Without sufficient k. A crime committed by negligence. Concept and signs of complicity
The district prosecutor's office revealed the fact of unlawful interference in entrepreneurial activity by an employee of the Dombarovskiy OVD.
Entered on May 1, 2009 in legal force the federal law of December 26, 2008 N 294-FZ "On the protection of the rights of legal entities and individual entrepreneurs in the implementation of state control(supervision) and municipal control "establishes the procedure for conducting state and municipal control of organizations and entrepreneurs, and also protects the rights of economic entities in the implementation of control measures.
The norms of this Law clearly define the powers of control bodies in the implementation of state control (supervision).
It should be noted that the Law does not apply to all control activities. Operational-search activity, inquiry, investigation, court, administrative investigation, prosecutor's office, tax, financial, currency and banking supervision, investigation are not subject to the Law. emergencies and accidents, border control.
The police are not a body of state control (supervision), by virtue of paragraph 3 of Art. 1 of the said Law, the provisions of the said Law do not apply to it.
The actions of employees of the internal affairs bodies are regulated by the Law "On the Police", which does not give police officers the authority to inspect the activities of legal entities and individual entrepreneurs in order to identify violations in their actions.
Analysis of norms current legislation allows us to conclude that police officers have the right to conduct inspections of legal entities and individual entrepreneurs exclusively within the framework of operational-search activities, inquiries, investigations, administrative investigation... Before the verification activities, the representative legal entity and an individual entrepreneur has the right to demand that he be familiarized with the grounds for conducting an inspection.
At present, there are facts of violation of the norms of the current legislation by the police officers, namely, the conduct of inspections without sufficient grounds, including before the initiation of an administrative investigation.
By the district prosecutor's office in the course of overseeing the implementation of legislation on the protection of the rights of subjects entrepreneurial activity It was established that on May 23, 2010, an employee of the Dombarovskiy OVD, lacking sufficient data indicating the existence of an administrative offense, without initiating an administrative offense case and conducting an administrative investigation, inspected the trade stall located on the territory of the Sunday fair in the village of Dombarovskiy. At the same time, the police officer illegally confiscated the products sold by the entrepreneur.
The fact of unreasonable verification grossly violates the norms of the current legislation and the rights of the entrepreneur, conditions are created for abuse of authority by officials.
In order to eliminate the violations committed by the district prosecutor's office, a submission was made to the head of the police department with a demand to take measures aimed at eliminating the violations committed, restoring the violated rights of an individual entrepreneur and to consider bringing the police officer who committed the extra-procedural check to responsibility.
New edition of Art. 2.2 Administrative Code of the Russian Federation
1. An administrative offense shall be deemed to have been committed intentionally if the person who committed it was aware of the illegal nature of his action (inaction), foresaw its harmful consequences and wished for such consequences to occur, or deliberately allowed them or treated them indifferently.
2. An administrative offense shall be recognized as committed by negligence if the person who committed it foresaw the possibility of the occurrence of harmful consequences of his action (inaction), but without sufficient grounds for that, presumptuously counted on the prevention of such consequences, or did not foresee the possibility of such consequences occurring, although it should have been. could have foreseen them.
Commentary on Article 2.2 of the Code of Administrative Offenses of the Russian Federation
The commented article identifies two forms of guilt - intent and negligence. The description of these forms of guilt practically coincides with that given in Art. 24 - 26 of the Criminal Code. However, unlike criminal legislation, the Code of Administrative Offenses does not highlight the types of intent and negligence. However, this is done in theory administrative law subject to the provisions of the commented article.
There are two types of intent: direct and indirect. An offense is considered committed with direct intent if the person was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and wished for such consequences to occur. Thus, the intellectual component of guilt in in this case It includes, firstly, the person's awareness of the wrongfulness of his action (inaction) and, secondly, the foresight of the inevitability or the possibility of harmful consequences. The volitional component is expressed in the desire for the onset of these consequences. If the person was aware of the illegal nature of his action (inaction), foresaw its harmful consequences, did not want to, but deliberately admitted these consequences or treated them indifferently, then the offense is recognized as committed with indirect intent. Obviously, the main difference between indirect and direct intent lies in the specifics of the volitional component: a person does not want the harmful consequences of his actions (inaction) to occur, but either consciously admits them, or treats them indifferently. The intellectual component of indirect intent is also different: with indirect intent, it is impossible to foresee the inevitability of the onset of harmful consequences, but only their potential.
Establishment of an intentional form of guilt is mandatory in cases where the commented Code provides for liability only for a deliberately committed offense.
The differentiation of intent into direct and indirect is important for material compositions administrative offenses... If in formal formulations intentional guilt lies in the person's awareness of the unlawful nature of the performed action or inaction (only the intellectual component of guilt is taken into account), then in material formulations, intentional guilt, in addition to the awareness of the unlawfulness of the action or inaction, also includes the offender's attitude to the harmful consequences that have occurred, i.e. the volitional component of guilt is also taken into account.
Negligence, like intent, is divided into two types: frivolity and negligence. Frivolity assumes that a person foresaw the possibility of the onset of harmful consequences of his action (inaction), but without sufficient grounds for that he presumptuously counted on the prevention of such consequences. In case of negligence, the person does not foresee the possibility of the onset of harmful consequences, although he should and could have foreseen them.
Another commentary on Art. 2.2 of the Code of Administrative Offenses of the Russian Federation
1. This article establishes two forms of guilt: intent and negligence. Determining the form of guilt is essential for the correct qualification of the wrongful act.
2. Guilt in the form of intent is present when the person who committed the act was aware of the unlawful nature of his action or inaction, foresaw its harmful consequences and wished or deliberately allowed these consequences to occur or was indifferent to them. In some articles of the Administrative Code RF directly indicates guilt in the form of intent. So, in Article 8.5 - on the deliberate distortion of information about the state of the environment natural environment and natural resources, in Article 17.7 - on the deliberate failure to comply with the requirements of the prosecutor arising from his powers.
3. In some articles of the Code of Administrative Offenses of the Russian Federation, the form of guilt is not indicated, but the composition is formulated in such a way that it makes it possible to talk about intentional guilt. For example, Article 14.12 contains such a composition as fictitious or deliberate bankruptcy, i.e. knowingly false announcement by the head of a legal entity about the insolvency of this legal entity, or individual entrepreneur about their insolvency; Article 17.9 - knowingly false testimony of a witness, explanation of a specialist, expert opinion or knowingly incorrect translation in the course of proceedings on an administrative offense.
4. Most of the offenses contained in the Code of Administrative Offenses of the Russian Federation are of a formal nature, i.e. for admission of guilt in the form of intent, it is sufficient to commit the law specified in the norm wrongful act or inaction, no matter what the consequences are. For example, Article 11.5 formulates the composition of the offense as a violation of the safety rules for the operation of aircraft, Article 12.8 establishes the control of a vehicle by a driver in a state of intoxication as a composition. In other words, with the formal composition of the offense, intentional guilt consists in the person's awareness of the unlawfulness of the action or inaction.
5. The Code of Administrative Offenses of the Russian Federation also contains material structures in which guilt is associated not only with the consciousness of the unlawfulness of the performed action or inaction, but also with the attitude of the offender to the consequences that have occurred. Thus, Article 8.38 stipulates that administrative responsibility occurs during the production of timber rafting, the construction of bridges, dams, the transportation of timber or other forest products from felling areas, the implementation of blasting or other work, as well as the operation of water intake structures and pumping mechanisms in violation of the rules for the protection of fish stocks, if at least one of these actions can lead to massive the death of fish or other aquatic animals, the destruction of significant amounts of food supplies or other grave consequences; Article 9.8 establishes such a composition of an offense as a violation of the rules for the protection of electrical networks with a voltage of more than 1000 volts, which can cause or cause an interruption in the supply of electricity to consumers.
6. Part 2 of Article 2.2 fixes the form of guilt in the form of negligence. An offense is considered to be committed through negligence if the person who committed it foresaw the possibility of harmful consequences of his action or inaction, but without sufficient grounds for that, presumptuously counted on their prevention or did not foresee the possibility of such consequences occurring, although he should and could have foreseen them. In this article, two types of careless guilt are indicated: arrogance, when a person foresaw the harmful consequences of his actions, but without sufficient reason counted on their prevention, and negligence - a person did not foresee such consequences, although he should and could have foreseen them. It follows from the content of the article that guilt in the form of negligence is applicable to the material elements of offenses that provide for the onset of harmful consequences, and presupposes a mental attitude of the offender towards them. As for the formal components of the offenses, in them the considered form of guilt is expressed in the fact that the person, as a rule, was not aware of the wrongfulness of his act, although he should and could have.
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Criminal frivolity is shown by a person in the event that he foresees the possibility of the onset of socially dangerous consequences of his action or inaction, but without sufficient grounds arrogantly counts on their prevention.
The most common, typical cases of frivolity crimes are rule violations road traffic and operation Vehicle- Art. 264, 350 of the Criminal Code of the Russian Federation.
The driver, a conscript was driving a car, in the back of which there were servicemen returning from work to the unit. It was raining, the road was slippery, and the driver, despite repeated reminders from the foreman who was driving in the cockpit, to slow down, drove the car at high speed, answering the foreman not to worry, they say, everything will be all right. But at one of the turns, with a sharp braking, the car turned around, it fell into a ditch and turned over. Of the servicemen in the back, one soldier received grievous harm health, and others were caused slight harm health and bruises.
The frivolity of this driver was expressed in the fact that he foresaw the possibility of the onset of socially dangerous consequences of his behavior, but presumptuously counted on their prevention.
In the law (Art. 26 of the Criminal Code of the Russian Federation), criminal frivolity is characterized by two features:
1. Intellectual - foreseeing the possibility of the onset of socially dangerous consequences;
2. Strong-willed - without sufficient reason, arrogantly counted on the prevention of these consequences.
Scientists - lawyers of the Faculty of Law of St. Petersburg State University believe that although the law does not say that a person is publicly aware dangerous character of his actions with frivolity, however, reasoning logically, one can come to the conclusion that if the subject foresees the possibility of the onset of socially dangerous consequences of his actions, he must be aware of the socially dangerous nature of the actions themselves, because the prediction of the danger of consequences is possible only with the understanding of the danger of actions. Another construction of intellectual features seems to be logically impossible.
We must agree with the opinion of the legal scholars of St. Petersburg State University because no matter what example we take with frivolous guilt, the subject always violates some rule of behavior. For example, the driver, exceeding the speed allowed by the traffic rules, realizes this fact and fully understands what is happening. These rules are established in order to avoid the possible occurrence of harmful consequences. If the subject foresees the possibility of the onset of socially dangerous consequences of his actions, obviously he also realizes that he is breaking the rules, i.e. commits socially dangerous actions.
These actions, while not being criminal without consequences, are socially dangerous and the subject is aware of this.
Anticipation of socially dangerous consequences lies in the fact that a person foresees an abstract possibility (not inevitability, as with direct intent or a specific possibility with indirect intent) of the onset of socially dangerous consequences, understands that with such behavior in such situations, these consequences may occur, but arrogantly calculates that in this particular case they will not come to him (happened to someone, someone had an accident in such cases, the commander gave instructions and warned - all these circumstances oblige a person to listen to the voice of reason and act in such a way that exclude the possibility of socially dangerous consequences).
A strong-willed sign is characterized by the fact that a person arrogantly counts on the prevention of harmful consequences, but this calculation turns out to be insufficient to prevent dangerous consequences. The subject's calculation is based on real factors ( professional training, great experience, good reaction, favorable weather conditions, reliable brakes, etc.), however, relying on these circumstances turns out to be frivolous. Consequently, the person not only does not want the onset of harmful consequences, but also relies on some specific circumstances that make it possible to avoid dangerous consequences. But this calculation turns out to be superficial, not serious, not sound. Something is not taken into account and harmful consequences come.
When investigating a criminal case, it is necessary to establish how real were the circumstances that the culprit was counting on. If it was a hope for a chance, for "maybe", for your "happy fate", then the act belongs to the category of a deliberate crime. When solving this issue, the personal qualities of the perpetrator are also taken into account: age, work experience, qualifications, etc. data.
In its intellectual characteristics, criminal frivolity is very close to indirect intent and differs mainly in volitional sign... Therefore, from the frivolous hope of preventing the harmful consequences of one's act, based on real factors, it is necessary to distinguish the so-called hope for "maybe", i.e. one that does not have a sufficiently real basis, for a happy coincidence, luck. So, for example, pushing a person who cannot swim from a steep bank or pier in stormy weather, the guilty person has no real reason that he will not drown. In the event of his death, such an act should be considered as a crime committed with indirect intent. The difference between indirect intent and criminal frivolity lies in the fact that in the first case, the person deliberately admits the onset of the foreseeable consequences or is indifferent to their occurrence, and in the second, he presumptuously expects to prevent them.
Criminal negligence is shown by a person if he: did not foresee the possibility of the onset of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should and could have foreseen these consequences (“accidental” shots when cleaning weapons).
Carelessness differs significantly from direct and indirect intent and frivolity. In case of criminal negligence, the consciousness of a person does not cover the possible socially dangerous consequences of the actions committed. However, there is an opportunity for him to foresee them and, thanks to this, to avoid or prevent their onset. Those. in this situation, the person does not show the necessary prudence, attentiveness to the interests of society. So, the inspector of the KRU Zhakov, during the audit in the store, did not carefully check the availability of the goods in the package, did not examine the goods, entered the data from the words of the seller Gribova into the list, as a result of which the theft committed by Gribovaya by embezzlement for a large sum was not revealed in a timely manner. With regard to Gribova, everything is clear: she is guilty of willful crime- theft. And what is the fault of the inspector Zhakov? Negligence committed as a result of criminal negligence, as he should and could have foreseen such consequences. These two signs of negligent guilt are called objective and subjective criteria, which are necessarily established in the investigation of crimes committed by negligence.
The objective criterion (should have) answers the question, was the person obliged to foresee the corresponding socially dangerous consequences? This obligation may arise for various reasons.
The objective criterion has normative character, i.e. it is enshrined in certain rules that people must adhere to in their activities. How to use it in practice? Much depends on the circumstances under which the damage was caused in which field of activity. In those cases when it is caused in the production sphere, in the performance of official or professional duties, the establishment of an objective criterion usually does not cause difficulties. The activities of employees in these areas, as a rule, are regulated by special instructions, rules for the production of certain works, safety memos, various manuals, charters, etc. Most of them are published specifically in order to prevent the onset of harmful consequences. These include, for example, the rules for handling flammable, explosive, poisonous substances, weapons, electric shock etc. Their violation, which is in a causal relationship with the harm that has occurred, indicates that the person should have foreseen its occurrence.
For example, G. was convicted under Art. 109 of the Criminal Code of the Russian Federation for such actions. In violation of the instructions, he took three guard dogs without muzzles out of the kennel on a leash. On the way, G. walked with the dogs past the scrap metal dump, where there were four young children, but G. did not notice them. He let the dogs off the leashes and they ran to the dump. Seeing them, the children began to run away. The smallest hesitated, he was attacked by dogs and caused injuries from which he died in the hospital. In this case, grave consequences occurred as a result of a direct violation of G. special instructions, therefore, the obligation on his part to foresee the consequences is obvious.
However, it should be borne in mind that the precautionary rules that define the boundaries of due diligence are usually designed to more or less typical situations so they cannot anticipate all accidents.
The establishment of an objective criterion of negligence in the commission of careless crimes in the sphere of everyday life has some peculiarities. Here people have to deal with various objects, substances, devices, etc., which, in cases of improper use, are dangerous to others. These are substances with poisonous, flammable or explosive properties, various household electrical appliances, etc. In most cases, these devices, objects, etc. instructions (memos) for their safe use are attached or they are issued with warning notices such as: "Flammable", "Poisonous", "Keep away from children", etc. Such instructions, while not legal in nature, are nevertheless mandatory for all persons , since they carry information about the dangerous properties of objects (substances), and, consequently, about due diligence when handling them. Therefore, if the harm occurred as a result of non-compliance, then the objective criterion is there.
Unlike the objective criterion, which seems to equalize people of the same profession, position, etc., when analyzing the subjective criterion of criminal negligence, the individual characteristics of the person who caused the harm should be taken into account.
The subjective criterion of negligence reveals the actual guilt of the person in the occurrence of the consequences, therefore, it is of decisive importance. It is known that the ability to foresee the results of their actions in different people different. It is due, in particular, to factors such as the level of education, professional skills, special training, life experience, etc., as well as factors related to the psychophysiological characteristics of people (features of sensations, perceptions, motor reactions, the effects of fatigue, stress, etc.). The choice of this or that factor or their combination in establishing the possibility of foreseeing the consequences depends on the scope of the subject's activity, on the peculiarities of the crime committed by him. So, when a person commits negligence, the level of education and professional training of the person is usually taken into account; when committing crimes in the sphere of everyday life, the everyday experience of the subject is taken into account, and when investigating road traffic crimes, along with the level of professional preparedness great importance may have such factors as the characteristics of perception, the time of motor reactions, the effect of fatigue on the body, etc. These factors should be established and taken into account not in general in relation to this person, but by "tying" them to those conditions of place and time in which a particular careless crime was committed.
The legislative definition of criminal negligence presupposes the presence in each case of both objective and subjective criteria. The absence of at least one of them excludes the guilt and responsibility of the person even if there is a causal relationship between his act and the resulting consequence and indicates the presence of a case (incident).
Negligence and its types.
1. A crime committed through negligence is an act committed through frivolity or negligence.
2. A crime shall be recognized as committed out of frivolity if the person foresaw the possibility of the onset of socially dangerous consequences of his actions (inaction), but without sufficient grounds for that he presumptuously counted on the prevention of these consequences.
3. A crime shall be recognized as committed through negligence if the person did not foresee the possibility of the onset of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should and could have foreseen these consequences.
Negligence is the second form of guilt, which has its own characteristics and, unlike intent, is associated with a person's negative attitude to criminal consequences, the occurrence of which he does not want and does not allow.
Non-occurrence of consequences, as a rule, excludes liability for careless creation of the danger of causing harm.
A crime is considered to be committed through negligence if the person who committed it foresaw the possibility of socially dangerous consequences of his action or inaction, but without sufficient grounds for that, presumptuously counted on their prevention (frivolity) or did not foresee the possibility of such consequences occurring, although with the necessary care and foresight should and could have foreseen them (negligence) (Art. 26 CC).
This understanding of the reckless form of guilt led to the construction of types of crimes as material, and not formal, allowing for liability for careless harm.
Given the peculiarity of this form of guilt, when committing reckless crimes, one cannot be attracted to criminal liability for cooking, attempted murder and complicity.
Thus, when committing careless crime all shades of a person's mental process, reflecting the internal structure of the content of this form of guilt, are combined by criminal law into two types - frivolity and negligence.
Negligence. A crime is recognized as committed through negligence if the person did not foresee the possibility of socially dangerous consequences, although with the necessary care and foresight he should and could have foreseen them.
A crime committed through negligence is characterized by a lesser or erroneous awareness of the factual and social attributes deeds. The subject is not aware, but was obliged and had the opportunity to be aware of the nature of his actions.
The intellectual moment of negligence is characterized by two signs: negative and positive (Rarog A.I. S. 69). A negative sign of negligence lies in the fact that a person does not foresee the possibility of the onset of criminal consequences and in the absence of consciousness of the unlawfulness of an action or inaction.
The mental attitude of the perpetrator to his act in case of negligence is characterized by the consciousness of violation of certain prohibitions and the unforeseen onset of criminal consequences, either by the fact that a person, committing a volitional act, does not realize that he is violating the rules of precaution, or the lack of volitional control, which is lost through the fault of the person himself.
A positive sign of an intellectual moment of negligence is that the culprit should and could have foreseen the onset of the actually inflicted criminal consequences.
The volitional moment of negligence is characterized by the fact that the perpetrator, having a real opportunity to prevent the criminal consequences of the act he is committing, does not activate his mental powers and abilities to perform volitional actions necessary to prevent criminal consequences, and, therefore, does not turn a real opportunity into reality.
Responsibility for negligence occurs only if the person, although he did not foresee the possibility of the onset of criminal consequences, should and could have foreseen their occurrence. The fact whether the perpetrator should and could have foreseen the consequences of his act can be established on the basis of objective and subjective criteria. Duty is objective, and foresight is the subjective criterion of negligence.
The objective criterion makes it possible to establish the existence of a person's obligation to foresee the possibility of a criminal consequence, while observing the precautions that are mandatory for this person. The question of whether a person should have foreseen the consequences that have occurred can be decided on the basis of safety rules, the operation of various mechanisms, the official position of the person, his duties, etc.
The objective criterion of negligence must be considered in conjunction with its subjective criterion.
In the law, the subjective criterion of negligence is expressed by the phrase "could have foreseen", which means the ability of a particular person in a particular situation, if he has the necessary personal qualities (experience, competence, education, health, etc.) to foresee the possibility of criminal consequences. This criterion is of predominant importance, since negligence can manifest itself only within the limits of the possible foreseeing of criminal consequences.
Frivolity and negligence have similarities in the willful moment. In both cases, there is no positive attitude towards the possible consequence. The difference between these types of negligence lies in the fact that with frivolity, the perpetrator, performing actions, hopes to prevent possible consequences, and with negligence, the guilty effort appears to be either useful or neutral.
Frivolity. The volitional orientation of an act with frivolity is characterized by the desire to prevent possible consequences. A person's foresight of the possibility of the onset of criminal consequences of his act constitutes an intellectual moment of frivolity, and an arrogant calculation without sufficient grounds for preventing them is his willful moment.
When committing a crime with frivolity, a person, at least in general terms, must foresee the development of a causal relationship, otherwise it is impossible to foresee these consequences, and even more so to count on their prevention. The subject foresees how it could develop causation, if not for the circumstances on which he counts and which, in his opinion, should interrupt the development of the causal connection.
On the intellectual point, frivolity bears some resemblance to indirect intent. Their difference is that with indirect intent, the guilty person foresees a greater likelihood of the onset of criminal consequences, and with frivolity, the guilty person foresees the onset of these consequences to a lesser extent. With intention, the subject foresees specific consequences, and with frivolity, these consequences appear in general form... However, with frivolity, the perpetrator foresees a real possibility of the onset of criminal consequences, and not an abstract one.
Anticipation of criminal consequences with frivolity differs from foresight with intent and in that, with frivolity:
1) the person foresees only the possibility, and not the inevitability of the onset of the consequences;
2) the prediction of the possibility of the onset of the consequences is accompanied and neutralized by an arrogant calculation to prevent it.
By committing a crime with frivolity, the guilty person counts on specific circumstances, and not on "maybe", not on a random coincidence of circumstances that, in the guilty's opinion, will be able to counteract the criminal result.
The circumstances on which the subject counts with frivolity can be very varied. These are circumstances related to:
The personality of the most guilty (strength, dexterity, knowledge, skill, experience, skill, etc.);
The environment in which the crime is committed (night time, absence of people, etc.);
Actions of others (expects others to put out a fire in the forest);
Relying on (hope) for the forces of nature, for the action of mechanisms, etc.
The volitional moment of frivolity consists in an unreasonable (without sufficient grounds, presumptuous) calculation to prevent criminal consequences. This feature of the volitional content of frivolity is due to an overestimation of one's own strengths or other circumstances that a person is counting on. The frivolous nature of the calculation is evidenced by the fact that the consequences do occur. If the person had good reason to count on some circumstances, but they turned out to be insufficient to prevent the result, which the person could not know about, then in this case there is no guilt, and therefore, there are no grounds for criminal prosecution (there is an innocent causing harm - case).
So, frivolity exists when the subject's calculation to prevent consequences already at the moment of committing the act was unreasonable, arrogant, which led to the onset of criminal consequences.