result of which this product became unusable and the organization suffered major damage, does not bear responsibility.
Excludes criminal liability for committing a socially dangerous act and irresistible physical coercion, provided that it completely paralyzes the will of the person and deprives him of the opportunity to choose behavior. For example, a driver cannot be prosecuted vehicle if, in the course of the fight against the criminal who attacked him, he lost control and made an accident, as a result of which people were injured. At the same time, if physical coercion did not exclude the possibility for a person to act according to his will, he is not exempted from criminal liability.
The legislator defined a similar approach for mental coercion. Mental coercion is understood as the threat of causing any harm, including physical, in order to force a person to commit a certain socially dangerous act. Such coercion most often does not exclude the punishability of a person who has committed such an act under the influence of mental violence.
A socially dangerous act can also be committed under the influence of hypnosis. In this regard, we must agree that hypnosis is special form mental coercion, which can completely paralyze the will of a person who has committed a socially dangerous act in a state of hypnotic suggestion.
Therefore, an act committed in such a state cannot be considered volitional and, therefore, criminally punishable.
As a sign of the objective side, an act can be simple and complex, specific in content. This means that the act includes one or, most often, several body movements. Sometimes such body movements form a set of acts of human behavior united by a single purpose and intent. For example, when carrying out illegal business (Article 171 of the Criminal Code of the Russian Federation) and other similar crimes.
The specific content of a socially dangerous act presupposes an accurate description in the disposition of the criminal law norm and the establishment in the process of proving the signs of this act. In other words, it is necessary to find out and indicate exactly what actions (inaction) provided for by a specific corpus delicti were committed and what exactly this criminal act was expressed in.
Having given a description of the features that make up the concept and content of a socially dangerous act, it is necessary to distinguish between the forms in which this act is carried out. Article 14 of the Criminal Code of the Russian Federation provides for two forms of action: active behavior - action and passive - inaction. Most often, crimes are committed in the form of action. A significant number of criminal acts can be committed in the form of both action and inaction. Least common (about 10% of total) crimes are committed in the form of inaction.
Action is an active behavior that does not come down to the usual reflex, instinctive human movement, but, as already mentioned, includes conscious volitional acts, actions, including processes guided by human consciousness, namely the actions of other persons (juveniles, mentally ill ), the behavior of animals (most often dogs), the operation of mechanisms (vehicles, computer equipment, etc.).
In most cases, the action is expressed in the physical impact on objects. material world(people, animals, property, etc.). Some crimes can be expressed in verbal or written influence (for example, insult or slander, death threats, falsification of election documents, entering deliberately false information into official documents, etc.). Less commonly, an action can be expressed by a gesture (for example, an insult by action, a threat, etc.).
Inaction is the passive behavior of a person, which in the criminal law sense is a socially dangerous illegal, conscious and volitional non-fulfillment by a person of the duty assigned to him to act in a certain way. In this regard, one should distinguish between the physical and social characteristics of passive behavior. In the physical sense, a person can behave very actively, but if he did not fulfill a certain obligation, violating a criminal law prohibition, there is a criminally punishable inaction. For example, refusal to testify as a witness (Article 308 of the Criminal Code of the Russian Federation), when active work at this time in a different field.
The obligation of a person to act in a certain way can arise from various grounds:
a) by virtue of the requirements of the law or by-law (for example, the obligation of adult children to provide assistance to disabled parents, and parents to support minor children);
b) from the obligations assumed under the contract (for example, the duty of the freight forwarder to preserve and deliver the cargo to its destination);
c) by virtue of official position, service or professional requirements(for example, the duty of a police officer to suppress discovered crimes, the duty of a doctor to provide assistance to a patient);
d) from the previous behavior of a person or as a result of voluntarily assumed obligations (for example, a climber, having agreed to go on a hike as part of a group, must fulfill his obligations and provide assistance in critical situations);
e) based on the moral norms and rules of the hostel (for example, the obligation of a person either to provide assistance to a person who is in a life-threatening condition, or to inform the authorities about the need to provide such assistance).
A prerequisite for criminal law inaction is that, along with establishing the obligation to act in a certain way, it is necessary to find out that the person had a real opportunity to perform the required actions.
In criminal law, there are types of criminal inaction. These include pure inactivity and mixed inactivity. Pure inaction consists in the failure to fulfill obligations that a person should have and could have performed regardless of the occurrence of any consequences (for example, evasion of conscription for military service - Article 328 of the Criminal Code of the Russian Federation). Mixed inaction consists in the failure to fulfill obligations, with which the law associates the onset of certain harmful consequences (for example, negligence - Article 293 of the Criminal Code of the Russian Federation). In cases of mixed inaction, a person does not perform all the duties assigned to him, but only part of them; does not prevent the onset of harmful consequences, although it should have and could have prevented them. In the current Criminal Code of the Russian Federation, liability in most cases is provided for precisely for mixed inaction.
1. Introduction
2. The concept of the objective side of the crime. Action and inaction.
3. Necessary defense as a circumstance excluding the criminality of the act. Exceeding the limits of necessary defense.
4. Conclusion.
5. Task number 5.
6. List of used sources.
Introduction.
The concept of the objective side of the crime. Action and inaction.
The objective side of the crime- this is a set of signs provided for by the criminal law that characterize a criminal act in its external manifestation.
Mandatory features the objective side of the crime are:
1. Socially dangerous act.
2. Socially dangerous consequences.
3.causation between socially dangerous act and socially dangerous consequences.
A mandatory sign of the objective side of the crime for formal offenses is a socially dangerous act.
optional features the objective side of the crime, both material and for formal compositions are:
1. Method of committing a crime.
2. Location of the crime.
3. The time of the crime.
4. The situation of the crime.
5. Tools and means of committing a crime.
The act, the consequences of the commission of a crime, the causal relationship between them are phenomena that occur in time, place, social environment, which are external circumstances associated with the commission of a crime, and in cases specially provided for in the criminal law, are included in the content of the objective side of the crime. .
If we consider the importance of the objective side of the crime, we should first of all note the following. The objective side is integral part corpus delicti, its obligatory element. Therefore, the absence in each specific case of the obligatory signs of the objective side of the crime means the absence of corpus delicti in general, which excludes criminal liability.
Since the crime manifests itself, first of all, from its external side, according to the signs of the objective side, the disposition of the norms of the Special Part of the Criminal Code of the Republic of Belarus is formulated.
The objective side is the starting point for establishing the elements and signs of a crime. For example, with the help of outwardly manifested signs of the objective side (method, place, etc.), it is possible to establish the subjective side of the crime (form of guilt, purpose). If the offender stabbed the vital organs of a person with a knife, then it can be argued that he had a goal to kill him, which means that the crime was committed intentionally.
Signs of the objective side of the crime affect the determination of the nature and degree of public danger of the committed act. The way in which a crime is committed, how daring, cruel, etc. it is, determines how dangerous this crime is. For example, the secret theft of someone else's property is less dangerous than the open theft of such property (robbery), and even more so, the theft of property committed by robbery.
The nature and degree of public danger of the deed is also affected by the severity of the consequences that occurred as a result of it. The infliction of grievous bodily injury is more dangerous than the infliction of less grievous or light bodily injury with a short-term health disorder or minor permanent disability. Separate signs of the objective side (method, place, time, situation) can serve as a basis for increased responsibility for the committed act, i.e. act as qualifying elements of a crime.
Signs of the objective side serve as a criterion for delimiting crimes from each other, as well as crimes from other offenses.
Signs of the objective side of the crime are also important for sentencing.
An obligatory sign of the objective side of any corpus delicti is a socially dangerous act.
socially dangerous act is a conscious act of will external behavior the subject of a crime, expressed in the commission of an encroachment on public relations protected by criminal law.
A socially dangerous act as a mandatory feature of the objective side of a crime can be expressed in two forms: socially dangerous act And socially dangerous inaction.
socially dangerous act- this is the active behavior of the subject, expressed in violation of criminal law prohibitions by means of certain body movements aimed at causing harm to the object of encroachment.
Socially dangerous inaction- this is a conscious and volitional passive behavior of a person, expressed in the failure to perform those actions that he should have performed due to certain duties assigned to him.
Since socially dangerous inaction consists in the failure of a person to fulfill his duties, it is important to establish the sources of such obligations, the failure to fulfill which is recognized as criminal inaction. Traditionally, such sources in the literature are called the following:
1) a law or other normative act that establishes a certain duty imposed on certain persons. For example, Art. 56 of the Constitution of the Republic of Belarus establishes the obligation of citizens to participate in the financing of public expenditures by paying state taxes, duties or other payments. Failure to fulfill such an obligation under certain conditions established in the criminal law may entail criminal liability in accordance with Art. 243 of the Criminal Code (evasion from payment of taxes, fees.)
According to Art. 57 of the Constitution, the protection of the Republic of Belarus is the duty and sacred duty of a citizen of the Republic of Belarus. Failure to do so may result in criminal liability. The Criminal Code provides for four types of crimes committed by inaction, arising from the specified constitutional obligation of male citizens of the Republic of Belarus who have reached the age of 18: evasion of conscription measures for mobilization (Article 434), evasion of conscription measures for military service (Article 434). 435), evasion of a reservist or a person liable for military service from appearing at a training camp (Article 436), evasion of a conscript or a person liable for military service from appearing at a training camp (class) (Article 437);
2) the profession performed by the person or the occupation by him of a certain position.
For example, by virtue of their professional duties, a person engaged in medical or pharmaceutical practice is obliged to provide care to the sick. Failure to provide such assistance without good reason is recognized as a crime under Art. 161 of the Criminal Code (failure to provide assistance to the patient);
3) order, order, court decision and other volitional acts.
For example, failure to comply with the order of the chief, committed by negligence or frivolity, is recognized as a military crime and entails liability under Art. 439 of the Criminal Code (non-execution of an order). Evasion from serving a sentence imposed by a court verdict entails liability under the Criminal Code: Art. 414 (evasion from serving a sentence of imprisonment or arrest), art. 415 (evasion from serving a sentence in the form of restriction of freedom), art. 416 (evasion from serving a sentence in the form of correctional labor), art. 417 (non-execution of a court verdict on deprivation of the right to hold certain positions or engage in certain activities), art. 418 (fine evasion), art. 419 (evasion from serving a sentence in the form of community service);
4) an agreement by virtue of which certain
responsibilities. For example, a person invited to look after a minor child is obliged to perform such duties by virtue of an oral or written agreement. Failure to fulfill these obligations, which entailed the onset of socially dangerous consequences, under certain conditions may entail criminal liability.
Considering a socially dangerous act committed in the form of both action and inaction, it should be borne in mind that such an act can be recognized as socially dangerous only if it is a conscious and volitional action. That is why it is impossible to identify the action simply with the body movement of a person, which can be simply reflex, instinctive, not generated by his free will.
An action, like inaction, cannot be recognized as socially dangerous, and, therefore, criminal if it is committed not as a result of a person’s free will, but due to certain circumstances that prevent such an expression of will.
In this regard, the theory of criminal law knows such concepts as force majeure, physical coercion and mental coercion.
Irresistible force- this is an extraordinary and unavoidable event under the given conditions, forcing a person to commit actions prohibited by criminal law, or preventing him from performing any actions that he should have performed by virtue of the duties assigned to him. The elemental forces of nature (flood, earthquake, landslides, etc.), malfunctions of mechanisms, the state of human health, etc. can act as an irresistible force. The presence of force majeure that prevents a person from fulfilling the duties assigned to him excludes criminal liability for inaction. For example, a police officer, due to drifts, could not get on a call to the scene of an impending crime in order to prevent it; the doctor did not give the patient medical care, because due to a malfunction of the machine could not arrive to him in time.
If, under conditions of force majeure, a person commits any actions prohibited by criminal law, then the issue of his responsibility is resolved according to the rules of emergency.
physical coercion- this is such a physical impact on a person when he is completely deprived of the possibility of free expression of will, as a result of which he is forced to commit a crime required by other persons or is unable to fulfill the duties assigned to him.
If in a state of physical coercion, which excludes the possibility of a person fulfilling his duties, he committed a criminal inaction, liability for him does not arise. If, under the influence of physical coercion, a person commits any actions prohibited by criminal law, then the issue of his criminal liability is decided according to the rules of extreme necessity. For example, in order to prevent a police officer from preventing an impending crime, he is tied up and placed in a closed room from which he is not able to leave. In this case, he is not criminally liable for inaction in the form of condoning a crime. If violence is applied to him (inflict bodily harm), demanding that he commit, for example, illegal detention of another person, then the issue of his responsibility will be decided taking into account the rules of extreme necessity.
mental coercion- this is a mental impact on a person through the threat of murder, infliction of bodily harm, destruction of property and other types of threats in order to force a person to commit an act prohibited by criminal law, or to prevent him from fulfilling his duties.
Mental coercion does not completely paralyze a person’s will, he has alternatives for behavior, therefore, as a general rule, the commission of a criminal act under the influence of mental coercion does not exclude criminal liability, but is only a circumstance mitigating it. At the same time, the state of mental coercion can cause a state of emergency, under the conditions of the legitimacy of which the person is not subject to criminal liability.
Socially dangerous consequences- this is a significant harm caused by a crime to an object protected by criminal law.
Socially dangerous consequences act as a mandatory feature of the objective side of a crime with a material composition.
The harm caused by crime is not always measurable. It depends, first of all, on the nature of the object to which the criminal encroachment is directed, as well as on the very essence of the socially dangerous act. In some cases, the harm caused by the crime is in the material sphere and, as a result, it can be measured, calculated, evaluated, while in other cases it takes place in the non-material sphere (politics, morality, etc.), and therefore it cannot be measured or calculus. It is in connection with this that the legislator constructs the elements of crimes in different ways, distinguishing among them material and formal elements. At the same time, in a number of crimes with material compositions, it is difficult to clearly establish the socially dangerous consequences required by law. For example, a violation of the equality of citizens is recognized as a crime if it caused significant harm to the rights, freedoms and legitimate interests of a citizen (Article 190 of the Criminal Code). Similar consequences are provided for in a number of other articles of the Criminal Code (Articles 194, 204, 383, 424, 425, etc.). Such consequences are evaluative in nature, they must be established in each specific case, taking into account all the circumstances of the case.
Necessary defense as a circumstance excluding the criminality of the act. Exceeding the limits of necessary defense.
Necessary defense is devoted to Art. 34 of the Criminal Code of the Republic of Belarus.
Necessary defense is understood as lawful protection from a socially dangerous attack by causing harm to the offender.
In accordance with Article 34 of the Criminal Code, “an action committed in a state of necessary defense, that is, in protecting the life, health, rights of the defender or another person, the interests of society or the state from a socially dangerous encroachment by causing harm to the offender, is not a crime, unless the limits of necessary defense were allowed to be exceeded.
Enshrining in the Criminal Code the right to active protection against socially dangerous encroachments is the legislative implementation of the natural right of every person to protect the inviolability of life, health, honor and dignity of the person, housing, property and other private and public interests.
The right to necessary defense belongs to all persons, regardless of whether they have the opportunity to avoid causing harm to the offender (not to intervene, flee, etc.) or to seek help from other persons or representatives of authorities.
Any person has the right to reflect an encroachment both on his own interests and on the interests of others, even outsiders, on the interests of society or the state.
Causing harm to the offender will be recognized as lawful only if there are conditions provided for by law, relating to both the offense and protection from it.
The conditions for the legitimacy of necessary defense, related to the encroachment, characterize the act, during the commission of which the use of force against the offender is allowed. The act through which the encroachment is carried out must be: a) socially dangerous; b) cash; c) valid.
abuse, that is socially dangerous are acts that cause or may cause significant harm to the legally protected interests of an individual, society or the state. Public danger is an objective property of an act that does not depend on its subsequent criminal legal assessment as a crime. Any crime is socially dangerous. However, a crime, as is known, along with a sign of social danger, also has a sign of unlawfulness, and therefore not every socially dangerous act can be recognized as a crime on formal legal grounds. Therefore, the necessary defense is permissible from acts that are not crimes, both due to the fact that no criminal liability has been established for their commission, and due to the fact that the persons who committed them are not subject to criminal liability due to minority, insanity or in connection with mediated crime. However, although the law allows harm to minors and the insane when repelling their attacks, it is advisable, for moral reasons, to cause them minimal harm and only if necessary, that is, if it is not possible to stop the attack without causing harm.
The harm that can be caused as a result of the offense must be significant. Minor encroachments do not create a state of necessary defense, when the act formally contains signs of a crime, but obviously for the defender cannot cause significant harm to protected interests (for example, an encroachment on low-value property).
The attack must threaten immediate harm, which makes it necessary to stop it by using force against the offender. As a rule, the state of necessary defense arises in connection with violent attacks that are associated with causing harm to a person (bodily injury, death, rape, kidnapping, hostage-taking, etc.), or attacks that, by their nature, allow the possibility of their violent suppression (theft or destruction of property, espionage, terrorist acts, sabotage, banditry, etc.).
If the onset of harm is remote in time from the moment the act was committed and causing harm to the offender is inappropriate, then the right to necessary defense does not arise. Acts such as illegal dismissal from work, forgery of documents, bribery and the like, although they are crimes, cannot be suppressed by force. In such cases, it is necessary to apply for protection to the competent state authorities.
Reflected encroachment can be carried out in the form of both action and inaction. It can also be both intentional and reckless.
It is not allowed to defend against actions that, although they may cause damage, are committed on legal grounds, for example, in the performance of professional functions, the execution of an order, necessary defense, emergency, detention of a criminal, etc. Thus, a hooligan has no right to defend himself and cause harm to citizens who prevent his hooligan actions, just as any person does not have the right to prevent the seizure of property confiscated by a court verdict. However, violation of the conditions for the legitimacy of the implementation of these actions gives rise to the right to necessary defense (exceeding measures to detain a criminal, exceeding the limits of necessary defense, etc.).
The provocation of necessary defense does not give rise to the right to necessary defense, when a person by his actions induces someone to use violence (provokes an attack) and then harms him under the guise of necessary defense. Such actions are qualified as a crime on a general basis.
Cash encroachment determined by the stage and time limits of its implementation. Necessary defense is admissible from an encroachment realized at the stage of an attempt. As for protection against preparation for a crime, it is possible only in cases where the volume and nature of the preparatory actions make them close to an attempt.
An offense is considered cash as at the very moment of its implementation, when an action is performed that is directly aimed at causing harm (a person swings an ax to inflict death blow), and with a real threat of its immediate implementation (the person is still approaching the intended victim with an ax).
The presence of an encroachment determines such a condition for the legitimacy of the necessary defense as timeliness of protection .
The reality of the infringement means that it exists objectively, and not in the imagination of any person, that is, the attack must be real and not imaginary. To recognize an infringement as objectively existing, it is necessary to establish that a certain act is able to cause real and significant harm to law-protected interests.
Conditions for the legitimacy of necessary defense relating to protection: a) harm is caused to the offender, and not to third parties; b) timeliness of protection; c) compliance of protection with the danger of encroachment (the limits of necessary defense should not be exceeded).
Harm inflicted on the perpetrator may be physical (injuries, causing death) or material (damage or destruction of objects used as weapons of crime, for example, damage to a car in which an attempted murder is carried out by running over).
With the necessary defense, harm should only be inflicted on the person who directly carries out the encroachment, is its executor. Causing harm to the organizer or accomplice of the offense is permissible if their actions by their nature are close to the actions of the perpetrator (transfer by the accomplice of the murder weapon to its perpetrator at the time of the attack).
In a group attack, harm can be caused to any of the attackers, or to some of them, or to all of the attackers. At the same time, such protective measures can be applied to any of the offenders, which are determined by the danger of the actions of the entire group.
causing harm third parties with the necessary defense, it qualifies according to the following rules:
In case of intentional harm - on a general basis as an intentional crime;
If there was a deviation of the action, then, depending on the guilt of the defender, either as a careless crime, or as an incident, if the mistake was excusable;
If harm is caused to a person who is mistakenly taken for an encroachment in the conditions of a real-life encroachment, then the actions of the defender are equated with necessary defense if the error was in good faith, and if the error was in bad faith, responsibility arises for a negligent crime;
Causing property damage in order to avoid encroachment - according to the rules of extreme necessity.
Timeliness of protection determined by the time limits of the existence of the encroachment. It should be emphasized that the right to necessary defense arises a little earlier than the beginning of the offense (execution of the objective side of the crime), namely at the time of the emergence of a real threat of its implementation. Protecting the interests of the participants in the conflict that has arisen, the law gives preference to protecting the interests of the person who has been attacked. As a rule, the defender is in much worse conditions than the attacker, which is explained by the suddenness of the attack, the unpreparedness of the victim for defense, her confusion and strong excitement, etc. The assumption of defense only against an encroachment that has already begun can make the defense itself impossible, since the first blow of the attacker may turn out to be the last. That is why the defender has full right the first to use force against the one who encroaches on his interests. It is only necessary to keep in mind that the reality of the implementation of the encroachment must be obvious in all circumstances and so inevitable that the delay in taking protective measures puts protected interests in a clear and immediate danger of harm to them.
The right to necessary defense ceases with the actual cessation of the encroachment. After the end of the encroachment, violent actions can be used against the perpetrator only with the aim of detaining him and delivering him to the authorities. The use of violence against a person who has ceased his illegal actions, not for the purpose of detaining him, is considered as an unauthorized reprisal and is qualified as a crime on a general basis.
At the same time, in the specific conditions of an encroachment, it may be very difficult for the defender to establish the moment of its end. And in this case, judicial practice gives preference to the protection of the interests of persons subjected to encroachment. If the defense is applied after the suspension of the attack or followed immediately after the act, although the attack was completed, but due to the circumstances of the case, the moment of its termination was not clear to the defender, then the protection is considered lawful.
Preparation to repulse an encroachment is always permissible. However, special care must be taken when using automatically operating protective devices and devices (crossbows, explosive devices, electrical supply, etc.). In such cases, the defender is obliged to ensure the use of the damaging properties of these protective equipment directly against the offender. The infliction of harm by such means to other persons is qualified, depending on the guilt of the defender, on a general basis, as intentional or negligent infliction of harm of an appropriate severity.
When repelling a socially dangerous encroachment, it is allowed use of weapons of any kind and even against an unarmed attacker. The legitimacy of possession of a weapon is irrelevant to the assessment of the legitimacy of the necessary defense. When a weapon passes from the hands of the offender to the hands of the defender, the possibility of using this weapon against the offender is not ruled out, provided that the offense continues.
Causing harm before the start (premature defense) or after the cessation of the attack (late defense), if the person was aware of the premature or belated defense, is qualified as a crime on a general basis, and the motive for causing harm can be taken into account as a mitigating circumstance when imposing punishment.
Premature defense, which was the result of a person's mistake in assessing the beginning of the encroachment, under other conditions, can be considered as imaginary defense.
Belated defense, when protective measures are applied immediately after the end of the attack, but the defender was not clear about the moment of its end, as noted above, is considered a necessary defense. If the belated defense was the result of an error in assessing the continuation of the encroachment, then, under other conditions, it can also be considered as an imaginary defense. In cases where the use of violence against the attacker was carried out after the explicit cessation of the assault, it is necessary to take into account the possibility of causing harm in a state of strong emotional agitation caused by violence on the part of the victim, which is a circumstance mitigating the responsibility of the perpetrator.
Imaginary defense is protection against an apparent encroachment, when a person mistakenly takes for a socially dangerous encroachment acts that are not actually socially dangerous. In some cases, a situation develops that outwardly is very similar to the commission of a crime. For example, a tipsy citizen, getting lost, tries to penetrate, as he believes, into his own, but in reality - into someone else's apartment. Such actions are similar to an attempt to illegally enter a home in order to commit theft. It is as an encroachment that such actions can be regarded by a citizen watching them from the side. The use of violence against such a "robber" will mean an imaginary defense, that is, protection from a non-existent encroachment.
The qualification of causing harm during imaginary defense is carried out in accordance with the provisions of Article 37 of the Criminal Code. If a person was not actually aware and, due to the circumstances of the case, should not or could not be aware of the absence of a socially dangerous infringement, then the imaginary defense is considered necessary defense. Infliction under such circumstances, obviously to the defender of excessive harm, is regarded as exceeding the limits of necessary defense. If, in the current situation, the person, although not aware of his mistake, should have been and could be aware of the absence of a socially dangerous encroachment, then the infliction of harm as a result of such an unscrupulous error is qualified as a negligent crime.
There is no imaginary defense if, in the process of carrying out a real socially dangerous attack, the offender uses to intimidate the victim objects that only imitate the instruments of the crime, but are actually devoid of their damaging properties (a model of a pistol, a faulty weapon, etc.). The perception by the defender of such items as a real weapon allows him to act in full accordance with the rules of necessary defense. The awareness by the defender that the objects used by the attacker are not weapons does not deprive the right of necessary defense, however, it is taken into account when determining the limits of admissibility of the harm caused to the attacker.
Compliance with the protection of the danger of encroachment legally formulated as the inadmissibility of exceeding the limits of necessary defense. Carrying out an encroachment, the guilty person, as it were, steps over the law and puts himself outside the law. At the same time, the manifestation of excessive cruelty by citizens in relation to the criminal also cannot be approved by law. In such cases, the law becomes to protect the interests of the offender himself. However, when assessing the social significance of the protected interests of the defender and the offender, the law rightly gives preference to protecting the interests of the defender and allows the infliction of harm to the offender either less or equal, or even more than the harm that was necessary to repel the encroachment.
When determining the limits of admissibility of causing harm to the offender, a comparison is made of the nature and severity of the harm actually caused to the offender with the nature and degree of public danger of the harm caused by the attack, the ability of the defender to repel the attack, the situation of the attack and protection.
The nature of the harm inflicted on the offender is quite specific - it is harm to his health (bodily injury), death, and finally, damage or destruction of his property. The nature of the social danger of encroachment is determined by those social relations, the threat of causing harm to which comes from an encroachment. Obviously, it is permissible to inflict harm of varying severity on a person who encroaches on the health of a person, and on a person who encroaches on a person's life. It is much more difficult to determine the legitimacy of causing harm in cases of offenses not related to violence against a person, for example, in the protection of public order (suppression of hooliganism) or in the protection of property.
The degree of public danger of encroachment is determined by the size of the harm that threatens the object of encroachment. Thus, the degree of public danger of simple hooliganism is significantly lower than the degree of danger of especially malicious hooliganism associated with the use of weapons to inflict bodily harm. The higher the degree of public danger of the encroachment, the more harm it is permissible to inflict on the offender. The conclusion about the degree of danger of the threatening harm is made on the basis of an analysis of such data as the suddenness of the attack, its intensity and duration, the physical data of the attacker and his weaponry, the time and place of the attack, the previous behavior of the perpetrator, etc.
The ability of the defender to repel an attack is characterized by a number of circumstances, such as the physical data of the defender, his gender, age, armament, the number of defenders, etc. However, all these circumstances are not evaluated on their own, but only in comparison with the corresponding characteristics of the encroachment: the ratio of the forces of the encroacher and the defender, the number of defenders and attackers, the ratio of their weapons, etc. In this case, all circumstances in the aggregate are subject to assessment, and none of them in itself is of decisive importance.
Equally important in establishing the compliance of protection with the danger of encroachment is also psychological condition defender. As a rule, those who have undergone a sudden attack experience powerful emotions and is in a state of psychological stress, which makes it difficult to make the right decision.
An assessment of the nature and degree of public danger of an attack may turn out to be erroneous if the specific situation in which the attack is carried out is not taken into account. The fact is that acts that are identical in nature and degree of public danger can be evaluated very differently depending on the specific conditions for their implementation. Thus, an attempt to steal things of equal value from the premises of an organization or from an apartment in which a single woman is located, in the latter case, gives rise to a situation in which much more harm is justified to repel the encroachment. Under certain conditions, a single woman has the right to inflict even death on the offender.
Exceeding the limits of necessary defense in accordance with part 3 of article 34 of the Criminal Code is a clear for the defending person inconsistency of protection with the nature and danger of the attack, when the offender unnecessarily intentionally inflicts death or serious bodily injury.
Causing unnecessary harm to the offender, sometimes referred to as "excess of defense", is a socially dangerous act. That is why the legislator established criminal liability for murder in excess of the limits of necessary defense (Article 143 of the Criminal Code) and for causing grievous bodily harm under the same circumstances (Article 152 of the Criminal Code). The infliction of light, less serious bodily harm or property damage when repulsing attacks of any degree of danger does not constitute an excess of protection limits and does not entail criminal liability, even if such harm was unnecessary.
Being a crime, exceeding the limits of necessary defense must contain all necessary features elements of the crime.
The object of exceeding protection measures is the life or health of the person carrying out the encroachment. Causing property damage to the offender, regardless of its severity, is not considered as exceeding the limits of necessary defense.
On the objective side, these crimes are characterized by the commission of active actions aimed at causing the corresponding harm, as well as the onset of consequences in the form of grievous bodily harm or death. However, the named acts and consequences are not socially dangerous in themselves, but only in connection with the presence of a significant excess of the harm that was necessary to prevent the encroachment. Establishing the excess of the limits of necessary defense is carried out in exactly the same way as establishing the correspondence of protection to the danger of encroachment.
The motive for causing excessive harm in the implementation of defensive actions is always the desire to stop the encroachment and protect the law-protected interests that are threatened by the encroachment. The infliction of such harm for other reasons is regarded as a crime on a general basis.
Exceeding the limits of necessary defense is recognized as criminal only if the excessive harm is caused intentionally. If, however, the defender had negligence in relation to the consequences, then liability for their infliction is excluded, no matter how significant the excess of permissible harm may be.
If the infliction of excessive harm was the result of a person's delusion regarding the assessment of the nature and degree of public danger of a real encroachment, then the question of the responsibility of the defending person is decided depending on the conscientiousness of the delusion. In the event of a conscientious error, when a person was not aware of the error in his assessment, and due to the circumstances of the case should not or could not be aware of it, the person is not liable for exceeding the limits of necessary defense. When a person, although not aware of his error, but due to the circumstances of the case should have and could be aware, then liability arises for negligent infliction of harm.
Summarizing the above features, we can give the following definition of defense kurtosis.
Exceeding the limits of necessary defense - This intentional infliction encroaching grievous bodily harm or death, when the infliction of such harm is obviously excessive for the defender, clearly not corresponding to the nature and degree of public danger, as well as the situation of the encroachment.
Conclusion.
Task #5
Romashin invited Olga to Peklin's apartment, where he temporarily lived. There, the three of them drank a bottle of cognac, and when Olga was about to leave, Romashin unexpectedly hit her in the face. Hearing her scream, Peklin's 15-year-old son Valery entered the room. Romashin attacked those present, began to beat them with his fists, grabbed a knife from the table and unexpectedly hit Peklin in the back. Then Romashin stabbed Olgina and Peklin several more times, inflicting grievous bodily harm on them. Defending himself from Romashin, Peklin's son Valery hit Romashin on the head with a stool, which caused minor bodily injuries.
A forensic psychiatric examination found that Romashin committed this act in a state of pathological intoxication.
What should the court do with respect to Romashin?
The court must pass a sentence on Romashin under article 147 of the Criminal Code of the Republic of Belarus (intentional infliction of grievous bodily harm), but taking into account the fact that Romashin was in a state of pathological intoxication, the commission of dangerous actions in these disorders excludes criminal liability due to the fact that in these cases a person is recognized as insane and instead of punishment, they can be applied coercive medical measures .
Pathological intoxication - qualitatively different from the usual drunkenness a disease state also associated with the use of (most often) alcohol. This type of intoxication in psychiatry is recognized as a kind mental disorders (these include delirium tremens, alcoholic hallucinosis, alcoholic paranoid, etc.).
List of sources used.
1. Criminal Code of the Republic of Belarus. Adopted by the House of Representatives on June 2, 1999. Approved by the Council of the Republic on June 24, 1999: the text of the Code as of September 20, 2005 - Minsk: Amalthea.
2. Sarkisova E.A., Criminal law. a common part: studies. allowance / E.A. Sarkisova. - Minsk: Theseus, 2005. - p. 130-157, 303-322.
3. Criminal law. General part: Textbook / N.A. Babiy, A.V. Barkov, I.O. Gruntov and others; Ed. V.M. Khomich. - Minsk: Theseus, 2002. - p.98-119, 236-248.
4. Criminal law. General part: textbook. allowance / Yu.A. Borshchev. - Minsk: TetraSystems, 2008. - p. 70-84, 166-170.
Criminal inaction is not the commission by a person of such actions that he should and could have performed in a given situation and which were expected of him. Inaction must also be of a volitional nature (under the control of the consciousness and will of the person) and be socially dangerous.
If each person is responsible for the action, then only the subject on whom the obligation was assigned to act in a certain way or prevent socially dangerous consequences can be held responsible for inaction. The obligation of a person to act may arise for various reasons:
From the instructions of the law (avoidance of military duty, Article 328 of the Criminal Code of the Russian Federation);
From the contract (on liability);
From professional or official duties (failure to provide assistance to the patient, Article 124 of the Criminal Code of the Russian Federation, non-compliance with safety regulations);
From family relations(evasion from rendering assistance to disabled parents; evasion from paying alimony);
From the previous behavior of the person (Article 125 of the Criminal Code of the Russian Federation, leaving in danger).
It can be concluded that criminal inaction is a passive, negative form criminal behavior. It lies in the fact that the offender does not perform socially necessary actions required by law. A criminal act is a socially dangerous act of behavior, consisting in the failure by a person to perform the action that he was obliged and could perform.
Inaction is criminal only under certain conditions:
The person must be obligated to perform a certain action. This obligation is either expressly provided for by law, special or general rules, or stems from the actions of the person himself.
A person must have an objective opportunity to perform a certain action.
Failure to fulfill the obligation imposed on the person. Criminal inaction begins from the moment of failure to fulfill the duties assigned to the person, when it was necessary and possible.
Murder can also be carried out by psychological influence. For example, a person suffering from a severe form of cardiac disease is sent a false telegram about the death of his loved ones in the expectation that he will die from a heart attack. And so it happens. Killing by inaction can take place only in cases where the perpetrator was obliged to take care of the victim and when he had to and could take certain actions that could prevent death. This also includes abuse of official position (Article 285 of the Criminal Code), disclosure of state secrets (Article 283 of the Criminal Code) - objectively, this crime is expressed in various actions, as a result of which information constituting a state secret becomes known to unauthorized persons, namely: a confidential conversation , public speaking, correspondence, showing documents, familiarizing unauthorized persons with the information contained in unaccounted notebooks and notebooks with extracts from documents containing state secrets. Disclosure can also be made by inaction - for example, deliberate _ leaving by the guilty person documents, products, tables, diagrams in conditions where unauthorized persons can familiarize themselves with them.
Socially dangerous consequences
The indicator that characterizes a crime is the consequences. Criminal consequences can be classified as follows: property, moral, physical and other harm caused by crimes public relations, as well as all the costs of society to combat this socially negative phenomenon.
There are two main groups of criminal consequences:
material;
Intangible.
In turn, material consequences are divided into consequences of a property nature and harm to the life and health of a citizen. Non-material consequences are also divided into consequences associated with violation of public order or the activities of institutions and enterprises and violations of the honor and dignity of citizens and their personal property rights (for example, moral injury when slandering or insulting).
The criminal law distinguishes crimes with:
material compositions. Those. when the presence of a completed crime is associated with the onset of well-defined consequences.
Crimes with formal compositions. A crime is considered completed after the commission of a socially dangerous act, regardless of the occurrence of certain socially dangerous consequences.
The commission of any act by a person causes certain changes in the external world. This general provision refers to a socially dangerous act (action or inaction) that gives rise to socially dangerous consequences. They may be among the most various areas public relations.
As a result of the commission of specific crimes against a person, death may occur, harm to human health may be inflicted, secrecy may be violated privacy, family or personal, business reputation may suffer specific person, his honor and personal dignity, etc. Property crimes cause property damage. Crimes in the sphere of economic activity can cause damage to business entities or the state, etc.
Indicating in the disposition of specific articles of the Criminal Code what socially dangerous consequences should occur, the legislator uses various concepts and terms. In a number of articles, when determining the objective side, the legislator describes specific consequences. For example, in Art. 216 of the Criminal Code, which provides for liability for violation of safety rules in the course of mining, construction or other work, defines socially dangerous consequences in the form of serious or moderate harm to health. Often the legislator, having indicated a specific consequence, alternatively provides for the occurrence of other consequences, using the term “serious consequences” in such cases. For example, in the third part of Art. 126 of the Criminal Code, which determines responsibility for kidnapping, provides for the death of the victim or other grave consequences.
In a number of articles, defining socially dangerous consequences, the legislator points to harm to the rights and legitimate interests of citizens. For example, violation of the equality of citizens -- art. 136 of the Criminal Code; violation of privacy - Art. 137 of the Criminal Code; refusal to provide information to a citizen -- art. 140 of the Criminal Code.
In separate norms, the legislator defines socially dangerous consequences, indicating the victim who is harmed. Often the legislator defines the consequences using concepts such as significant harm, for example, Art. 202 of the Criminal Code (commercial bribery); large size-- art. 158 (theft), Art. 168 (destruction or damage to property by negligence); major damage, such as Art. 171 (illegal business).
Thus, when defining socially dangerous consequences, the legislator quite often uses evaluative concepts and terms. Such a definition of socially dangerous consequences needs interpretation. The study of judicial practice allows us to give such an interpretation. For example, the study of malfeasance made it possible to identify the most typical forms of significant harm. This may be causing property damage to the owner, a significant violation of the activities of public authorities, violation of the rights and legitimate interests of a person and a citizen, which can be expressed in moral, physical and material damage, the commission of another crime.
If socially dangerous consequences are the result of physical impact on a person or material things of the outside world, they are of a material nature. For example, the consequence of murder is the death of a person. If the encroachment is aimed at property, then the consequences are expressed in property damage.
The consequences caused by socially dangerous acts can be divided into material and non-material. Further, material consequences are divided into two types: property and personal.
Non-material consequences are caused by acts that violate social relations, the subject of which is not the material things of the outside world. Non-material nature will have consequences that have come as a result of an encroachment on public relations that regulate, for example, the activities of political or public organizations.
In criminal law, it is customary to divide the elements of crimes into material and formal. Criminal law of Russia. A common part. / Rev. ed. B.V. Zdravomyslov. - M.: Jurist, 1996. P. 137. It depends on how the legislator constructed in the articles of the Criminal Code the objective side of a particular corpus delicti. The elements of a crime, the objective side of which includes only the commission of a socially dangerous act as a mandatory feature, are called formal. If the objective side includes, along with a specific act (action or inaction), socially dangerous consequences that should occur as a result of the commission of the specified act, then such compositions are defined as material by design. When constructing the objective side of the crime (material or formal composition) is not chosen arbitrarily, but taking into account and depending on the nature and specific features public danger of a crime and features of criminal-legal measures to combat it.
In some cases, it is necessary to use the construction of a formal crime due to the impossibility of a specific definition of the socially dangerous consequences of a criminal act or the significant difficulty of such a definition. A typical example is slander, i.e. dissemination of knowingly false information discrediting the honor and dignity of another person (Article 129 of the Criminal Code of the Russian Federation). The consequence of this crime is harm to the honor and dignity of a person. If this consequence is included in the composition of slander, then each time the investigation and the court would have to decide the presence or absence of slander, depending on how much the victim felt disgraced due to the spread of deliberately false fabrications. It is very difficult to establish this, since the same situation for different people can be the cause of very serious experiences, or vice versa, it can go completely unnoticed. Sometimes, although it is possible to specify the harmful consequences, the legislator does not include them in the crime because the crime has a high degree of danger already at the time of the act itself.
Thus, the consequences lie outside the scope of such dangerous crimes as robbery (Article 162 of the Criminal Code of the Russian Federation). With a different structure of the elements of such crimes as material ones, the crimes themselves would be considered committed only upon the occurrence of certain consequences - the taking of property. Of course, such a construction does not meet the interests of protecting the individual and could complicate the fight against these dangerous crimes.
There are a lot of formal compositions in the Criminal Code. Formal crimes include forgery, insult, slander, smuggling, robbery, rape and many others.
In the material compositions, the legislator provides for the mandatory occurrence of socially dangerous consequences. In reality, any crimes, including formal ones, always entail some harmful changes in surrounding reality, in objects protected by criminal law. However, these changes and consequences are not included in the composition of formal crimes and are not taken into account when deciding on the presence or absence of an act. In this case, the consequences may have criminal legal significance, but not for determining the corpus delicti, but as circumstances mitigating or aggravating guilt when sentencing.
The division of the compositions into material and formal makes it possible to determine the moment of the end of a particular crime. For example, a murder will qualify as a completed crime if the death of the victim has occurred. If death does not occur, actions aimed at taking the life of another person will be qualified as an unfinished crime - attempted murder.
The definition of guilt as an obligatory feature of the subjective side depends on how the legislator constructed the objective side of the corpus delicti. For example, bringing an official to responsibility for negligence is possible only if the mental attitude of the perpetrator to the socially dangerous consequences that have occurred has the form of negligence.
If the composition is formal by design, does not contain an indication of socially dangerous consequences, then it is necessary to establish the mental attitude of the person to the act being committed. For example, when determining the composition of an official forgery, it is sufficient to determine the mental attitude of a person to the act being committed - the introduction of knowingly false information into official documents.
Formal according to the Design also includes compositions in which the legislator provides for the possibility of socially dangerous consequences.
Alternative, formal-material structures should include such elements of crimes in which the objective side consists of two independent parts: one provides only for the commission of an act, and the other, along with the act, also provides for the onset of socially dangerous consequences. For example, Art. 180 of the Criminal Code provides for liability for the illegal use of someone else's trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods, if this act has been committed repeatedly or caused major damage. As can be seen, the objective side of this crime is characterized either by the repeated commission of a socially dangerous act, or by the commission of an act and the onset of socially dangerous consequences.
Thus, socially dangerous consequences are understood as the harm that is caused by an act to public relations protected by law. Consequences can be material and non-material. And as it was shown, only the material consequences provided for by a specific article of the Special Part of the Criminal Code are a sign of the objective side of a crime.
Introduction 3
Chapter 1. Criminal act as a component of the objective side of the crime 5
Chapter 2. Features of criminal liability for criminal action and inaction 16
Conclusion 33
List of used sources and literature 35
Apps 37
Introduction
The reform of the criminal legislation carried out in Russia not only resolved the long-standing issues of the science of criminal law, but also raised new problems, which, however, does not mean a refusal to further study the seemingly already sufficiently developed provisions of the criminal law theory. The fact of the matter is that some issues of criminal law only seem to be sufficiently developed. These, for example, include the characteristics of the action and inaction of the forms of a criminal act. Researchers who have addressed the issue of inaction have noted that this is "one of the most complex and controversial issues in criminal law." Note that the approach to this problem is somewhat one-sided, and its essence boils down to “the question: is it possible to cause socially dangerous consequences through inaction”, the solution of which largely depends on the correct understanding of inaction itself as a type of criminal behavior.
A criminal act is a mandatory sign of the objective side of any crime. 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.
In his term paper the author tried to reveal such concepts as a criminal act, action, inaction, the grounds and conditions for criminal liability for criminal inaction by analyzing the statements of many authors who are or have been dealing with the problem of a criminally significant act in criminal law.
Let's define the goals of our work:
1. Define the concept and signs of a criminal act as a component of the objective side of the crime.
2. Highlight the features of criminal liability for criminal action and inaction.
3. Draw conclusions based on the results of the work done.
The structure of the work corresponds to the goals and objectives of the study: the work consists of an introduction, two chapters, a conclusion and a list of sources and literature used.
Chapter 1. Criminal act as a component of the objective side of the crime
A socially dangerous act, like any other act of human behavior, is a conscious volitional act aimed at achieving a specific goal. An act has a physical and psychological content. Before committing it, a person in his mind creates a model of future behavior and its result, determines the way to achieve it, makes a decision, and only after that performs an action or inaction aimed at achieving desired result.
Mental and physical (psychophysical) activity is carried out in an inseparable unity and forms a specific behavioral act. However, in the interests of science, in the interests of a deeper knowledge of the essence of a human act and the mechanism of its commission, psychophysical activity is conditionally divided into two components - mental and physical. Mental processes preceding a socially dangerous action (inaction) take place in the mind of a person, inside him, they form the internal, or subjective, side of the crime. physical processes, i.e. committed at a specific place and time in a certain way actions in the form of bodily movement or other influence on the world causing harm to legally protected interests, form the external (objective) side of the crime.
Due to the fact that the signs of the objective side are manifested in changes in objective reality, they can be perceived by someone (for example, witnesses of a crime or a victim), fixed on film or in another way, reproduced (for example, during an investigative experiment) and reflected in procedural documents ( protocols of interrogations, sentences, etc.). Signs of the objective side make it possible to judge the subjective side of the act. Thus, the social and legal essence of a crime is known to a large extent by outward signs deeds. Due to the ability to express the essence of the crime, the signs of the objective side are used in describing all the elements of crimes in the criminal law (for example, theft, murder, etc.).
A specific act has many objective signs: action or inaction, harmful consequences, place, time, conditions, method and other circumstances of committing a crime. But not all of them are indicated as a sign of a crime. It includes the most important common features, revealing the essence and nature of the public danger of a crime of this type; these signs are included in the objective side of the composition of a certain type of crime.
The objective side of the corpus delicti contains, in a generalized form, signs of the objective side of all crimes of the same type, they reflect the same nature of their public danger and make it possible to distinguish this species crimes from another type, sometimes in many respects similar to the first, for example, secret abduction of someone else's property - theft from open abduction of the same property - robbery. The possibility of establishing the exact correspondence of the objective signs of a particular act to the signs specified in the law allows qualifying the committed crime on the objective side.
The content of the objective side of the crime is usually revealed from the characteristics of the action (inaction). In the system of elements of the objective side, action (inaction) occupies a central place. The performance of an action (inaction) fixes the initial moment of a criminal encroachment, the initial moment of the execution of the corpus delicti, the transition from the stage of preparation to the stage of attempted crime. From the moment the action is performed, it is possible to determine the direction of the act on a specific object protected by criminal law. With the performance of an action (inaction), the method, instruments and means of committing a crime, the situation, place and time of committing a crime acquire criminal legal significance. In the process of performing an action or inaction, a real threat of harm to the object of encroachment is created. The action gives rise to the subsequent links of the objective side of the crime - criminal harm and causation. The names "action" and "inaction" are conditionally generalizing and purely criminal-legal in nature. These names contain the traditional for criminal law allocation of two forms of criminal behavior: active - in the form of action and passive - in the form of inaction. A criminal act is a system-forming element of the objective side of a crime, in a generalized form reflecting the active forms of a socially dangerous attack (behavior) of a criminal, in the process of which a real threat of harm is created to objects protected by criminal law. A criminal act is characterized by such signs as public danger and wrongfulness. Public danger is determined by the method of action, the means and instruments of committing a crime, the focus of the action on the object of criminal law protection and the degree of threat of harm. The illegality of an action follows from its public danger and is expressed in the prohibition of the commission of these actions by the criminal law under pain of punishment. Criminal acts vary in degree of complexity. The simplest actions include one or more body movements: a blow - when causing harm to health, a jerk - when robbing, a gesture - when insulting, etc. In most crimes, the objective side has a more complex content. The process of fulfilling the objective side may include a number of actions or criminal behavior, for example, in case of fraud (Art. 159 of the Criminal Code), deliberate bankruptcy (Art. 196 of the Criminal Code), riots (Art. 212 of the Criminal Code), hooligan actions (Art. 213 of the Criminal Code). Criminal acts differ in their content. The content of the action depends on the nature of the activity of the subject, the object of the encroachment and the nature of the harm caused. So, according to the content, one can single out actions characterized mainly by the use of physical impact on physical objects. Such actions are typical for crimes against a person - murder, beatings; for crimes against property - theft, destruction of property, etc. Criminal actions can be distinguished into an independent group, characterized mainly by the use of mental influence on the moral, moral, mental state of a person, etc. Mental influence can be carried out in verbal form - for example, threat of death (Article 119 of the Criminal Code), slander (Article 129 of the Criminal Code), public calls to unleash a war of aggression (Article 354 of the Criminal Code); in the form of a gesture - for example, when threatening to kill (Article 119 of the Criminal Code), when insulting (Article 130 of the Criminal Code), extortion (Article 163 of the Criminal Code), or in more complex forms behavior. The third group consists of criminal acts, characterized mainly by the use of intellectual, mental forces. Here, the product of intellectual activity itself acts as a socially harmful result. Such content has the objective side of such crimes as falsification of election documents (Article 142 of the Criminal Code), leadership of an illegal armed group (Article 208 of the Criminal Code), a criminal community (Article 210 of the Criminal Code), creation of malicious programs for computers (Article 273 of the Criminal Code) , planning an aggressive war (Article 353 of the Criminal Code). The second form of committing a criminal act is inaction. Criminal inaction is the passive behavior of a person, expressed in the non-fulfillment or improper fulfillment of the duties assigned to the person, which he had and could fulfill in these specific conditions. This is the difference between criminal inaction and criminal action. Deviation from proper behavior and failure to perform the required actions may create a threat of harm to the benefits protected by criminal law or cause real harmful consequences. As a socially dangerous form of criminal behavior, criminal inaction does not differ from criminal action. The social danger of inaction is determined by its ability to create a threat of harm to legally protected relations or cause real harm. The illegality of inaction consists in the prohibition by criminal law of refraining from performing the required action under the threat of applying a criminal penalty. The obligation to perform the required action is most often of a normative nature. This normativity is reflected in the Criminal Code of the Russian Federation, when the offenses providing for responsibility for inaction contain an indication of a violation of regulatory legal acts: violation of the rules of protection environment(Article 246 of the Criminal Code), violation of the rules for the circulation of environmentally hazardous substances (Article 247 of the Criminal Code), violation of sanitary and epidemiological rules (Article 236 of the Criminal Code). Liability for inaction may arise not only according to special, but also according to general rules, for example, in case of injury to health, destruction or damage to property. But in this case, it is required to prove that the inaction of the person violated the relevant regulations, for example, the rules fire safety, rules for the production of hazardous work, etc. Establishing in practice cases of criminally punishable types of inaction is often difficult due to the fact that the Criminal Code does not always have sufficiently clear indications of the possibility of committing this crime through inaction. So, in Art. 105.106 of the Criminal Code of the Russian Federation refers to liability for murder, but these norms do not specify the form of the criminal act of a person guilty of the unlawful deprivation of life of another person. In such cases, it becomes necessary to determine the limits of criminally punishable inaction in the process of criminal law qualification. It should be established when a person has an obligation to act appropriately and prevent harmful consequences from occurring. In theory and judicial practice, it is generally accepted that such a duty is assigned to a citizen by virtue of: 1) a direct indication of a law or other normative act; 2) official, professional or other duty; 3) conditionality by previous activities, when the person himself put the law-protected interests in a dangerous state, i.e. created the threat of harmful consequences. The statutory requirement is common to all of these grounds for liability for omission.1 An important prerequisite for liability for omission is that this person real opportunity take action and prevent harmful consequences. The limits of this possibility are determined both by objective circumstances (situation, time, specific situation) and subjective capabilities (experience, knowledge, mental state) of a person. If a person has no real opportunity to act, criminal liability for inaction is excluded. The classification of the types of criminal inaction is mainly reduced to the allocation of the so-called "pure" and "mixed" inaction. Pure inaction (omission) consists in complete passivity, refraining from committing specific actions. The forms of such inaction are various types of evasion, failure to provide assistance, failure to comply with an order. With mixed inaction, the objective side of the corpus delicti is fulfilled by both action and inaction. The forms of such inaction can be disclosures, losses, negligence, etc. According to scientists, in the Criminal Code of the RSFSR of 1960, out of 238 basic offenses, 22 corpus delicti could be carried out by pure inaction and another 50 by mixed inaction.117 118 In the Criminal Code RF 1996, there are 65 offenses of inaction (both pure and mixed) out of 260 basic offenses.119 The physical nature of criminal inaction depends on the characteristics of that social useful action which the person had to fulfill by virtue of the duty assigned to him. Depending on the characteristics of the action, several types of inaction can be distinguished. The first group consists of actions aimed at achieving, providing, creating a socially useful good. This is, for example, the fulfillment of a duty military service, fulfillment of maintenance obligations, fulfillment of labor legislation when hiring pregnant women, when paying wages etc. Inaction in this case is expressed in the refraining of a person from committing an objective, productive, socially useful action. The inaction of a person does not lead to the emergence of a socially useful good. This inaction is abstinence. The consequences of such inaction are inherently as dangerous as the loss of the corresponding good. Because of this, the Criminal Code establishes liability for an unjustified refusal to hire a pregnant woman (Article 145 of the Criminal Code), for non-payment of wages (Article 145120 of the Criminal Code), for malicious evasion from paying funds for the maintenance of children (Article 157 of the Criminal Code) and etc. The second group consists of actions aimed at preserving the existing good and preventing its loss or damage. This is the fulfillment of duties to provide assistance, to save people, to ensure safe working conditions, to protect property, etc. When refraining from committing preserving actions, damage or loss of the protected good is allowed, the person misses the opportunity to prevent a harmful change in the protected good. Here there can be both inaction an omission and inaction an assumption. These are such crimes: leaving in danger (Article 125 of the Criminal Code); various types of violations of production safety rules various kinds works (Art. 216,217,218,219 of the Criminal Code of the Russian Federation). Thus, the social danger of inaction is determined by those positive changes that should have happened, but did not, and those negative changes that should not have happened, but did. Characterization of a criminal action (inaction) will be incomplete without an analysis of the method of committing a crime. Strictly speaking, the method itself determines the content of the objective side of the crime. The method of committing a crime is understood as a certain order, method, sequence of movements and techniques used by the offender to achieve a criminal result.1 Through the method of committing a crime, the relationship between objective and subjective signs of an act is carried out. After understanding the goal, the offender chooses a way to achieve it. The method is the central link in the mechanism of committing a crime, its choice is not arbitrary, but is determined by the purpose and future criminal result. The method ensures the execution of an action aimed at achieving a certain criminal result. Establishing the method of committing a crime is important for qualifying a crime and individualizing responsibility. Firstly, since the method determines the qualitative originality of the objective side of the crime, it is taken into account when distinguishing between related elements of crimes. For example, secret theft is a method that characterizes theft (Article 158 of the Criminal Code). Open theft of property is a method characteristic of robbery (Article 161 of the Criminal Code). Open theft of another's property, committed with the use of violence dangerous to life and health, is a method indicating the presence of robbery (Article 162 of the Criminal Code). Secondly, due to the fact that the method of committing a crime, along with criminal harm, is the main objective indicator of the social danger of an act, it acts as a qualifying feature in many offenses, for example, violence, abuse of one's official position, special cruelty, etc. . . Thirdly, due to its special influence on the degree of public danger of the entire crime, the characteristic of the method of committing the act is taken into account when individualizing responsibility. Thus, many aggravating circumstances characterize precisely the method of committing a crime (for example, paragraphs “i”, “k”, “l”, “m”, “n” of article 63 of the Criminal Code). Fourthly, the method of committing a crime often plays a major role in deciding the main question - whether there is a crime in the actions of a person or the committed act is not criminal. Thus, illegal hunting is a crime if this act is committed using a mechanical vehicle or aircraft, explosives, gases or other methods of mass destruction of birds and animals. The absence of this method, along with other features specified in paragraphs "a", "c", "d" Art. 258 of the Criminal Code, excludes criminal liability. The method of committing a crime is chosen taking into account the direction of the act on a specific object of encroachment and taking into account the infliction of the corresponding criminal harm. Therefore, the types of methods of committing a crime correspond in nature to the object of the encroachment and the nature of the harm caused. With this in mind, it is possible to single out methods of physical influence, mental influence, etc. Methods can be characterized by the use of tools or means of committing a crime. Due to their diversity, the methods of committing a crime may have other classifications.121 Means and instruments for committing a crime are those items of the material world that a person used to perform a criminal act. Means and instruments of crime are directly related to the method of committing the crime. For example, to implement a generally dangerous method of committing a crime, explosive devices, explosives, etc. can be used. Another example: illegal hunting is recognized as a crime if it is committed using a mechanical vehicle or aircraft, explosives, gases, or other methods of mass destruction of birds and animals (clause “b”, part 1, article 258 of the Criminal Code of the Russian Federation).
