A person who is not specifically designated as a subject of a crime. Qualification of crimes committed by a special subject. The organizer is a person
In crimes that can only be committed by a special subject, the perpetrator must have his attributes. For example, perpetrators of crimes against state power, the interests of public service and service in local governments, responsibility for which is provided for in Art. 285, 286, 287, 289, 290, 292, 293 of the Criminal Code of the Russian Federation, there can only be officials.
Those who do not possess the characteristics of a special subject can also act as organizers, instigators and accomplices. The corresponding legal provision is contained in Part 4 of Art. 34 of the Criminal Code of the Russian Federation, where it is established that "a person who is not a subject of a crime specifically indicated in the relevant article of the Special Part of this Code, who participated in the commission of a crime under this article, is criminally liable for this crime as its organizer, instigator or accomplice" ...
Situations are similar to the responsibility of a mediocre performer when, in crimes with a special subject, their objective side is performed by a person who acts on his proposal, request, instruction, order, but does not possess the characteristics of such a subject. Such situations can be called a fiction of the perpetrator, for example, when a person who is not a special subject of this crime (Article 292 of the Criminal Code of the Russian Federation) is forced into official documents with deliberately false information or corrections that distort their actual content, a person, either a civil servant or an employee of a local government. In these cases, the special subject is the perpetrator, and the person who actually performed the objective aspect of the crime is an accomplice (provided, of course, the presence of all other objective and subjective signs of complicity).
64. Types of accomplices in a crime and qualification of their actions (inaction)
Participants are called persons who have united to jointly participate in the commission of willful crime... Depending on the roles that they perform at the same time, the criminal law - Part 1 of Art. 33 of the Criminal Code of the Russian Federation identifies the following types: 1) performer, 2) organizer, 3) instigator and 4) accomplice. This distinction is based on the content of the deed by the person in the jointly committed crime. Each partner has special characteristics.
Performer on the basis of Part 2 of Art. 33 of the Criminal Code of the Russian Federation “a person who directly committed a crime or who was directly involved in committing it together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons not subject to criminal liability due to age, insanity or other circumstances provided for by this The Code ".
The perpetrator, moreover, only he, can commit an action (or inaction) containing signs of an attempt or a completed crime.
The significance of his actions (or inaction) also lies in the fact that the act committed by him in collusion with other accomplices is committed by all participants in the joint actions of the perpetrator, thus, the efforts of all accomplices aimed at committing a crime are concentrated.
On the subjective side, he realizes that he commits socially dangerous actions (or inaction), in which the plan of all accomplices is realized, foresees a general criminal result and wants this result to occur.
In crimes that can only be committed by a special subject, the perpetrator must have his attributes. For example, perpetrators of crimes against state power, the interests of public service and service in local governments, responsibility for which is provided for in Art. 285, 286, 287, 289, 290, 292, 293 of the Criminal Code of the Russian Federation, there can only be officials. Those who do not possess the characteristics of a special subject can also act as organizers, instigators and accomplices. The corresponding legal provision is contained in Part 4 of Art. 34 of the Criminal Code of the Russian Federation, where it is established that “a person who is not the subject of a crime specifically indicated in the relevant article of the Special Part of this Code, who participated in the commission of a crime under this article, bears criminal liability for this crime as its organizer, instigator or accomplice ”.
Co-executor- a perpetrator who participates in the commission of a crime together with another perpetrator or other perpetrators, at least one.
The role of the co-perpetrators may differ depending on the nature and complexity of the objective side of the crime in general and the specific crime in particular. It can be expressed in the fact that, firstly, each co-perpetrator fully fulfills the objective side of the crime; secondly, one co-executor performs one part of the actions described in the disposition of the article of the Special Part of the Criminal Code, and the other - another (for example, in case of rape, one uses violence to the victim, and the other commits sexual intercourse with her); thirdly, one performs the actions outlined in the disposition of the article of the Special Part of the Criminal Code, and the other, without performing them, during, on the spot and in the course of the crime, resorts to actions that are organically interwoven into the course of its commission and without which it would be impossible or the commission of a crime in general is extremely complicated: fourthly, a co-perpetrator acting as part of an organized group or a criminal community and having stable ties with them, that is, their participant, carries out actions aimed at committing a crime, including, as noted, consisting in creating conditions for committing a crime, even if they do not go beyond aiding. So, the perpetrator of the murder is the one who inflicts a mortal wound, and the one who, in the process of killing, holds the victim. When theft of someone else's property by an organized group associated with the need to enter falsified data in the accounting documents, with forgeries, etc., some persons can directly withdraw property from the owner's funds, while others in one way or another, in one way or another, veil it or contribute directly seizure of property.
The perpetrator is also a person who has used another person as an instrument for committing a crime. This is the so-called mediocre performance. Their connection is only superficially similar to complicity, but does not form it. Mediocre execution is the deliberate use of another person for the implementation of the objective side of the crime, who cannot be the subject of the crime or who acted through negligence. Their acts are considered as committed by the mediocre perpetrator himself, who bears criminal responsibility for them. At the same time, it is not excluded in relation to the one who carried out the plan of a mediocre performer and acted through negligence. For example, Romin was convicted for the mediocre execution of premeditated murder, who, harboring anger towards Zhukov, persuaded Titov to shoot him with a gun, assuring that the gun was loaded only with gunpowder. Titov fired. The gun turned out to be loaded with buckshot, and Zhukov was killed. Titov was convicted of carelessly inflicting death on another person, because, although he did not foresee that the gun was loaded and Zhukov could be killed by a shot, but with the necessary care and foresight he should and could have foreseen this.
By the organizer according to Part 3 of Art. 33 of the Criminal Code of the Russian Federation “a person who organized the commission of a crime or directed its execution, as well as a person who created an organized group or criminal community (criminal organization), or led them, is recognized”. According to this definition, firstly, the concept of the organizer also includes the leader and, secondly, this concept is divided into the organizer of a crime and the organizer of an organized group or criminal community (criminal organization).
The organizer is the most dangerous of the accomplices. Along with inciting the intention of another person or other persons to commit a crime, he also creates other conditions for the implementation of a criminal act (unites the criminal efforts of all other accomplices, giving them organization, mutual consistency, purposefulness, or even stability or cohesion; develops a plan for committing a crime, etc. etc.). According to one study, the organizers accounted for 13.4% of the total number of accomplices 155.
The activities of the organizer of a crime may consist in performing the following functions: 1) involving other persons in the process of committing a crime; 2) creation of other conditions for the implementation of a criminal offense; 3) management of already established accomplices; 4) leadership in the commission of a crime. To recognize a person as an organizer, it is sufficient for him to perform one of the listed functions. His activity is always characterized by the performance of actions.
The organizer can be with any form of complicity, moreover, with or without prior collusion. In the second case, in practice, one of the perpetrators becomes the organizer already in the process of committing a crime, when he takes over the leadership of other accomplices, which occurs when committing mass riots, hooliganism, and rape.
The organizer of the crime is aware of the socially dangerous nature of his act and the acts of other accomplices, is aware of the composition of the group, foresees the possibility or inevitability of the onset of socially dangerous consequences as a result of the activities of the entire group and wants these consequences to occur.
The actions of the organizer who was directly involved in the commission of the crime are qualified under the article of the Special Part of the Criminal Code, which provides for responsibility for this crime, without reference to Art. 33 of the Criminal Code of the Russian Federation. Fulfillment of this role is taken into account when sentencing as a particularly active role in the commission of a crime (clause "g", part 1 of article 63 of this Criminal Code).
Link to Art. 33 of this Criminal Code is necessary only when the organizer did not directly participate in the commission of the crime, in particular, did not fulfill the objective side outlined in the disposition of the article of the Special Part of the Criminal Code.
In accordance with the cited part 5 of Art. 35 of the Criminal Code of the Russian Federation, the organizer of an organized group or criminal community bears criminal responsibility for organizing or leading them in cases provided for by the relevant articles of the Special Part of this Criminal Code, as well as for all crimes committed by an organized group or criminal community, if they were covered by its intent, under the article of the Special Part of this Criminal Code on responsibility for these crimes without reference to Art. 33 of the Criminal Code of the Russian Federation.
Instigator on the basis of Part 4 of Art. 33 of this Criminal Code “a person is recognized who persuaded another person to commit a crime by persuasion, bribery, threat or in another way”.
The objective side of incitement is characterized only by actions, the content of which is the incitement of another person's intention or determination to commit a specific crime. In terms of method and form, this can be expressed in an agreement, bribery, threat, request, persuasion, promise, order, incitement, violence, etc., moreover, both verbally or in writing, and by means of implicit or other actions (gestures, facial expressions, etc.) .NS.).
Due to the fact that the instigator arouses in another person the intention or determination to commit a crime, his actions are in causal connection with the act that the instigated commits.
Calling for criminal activity in general or directed at an indefinite circle of leagues is not incitement. Such actions, under certain conditions, can form an independent corpus delicti, for example, public calls for a violent change in the constitutional order of the Russian Federation (Article 280 of the Criminal Code of the Russian Federation), incitement of national, racial or religious hatred (Article 282), public calls for unleashing an aggressive war ( Article 354 of this Criminal Code).
Unlike the organizer, the instigator only persuades the other person to commit a crime. The organizer, in addition, creates the conditions for this, exerts an influence on the perpetrator and his activities until the end of the crime, not confining himself only to arousing the determination to carry it out.
Subjective side incitement is characterized by the instigator's awareness that he arouses in another person the determination to commit a specific crime, foresight that as a result of his actions the instigated will commit a criminal act, and desires it. For the criminal liability of the instigator, it does not matter what motives and goals he was guided by. Therefore, he is also responsible if he persuades another person to commit a crime in order to subsequently expose the instigated, that is, in the so-called provocation of a crime.
The instigator does not directly participate in the performance of actions that are part of the objective side of the crime, and therefore his actions are qualified under the article of the Special Part of the Criminal Code with reference to Art. 33 of the Criminal Code of the Russian Federation. However, it is possible that he may be one of the performers. In the latter case, with the qualification of Art. 33 of the said Criminal Code is not applied, and his role as the initiator of a crime is taken into account when sentencing as a particularly active role in the commission of a crime (clause “g”, part 1 of article 63 of this Criminal Code).
An accomplice in accordance with Part 5 of Art. 33 of this Criminal Code “a person who assisted in the commission of a crime with advice, instructions, provision of information, means or instruments of committing a crime or removing obstacles, as well as a person who promised in advance to conceal a criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, is recognized, as well as a person who has promised in advance to purchase or sell such items. "
An accomplice is usually the least dangerous of accomplices. His actions are of an auxiliary nature, less active than the actions of other accomplices.
Analysis of the methods of complicity listed in the law allows us to divide it into intellectual and physical.
Intellectual aiding consists in facilitating the commission of a crime with advice, instructions, providing information, as well as a promise made in advance to conceal the offender, means or instruments of committing a crime, or items obtained by criminal means, to acquire or sell such items.
Physical aiding consists in providing the means or instruments for committing crimes or removing obstacles to the implementation of criminal intent and is expressed, as a rule, in the commission of actions. However, in some cases, it can also manifest itself in inaction, provided that the person has a special legal obligation to resist the commission of a crime. Such a duty should be precisely legal, that is, it should follow from the requirements of the service, professional duties or regulations of the law. For example, complicity is the inaction of the guardian of someone else's property, who does not fulfill his duty in collusion with the perpetrator of the theft.
The motives and goals of the accomplice and the executor may coincide, or may differ. It is possible, in particular, that when committing a theft, the perpetrator acts out of selfish motives, and the accomplice assists him in order to take revenge on the victim.
Aiding differs from co-execution in that the accomplice, in no part and in any form, does not perform actions that form the objective side of the crime committed in complicity, and does not directly participate in such a commission.
The actions of an accomplice are qualified under the article of the Special Part of the Criminal Code, which provides for liability for a crime to which he contributed, with reference to Art. 33 of the Criminal Code of the Russian Federation. If the person was directly involved in the commission of the crime, then the reference to Art. 33 of this Criminal Code is not required, because such an "accomplice" by its legal nature is an executor.
As already mentioned, the basis for criminal liability is the commission of an act containing all the signs of a crime provided for by the Criminal Code of the Russian Federation (Article 8 of the Criminal Code of the Russian Federation). This provision of the law applies both to crimes committed by one person and to acts committed in complicity. However, this does not exclude the peculiarities of applying the criminal law to accomplices in a differentiated manner, since criminal law does not provide for collective responsibility. The law (Art. 34 of the Criminal Code of the Russian Federation) establishes that the responsibility of accomplices in a crime is determined by the nature and degree of the actual participation of each of them in the commission of the crime. Therefore, it is necessary to take into account the type of partner, the form of complicity, the specific actions of each of the partners. The nature of participation in the commission of a crime is determined by the role of an accomplice in a jointly committed crime, i.e. what kind of accomplices he belongs to. The degree of participation is understood as the actual role that this or that accomplice made in the commission of a joint crime. Depending on the degree of participation of the person and the occurrence of the criminal result, the responsibility of each accomplice should be individualized (Article 34 of the Criminal Code of the Russian Federation).
The responsibility of the accomplices depends on the signs of the objective and subjective aspects of the crime. The peculiarity of the objective side of the crime lies in the fact that the responsibility of each of the accomplices, if they are not co-executors, is determined both by the provisions of the General Part of the Criminal Code of the Russian Federation (Article 33), and by the content of the corresponding article of the Special Part of the Code. The subjective side of a crime committed with complicity is always characterized by intent, intellectual moment which presupposes the mutual awareness of the accomplice about the public dangerous nature their behavior, the behavior of the performer, about their joint actions, and strong-willed moment- the desire to achieve a joint criminal result or a conscious admission of it by combining joint actions.
The limits of liability of partners are determined by both general and special conditions. General terms include such circumstances as the correct determination of the type of accomplice, the form of complicity, is the form of complicity the main feature of the corpus delicti or its qualifying circumstance. So, Art. 208 of the Criminal Code of the Russian Federation recognizes complicity as the main sign of corpus delicti and provides for responsibility for organizing an illegal armed formation or participation in it, Art. 209 of the Criminal Code of the Russian Federation similarly provides for responsibility for the creation of a stable armed group (gang) in order to attack citizens or organizations, as well as the leadership of such a group (gang). Special conditions, that affect the limits of the responsibility of accomplices, represent objective and subjective signs (or one of any signs) that are inherent in all accomplices, as well as excess of the performer, voluntary refusal of the performer or other accomplices to commit a crime, unsuccessful complicity.
So, objective signs determine the properties of the most socially dangerous act and socially dangerous consequences. These signs, which are in the possession of one accomplice, are imputed to the responsibility of other accomplices, if they were covered by their intent. In this case, qualifying signs committed crime are imputed to an accomplice only when they were embraced by his intent. For example, if, when committing a murder, the accomplice is aware that the perpetrator is committing a simple murder of the victim because of hostile relations between them, and later it turns out that there was no such relationship and the perpetrator committed a qualified murder out of mercenary motives, then the accomplice will be responsible for the simple rather than skilled murder by the perpetrator. Objective signs may refer to any individual characteristics of an object protected by criminal law. So, if, during the rape of a minor, the perpetrator of the crime was not aware that the victim had not reached the age of 14, only the organizer of the crime knew about this, who informed the perpetrator that the victim was 16 years old, then the perpetrator cannot be held responsible for the rape of the minor. He will be responsible for the rape of a minor, and the organizer - for organizing the rape of a minor.
Subjective signs(self-interest, base motives, etc.) are imputed to other accomplices, depending on whether they characterize the socially dangerous act itself or an accomplice in a crime. In the first case, they are subject to imputation to the accomplice if they were covered by his intent. For example, when instigating to steal someone else's property with penetration into a home, both the instigator and the performer are fully aware that the theft will be committed in this way, therefore, this qualifying feature will be imputed to both accomplices. In the second case, the subjective attribute is imputed only to the accomplice to whom it belongs, so to speak, to its bearer, regardless of whether other partners know about such a attribute.
Each of the accomplices is responsible for personally committed acts, taking into account his guilt. In this case, it is necessary to comply with a number of rules.
- 1. All accomplices are criminally liable for one and the same crime, therefore, all objective and subjective signs of the corpus delicti of a given crime should be imputed to any accomplice.
- 2. Objective circumstances mitigating or aggravating the punishment are taken into account in relation to all accomplices.
- 3. Personal or subjective circumstances should be considered and imputed only to these individual accomplices.
- 4. If the perpetrator did not complete the crime due to circumstances beyond his control, the rest of the accomplices shall be held liable for the preparation for the crime or the attempted crime. The commission of a crime by a group of persons, by a group of persons by prior conspiracy, by an organized group or a criminal community (criminal organization) entails a more severe punishment on the basis and within the limits provided for by the criminal law (part 7 of article 35 of the Criminal Code of the Russian Federation).
The qualification of the actions of the organizer depends on his role in the joint crime. If he acts as the organizer of the commission of a crime, responsibility follows under Art. 33 of the Criminal Code of the Russian Federation and the corresponding article of the Special Part of the Criminal Code of the Russian Federation. If a person acts as the organizer of a group crime, then he is recognized as a member of the group, i.e. the main co-perpetrator of the crimes committed by the group. In this case, qualifications under Art. 35 of the Criminal Code of the Russian Federation.
The qualification of the actions of the accomplices depends on the form of complicity. The actions of the perpetrator of the crime or co-perpetrators with simple complicity are qualified under the article of the Special Part of the Criminal Code of the Russian Federation without reference to Art. 33 of the Criminal Code of the Russian Federation. Similarly, the actions of an organizer, instigator or accomplice are qualified if, when committing a crime, they act not only in this form, but also simultaneously in the role of the perpetrator of the crime. The only exceptions are cases of co-execution in the commission of crimes with a special subject. If a person is not the subject of a crime specifically indicated in the relevant article of the Special Part of the Criminal Code of the Russian Federation, then for participation in the commission of a crime, he may be held liable as an organizer, instigator or accomplice. In other cases, as in crimes with a special subject, the actions of the organizer, instigator and accomplice are qualified under the relevant article of the Special Part of the Code, imputed to the performer, with reference to Art. 33 of the Criminal Code of the Russian Federation. So, if an unofficial person organized the receipt of a bribe official, then the responsibility of such a non-official should come but Part 3 of Art. 33 and Art. 290 of the Criminal Code of the Russian Federation, and an official - under Art. 290 of the Criminal Code of the Russian Federation. With complex complicity (an organized group, criminal community) the responsibility of the partners is determined in accordance with Art. 35 of the Criminal Code of the Russian Federation.
In cases where the perpetrator does not complete the commission of the crime for reasons beyond his control, the remaining accomplices bear criminal responsibility depending on the stage of the crime committed by the perpetrator (preparation, attempt). For example, for committing a burglary, the accomplices prepared the necessary funds, began to hand them over to the performer, and at that time they were detained. V in this case responsibility for accomplices must come for the preparation for the crime. Another example: in order to commit murder, the performer fired a pistol at the victim, wounded him, but by the measures taken, the latter managed to disarm and detain the performer, the victim himself was given health care, thanks to which he remained alive, and the crime was not over. All accomplices will be held responsible for the attempted murder.
If the organizer or instigator failed to persuade the perpetrator to commit a crime due to circumstances beyond their control or the perpetrator voluntarily refused to commit a crime (the so-called unsuccessful complicity), then the organizer and instigator are responsible for preparing for the crime, and the perpetrator will not be held liable. Suppose the accomplices agreed to commit a burglary, provided the performer with the necessary means of breaking into the garage, transport for the removal of the stolen, but the perpetrator voluntarily and finally refused to commit the crime, since the apartment belonged to his relative. In this case, the organizer, instigator and accomplice will be held responsible for preparing to commit the burglary.
The peculiarities of responsibility for the voluntary refusal of the crime of other accomplices are defined in Art. 31, 34 of the Criminal Code of the Russian Federation, where it is differentiated depending on the type of partner. If it is enough for the perpetrator to refuse to commit the crime so that he would not be prosecuted, then this is not enough for other accomplices. The law has established the least strict framework for an accomplice who is not subject to criminal liability if he has taken all measures in his power to prevent a crime.
The law places the most stringent requirements on the organizer and instigator of a crime, which are not subject to liability only if the perpetrator is prevented from bringing the crime to an end. If the measures taken to prevent the commission of a crime by the perpetrator specified in the law did not give positive result and the crime was nevertheless committed, then when sentencing these accomplices in accordance with Art. 61 of the Criminal Code of the Russian Federation, these circumstances can be recognized as mitigating punishment.
Along with the above circumstances affecting the limits of liability of accomplices in a crime, one should distinguish kurtosis of the perpetrator of the crime, defined as the commission of a crime by the perpetrator not covered by the intent of other accomplices (Article 36 of the Criminal Code of the Russian Federation). For these actions, only the perpetrator of the crime is prosecuted. Other accomplices in the crime for the excess of the perpetrator are not criminally liable.
Although the responsibility of the accomplices in the crime is independent, it depends on what socially dangerous act the perpetrator has committed. The kurtosis of the performer differs in quality and quantitative characteristics depending on the extent to which the performer deviated from the agreement reached by all accomplices.
Qualitative attribute excess is characterized by the fact that along with the crime agreed with the accomplices, the perpetrator also commits another, independent crime or several crimes. For example, if, in conspiracy to commit robbery, one of the accomplices kills the victim after stealing someone else's property, then only this accomplice will be involved for robbery and murder, while others will be responsible only for robbery, since they only agreed to commit it.
Quantitative trait characterized by the fact that the perpetrator goes beyond the scope of the actions included in the content of the specific corpus delicti, about which there was a conspiracy, i.e. commits a crime covered by the intent of the accomplices, but goes beyond it. He can commit more dangerous crime(instead of stealing someone else's property, i.e. secret kidnapping, robbery) or a less dangerous crime (for example, the perpetrator of the crime, causing only slight harm to his health, out of pity for the victim, voluntarily refused to commit the murder, which was to be performed by conspiracy with other partners). In the first case, the perpetrator will be responsible for the robbery committed by him, and the rest of the accomplices will be held liable only for the theft, since the commission of the robbery was not covered by their intent and they did not agree with the perpetrator. In the second case, the performer is responsible for what he actually did, i.e. will be responsible for willful infliction easy harm health of the victim, while other accomplices will be held responsible for making preparations for the murder.
Upon expiration of the statute of limitations
Subjective, objective
by privileged composition
Completed crime
In what cases the actions of the subject who persuaded another person to commit a crime do not require qualifications under Art. 33 of the Criminal Code of the Russian Federation?
if, in addition to the instigating functions, the subject has fully or partially performed the acts that are part of the objective aspect of the corpus delicti
Person acting under the influence of force majeure
Exempt from criminal liability
Are not the basis for measures medical intervention (3)
Committing a crime in a state drunkenness
Committing a crime in a state of intense emotional excitement
Committing a crime while intoxicated
The question of the criminal liability of stateless persons permanently residing in the territory of the Russian Federation and who committed a crime outside the Russian Federation are governed by the same rules as the question of responsibility
Retroactive criminal law applies to persons who have committed an act
Before the entry into force of such a law, including for persons serving a sentence or who have served a sentence, but with a criminal record
There is no cumulative crime if
The crime is provided for by the general and special rules
When committing a crime with indirect intent, the perpetrator foresees
The real possibility of the onset of socially dangerous consequences
40. Innocent harm occurs if:
The person who committed it foresaw the onset of socially dangerous consequences of his act, but cannot prevent them due to the discrepancy between his psychophysiological qualities and the requirements of extreme conditions
41 In criminal law, mediocre causation is defined as:
Committing a crime through the use of individuals who, by virtue of the law, are not subject to criminal liability
Life imprisonment is not assigned (2)
Women
Men who have reached the age of 65
43. In accordance with the Criminal Code of the Russian Federation, criminal liability is provided for acts interrupted at the stage:
Preparing for a crime
Attempted crime
Legal basis criminal liability is
Corpus delicti
Convictions against persons on probation are canceled upon expiration
Upon expiration of the probationary period
Complicity
This is the intentional joint participation of two or more persons in the commission of an intentional crime.
47.The optional feature of the object of the crime is:
Subject of the crime
The subject of the crime is
One of the elements of the corpus delicti
If, in the process of serving a sentence for one crime, a person commits a new crime and it is established that the person has committed several more crimes before the sentencing, then in what order should the sentence be imposed?
it is necessary initially to apply Art. 69 of the Criminal Code of the Russian Federation to impose punishment for previously committed crimes, and then according to the rules of Article 70 of the Criminal Code of the Russian Federation
93. The system of punishments does not include:
Confiscation of property
A person who is not a subject of a crime specifically indicated in the article of the Special Part of the Criminal Code of the Russian Federation, who participated in the commission of a crime under this article, shall bear
as an organizer, instigator or accomplice in this crime
25. Release from criminal liability is an obligation law enforcement:
Upon expiration of the statute of limitations
26. The criteria for negligence are (please provide correct list):
Subjective, objective
27. Crimes with material constituents of crimes are committed (select the correct list):
with direct, indirect intent, negligence and frivolity
28. When appointing more mild punishment than provided for the offense, the court may (check three answers):
· Appoint more soft look penalties than this article
Impose the same type of punishment as specified in the sanction of the article, but a smaller amount
Do not apply additional view mandatory punishment
29. Causing harm as a result of coercion relieves a person from criminal liability if:
if the rules are followed urgent need
30. The subject of the crime is recognized (select the most complete answer):
a natural, sane person who at the time of the commission of the crime has reached the age of criminal responsibility established by the Criminal Code of the Russian Federation
31. Exceeding limits necessary defense entails criminal liability:
by privileged composition
Article 143 Violation of labor protection rules Violation of safety rules or other labor protection rules, committed by a person who was responsible for observing these rules, if this entailed, by negligence, the infliction of serious or moderate harm to health. What stages are possible in this crime?
Completed crime
The criminal law provides for crimes, the subjects of which may not be any sane natural persons who have reached a certain age, but only those who still have special, additional features. For example, by subjects of illegal abortion, foreseen in parts the first and second articles 117 of the Criminal Code, there can only be doctors, abuse official powers(Article 307 of the Criminal Code) - officials.
The specificity of these crimes lies in the fact that they cannot be committed by persons who are not endowed with such signs.
In the current criminal legislation, there is no definition of the concept of a special subject. The signs characterizing special subjects are provided for in the norms of the Special Part of the Criminal Code.
Special subject- this is a person who, along with the general features of the subject (sanity, reaching a certain age), has additional features provided for by the relevant norms of the Special Part of the Criminal Code, in the presence of which the commission of this crime is possible.
Compositions of crimes, which provide for the responsibility of special subjects, are called compositions with a special subject.
The Criminal Code contains a significant number of rules with a special subject.
There is not a single chapter of the Special Part of the Criminal Code, where compositions with special subjects would not be envisaged. And two chapters - chapter 13 "Crimes against interests public service"And Chapter 16" Military Crimes "are distinguished not only by the generic object, but also by the special subject of the crime. The subjects of most crimes against the interests of the public service and military crimes can be, respectively, only officials or military personnel, as well as citizens who are in reserve while they are going through training.
Only perpetrators of crimes can be special subjects. Other persons who do not possess the characteristics of a special subject can also act as accomplices.
The signs of a special subject in most cases are directly indicated in the very norm of the Criminal Code, which provides for a specific corpus delicti. For example, in the disposition of Article 350 of the Criminal Code, judges are directly named as subjects of crimes, in Article 345 of the Criminal Code - the person conducting the inquiry, the investigator or the prosecutor.
In other cases, the signs of a special subject in the disposition are implied, and they are then established by interpretation. Thus, by interpreting Article 120 of the Criminal Code, which provides for liability for rape, it can be concluded that the perpetrator of this crime is a man.
In some cases, the signs of a special subject are established in a special norm of the Criminal Code. For example, in the footnote to article 307 of the Criminal Code, the concept of an official is given, and article 366 of the Criminal Code provides a list of persons who may be criminally responsible for military crimes.
In these cases, the concept of a special subject is given for a significant number of corpus delicti - all crimes against the interests of public service and military crimes.
Establishing the signs of a special subject is important in deciding the issue of criminal liability, as well as in qualifying the actions of the guilty person, individualizing the punishment. The absence of signs of a special subject, provided for in the Special Part of the Criminal Code, excludes criminal liability for this crime.
For example, a negligent attitude towards service by a person who is not an official excludes criminal liability under Article 316 of the Criminal Code, since only an official is the subject of this crime.
The signs of a special subject in a number of cases can act as circumstances that increase the degree of public danger of a committed crime, turning the main corpus delicti into a qualified corpus delicti of the same type, or p. as circumstances mitigating liability.
So, the composition of the abuse of office (Article 307 of the Criminal Code) grows from the main to the qualified one, if the act is committed by a person who is responsible public office(part 2 of article 307 of the Criminal Code).
The murder by her mother of a newborn child both during childbirth and in the subsequent period, committed in a traumatic situation or in a state of mental disorder that does not exclude sanity (Article 97 of the Criminal Code), is a circumstance mitigating responsibility for this crime.
In cases where the features of a special subject are not provided either as necessary features of the main corpus delicti, or as features that change the qualification of a crime, they can act as general aggravating or mitigating circumstances for the individualization of punishment (Articles 53, 54 of the Criminal Code).
Signs of a special subject are varied and can refer to different personality traits. All signs of a special subject provided for in the norms of the Special Part of the Criminal Code can be divided into the following:
- 1. Signs characterizing legal position persons - a serviceman, liable for military service (Art. 366 of the Criminal Code), parents, spouses, children (Art. Art. 136, 140 of the Criminal Code, etc.).
- 2. Demographic characteristics, physical properties the identity of the perpetrator - gender (man - Art. 120 of the Criminal Code), age (minor - Art. / AIDS), - Article 116 of the Criminal Code), etc.
- 3. Signs characterizing the official position, the nature of the work performed, and signs characterizing the profession of a person - a judge, an employee of the railway, sea, air, river transport, a doctor, a medical worker, etc. (Articles 114, 117, 295, 307, 350 of the Criminal Code, etc.).
- 4. Signs characterizing a person with past antisocial activity or repeated committing a crime - the presence of a criminal record (a person previously convicted of hooliganism, item "c" part 2 of article 257 of the Criminal Code, etc.) theft committed repeatedly (item "b" Part 2 of Art. 175 of the Criminal Code), robbery committed repeatedly (clause "b", Part 2 of Art. 178 of the Criminal Code), etc.
A special subject is a person who, apart from common features subject, has additional features specified in the disposition criminal law reflecting the specific properties of the offender. The indication in the disposition of the norm on the signs of a special subject means that not every physical, sane person who has reached the age specified in the law, who has caused harm to society, can be brought to criminal liability. Criminal law sometimes limits the circle of persons who can be criminally liable by specifying certain, specific features of the subject.
The features of a special subject are very diverse in their content. The Criminal Code of the Republic of Kazakhstan contains about 40% of compositions with a special entity. Signs of a special subject can relate to various characteristics of the criminal's personality, to the position held in service and work, position, profession, to a negative characteristic associated with the commission of a crime, to military duty, marital status, etc.
For example, the subject of a crime under Art. 295 of the Criminal Code, it may not be any individual who has reached the age of 16, but only has the features specified in the law - it must be the person managing vehicle... In this case, the characteristics of the subject are associated with the nature of his actions in the field of movement and operation of vehicles.
The general features of the subject are not indicated in the disposition of the norms of the Special Part of the Criminal Code, they are made by the legislator as general fundamental provisions in the General Part. On the contrary, the acting criminal law in the General part does not give the concept of a special subject. signs characterizing a special subject are indicated in the dispositions of the criminal law norms of the Special Part of the Criminal Code.
In the footnote to Art. 311 of the Criminal Code describes the features of a special subject for malfeasance, the peculiarity of which lies in the fact that it can be committed only with the use of duties in the service and thanks to the official use of the person who is the subject of the crime.
Sometimes the signs of a special subject are not indicated in a specific norm of the Special Part of the Criminal Code, but they can be understood through a systematic, logical and grammatical interpretation of the norm. For example, Art. 118 of the Criminal Code establishes responsibility for failure to provide assistance to a patient. The law does not directly name the subject of the crime, but indicates its essential feature: the duty of this person to provide assistance to the patient according to the law or according to a special rule. In accordance with special rules established by the competent health authorities of the Republic of Kazakhstan, all medical and pharmaceutical workers are required to provide first aid to citizens on the road, on the street, in other in public places and at home.
Special subject attributes can be classified as follows:
by state and legal status: citizen of the Republic of Kazakhstan, foreign citizen and a stateless person;
by demographic basis: by gender - male; by age - an adult;
for family, kinship relations - parents and persons replacing them, children;
in relation to military duty; conscript; soldier and liable for military service;
on official position; executive;
by official position of persons working in special government systems: interrogator, investigator, prosecutor, judge, police officer;
on professional duties;
by the nature of the work performed: the person to whom the information constituting state secret have been entrusted by service or work;
by position;
by the nature of the duties of citizens in relation to the state;
on the special status of a person associated with the commission of a crime;
in a special situation or in relation to the victim;
for other reasons.
The proposed classification is not exhaustive and the only one in the science of criminal law. In the legal literature, other opinions are expressed on this issue. As a rule, the special means of a subject, which have received the name of a special subject in science, are mostly associated with his special duties to other persons and the state.
A special subject is a person who, along with sanity and the age of criminal responsibility, also has other additional features specified in the law or directly deriving from it, limiting the range of persons who may be responsible for a given socially dangerous act.
A socially dangerous act will be recognized as a crime only when all signs of corpus delicti, including signs of a special subject, are established in the act.
The signs of a special subject are the specific features of the subject of a given crime, which go beyond general requirements to the subjects of other crimes. They characterize a very diverse range of properties of the subject.
It is not by chance that the legislator establishes criminal liability in relation to each specific composition. First, in reality, crimes are committed by precisely those persons with whom the possibility of bringing to criminal responsibility is connected. For example, a military crime. Secondly, some acts reach the degree of social danger that makes it necessary to establish criminal responsibility only when they are committed by a person who has the characteristics of a special subject. For example, a bribe can be received by a person who is not an official. but public danger a bribe is acquired only when it is accepted by an official because it disrupts normal activities government body and discredits him in the eyes of society. [Orymbaev R., Alma-Ata, 1989, p. 61-62]
The signs of a special subject as rules are directly indicated in a specific norm of the Special Part of the Criminal Code of the Republic of Kazakhstan. Sometimes they can be understood through a systematic, grammatical and logical interpretation of the rule of law. So, Art. 118 of the Criminal Code of the Republic of Kazakhstan establishes responsibility for failure to provide assistance to a patient. The law does not directly indicate the subject of the crime, but names its essential feature: the duty of this person to provide assistance to the patient according to the law or a special rule. In accordance with special rules established by the competent health authorities of the Republic of Kazakhstan, all medical workers (doctors, paramedics, obstetricians, nurses and others) are obliged to provide first aid to citizens on the road, on the street, at home in other public places. [ Criminal law Russia. a common part/ Resp. ed. B.V. Zdravomyslov, M., 1996, pp. 215-216]
The legal meaning of general and special features of the subject of a crime is not the same. The absence of at least one of the common features of the subject means, at the same time, the absence of corpus delicti. In the absence of signs of a special subject of a crime, a different situation arises: in individual cases the absence of these signs completely excludes criminal liability, in others - only the qualification of the crime changes. [Criminal law of the RK (General part). Study guide, ed. Borchashvili I.Sh., Saparova V.N. -Karaganda: KARUI Ministry of Internal Affairs of the Republic of Kazakhstan named after B. Beisenov, 2004, p. 104-105]
When determining the characteristics of a special subject, the provisions contained in the departmental regulations: charters, regulations, instructions and orders that determine the official powers of certain employees of enterprises, institutions, organizations. When qualifying a socially dangerous act, the court is obliged to consider on the merits and discuss the nature of those special duties and powers that are assigned to the relevant employee. At the same time, the data of departmental regulations should be accepted by the court as one of the arguments for one or another solution to the issue. It is possible that the court, having assessed the merits of the actions that the guilty person committed, in some part disagree with the departmental qualifications of the employees of the enterprise, institution, organization and, based on the assessment of the actions performed by the person, does not recognize or, on the contrary, does not recognize his special subject of crime. [Lazarev A.M. The subject of the crime. -M., 1981, p. 103-104]
The signs of a special subject in the theory of criminal law are called optional signs in general concept corpus delicti, since they are not mandatory for all specific corpus delicti. [Criminal law of the RK. A common part. Course of lectures / ed. Borchashvili I.Sh. -Karaganda, 2002, p. 25]
In the Special Part of the Criminal Code of the Republic of Kazakhstan, three chapters can be distinguished, containing whole systems of norms with a special subject: crimes against the interests of public service, crimes against the order of government and military crimes.
Higher judicial authorities repeatedly drew attention to the need to establish the characteristics of a special subject.
Currently, in the practice of judicial and investigative bodies difficulties arise in the qualification of malfeasance associated with the variability of regulations governing legal status civil servants. [Commentary on the Criminal Code of the Republic of Kazakhstan. - Almaty, 2007, p.291] In addition, there are ambiguities in the issue of who is considered an official. To solve these problems, it is necessary to involve a large number of regulations, including departmental ones. [Commentary on the Criminal Code of the Republic of Kazakhstan. - Almaty, 2007, p.278]
A special subject of a crime is a person who, in addition to the general characteristics of a subject (a natural sane person who has reached the legal age by the time the crime was committed), has any additional characteristics specified in the norms of the Special Part of the Criminal Code of the Russian Federation.
The current criminal legislation in the General part of the Criminal Code of the Russian Federation does not contain the concept of a special subject. The signs of a special subject can be judged by analyzing the criminal law norms of the Special Part of the Criminal Code of the Russian Federation.
In a number of cases, norms with a special subject are singled out by the legislator in separate chapters; the current Criminal Code of the Russian Federation contains three such chapters - this is Ch. 23 "Crimes against the interests of service in a commercial or other organization", ch. 30 "Crimes against state power, the interests of the civil service and service in the authorities local government"And Ch. 33 "Crimes against military service".
It should be especially noted that in crimes in which the subject is endowed with special features specified in the disposition of the criminal law norm of the Special Part of the Criminal Code of the Russian Federation, he can only act as the perpetrator of the criminal act. Part 4 of Art. 34 of the Criminal Code of the Russian Federation states that "a person who is not a subject of a crime specifically indicated in the relevant article of the Special Part of this Code, who participated in the commission of a crime under this article, bears criminal responsibility for this crime as its organizer, instigator or accomplice" ...
The features that characterize a special subject can be classified as follows:
1) according to the state and legal status: by the subject high treason maybe a citizen Russian Federation(Art. 275 of the Criminal Code of the Russian Federation), and the subject of espionage is only a foreign citizen or stateless person (Art. 276 of the Criminal Code of the Russian Federation);
2) by demographic characteristics: by sex - only a man can be a direct perpetrator of rape (Article 131 of the Criminal Code of the Russian Federation); by age - only an adult can be the subject of involvement of a minor in the commission of a crime (Article 150 of the Criminal Code of the Russian Federation); for health reasons, only a person suffering from these diseases can be a subject of infection with a venereal disease or HIV infection (Article 121, Part 2-3, Article 122 of the Criminal Code of the Russian Federation);
3) by position or profession: by the subjects of crimes under Ch. 30 of the Criminal Code of the Russian Federation, the persons indicated in the note to Art. 285 of the Criminal Code of the Russian Federation; the subject of a knowingly unjust verdict, decision or other judicial act there can only be a judge (judges) (Article 305 of the Criminal Code of the Russian Federation);
4) in family and kinship relations: the subject of failure to fulfill the duties of raising a minor may be parents and persons substituting for them (Article 156 of the Criminal Code of the Russian Federation);
5) in relation to military duty: the subject of evasion from military or alternative service can only be a person legally called up for military or alternative service (Article 328 of the Criminal Code of the Russian Federation); servicemen, liable for military service and military builders - Ch. 33 of the Criminal Code of the Russian Federation;
6) for other reasons: for example, a witness, a victim, an expert, an interpreter (Articles 307, 308 of the Criminal Code of the Russian Federation), etc.
The signs of a special subject are additional (optional) signs of corpus delicti that have a threefold meaning:
1) if these signs are included in the construction of the main corpus delicti, they become mandatory for qualification (for example, only the head of the taxpaying organization can be subjects of tax evasion and (or) fees from an organization and Chief Accountant, as well as persons who actually perform the duties of a manager and chief accountant, and other employees of a taxpaying organization who knowingly included in the accounting documents deliberately distorted data on income or expenses or hiding other objects of taxation);
2) additional signs of a subject can act as qualifying signs that form corpus delicti under aggravating circumstances (for example, if banditry is committed by a person using his official position, such actions are qualified under part 3 of article 209 of the Criminal Code of the Russian Federation);
3) if the signs of a special subject are not provided for in the law either in the main composition or in the composition with aggravating circumstances, they relate to the characteristics of the personality of the offender and may be important for the individualization of the punishment, acting as circumstances that mitigate or aggravate the punishment (for example, p. "M", part 1 of article 63 of the Criminal Code of the Russian Federation, as an aggravating circumstance, provides for the commission of a crime using the trust shown to the perpetrator by virtue of his official position or contract).