An action is a manifestation of a person’s behavior outside. A person’s beliefs and intentions, no matter how negative and dangerous for society they may be, not embodied in an act, are not subject to criminal liability60. As K. Marx noted, “only insofar as I manifest myself, insofar as I enter the realm of reality, do I enter the sphere subject to the legislator. Apart from my actions, I do not exist at all for the law, I am not at all its object.”61 Based on this, the act, and not the beliefs and intentions not embodied in the act, has criminal legal significance.
In criminal law, the term “act” is used in two meanings: broad and narrow. According to the current criminal legislation - the Criminal Code of the Russian Federation - it is understood in a broad sense: the act is identified with a crime and an assault in general. This follows from the rules contained, for example, in Art. 2, 8, 9, 14 of the Criminal Code of the Russian Federation.
The theory of criminal law proceeds from both a broad and, predominantly, a narrow understanding of the term. In a narrow sense, an act is a mandatory sign of only the objective side of the crime, covering action and inaction. It is in such a bond
60 See also: Course of Soviet criminal law (Part General). T. 1. - L.: Leningrad University Publishing House, 1968. P. 319.
61 Marx K., Engels F. Soch., T. 1. P. 14.
The meaning of the act reveals the content of the act as a sign of the objective side of the crime.
Only an act that is a sign of the objective side of the crime, which is characterized by a combination of four mandatory signs, has criminal legal significance. These include: 1) illegality, 2) public danger, 3) awareness and 4) voluntariness.
Unlawfulness refers to the prohibition of an act by criminal law. This prohibition in all cases is contained in the dispositions of the articles of the Special Part of the Criminal Code of the Russian Federation and is expressed in different ways. There are four forms of this expression. They are:
1) the act is described in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, for example, in its art. 116, 117, 119 and many others;
2) the act is not described in the disposition of the article of the Special Part of the Criminal Code, but the consequence (consequences) is described and the act is expressed as the cause that caused this consequence (consequences), by means of its designation by the terms “cause”, in particular, in Art. 105, 109, 111, “infection”, for example, in Art. 121 of the Criminal Code of the Russian Federation, or when the consequences are not described, the act is expressed by the term “encroachment”, for example, in Art. 277 of this Criminal Code;
3) the act is not described in the disposition of an article or part of an article of the Special Part of the Criminal Code, but a reference is made or implied to another part of the same article or another article of the Special Part of the Criminal Code, which contains its description, for example, in parts 2 and 3 of Art. 126, parts 2 and 3 art. 127, or its other expression, for example, in parts 2, 3 and 4 of Art. 111, part 2 art. 112, in Art. 106, 107 and 108 of the Criminal Code of the Russian Federation;
4) the act is not fully or partially described in the disposition of the article of the Special Part of the Criminal Code, which in one form or another contains a reference to another (other) - non-criminal - law (laws) and (or) other normative legal act (normative acts) legal acts), where its content is fully or partially described and thereby disclosed.
The act is always a sign of the main, qualified and privileged elements of crime. It can be a precisely defined, estimated, constant or variable characteristic.
It is important to emphasize that the dispositions of the articles of the Special Part of the Criminal Code of the Russian Federation indicate, as a rule, the positive signs of the act, characterizing it as a sign of the objective side of the crime, and, accordingly, the social danger of this type of act and its degree. Negative signs of an act are provided only in certain dispositions of the articles of the Special Part of the Criminal Code, as well as in certain norms of its General Part.
The obligatory nature of such a sign of an act as a public danger is due to two points. The essence of the first is description in the dispositions of the articles of the Special Part of the Criminal Code, as noted, not any, but only positive, that is, signs characterizing the social danger of the act, the absence of any of which excludes the criminality of the act, and the second point - in the exception according to the articles of the General Part of the Criminal Code of the Russian Federation, for example, part 2 of Art. 14, art. 37, 38, 39, crime and therefore criminal law significance that act which in its specific manifestation does not pose a public danger, that is, to the exclusion of negative signs of a crime. So, on the basis of Part 2 of Art. 14 of the Criminal Code of the Russian Federation “an action (inaction), although formally containing signs of any act provided for by this Code, but due to its insignificance does not pose a public danger, is not a crime.”
Awareness as a sign characterizing an act from the objective side is understood as the commission of an act under the control of consciousness in a psychophysiological sense, that is, in the sense of a person having the physiological, physical ability to exercise such control, for example, not in a dream, not in the form of reflexive body movements not controlled by consciousness . Therefore, awareness in this understanding
Chapter I 4. The objective side of the crime
mania is an objective sign, consisting in the possibility of a person’s awareness of his act, and differs from the subjective sign of the same name, which characterizes the intellectual moment of the forms of guilt, which is expressed in the person’s real awareness of the social danger of the act. Committing an act unconsciously, for example, in a dream or through reflexive body movements, is a negative sign of a crime, excluding the criminal legal significance of the act and, as a consequence, the existence of the act as such. At the same time, the commission of an act not under the control of consciousness due to the state of intoxication of a person who brought himself into such a state consciously and voluntarily does not exclude the sign of awareness of the act. This is enshrined in the norm contained in Art. 23 of the Criminal Code of the Russian Federation, on the basis of which “a person who commits a crime while intoxicated due to the use of alcohol, drugs or other intoxicating substances is subject to criminal liability.”
Voluntariness as a sign characterizing an act from the objective side means the commission of an act under the control of the will when a person has a real physical opportunity not to commit this act, choosing a different behavior, that is, it is understood, like awareness, in a psychophysiological meaning. Voluntariness in this understanding is an objective sign consisting in the absence of insurmountable obstacles in a person’s choice of one or another behavior caused by external influences, in particular, in the form of force majeure or insurmountable physical coercion. Voluntariness in the sense outlined - as objective sign acts - differs from the corresponding subjective sign that characterizes the volitional moment of forms of guilt, consisting in the direction of the will towards the implementation of socially dangerous behavior. The involuntary nature of committing an act is a negative sign of a crime, excluding the criminal legal significance of the act and, therefore, the existence of the act itself. Obligatory-
§ 2. Act (action and inaction) |
The importance of voluntariness as an objective sign of an act follows from the norms contained in Part 1 of Art. 40 and part 1 art. 42 of the Criminal Code of the Russian Federation. In accordance with Part 1 of Art. 40 of this 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),” and Part 1 of Art. 42 of this Criminal Code “it is not a crime to cause harm to interests protected by criminal law by a person acting in pursuance of an order or instruction that is binding on him.”
The totality of all four outlined signs of an act - illegality, public danger, awareness and voluntariness - is inherent in both forms of the act, which, according to the Criminal Code of the Russian Federation, for example Art. 9, 14 are action and inaction.
Action is the active behavior of a person, and inaction is the passive state of a person when he has the obligation and opportunity to perform certain active actions.
Action. The basis of any action is body movements, at least one. It is with body movement, or more precisely, with the beginning of body movement, that an action begins, which can include both one body movement and a set of body movements. This provision regarding the initial moment of action is generally recognized.
At the same time, the question of the final moment of action is debatable in the theory of domestic criminal law. According to one position, “it is incorrect to include in the concept of action the forces that a person uses in his activity, and even more so the laws of the objective world”62, that is, the action is limited to body movement. Supporters of this position also believe that action ends with those movements through which a person acts
Kuznetsova N. F. The significance of criminal consequences for criminal liability. - M.: Gosyurizdat, 1958. P. 11.
I Chapter 4. The objective side of the crime on the forces and means used by him, and these forces and means lie beyond the scope of the action and are covered by the concept of a causal relationship between the action and the harmful result63.
In accordance with another - opposite - position, action “encompasses not only the body movement of a person, but also the forces that he uses, and the patterns that he uses.”
The only correct one is the last of the given positions. This is due to the fact that, as noted earlier, a mandatory feature of each sign of the objective side of a crime, including such a mandatory feature as an act, including an action, in its criminal legal meaning is social significance, expressing the social danger of a particular type of act and its degree. Such significance is manifested not only and not exclusively in the physical movements of a person, but in body movements in combination and totality with the objects, means, forces and laws used - nature, etc. For example, pushing another person out of a high-floor window of a building acquires a social the significance and social danger of an action aimed at killing, combined with the force of gravity. The social significance and social danger of slander in oral form lies in the slanderous content of the thought expressed in speech, and not simply in the movements of the tongue and the sounds produced by these movements; slander in a publicly displayed work - in the writing and publication of libelous text, and not just in body movements in the form of running a pen on a sheet of paper, or hitting the keyboard of a typewriter or computer, or typing a typographic font.
In this regard, it is of interest that
63 See: Kudryavtsev V.N. Objective side of the crime. - M.: Gosyu-izdat, 1960. P. 78.
64 Durmanov N.D. The concept of crime. - M. - L.: Publishing House of the USSR Academy of Sciences, 1948. P. 54.
§ 2. Act (action and inaction) |
that “the elements of the objective side of the crime are: a) the totality of all movements aimed at achieving a criminal result; b) using with their help instruments, mechanisms, tools and weapons, various kinds of devices to achieve a criminal goal; c) the use of natural patterns and forces of nature, for example, a natural disaster (flood, fire, etc.) for an act of sabotage; d) using the activities of other people as a weapon of crime”65.
The quoted definition, which is generally fair and very capacious in content, needs, in our opinion, two clarifications. The first is that the signs listed in it are signs of an action, which represents one of the signs, and not all elements of the objective side, although some of the signs named in the list can and often have the value of optional signs of the objective side of the crime. Therefore, the first clarification comes down to the advisability of replacing the phrase “elements of the objective side of the crime” with the phrase “signs of action as an element of the objective side of the crime.”
The essence of the second clarification is the need, when characterizing an action as a whole, to indicate its completeness, that is, that it represents an impact on the object of the crime, since the reference contained in the above provision to “the totality of all body movements aimed at achieving a criminal result” is associated or can be associated with an unfinished action inherent in an attempted crime defined in
65 Criminal law. a common part. Textbook for universities / Rep. ed. I. Ya. Kozachenko and Z. A. Neznamova. - M.: Publishing group INFRA-M-NORMA, 1997. P. 147; Criminal law. A common part. Textbook for universities / Rep. ed. I. Ya. Kozachenko and Z. A. Neznamova. - 2nd ed., erased. - M.: Publishing house NORMA (Publishing group NORMA-INFRAM), 2000. P. 147.
I Chapter 4. The objective side of the crime
Part 3 Art. 30 of the Criminal Code of the Russian Federation as “deliberate actions (inaction) of a person directly aimed at committing a crime. .."
The above allows us to define an action as the totality of all body movements, including the use of objects of the external world, forces and laws of nature, as well as in the mediocre commission of a crime, the actions of other persons, consisting in the direction and active influence on the object of the crime, that is, in causing harm to social relations, protected by criminal law.
Action can manifest itself in any body movements of which a person is capable, in particular, expressed in influencing other people or other objects of the external world, animate and inanimate, through the use of physical muscular strength, in gestures, in oral and written speech. Action, including the use of objects of the external world, forces and laws of nature, the actions of other people, may consist of endlessly diverse types of activities that have no boundaries, which are known to humanity as a whole or will be invented by them in the future, that is, they have or can take place in reality . In all cases, the necessary and unchangeable starting premise is that only those actions that are characterized by illegality, public danger, awareness and voluntariness have criminal legal significance.
Determining the initial and final moments of an action, that is, the temporal boundaries of an action, is necessary to resolve various issues of criminal law, in particular, on the application of criminal law in time, on the delimitation of an action from a consequence, preparation for a crime from an attempted crime and from a completed crime, an attempt for a crime from a completed crime, etc. Thus, the initial moment of action is the criterion for distinguishing preparation for a crime from an attempt to commit a crime
the beginning and, in a number of cases, from a completed crime with a formal element, and the final moment of action in a crime with a formal element, the objective side of which is expressed exclusively in the action, and the only one - the criterion for delimiting an attempted crime from a completed crime.
The initial and final moments of the action are determined by the description of the action in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation (hereinafter it is meant that in cases where the disposition is blanket, the action and its initial and final moments are described in another (others) or in another ( others) law (laws) and (or) other normative legal act (normative legal acts), to which this disposition contains reference in one form or another).
The above provisions characterize general concept actions. IN this concept signs inherent in a single action in any crime are accumulated.
As a sign of the objective side of a specific crime, an action is characterized by an additional sign that specifies its content and distinguishes it from other actions. As a sign of the objective side of a specific crime, the action is described in the dispositions of the articles of the Special Part of the Criminal Code of the Russian Federation. There are several options for this description. Depending on one or another option, crimes are divided into four types: 1) simple, 2) continued, 3) ongoing and 4) compound. This division concerns crimes with formal elements, since in crimes with material elements the objective side is also characterized by the consequence, as well as causality between action and consequence.
Simple is a crime, in the disposition of the norm of responsibility for which only one single action is described, forming the objective side of this composition crimes, for example, slander (Article 129 of the Criminal Code of the Russian Federation), insult (Article 130 of this Criminal Code), or are described as al-
alternatively, two or more equivalent in the criminal legal sense and interchangeable actions characterizing a separately named element of the crime, for example, sexual intercourse and other actions of a sexual nature with a person under fourteen years of age (Article 134 of the Criminal Code of the Russian Federation). The initial moment is the beginning of any of the specified actions, and the final moment is the moment of its completion.
A continuing crime is defined in the resolution of the 23rd Plenum of the Supreme Court of the USSR “On the conditions for the application of limitation and amnesty to ongoing and ongoing crimes” dated March 4, 1929, as amended by the resolution of the Plenum of the Supreme Court of the USSR dated March 14, 1963 No. 1, in paragraph. 2 of which it is stated that continued are “crimes consisting of a number of identical criminal actions aimed at common goal and constituting in their totality a single crime. These crimes include, for example, torture, expressed in systematic beatings (Article 113 of the Criminal Code of the RSFSR)”66. Clause 3 of this resolution indicates the need to accurately establish the beginning and end of the commission of such crimes, and its clause 5 states the following provisions: “The beginning of a continued crime should be considered the commission of the first action from among several identical actions constituting one continued crime, and the end - moment of the last criminal act.
In accordance with this, the amnesty applies to continued acts that were completely completed before the issuance of the amnesty, and does not apply if at least one of the criminal acts constituting the continued act was committed after the issuance of the amnesty.
Likewise, the statute of limitations for continued acts is calculated from the moment the last one was committed.
66 Collection of decisions of the Plenums of the Supreme Courts of the USSR and the RSFSR ( Russian Federation) in criminal cases. - M.: Spark, 1997. P. 5.
§ 2. Act (action and inaction) |
criminal act constituting a continuing crime" 67.
A continuing crime, according to paragraph 1 of the cited resolution, is characterized by “the continuous implementation of a certain criminal act. A continuing crime begins with some criminal act (for example, with unauthorized absence) or with an act of criminal inaction (with failure to report a crime). Consequently, a continuing crime can be defined as an act or omission accompanied by a subsequent long-term failure to fulfill the duties imposed on the offender by law under threat of criminal prosecution.”68 Paragraph 3 of this resolution contains an indication of the need to accurately establish the beginning and end of the commission of a continuing crime, and its paragraph 4 contains the following explanation: “A continuing crime begins from the moment of commission of a criminal act (inaction) and ends as a result of the action of the guilty person himself, aimed at stopping the crime, or the occurrence of events that prevent the commission of a crime (for example, government intervention).
Therefore, the amnesty applies to those ongoing crimes that ended before its issuance. This does not apply to ongoing crimes that continued after the amnesty was issued.
The statute of limitations for criminal prosecution in relation to ongoing crimes is calculated from the time of their termination at the will or against the will of the perpetrator (voluntary performance by the perpetrator of his duties, surrender, detention by authorities, etc.).
In this case, a person cannot be brought to criminal liability if, from the time of commission of the crime
67 Collection of decisions of the Plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation) on criminal cases. - M.: Spark, 1997. P. 5.
68 Collection of decisions of the Plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation) on criminal cases. - M.: Spark, 1997. P. 5.
I Chapter 4. The objective side of the crime___________
Fifteen years have passed and the statute of limitations has not been interrupted by the commission of a new crime”69.
It should be noted that from the standpoint of qualifying a continuing crime, its initial and final moments coincide. In this case, it is the final moment, that is, the moment of the end of the crime, that lasts.
A compound crime is a crime that simultaneously encroaches on two or more objects, or is carried out by two or more actions, or entails two or more consequences, or is characterized by two forms of guilt. The presence of two or more of these signs follows from the content of the dispositions of the articles of the Special Part of the Criminal Code of the Russian Federation, which establish liability for compound crimes. From the point of view of characterizing exclusively an action, a compound crime is a crime, the disposition of the norm about which provides for two dissimilar actions or more, which in combination form a cumulative action as a sign of the objective side of the corresponding specific crime. The most expressive example of a compound crime characterized by two actions, in its pure form, is extortion (Article 163 of the Criminal Code of the Russian Federation), the objective side of which is inherent in accordance with Part 1 of Art. 163 of this Criminal Code, together there are two disparate actions: 1) a demand for the transfer of someone else’s property or the right to property or the commission of other actions of a property nature and 2) the threat - alternatively - of the use of violence, or the destruction or damage of someone else’s property, or the dissemination of information disgracing the victim or him close or other information that may cause significant harm to the rights or legitimate interests of the victim or his relatives. The initial moment of a compound crime is the beginning of the commission of any of its constituent actions, and the final moment is the moment of completion of all such actions.
Thus, the initial moments as the only one,
69 Collection of decisions of the Plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation) on criminal cases. - M.: Spark, 1997. P. 5.
§ 2. Act (action and inaction) I
including the alternative, the actions characterizing the objective side of the corpus delicti of a simple or continuing crime, and the actions characterizing this element of the corpus delicti of the continued or compound crime, coincide, and the moments of the end of the action or actions that generally form this sign of the objective side of the elements of the named types of crimes differ. The moment of the end of simple and continuing crimes is the moment of “the end of a single, including alternative, action that characterizes the objective side of the crime, and continued and composite - all actions, in particular alternative, that together form this element of the crime.
Therefore, a crime with a formal element is completed from the moment of completion of a single, including alternative, action characterizing the objective side of a specific element of a simple or continuing crime, or all actions that, in combination and in the aggregate, form a given element of a specific element of a continuing or compound crime.
Carrying out the actions described in Part 1 of Art. 30 of the Criminal Code of the Russian Federation, aimed at committing a crime, before the initial moment of any action described in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, is preparation for a crime. The beginning of any action outlined in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, before the completion of the action or actions that form the objective side of a specific crime, constitutes an attempted crime.
Inaction. Inaction differs from action in the physical aspect, namely the absence of body movements and the associated use of objects of the external world, forces and laws of nature and the actions of other persons.
Inaction is the failure to perform a specific action that a person, firstly, was obliged to do and, secondly, had the opportunity to perform.
I Chapter 4. The objective side of the crime___________
A specific action is a necessary link in a chain of links that ensures the normal functioning of the social process. The loss of this link, that is, the failure to perform an action, means a break in this chain and, accordingly, a violation of the named process. Moreover, this link is personalized, that is, the action must be performed by a certain person. Thus, omission is the failure to perform a specific action by a specific person.
Inaction has two criteria: 1) objective and 2) subjective. The objective criterion is expressed in the failure to fulfill the obligation assigned to a person to carry out a specific socially necessary action, and the subjective criterion is in the presence of the opportunity to perform such an action. Inaction requires a combination of both criteria.
The obligation to perform a specific socially necessary action, failure to perform which is an objective criterion for criminal liability for inaction, can be imposed by legal and (or) other social norms, the sources of which are alternatively: 1) criminal law, for example, Art. 125 and 270 of the Criminal Code of the Russian Federation, establishing criminal liability, respectively, for leaving in danger and failure by the captain of a ship to provide assistance to those in distress; 2) another (non-criminal) law and (or) other regulatory legal act specified in one form or another in the blanket disposition of the article of the Special Part of the Criminal Code, for example, in Art. 157 of the Criminal Code of the Russian Federation on liability for malicious evasion of payment of funds for the maintenance of children or disabled parents; 3) obligations assumed by a person on the basis of a contract, or functional duties in the service, or the acquisition of a certain profession, in particular, a doctor is obliged to provide assistance to a patient due to the profession chosen by the doctor and for failure to fulfill this obligation, Art. 124 of the Criminal Code of the Russian Federation establishes liability for failure to provide assistance to a patient; 4) obligations,
§ 2. Act (action and inaction) I
imposed on a person in connection with the commission of actions preceding their inaction, which put legitimate interests in real danger, the elimination of which is due to the need to carry out subsequent actions, for example, a surgeon is obliged to complete the operation he has started and if it is not completed, resulting in death or harm to health of the patient, he faces criminal charges responsibility for the corresponding crime against the person; 5) general social norms regulating the behavior of a person in the system of social relations, for example, a mother is obliged to feed her infant child and in case of failure to fulfill this duty, leading to the death of the child or harm to his health, she is subject to criminal liability for a corresponding crime against the person. The absence of a person’s obligation to perform a specific action means the absence of an objective criterion and, as a consequence, the absence of criminal liability of a person for inaction.
The subjective criterion of inaction consists in the real possibility of a certain person to perform a specific action in a specific situation. In the case where the ability to perform an action in the presence of such a duty is limited by the need to fulfill other duties, the conflict of duties is resolved on the basis of the rule of extreme necessity contained in Art. 39 of the Criminal Code of the Russian Federation. Certain articles of the Special Part of the Criminal Code of the Russian Federation specifically indicate circumstances limiting the obligation to act. So, in Art. 270 of this Criminal Code, which imposes on the captain of a ship the obligation to provide assistance to people in distress at sea or other waterway, this obligation is limited to the possibility of providing such assistance without serious danger to his ship, its crew and passengers. The lack of a real opportunity for a certain person to perform a specific action in a specific situation excludes the subjective criterion of inaction and, therefore, inaction itself. The absence of this opportunity may be due to the personal characteristics of the person,
I Chapter 4. The objective side of the crime
in particular, his low education, qualifications, little work experience, etc., or objective conditions, for example, a natural disaster.
Inaction is differentiated in the theory of domestic criminal law into two types: 1) pure and 2) mixed.
Pure is inaction, which, according to criminal law, on the one hand, is not associated or combined with any action and, on the other, does not entail consequences. In case of pure inaction, criminal liability arises exclusively for inaction that is not accompanied by any action and regardless of the occurrence of the consequences provided for in the article of the Special Part of the Criminal Code of the Russian Federation. Examples of pure inaction are leaving in danger, failure by the captain of the ship to provide assistance to those in distress, provided for in accordance with Art. 125 and 270 of the Criminal Code of the Russian Federation. Pure inaction is always outlined in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, which establishes liability for inaction.
Mixed is inaction, which, unlike pure inaction in accordance with the content of the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, is either associated or may be associated with the performance of an action (actions), for example, negligence provided for in Art. 293 of the Criminal Code of the Russian Federation, consisting in non-fulfillment or improper performance by an official of his duties, or entailed a consequence (consequences), for example, failure to provide assistance to a patient, recognized on the basis of Art. 124 of the Criminal Code of the Russian Federation is a crime if it entails, by negligence, causing moderate severity harm to health (part 1), death or serious harm to health (part 2). In case of mixed inaction associated with an action, criminal liability arises for the inaction regardless of whether it was actually accompanied by the commission of the action or not, and such inaction entailing a consequence - only if the consequence occurs. In the dispositions of the articles of the Special Part of the Criminal Code of the Russian Federation, mixed inaction, entailing consequences, is expressed in two ways: 1) by
§ 3. Consequence I
indications of both inaction and consequences, which can be seen from the wording of the dispositions of Parts 1 and 2 of Art. 124 of the Criminal Code of the Russian Federation, or 2) by indicating only the consequence, for example, in the disposition of Art. 105 of this Criminal Code, when murder is committed by inaction.
It should be noted that in the theory of domestic criminal law, mixed inaction is defined differently. Some authors recognize as mixed only inaction associated with the commission of an action(s)70, while others only recognize inaction that entails a consequence71.
The act must be specific (that is, committed by a specific person in a specific place and time); must always be a manifestation of human behavior in the outside world; 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 will of the act) is not an act in the criminal legal sense. It is decided personally.
Criminal act- this is a socially dangerous unlawful conscious active or passive manifestation of human behavior in the outside world, causing harm to social relations.
2 forms of action:
1. action
2. inaction.
Action is an act of active socially dangerous and illegal behavior that results in the commission of an act prohibited by the Criminal Code. The basis of any action is body movement. An action can consist of one body movement, a set of body movements, the use of various tools, or the forces of nature.
According to the method of execution, there are 2 types of actions:
1. direct commission.
2. mediocre infliction.
Direct commission- this is the execution of an act by the perpetrator personally, including with the use of tools, etc.
Mediocre causing- this is the commission of a crime through the use of another individual who is not subject to criminal liability.
Depending on who the subject uses, they distinguish:
1. when used by minors.
2. use of insane persons.
3. the use of persons who act under circumstances excluding the criminality of the act (6 circumstances in Chapter 8).
4. use of persons acting in a state of honest delusion and other persons.
In case of indirect infliction, the actions of strangers and the victims themselves can be used.
The action can also be expressed in the utterance of words (slander, insult).
Inaction- this is socially dangerous, illegal behavior of a person, which consists in the fact that he (the person) does not do what, for certain reasons, he is obliged and could do.
Not everyone is responsible for inaction, therefore, it is necessary to establish grounds or criteria for liability for inaction:
1. the person had an obligation to perform some actions. Sources of this obligation: a legal requirement, a person’s position or profession, a civil contract, one’s own previous behavior.
2. under the circumstances, the person had the opportunity to perform his duties.
Types of inaction:
1. pure inaction.
2. mixed inaction.
Pure inaction- this is when a person has not fulfilled all duties.
Mixed- when a person has fulfilled some of his duties, but not some.
Clean– when we punish the very fact of inaction, regardless of the consequences that occur.
Mixed– when inaction is punishable, when it entailed the consequences provided for in the disposition of the article.
As already indicated, a socially dangerous act is a mandatory sign of the objective side of the crime. Indication of a socially dangerous act as necessary sign crime is of fundamental importance. Only criminal behavior of a person objectified in reality can serve as a basis for criminal prosecution. A person's ideas, thoughts and intentions are not punishable.
Criminal act
The most common form of a socially dangerous act is the active behavior of the subject, which in criminal law is called an action.
Action– active, conscious and volitional socially dangerous behavior of a person, prohibited by criminal law.
Most of the crimes provided for by the Special Part of the Criminal Code of the Republic of Kazakhstan are carried out through action.
Action is based on body movement. The property of body movement is its objective ability to cause certain changes in the external world, both physical and mental (intellectual). Body movement can take the form of various human movements, and can be expressed in words and gestures that can have a certain impact on the psyche of other people.
In the criminal legal sense, action and body movement are closely related, but not identical concepts. A passerby slips during icy conditions and knocks down another person passing by, causing the latter serious injuries. From the point of view of criminal law, he does not commit an action, since his body movements are reflexive in nature.
The final moment of the action will be its termination, including for reasons beyond the control of the perpetrator, or the onset of harmful consequences, or the cessation of the public danger and illegality of the act.
The external forms of manifestation of specific criminal actions are diverse. Sometimes they are directly indicated in the disposition of the law. Depending on the characteristics of the crime, the law defines the nature of the criminal legal action differently, emphasizing either its one-act nature (Article 131 of the Criminal Code of the Republic of Kazakhstan “Insult”), or its multi-act nature, speaking of “actions” (Article 124 “Corruption of minors”).
Certain criminal law provisions provide a general description of the nature and content of criminal acts. In other cases, the law does not indicate at all either the form or the nature of the action, which means that any action is considered as a sign of the objective side of the crime.
Often an alternative to actions of different nature and content is indicated: acquisition, storage, production, processing, transportation, forwarding, sales (for example, narcotic drugs).
Another form of socially dangerous act is criminal inaction.
Inaction- this is a person’s passive, volitional, socially dangerous behavior, which consists in failing to perform those actions that, according to the law, he should and could have performed.
Inaction is expressed in the non-fulfillment or improper fulfillment by a person of certain duties assigned to him.
Socially, inaction is the same act of behavior as action, since it manifests itself in the world around us as an indirect cause of negative changes occurring in it.
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 so, as a result of which harm is caused or a threat is created to objects protected by criminal laws. Inaction is complete at the moment the harm is caused or the threat of harm ceases.
In the theory of criminal law, there are two types of inaction: the so-called “pure” and “mixed”. At "pure" Inaction, the objective side of the crime is the failure of a person to fulfill one or another duty. At "mixed" inaction, duties are not fulfilled fully or improperly.
To bring a person to criminal liability for inaction, two conditions must be present that arise from the definition of criminal inaction:
1) the existence of a legal obligation to act in a certain way;
2) the presence of a real opportunity to perform the required actions.
The legal obligation to perform certain actions follows from various grounds:
1) from a direct indication of the law;
2) from official or professional functions (doctors, police officers);
3) from relatives and family relations(raising minor children; caring for elderly parents, etc.);
4) from the previous actions of a person whose behavior has placed legally protected interests in real danger(Article 347 “Leaving the scene of a traffic accident”).
A socially dangerous act (action or inaction) has a criminal legal nature only if it is a conscious act of will. Reflexive, impulsive and involuntary actions are excluded from the scope of criminal law regulation.
Sometimes, under the influence of various circumstances, the will of the subject of a crime can be completely or partially paralyzed.
Such circumstances include:
1) force majeure (force majeure),
2) physical coercion,
3) mental coercion.
These circumstances have a significant impact on the issue of criminal liability.
1) Irresistible force– an emergency and unpreventable event under certain conditions, the impact of objective factors, the influence of natural phenomena and forces (earthquakes, floods, hurricanes, etc.), technical systems and mechanisms, animals, disease processes in the human body, etc., in by virtue of which a person is deprived of the opportunity to freely perform certain actions.
The presence of force majeure excludes criminal liability, since the person’s act is deprived of criminal legal significance. However, the concept of force majeure is not something absolutely certain and unchangeable. It is necessary to establish the circumstances of force majeure on the basis of a comprehensive consideration of not only the situation, conditions of place and time, but also the abilities and capabilities of the person. Sometimes the solution to an issue depends on establishing the range of responsibilities of a person and the requirements that are presented to him in a certain situation. For example, a fire, being an irresistible force for ordinary person, for a firefighter this is not a circumstance. Depending on the situation, such increased requirements may be imposed on military personnel, internal affairs officers, security guards, etc.
2) Physical coercion- physical influence on a person from other persons, depriving him of the opportunity to act of his own free will. This could be tying up, being forced into a closed room, beatings, torture, etc.).
The decision on criminal liability will depend on the intensity of physical coercion. Physical coercion is considered insurmountable if it completely paralyzes or significantly suppresses the volitional sphere of mental activity of a person, depriving him of the ability to direct his actions.
Under surmountable physical coercion, i.e. if the person retained the opportunity to direct his actions, the issue of criminal liability is resolved taking into account the provisions of Article 34 of the Criminal Code of the Republic of Kazakhstan “Extreme necessity”.
Physical coercion of low intensity (light blows to the face) does not exclude criminal liability, but can be taken into account as a mitigating circumstance.
3) Mental coercion– forcing a person to commit a socially dangerous act under the threat of causing any harm.
Mental coercion consists of the threat of murder or other physical violence against a person or his loved ones, causing material or moral damage, or violating any interests vital to the victim.
For the most part, mental coercion does not deprive a person of the ability to act of his own free will. By general rule, real opportunity to demonstrate one’s will does not exclude criminal liability for actions committed under the influence of a threat.
In exceptional cases, in the presence of an extreme situation, which is essentially a condition of extreme necessity, criminal liability (for crimes of minor and moderate gravity) can be excluded. For example, a cashier handing over money to criminals at gunpoint.
Mental coercion, like physical coercion, is recognized as a circumstance mitigating criminal liability.
Some design features has an objective side to the so-called continuing, ongoing and complex (compound) crimes.
Ongoing crimes - acts consisting of a number of repeated identical or homogeneous actions aimed at achieving one goal, covered by a single intent and in their totality constituting a single crime. A continuing crime causes general harm to one object. Continuing crimes consist of separate identical actions separated in time. A single intent and a single goal are the main criteria for distinguishing a continuing crime from a repeated one.
Examples of ongoing crimes are the production or sale of counterfeit money or securities (Article 231 of the Criminal Code of the Republic of Kazakhstan), etc.
Lasting crimes – crimes that are characterized by the continuous implementation of a certain criminal act over an indefinite period of time. The commission of ongoing crimes begins with specific criminal acts, but is not limited to them. A continuing crime can be defined as a criminal act involving a subsequent violation of a criminal law prohibition.
A continuing crime begins from the moment the criminal act is committed and ends due to various circumstances: the detention of a person, his surrender, the death of the perpetrator, the loss of an item for the illegal handling of which criminal liability has been established, decriminalization of the act, etc.).
When qualifying ongoing crimes, questions often arise related to the calculation of the statute of limitations for criminal prosecution, the possibility of applying an amnesty, the retroactive force of the law, etc.
Complex (compound) crimes - crimes consisting of two or more different actions, each of which can form an independent crime, but in their totality they form one crime.
Complex crimes are composed of heterogeneous actions and encroach on different objects, but are qualified as a single crime, since these actions are connected by internal and external unity.
It is necessary to distinguish from complex (compound) crimes acts consisting of sequentially committed (even with a minimal gap in time) actions, each of which already forms part of a completed offense.
Due to the damage caused to several objects at the same time, a complex crime has an increased social danger.
A striking example of a complex crime is extortion (Article 194 of the Criminal Code of the Republic of Kazakhstan), the objective side of which is inherent in two disparate actions: 1) the demand for the transfer of someone else’s property or the right to property or the commission of other actions of a property nature; 2) threat of violence or destruction or damage to someone else’s property, or dissemination of information disgracing the victim or his relatives, or other information, the disclosure of which could cause significant harm to the interests of the victim or his relatives. Complex crimes also include robbery (Article 192 of the Criminal Code of the Republic of Kazakhstan), banditry (Article 268 of the Criminal Code of the Republic of Kazakhstan), piracy (Article 271 of the Criminal Code of the Republic of Kazakhstan), etc.
Criminal act is a conscious and volitional act of a person, outside which is his active behavior (action) or abstinence in a certain situation from performing specific necessary actions (inaction).
Act- this is the external expression of a socially dangerous attack, which forms the objective side of the crime.
Signs of the act:
– has two independent forms of expression – action and inaction;
– must be endowed with a sign of public danger.
The act is always specific and is committed by the guilty person in certain conditions, place, time, i.e. it 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.
A socially dangerous act manifests itself:
– in the form of physical impact on other people or on objects of the outside world;
– by writing or speaking words;
– in making some specific gestures;
– in failure to perform actions that the subject was obliged to perform in a particular case (inaction).
Any act, being a manifestation of human behavior in the external world, always presupposes conscious human activity.
A negative attitude towards legally protected interests that is not expressed in the commission of a specific act, a way of thinking, or an expressed intention to commit a crime are not covered by the concept of an act.
Criminal act represents an act of active socially dangerous and illegal behavior.
Any action is composed of a number of operations that precede the natural result of active behavior.
IN basis of action lies a body movement consciously directed by a person to achieve a specific goal, which is composed of a number of individual, interconnected acts of behavior of a person.
Action as a sign of the objective side- this is a system, a complex of interconnected body movements that form socially dangerous behavior of the subject.
Action begins from the moment of making the first conscious and volitional body movement.
Inaction- represents passive behavior, consisting in the failure of a person to perform such actions that, for certain reasons, he should have and could have performed in specific conditions.
Inaction can be expressed:
– in a single fact of abstaining from performing the required action;
- in system criminal behavior. Failure to act may entail criminal liability only in cases where it:
– illegal and socially dangerous;
– if there is a duty to act in a certain way;
- if possible, act in this way.
The duty to act may arise:
– from a requirement of law or regulation;
– from the nature of the profession or official position;
– from the decision of the judicial authorities;
– from previous behavior. Opportunity to act determined based on a subjective criterion, i.e., the capabilities of a given person located in a specific situation are taken into account. If the necessary actions were not performed by a person due to circumstances beyond his control, he cannot be held liable for inaction.
Mixed inaction– a type of inaction, which involves a combination of active and passive forms of action, when in order to ensure inaction a person performs any active actions.
