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Introduction
Chapter 1. Formation of the institution of causing death by negligence
1.1 Frivolity and negligence as forms of causing death by negligence, innocent causing death
1.2 Subject of the crime of causing death by negligence
Chapter 2
2.1 Separation of causing death by negligence from innocent causing death
2.2 Separation of causing death by negligence from causing death by negligence
2.3 Separation of causing death by negligence from crimes resulting in death by negligence
Chapter 3. Features of qualification of causing death by negligence and problems of improving the institution
3.1 Qualifying elements of the offense of causing death by negligence
3.2 Improving the legislative regulation of liability for causing death by negligence
Conclusion
List of used literature
Introduction
AT last years attention is drawn to a steady upward trend in the prevalence of crimes committed by negligence. The problem of careless guilt, careless crimes is becoming more and more significant, growing into an urgent and major task that requires a comprehensive and thorough analysis.
Most public dangerous crime by negligence is causing death. And this is understandable, because. human life is highest value in a democratic and legal society and state.
It would seem that the legislator has found an ideal form for this composition crimes, but in practice there are many problems and questions. Thus, it is often very difficult to distinguish between causing death by negligence and murder; from causing grievous harm negligently causing death.
In practice, over the past few years, and even in the Soviet period, there have been many such “controversial” and debatable situations. Courts have handled these cases in different ways. However, the problem has not been solved, neither at the legislative level, nor in theory. In this regard, it is of interest to study the accumulated judicial practice, the views of scientists, as well as foreign experience.
The study of foreign experience is all the more interesting because the institution of causing death by negligence came from Anglo-Saxon law.
Bringing to criminal liability in connection with causing death by negligence is difficult from a psychological and moral point of view. The fate of a person is decided. In some case we are talking about bringing to justice the criminal, and in some case the “stumbled citizen”.
So, purpose of thiscoursework- to consider the features of criminal liability for causing death by negligence. Based on our goal, we set ourselves the following tasks:
Reveal the foundations of modern legal regulation of the institution of causing death by negligence;
Explore the subjective side of the crime in question, the object, the objective side, the features of the subject;
Distinguish causing death by negligence from other elements of crimes;
Highlight the features of the qualification of causing death by negligence and the problems of improving the institution;
Explore possible directions for improving the legislative regulation of causing death by negligence;
The paper will analyze articles and monographs by leading researchers on the issue of harm through negligence in general, and death in particular. On the basis of the research done, the author will propose options for improving the current criminal legislation.
Chapter 1death by negligence
1.1 Frivolity and negligence as forms of causing death by negligence, innocent causing death
As we have already noted, Art. 109 of the Criminal Code of the Russian Federation qualifies causing death by negligence, both by thoughtlessness and negligence.
According to Part 2 of Article 26 of the Criminal Code of the Russian Federation, a crime is recognized as committed due to frivolity, if the person who committed it foresaw the possibility of a social attack. dangerous consequences of their actions (inaction), but without sufficient grounds, presumptuously counted on their prevention. In other words, a crime can be committed through frivolity if the perpetrator foresees the possibility of death, but without sufficient grounds counts on its prevention. At the same time, the guilty person can consciously rely on his own strength, the actions of other persons, or any specific circumstances. He deliberately violates certain precautionary rules. These may be actions that are contrary to the data of science or professional rules, prohibited by law, but not a crime, and also in the case when the occupation of this profession this person had no right.
A person's foresight of the possibility of the onset of socially dangerous consequences of his act constitutes the intellectual element of criminal frivolity, and presumptuous calculation without sufficient grounds for preventing them is his volitional element.
The volitional moment of criminal frivolity lies in the presumptuous (frivolous) calculation, unreasonable without sufficient grounds, to prevent socially dangerous consequences. This feature the volitional content of frivolity is due to the viciousness of the intellectual activity of the person, an incorrect assessment of his strengths, factors and other circumstances that, in his opinion, should have prevented the onset of socially dangerous consequences. Due to his delusion regarding the true essence of factors and circumstances, a person chooses socially dangerous way implementation of his intentions, being sure that he will be able to avoid the onset of criminal consequences.
A frivolous calculation to prevent consequences is considered constituent element volitional moment. However, calculation, including frivolous one, is primarily an intellectual activity, this is thinking, and only then a volitional activity, expressed in the person’s failure to show the necessary volitional efforts for a more detailed calculation of the possibility of preventing the predicted harmful consequences.
Describing the intellectual element of criminal frivolity, the legislator points only to the possibility of foreseeing socially dangerous consequences, but omits the mental attitude of a person to action (inaction). This is explained by the fact that the acts themselves, taken in isolation from the consequences, usually do not have criminal value. When committing a crime with criminal frivolity, a person must at least in in general terms to foresee the development of a causal connection, otherwise it is impossible not only to foresee these consequences, but also to count on their prevention. The subject foresees how it could develop causality, if it were not for those circumstances on which he counts and which, in his opinion, should interrupt the development of a causal connection. Titov B.N. Intentional infliction of grievous bodily harm: subjective signs of a crime. // Journal of Russian law. - No. 12. - 2008. ? pp. 32-38.
In terms of its intellectual element, criminal frivolity bears some resemblance to indirect intent. Their difference lies in the fact that with indirect intent the perpetrator foresees a greater likelihood of criminal consequences, and with frivolity, the perpetrator foresees the onset of these consequences to a lesser extent. With intent, the subject foresees specific consequences, and with frivolity, these consequences appear in general form, although the culprit foresees not the abstract, but real opportunity their offensive.
Foreseeing socially dangerous consequences in case of criminal frivolity differs from foresight in case of intent and in that in case of frivolity the subject foresees only the possibility, and not the inevitability of the consequences. By virtue of not realizing the actual development of the causal connection, he frivolously, not seriously approaches the assessment of those circumstances that, in his opinion, should prevent the onset of a criminal result, but in fact turned out to be unable to counteract its onset. Thus, in light-mindedness, the foreseeing of the possibility of the onset of a consequence is accompanied and neutralized by the foreseeing of its prevention.
The main, main difference between frivolity and indirect intent lies in the content of the volitional element. If, with indirect intent, the perpetrator consciously allows the onset of socially dangerous consequences, that is, treats them approvingly, then with frivolity there is not only a desire, but also a conscious assumption of these consequences, and, conversely, the subject seeks to prevent their occurrence, treats them negatively.
With criminal frivolity, in contrast to indirect intent, consciousness and will are not unlimited to possible negative consequences their actions, but aimed at preventing them. The law characterizes the volitional content of frivolity not only as hope, but precisely as a calculation to prevent socially dangerous consequences, which has quite real, albeit insufficient, grounds. The circumstances that the subject counts on in case of criminal frivolity, despite all their diversity, can be grouped in the following way:
1) relating to the personality of the guilty person himself (strength, dexterity, knowledge, skill, experience, skill, and so on) ;
2) relating to the environment in which the crime is committed (night time, absence of people, etc.) ;
3) related to the action of others (the expectation that others will put out the fire in the forest) ;
4) calculation on the forces of nature, on mechanisms and so on.
Calculation, although unreasonable, presumptuous, on specific factors that, according to the perpetrator, can prevent the onset of socially dangerous consequences, significantly distinguishes criminal frivolity from indirect intent, in which there is no such calculation, although an unfounded hope that harmful there will be no consequences.
When causing death by negligence, it must be determined that the person did not foresee the onset of socially dangerous consequences, although he should have and could have foreseen their onset.
The problem of criminal negligence (unconscious negligence) is more complex and insufficiently developed in the theory of criminal law.
One point of view on this issue is as follows:
1) denial of the possibility of a careless form of guilt when placed in danger of causing harm ;
2) negligence can only occur when a criminal result actually occurs, when the presence of a person’s mental attitude to the consequences of criminal negligence is denied ;
3) limited area of punishable negligence, liability for which occurs only in cases where the person should have and could have foreseen ;
4) for liability for criminal negligence, one of the criteria - objective or subjective - is sufficient.
We can talk about criminal negligence (unconscious negligence) when a person, for one reason or another, is obliged to behave in a certain way, excluding the onset of harmful consequences. At the same time, criminal legislation requires the existence of not one of the two criteria of responsibility - objective or subjective, but their simultaneous presence.
In accordance with the current legislation (part 3, article 26 of the Criminal Code of the Russian Federation), criminal negligence is characterized by the unforeseeability of the possibility of socially dangerous consequences in the presence of an obligation (duty) and the ability to foresee these consequences.
The intellectual content of negligence is characterized by two features: negative and positive. The negative sign of negligence lies in the person's unforeseeing the possibility of criminal consequences and in the absence of awareness of the wrongfulness of the act (action or inaction) being committed. The mental attitude of the perpetrator to his act in case of negligence is characterized by the consciousness of violation of certain prohibitions, the unforeseeability of the onset of criminal consequences, or by the fact that a person, committing a volitional act, is not aware that he violates the rules of precaution, or by the absence of volitional control, which is lost through the fault of this person.
A positive sign of the intellectual moment of criminal negligence is that the perpetrator had to and could show the necessary care and foresight and foresee the onset of actually caused criminal (socially dangerous) consequences. It is this feature that turns negligence into a kind of guilt in its criminal law understanding. It is established with the help of two criteria: due means an objective criterion, and the possibility of foresight is a subjective criterion of malpractice.
The volitional moment of criminal negligence lies in the fact that the perpetrator, having a real opportunity to prevent the criminal consequences of the act committed by him, does not activate his mental powers and abilities to perform volitional actions necessary to prevent criminal consequences, and, therefore, does not exceed the real possibility in reality.
Liability for criminal negligence arises only if the person, although he did not foresee the possibility of a criminal consequence, should and could have foreseen its occurrence. Whether the perpetrator should have and could have foreseen the consequences of his act can be established on the basis of objective and subjective criteria. The obligation is an objective criterion of negligence, and the possibility of foresight is a subjective one.
The objective criterion of negligence is of a normative nature and means the obligation of a person to foresee the possibility of the onset of socially dangerous consequences in compliance with the requirements of the precautionary measures mandatory for this person and the necessary care. This obligation may be based on the law, on the official status of the perpetrator, on professional functions, on the basis of safety regulations, the operation of various mechanisms, hostel, etc. The absence of the obligation to foresee the consequences excludes the guilt of the person in their actual infliction.
However, the existence of such a duty in itself is not yet sufficient grounds for recognizing a person as guilty. If there is an obligation to foresee the consequences (objective criterion of inevitability), it is also necessary to establish that the person had a real opportunity in this particular case to foresee the onset of socially dangerous consequences (subjective criterion), but this opportunity was not realized and the consequences were not avoided.
Frivolity and carelessness have similarities in the volitional moment. In both cases, there is no positive attitude towards the possible consequences. And the difference between these types of negligence lies in the fact that, with frivolity, the guilty person performs an action in the hope of preventing possible consequences, and with negligence, the guilty person's volitional efforts are either useful or neutral. With regard to crimes with a material composition, the subjective case is that the person who committed the socially dangerous act did not foresee the possibility of socially dangerous consequences and, due to the circumstances of the case, should not or could not have foreseen them. This kind of subjective case is distinguished from negligence by the absence of either one or both of its criteria.
Firstly, inability to prevent harmful consequences that are covered by foresight actor, excludes criminal liability if it is due to a discrepancy between the psycho-physiological qualities of the harm-doer and the requirements extreme conditions, that is, such unexpected or changed situations for which a person is not ready and, due to his psychophysiological qualities, is unable to make the right decision and find a way to prevent harmful consequences (for example, in an accident due to design defects or factory defects of a machine or mechanism).
Secondly, the act is recognized as innocent if the impossibility to prevent socially dangerous consequences is due to a discrepancy between the psycho-physiological qualities of the harm-doer and his neuropsychic overload (for example, when working as an aircraft pilot or electric locomotive driver on the second shift in a row). Fedotov A.V. Types of causal relationship between the act and the resulting harmful consequences. // Journal of Russian Law. - No. 12. - 2008. ? pp. 23-28.
1.2 Subject of the crime of causing death by negligence
The subject of negligent infliction of death under the Criminal Code of the Russian Federation can only be a person who has reached the age of 16.
Often in practice there is a problem of determining the subject of the crime. There are situations in which the enforcement authority needs to make a decision based on the following facts:
1) it is reliably established that several individuals in the same period of time and in the same place (or in the same specific territory) committed the same illegal acts ;
2) it is reliably established that the result of one and only one of these unlawful acts was harm caused to the victim ;
3) it is reliably established that any of these wrongful acts could cause the same harm to the victim, but by sheer chance only one of these acts, and not any ;
4) It has not been established and it is impossible to establish which of the several illegal acts committed by various persons, the circle of which is precisely defined, caused harm to the victim.
Perhaps sometime in the future, the Russian legislator will come to the conclusion that in such cases as modeled here, it is necessary to use the construction of a legal fictitious causal relationship. Such a decision is highly debatable, but it corresponds to the legal consciousness of a part of Russian society.
In the history of Russian law, cases are known when law enforcement decisions were made on the basis of the fiction of a causal connection, although this term itself, of course, was not used.
Another example, now from foreign practice: the Court of Cassation of France in one of the decisions indicated that "a driver who hit a pedestrian and caused his death is convicted of reckless murder, and the person who sat next to the driver and incited him to drive fast, which was cause of the incident, is condemned as an accomplice of careless murder.
Under English law, complicity is also possible in the commission of a negligent crime. It is only important that the actions that led to the reckless infliction of a criminal result are covered original intention participants, and therefore the results of these actions could be imputed to them. Direct intent is not a necessary form of communication between accomplices, a "possible foreknowledge" by other participants of the results of the perpetrator's performance of precisely this kind of action is sufficient, and a direct installation on its implementation is also not necessary. A single intent does not always include an illegal element. The intention may be unlawful, and the commission as a result of its implementation of a careless "or on the part of the perpetrator of an intentional" crime will entail criminal liability for all accomplices. In our opinion, it is necessary to legislatively resolve this issue by making appropriate changes to Part 2 of Art. 109 of the Criminal Code of the Russian Federation. Criminal Code of the Russian Federation.
Or, in Article 26 of the Criminal Code of the Russian Federation, as an additional independent part, a provision can be formulated that if the criminal result is caused by the careless actions of several persons, the court, when imposing punishment, takes into account how much the actions of each person contributed to the onset of the criminal consequences. Such a decision would serve to further differentiate liability and would guarantee the justification for bringing to responsibility in the event of negligent co-causation. Moreover, the differentiation of responsibility is necessary even within the institution of careless co-causation, for example, when one of the co-causators has special knowledge and functions. Nersesyan V.A. Peculiarities of punishment for negligent crimes. // Legislation. - No. 4. - 2007. ? pp. 245-278.
Chapter 2
2.1 Separation of causing death by negligence from innocent causing death
As we noted in the previous chapter, causing death by negligence must be distinguished from other elements of crime. Let us consider them in more detail on the example of specific court decisions.
Infliction of death by negligence must be distinguished from innocent infliction of death, when the face
a) did not foresee the possibility of the death of the victim from his actions (inaction) and, due to the circumstances of the case, should not or could not have foreseen them;
b) although he foresaw the possibility of causing death, he could not prevent this due to the inconsistency of his psychophysical qualities with the requirements of extreme conditions or neuropsychic overload.
The conclusion as to whether the causing of death was negligent or accidental must be based on a careful analysis of the person's actions and the whole situation.
When establishing negligent guilt, the motive of the defendant's actions is important. “It is typical for careless crimes that a significant part of them is committed with neutral and “positive” motives.
The absence in the act of signs of self-interest, revenge, jealousy, hooligan motives and other "negative" motives in some cases makes it possible to exclude intent to kill. Borodin S.V. Responsibility for murder: qualification and punishment under Russian law. - M., 2008.
2.2 Separation of causing death by negligence from causing death byfrivolity
Particular difficulties arise in judicial practice when distinguishing murder by indirect intent from causing death by frivolity. In both cases, the perpetrator foresees the possibility of the death of the victim as a result of his actions. In both cases, he does not want the onset of such a result, does not strive for it. But with indirect intent, the perpetrator deliberately allows the onset of death, often treats this indifferently, does not take any actions aimed at preventing such a result. In case of negligence in the form of frivolity, the perpetrator does not treat the death of the victim indifferently, he relies on his own strength, skill, dexterity, professional skill, on the fact that as a result of the measures he has taken or as a result of the actions of other persons or any other specific factors, he will be able to avoid lethal outcome. However, due to the fact that the perpetrator in these cases does not show due diligence, insufficiently takes into account his own capabilities or the capabilities of other persons, a fatal result nevertheless occurs.
2.3 Separation of causing death by negligence from crimes resulting in death by negligence
Causing death by negligence as an independent crime should be distinguished from other crimes that involve causing death to a person through negligence: in case of intentional infliction of harm to health (Article 111 of the Criminal Code) of the Criminal Code of the Russian Federation. , in case of illegal abortion (Article 123 of the Criminal Code) 6 , failure to provide assistance to the patient (Article 124 of the Criminal Code), kidnapping (Article 126 of the Criminal Code) 6 , illegal deprivation of liberty (Article 127 of the Criminal Code) 6 and others. the criterion of delimitation is that, in addition to causing death, by negligence, other actions (inaction) are committed that encroach on another object. In this case, we are talking about responsibility for a crime that can be committed with two forms of guilt.
Here is an example from practice:
“The military court of the Nakhodka garrison convicted Senior Lieutenant Filenya under Art. 111, part 4, UK Russian Federation to 5 years in prison penal colony general regime. Filenya was found guilty of intentionally inflicting grievous bodily harm, negligently resulting in the death of the victim.
According to Filen's verdict, during a quarrel, Belkov inflicted three blows with his fists on the forehead, chest and jaw, after which Belkov fell and hit his head on the ground, receiving a head injury, from which he died the same evening.
However, it follows from the materials of the case that Filenya, inflicting blows on Belkov, did not want the onset of serious consequences for the health of the victim and did not foresee the possibility of their onset, although, with a certain attentiveness, he could and should have foreseen them.
As can be seen from the conclusion of the commission forensic medical examination, the conclusions of which the court reasonably based the verdict on, the blows inflicted by Fileni did not in themselves cause serious harm to health and did not directly cause the death of the victim, who died from a skull injury received during the fall.
It was established in the case that Belkov and Filenya did not know each other, the conflict between them was fleeting in time, arose on an insignificant occasion and at the initiative of the victim. Seeing that Belkov fell and, hitting his head on the ground, lost consciousness, Filenya, as his colleagues showed, was frightened of what he had done and tried to help the victim.
In view of the foregoing, the military court of the Pacific Fleet, having considered the case on cassation, reclassified Fileney's deed from Art. 111, part 4 of the Criminal Code of the Russian Federation at art. 109, part 1 of the Criminal Code of the Russian Federation and in accordance with paragraph 7 "c" of the Resolution State Duma of the Federal Assembly of the Russian Federation of December 24, 1997 "On the announcement of an amnesty", terminated the criminal case against him. Bulletin of the Supreme Court of the Russian Federation. ? 2005.? No. 5. ? S. 7.
If the death of the victim occurs as a result of causing grievous bodily harm by negligence, then the deed should be qualified only as causing death by negligence. Qualify the deed under Part 4 of Art. 111 of the Criminal Code of the Russian Federation is possible only if serious harm to health was caused intentionally.
And in conclusion of this chapter, we note that if the infliction of death by negligence was associated with damage to property, then qualification should occur according to the totality of articles. So, if as a result of careless handling of fire, which resulted in the destruction or damage of someone else's property, the death of a person occurred, the actions of the perpetrator must be qualified according to the totality of articles providing for liability for causing death by negligence (Article 109 of the Criminal Code of the Russian Federation) and destruction or damage to property through negligence ( part two of Article 168 of the Criminal Code of the Russian Federation). Careless handling of fire or other sources of increased danger in the sense of part two of Article 168 and part one of Article 261 of the Criminal Code of the Russian Federation may, in particular, consist in improper handling of ignition sources near combustible materials, in the operation of technical devices with unrepaired defects (for example, use in forest tractor without a spark arrester, leaving unattended stoves, fires or unplugged electrical appliances, gas burners, etc.).
Chapter 3. Features of qualification of causing death by negligence and problems of improving the institution
3.1 Qualifying signs of the composition of the causedeath by negligence
In part 2 of Art. 109 of the Criminal Code of the Russian Federation for the first time provides for the qualifying signs of the crime in question:
a) causing death by negligence due to improper performance by a person of his professional duties;
b) causing death by negligence to two or more persons.
In the first case, responsibility increases, since the object of the crime is not only human life, but also public relations in the performance of a person's professional duties. It is also important that the perpetrator vocational training knowledge of special safety rules. This rule does not apply if causing death by negligence as a result of violation of special rules is provided for by other articles of the Criminal Code.
At the same time, in order to avoid mistakes in practice, it is necessary to investigate whether the professional activities (professional duties) included those actions of the subject that caused death by negligence.
Here is an example from practice:“Belousov was convicted by the Kungur City Court of the Perm Region under Part 2 of Art. 264 of the Criminal Code of the Russian Federation.
He was found guilty of the fact that on December 12, 2006 in the village. Komsomolsky Kungursky district, without a driver's license, while driving a GAZ-53, violated the requirements of clause 8.12 of the Rules traffic, as a result of which he caused fatal injuries to Blokhin and light bodily injuries with a health disorder to Ashchrafzyanov.
The verdict was not appealed on appeal.
In protest, the Deputy Chairman of the Supreme Court of the Russian Federation raised the issue of changing the sentence due to the incorrect application of the criminal law. On August 14, 2008, the Presidium of the Perm Regional Court satisfied the protest, stating the following.
As can be seen from Belousov's testimony, he and Ashchrafzyanov, as passengers, traveled in a GAZ-53 car driven by the driver Blokhin. In the village of Komsomolsky, Blokhin drove in reverse to the doors of the Vityaz cafe and, together with Ashrafzyanov, got out of the cab to unload the goods, while he (Belousov) remained in the cab of the car. It was cold, and he, Belousov, being near the driver's seat, at the request of Blokhin, turned the ignition key in order to warm up the car, without checking whether the gearshift lever was in the neutral position or the car was on the handbrake. When the ignition key was turned, the car jerked sharply and drove back, pressing Blokhin and Ashchrafzyanov against the wall with its back.
Behind the wheel, as Belousov testified, he did not sit down, did not carry out any maneuver or control of the car.
These testimonies were confirmed by the report of the inspection of the scene, the act of investigating the incident, as well as the testimony of the victim Ashrafzyanov. The case against Blokhin was dismissed due to his death. Thus, from the totality of the collected evidence in the case, it follows that Belousov did not drive the car.
According to part 2 of Art. 264 of the Criminal Code of the Russian Federation, a person driving a car and committing a violation of the rules of the road or operation is subject to criminal liability. Vehicle.
By turning the key in the car ignition, Belousov did not foresee the possibility of socially dangerous consequences of his actions, although with the necessary care and foresight he should have foreseen these consequences, i.e. showed negligence, which caused the death of Blokhin and light bodily injuries to Ashchrafzyanov. Taking into account this action, Belousov is subject to retraining from Part 2 of Art. 264 of the Criminal Code of the Russian Federation for part 1 of Art. 109 of the Criminal Code of the Russian Federation (providing liability for causing death by negligence), the sanction of which is less severe than the sanction of Part 2 of Art. 264 of the Criminal Code of the Russian Federation. According to part 2 of Art. 109 of the Criminal Code, medical workers, educators of children's institutions and other persons who caused death by negligence due to improper performance of their professional duties can be held liable. Professional duties (rules) can be established by law, other normative act, approved by the administration of this enterprise, established by the state standard (standard safety regulations), etc.
In some cases, the cause of the commission of a crime is the weak volitional efforts shown by the subject. For example, being confused, the doctor did not provide assistance to the patient, did not make a correct diagnosis, which led to or obviously could have led to the death of the patient. Such cases can lead to criminal liability only on condition that the subject had the opportunity to show the required willpower.
As Naumov A.V. notes, when bringing a person to criminal liability for causing death to a person through negligence as a result of a violation of professional duties, it must be established that this person knew these duties and was warned about the danger of violating them. In our opinion, it is not enough to have a diploma or certificate in a specialty for the onset of criminal liability when working with a source of increased danger. Unless it is established that a person was aware of his professional duties, the responsibility should lie with the heads of such person. Review of the judicial practice of the Supreme Court of the Russian Federation for the II quarter of 2008 (on criminal cases) (approved by the decision of the Presidium of the Supreme Court of the Russian Federation of September 26, 2008). // Bulletin of the Supreme Court of the Russian Federation. - 2008. - No. 12. - S. 12.
Causing death by negligence to two or more persons also aggravates liability due to the occurrence of more serious consequences.
The actions of the perpetrator fall under the signs of the composition provided for in Part 2 of Art. 109, if as a result of careless actions (inaction) death was caused to two or more persons.
At the same time, criminal liability under Part 2 of Art. 109 is excluded if, as a result of a careless act, the death of one person occurred, and only serious harm was caused to another.
In cases where death was caused to two or more persons as a result of the person's improper performance of his professional duties, the perpetrator must be imputed to the two indicated signs, which, of course, will be taken into account by the court when imposing a criminal penalty.
It is important to emphasize that if causing death by negligence is necessary sign special criminal law, the qualification of Part 2 of Art. 109 is excluded. These are the qualifying offenses of illegal abortion (Art. 123), failure to provide assistance to the patient (Art. 124), production and sale of hazardous work and services (Art. 238), many environmental (Chapter 26) and transport (Chapter 27) crimes and etc.
3.2 Improving the legislative regulation of liability for causing death by negligence
death negligence criminal offense
As we have already noted, the rules on criminal liability for causing death by negligence differ from similar rules in foreign countries and, above all, in terms of the scope of sanctions, but in the near future, perhaps, Article 109 of the Criminal Code of the Russian Federation will look somewhat different.
Such a conclusion can be drawn on the basis of the draft amendments and additions to the Criminal Code of the Russian Federation. The bill was introduced a little over a month ago - on March 11, 2003. With regard to Art. 109 of the Criminal Code of the Russian Federation, the following changes and additions are proposed:
1) in the first part, the word "three" shall be replaced by the word "two";
2) the second part shall be stated in the following wording:
"2. Causing death by negligence as a result of improper performance by a person of his professional duties, is punishable by restraint of liberty for a term of up to three years, or imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without it." ;
3) add the third part of the following content:
"3. Causing death by negligence to two or more persons is punishable by restraint of liberty for a term of up to five years, or imprisonment for the same term, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
In our opinion, the proposed changes and additions are more than relevant. Let's justify our point of view.
First, the legislator lowers the term of liability (restriction of liberty or imprisonment) to two years. That is, from the moment the designated norms enter into legal force, the courts will be able to impose a restriction of liberty or imprisonment for up to two years.
Secondly, the legislator proposes to distinguish between qualified liability and the scope of punishment for causing death by negligence due to improper performance by a person of his professional duties and for causing death by negligence to two or more persons.
Moreover, if the punishment for causing death by negligence to two or more persons remains the same - restriction of liberty for a term of up to five years or imprisonment for the same term with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it . For causing death by negligence due to improper performance by a person of his professional duties, the punishment is reduced to restriction of freedom for a term of up to three years or imprisonment for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years or without it.
But for now, this is just a project.
On April 23, the draft law was adopted in the first reading and we hope that it will soon gain legal force, that is, it will go through all the stages of reading and signing. Trofimov S. The components of careless crimes in the Criminal Code are formulated carelessly. // Russian justice. - No. 10. - 2008. - S. 29-36.
Conclusion
The current criminal law (Article 109 of the Criminal Code of the Russian Federation Causing death by negligence), and not about murder by negligence. The current Criminal Code of the Russian Federation states that “causing death through negligence is punishable by restriction of liberty for up to three years or imprisonment for the same period. Unfortunately, it can be stated that the current Criminal Code of the Russian Federation, like the previous one, has not resolved the problem of careless co-causation. In our opinion, it is necessary to legislatively resolve this issue by making appropriate changes to the part contains more advanced rules for such a form of negligent crime as causing death. And the law speaks specifically about causing death, part 2 of Art. 109 of the Criminal Code of the Russian Federation. Or, in Article 26 of the Criminal Code of the Russian Federation, as an additional independent part, a provision can be formulated that if the criminal result is caused by the careless actions of several persons, the court, when imposing punishment, takes into account how much the actions of each person contributed to the onset of the criminal consequences. Such a decision would serve to further differentiate liability and would guarantee the justification for bringing to responsibility in the event of negligent co-causation. Moreover, the differentiation of responsibility is necessary even within the institution of careless co-causation, for example, when one of the co-causators has special knowledge and functions.
The institution of careless co-causation could serve as one of the objective and subjective grounds for bringing to justice for criminal inaction of persons who violate the established requirements (rules of conduct) when performing mandatory (normative) actions.
Thus, there is a need to improve the norms of criminal law regulating the infliction of death by negligence.
FROMlist of used literature
1. The Constitution of the Russian Federation.
2. Criminal Code of the Russian Federation.
3. Code of Criminal Procedure of the Russian Federation.
4. Bulletin of the Supreme Court of the Russian Federation. ? 2005.? No. 5. ? S. 7.
5. Review of the judicial practice of the Supreme Court of the Russian Federation for the II quarter of 2008 (on criminal cases) (approved by the decision of the Presidium of the Supreme Court of the Russian Federation of September 26, 2008). // Bulletin of the Supreme Court of the Russian Federation. - 2008. - No. 12. - S. 12.
6. Borodin S.V. Responsibility for murder: qualification and punishment under Russian law. - M., 2008.
7. Nersesyan V.A. The criminalization of careless illegal acts needs a systematic approach. // Journal of Russian Law. - Number 3. - 2008.
8. Nersesyan V.A. Peculiarities of punishment for negligent crimes. // Legislation. - No. 4. - 2007.
9. Titov B.N. Intentional infliction of grievous bodily harm: subjective signs of a crime // Journal of Russian Law. - No. 12. -2008.
10. Trofimov S. The components of careless crimes in the Criminal Code are formulated carelessly. // Russian justice. - No. 10. - 2008.
11. Fedotov A.V. Types of causal relationship between the act and the resulting harmful consequences. // Journal of Russian Law. - No. 12. - 2008.
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Causing death by negligence (Article 109 of the Criminal Code) . The Russian Criminal Code does not classify causing death to another person through negligence as murder. However, this a crime, of course, refers to encroachments on human life.
The scope of causing death by negligence is, as a rule, domestic interpersonal conflicts or industrial relations associated with the use of various sources of increased danger. Therefore, this crime should be distinguished from other acts, one of the possible consequences of which is causing death to a person through negligence (for example, under Articles 143, 215-217 of the Criminal Code).
Causing death by negligence is the result of gross violation normal rules of precaution in everyday life, inattention, imprudence of a person.
objective side crimes under Part. 1 Article. 109 of the Criminal Code, consists in actions or inactions that violate certain precautionary rules, as a result of which a person dies. In this case, the death of the victim must be in a direct causal relationship with the act of the perpetrator (naturally caused by him). So, K. was found guilty of committing this crime, having punched V. in the face, from which he fell, hit his head on the concrete floor and died from the resulting brain injury.
Subjective side crime, as the title of the article suggests, involves guilt in the form of negligence. causing death frivolity means that the person foresaw the possibility of death as a result of his actions (inaction), but without sufficient grounds, presumptuously counted on its prevention.
When causing death negligently the person does not foresee the possibility of its occurrence as a result of his actions (inaction), although, with the necessary care and foresight, he should have and could have foreseen these consequences. For example, a nurse inadvertently gives a patient a contraindicated drug that causes his death.
Part 2 Art. 109 UK ( qualified team) provides for increased liability for causing death by negligence due to improper performance by a person of his professional duties, and Part 3 of this article - for causing death to two or more persons.
It should be noted that the application of part 2 or 3 of this article can take place only if the deed does not constitute another crime that was committed by a person in connection with the improper performance of the duties assigned to him or is associated with negligent infliction of death to a person or several people (for example, violations of labor protection rules part 2 of article 143 of the Criminal Code; violations of the rules fire safety part 2, 3 art. 219 of the Criminal Code; negligence part 2, 3 art. 293 of the Criminal Code).
The death of one victim and the negligent infliction of grievous bodily harm to another is qualified in the aggregate of Part 1 of Art. 109 and part 1 of Art. 118 of the Criminal Code.
Subject a person who has reached the age of 16 years. In some cases (part 2 of article 109 of the Criminal Code), he is a person of a certain profession.
Driving to suicide (Article 110 of the Criminal Code) . Suicide itself is not a criminal law problem, but belongs to the sphere of morality and, as a rule, is condemned by morality. In recent years, Russia has been one of the first places in the world in terms of the number of suicides (suicide) per 100,000 population. Although the role of criminal law in reducing the number of suicides is very modest, it can be noted that both modern foreign and pre-revolutionary Russian legislation (Articles 462, 463 of the Criminal Code of 1903) punish inducement to suicide. However, the current Russian Criminal Code provides for liability only for driving another person to suicide.
objective side This crime consists in active actions (less often - inaction) of the guilty person, provoking (causing) the suicide of another person. Finished this crime is not only in case of self-infliction of death by the victim, but also in case of an attempted suicide (attempt on him). According to the law, the methods of bringing suicide are: a) threats; b) abuse of the victim; c) systematic humiliation his human dignity.
Threats may relate to various aspects of the life of the victim (for example, leave him without protection, deprive him of housing and material assistance, disclose unwanted information, take his life, etc.). Under abuse with the victim is understood as the actual infliction of physical suffering on him - deprivation of food and water (starvation), beating, refusal to medical care, expulsion from the home, placement in a place that is obviously not suitable for living, etc. Systematic humiliation of human dignity These are constant insults, mockery of the victim, spreading false rumors about him, etc.
Liability under Art. 110 of the Criminal Code is excluded if a person was induced to commit suicide by someone's lawful actions (detention on suspicion of committing a crime, disclosure of official information about a person, expulsion from an illegally occupied premises, etc.).
Between the fact of suicide ( assassination attempt on him) and the act of the perpetrator there must be a causal relationship, i.e. it must be established that it was the actions (inaction) of the person that were the direct cause that pushed the victim to commit suicide. If it followed as a result of other reasons (for example, stress caused by complications at work, break family relations, mental illness), there is no corpus delicti.
The victim in this case is any person who, through threats, abuse or systematic humiliation of human dignity is brought to suicide or attempted suicide. Characteristically, according to the Criminal Code of the RSFSR of 1960, only a person who was dependent on the perpetrator in any way (material or otherwise) could be a victim.
Subjective side driving to suicide is a lively debate in the theory of criminal law. Many authors assume that guilt when committing this crime, it is most often characterized by negligence or at least indirect intent. Direct intent, therefore, turns the deed into murder.
It is impossible to agree with such a conclusion. Firstly, the perpetrator, when driven to suicide, does not commit actions that directly cause death to the victim; inactive, he also does not personally end the life of another person - inflicting death on himself here is always mediated by the will of this person. The victim must take his own life, and this is the fundamental difference between bringing to suicide and murder on the objective side. Secondly, according to Part 2 of Art. 24 of the Criminal Code, an act committed only through negligence is recognized as a crime only if this is specifically provided for in the relevant article of the Special Part of the Code. Because in Art. 110 of the Criminal Code, there is no such indication, which means that guilt in this case can only be intentional, that is, in the form of direct or indirect intent. 17 The perpetrator, therefore, is aware that he is pushing the victim to suicide by one of the methods specified in the law, foresees the possibility or inevitability of depriving him of his own life and wishes (direct intent) or consciously allows such consequences or is indifferent to them (indirect intent).
Subject crimes - any person who has reached the age of 16 years.
Questions for self-control
1. Name the differences in the subject composition.
2. Name the features of the objective side.
3. Name the motives that influence the qualification.
At the same time, the Criminal Code of the Russian Federation does not consider causing death by negligence to be murder. However, responsibility for such an act is established in its Ch. 16, which provides a list of attacks on life.
In accordance with Art. 26 of the Criminal Code, a crime is considered to be committed due to frivolity if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds arrogantly counted on their prevention.
A crime is recognized as committed through negligence if the person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should have and could have foreseen them.
Both named types of negligent form of guilt when qualifying actions under Art. 109 of the Criminal Code should be distinguished, on the one hand, from intentional deprivation of life (murder) committed with indirect intent, and on the other hand, from innocent infliction of death, when the person was not aware and, due to circumstances, could not be aware of the public danger of his actions (inaction) or not foresaw the possibility of the death of the victim from his actions (inaction) and, due to the circumstances, should not have and could not foresee it.
Let us consider in more detail all types of differentiation, because the very fact of bringing to criminal responsibility, the correctness of the qualification of the deed and the establishment of the amount of punishment for the guilty depend on the thoroughness and in-depth study of the circumstances of the commission of a crime.
Let us distinguish between such close types of crimes as murder committed with indirect intent and causing death by frivolity. The similarity between them lies in the unwillingness of the guilty to take the life of the victim. However, when depriving life with indirect intent, the perpetrator consciously admits the occurrence of death among the possible consequences of his actions.
In other cases, seeking the onset of a certain desired result, the subject is indifferent to the possibility of the death of the victim (suppose, having stolen the clothes of a drunken citizen sleeping on the street in the cold, the guilty person realizes that he may freeze, does not want this directly, but is indifferent to the possibility of his death).
In judicial practice, there are criminal cases where indirect intent in relation to the death of the victim is also visible in cases where the guilty, not wanting the death of the victim, hopes for a chance - for good luck, the luck of the victim, "a good fate for him" and similar abstract factors . In fact, these hopes, given out by the accused as an argument for recognizing negligence in his actions and reducing punishment, are still the same conscious assumption of socially dangerous consequences or an indifferent attitude towards them.
In the case of a careless form of guilt in the form of criminal frivolity, the guilty person foresees in general terms (abstractly) the possibility of the death of the victim, but does not want it to occur. Moreover, he seeks to prevent death, while counting on real circumstances that will help avoid the consequences. As such, they can be physical strength, dexterity, the skill of the guilty person, his professionalism, life experience, etc. In addition, other specific circumstances may be taken into account, with the help of which, in the opinion of the perpetrator, he will be able to avoid the death of the victim. However, due to the fact that a person overestimates his capabilities, does not calculate all the scenarios for the development of events, acts presumptuously, the death of the victim still occurs and the perpetrator is responsible for the result.
For example, having robbed a woman selling a kiosk, two criminals tied her up and gagged her. Leaving, one of them saw that the woman was breathing with difficulty, and offered the second to loosen the rope that tied the victim's hands so that she, freeing her hands, could pull out the gag. The second did not agree, saying that the woman, as, according to their observations, happened every day, 10-12 minutes after the kiosk was closed, her husband would come and set her free. However, this calculation on the real circumstances did not materialize. Due to traffic congestion on the road, my husband was 30 minutes late. During this period, the woman suffocated due to the complete closure of the airways with a gag. The calculation of criminals on really real circumstances did not materialize, they reacted to the possibility of the death of the victim with criminal frivolity. Their actions must be qualified as causing death by negligence (part 1 of article 109 of the Criminal Code).
must be interpreted differently this situation, assuming that the robbers did not know that the husband was coming for the woman seller immediately after the kiosk closed. On the offer of one to loosen the ropes on the hands of the victim, the second refused, saying that nothing would happen to her, adding cynically: “Women are tenacious like cats.” Here, the subjective attitude of the robbers to the possibility of the death of the victim can be characterized as an indirect, unspecified intent: the conscious assumption of any consequences, including death.
The distinction between causing death by negligence from innocent causing death is also carried out according to the subjective attitude of the person to his actions and the consequences that have come from them. If a person was not aware and, due to the circumstances of the case, could not be aware of the social danger of his actions (inaction) or did not foresee the possibility of socially dangerous consequences (in particular, death) and, due to the circumstances of the case, should not have and could not foresee them, the act is recognized as committed innocently.
An act is also recognized as committed innocently if the person who committed it, although he foresaw the possibility of socially dangerous consequences of his actions (inaction), could not prevent them due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload (Article 28 of the Criminal Code ).
In this case, the solution of the issue of the possibility of bringing the tortfeasor (death of the victim) to criminal responsibility depends on an in-depth study of the situation in which the deprivation of life occurred, and a number of special examinations (criminological, forensic psychiatric, forensic, etc.). Basically, such questions arise in traffic accidents with a large number of participants, damage to vehicles, and the presence of victims.
The main rule of the law enforcer, based on the requirements of the law: “There is no responsibility without fault”, must be observed in such situations, regardless of the severity of the consequences. Part 2 Art. 109 of the Criminal Code provides for more severe liability for causing death by negligence to two or more persons. In terms of qualification, there are no problems in the practice of applying this norm.
In conclusion, it should be said that Art. 109 of the Criminal Code is common in relation to a number of special rules, which provide for liability for deprivation of life by negligence due to violation of special rules (for example, articles 215 - 217, 219, 220, 235, 247, etc.).
In the event of competition between general and special rules, preference should be given to the special rule. If there is none, the qualification of the actions of persons who caused death by negligence due to improper performance of their professional duties goes according to Part 2 of Art. 109 of the Criminal Code.
Let's do brief conclusions from the second chapter.
From the objective side, Art. 106 of the Criminal Code of the Russian Federation provides for three circumstances and time periods that characterize this crime: the murder of a newborn child by a mother during or immediately after childbirth; mother's murder of a newborn child mental disorder, not excluding sanity; the murder of a newborn child in a traumatic situation.
In order to avoid problems of qualifying the crime under Art. 106 of the Criminal Code of the Russian Federation, it is necessary to exclude the qualifying sign “during childbirth” from the disposition of this article. This proposal in the science of criminal law is not new and was previously proposed by various authors, but did not find its own. legislative consolidation. In addition, the resolution of this problem is seen in the introduction of a norm in the Criminal Code of the Russian Federation providing for liability for an encroachment on a fetus that has reached viability. When establishing viability, existing medical criteria should be used. The introduction of such a rule will fill the gap when the sign “during childbirth” is excluded, and will allow to accurately qualify the criminal acts under Art. 106 of the Criminal Code of the Russian Federation, to determine the necessary line between an encroachment on the life of a person and an unborn child.
A murder committed in a state of passion (Article 107 of the Criminal Code of the Russian Federation) is committed in a state of sudden strong emotional excitement. The mental state of the perpetrator is determined by a short-term, intense emotion associated with instinctive and unconditioned reflex activity. Most often, this type of murder is characterized by emotions of anger, hatred and despair. The state of affect lasts, as a rule, a short period of time, usually a few minutes. Strong emotional excitement arises suddenly as a reaction to a direct stimulus.
The legal assessment of a murder committed in a state of passion depends on the correct, in accordance with the law, understanding and interpretation of the signs of the objective and subjective aspects that are characteristic of a given corpus delicti, as well as taking into account the characteristics of the victim's victim behavior.
The Criminal Code of the Russian Federation does not consider causing death by negligence to be murder. However, responsibility for such an act is established in its Ch. 16, which provides a list of attacks on life.
This rule applies in cases where, as a result of a violation by the perpetrator of any rules in the field of professional activity or ordinary everyday precautions, the deprivation of a person's life occurs. Such violations can be carried out through both active actions and inaction. The subjective attitude of a person to the death of the victim can be expressed in the form of frivolity or negligence.
In conclusion, we note that the study of the issues of qualification of crimes against life from the standpoint of theory and practice will allow the law enforcement officer to more accurately, in accordance with the current criminal law, give a legal assessment of the committed act.
