Criminal Code of the Russian Federation in the latest edition:
Article 41 of the Criminal Code of the Russian Federation. Justified risk
1. It is not a crime to cause harm to interests protected by criminal law at a reasonable risk to achieve a socially useful goal.
2. The risk is recognized as justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.
3. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.
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Comments on Article 41 of the Criminal Code of the Russian Federation
Risk means an act that can lead to an unfavorable outcome, causing harm, but the risk taker hopes for a positive outcome, to achieve the required result.
Article 41 of the Criminal Code of the Russian Federation regulates situations in which actions associated with risk led to damage. Formally, such an act may mean the presence of a certain crime and, accordingly, the onset of criminal liability. However, taking into account the possible social significance of actions associated with risk, the legislator establishes a number of conditions under which the actions of the person who caused harm during the risk are not recognized as a crime.
Justified risk is possible in any field of professional activity: in science and technology, in medicine, in production, in commerce, in sports and in everyday life.
Commentary to Art. 41 of the Criminal Code of the Russian Federation
A socially useful result sometimes cannot be achieved through actions (inaction) that are not associated with justified risk. Risk means an act that can lead to an unfavorable outcome, causing harm, but the risk taker hopes for a positive outcome, to achieve the required result.
Article 41 of the Criminal Code of the Russian Federation regulates situations in which actions associated with risk led to damage. Formally and in essence, such an act may mean the presence of a certain crime and, accordingly, the onset of criminal liability. However, taking into account the possible social significance of actions associated with risk, the legislator establishes a number of conditions under which the actions of the person who caused harm during the risk are not recognized as a crime.
The first such condition is the target orientation of actions associated with risk. These actions must necessarily be aimed at achieving a socially useful goal. This means that the predicted but not achieved result could be useful to the whole society or a significant part of it. For example, the introduction of a new effective medical drug, the development of a new energy source, the creation of new transport communications, etc. At the same time, personal interest in the result does not at all exclude the social usefulness of the goal, but, on the contrary, often accompanies it.
The second condition for the legitimacy of a risk is its validity. The concept of validity is given in Part 2 of Art. 41 of the Criminal Code of the Russian Federation. This provision states that a risk is recognized as justified if a socially useful goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.
Thus, the risk validity factor is also determined by two conditions. Firstly, it is the impossibility of achieving a goal through actions that do not involve risk. This requirement of the law, in our opinion, does not mean that there is objectively no way to achieve a goal in a specific situation otherwise (without risk). This requirement forces a person who is going to carry out an act associated with risk to consider possible options for achieving the goal and, if possible, choose an option that does not involve risk. The subjective factor is important when determining the condition under consideration. Thus, if a person is convinced that he has chosen the only possible option of behavior and his consciousness does not, could not and should not have embraced the possibility of other less risky options, in our opinion, we should talk about compliance with the condition of the impossibility of achieving the goal by actions not associated with risk, despite the objectively existing possibility of such an option.
The second condition for the validity of the risk is the adoption of sufficient measures to prevent harm to the interests protected by criminal law. With any measures involving risk, there is a possibility that, as a result of the actions taken (inaction), harm will be caused to the interests protected by criminal law. The absence of such a probability would mean the absence of risk. However, if, despite the measures taken, harm was still caused, it means that objectively the measures to prevent harm were insufficient. Is it possible in this case to talk about the sufficiency of these measures, as required by law? Probably yes. But in this case, one should also turn to the person’s subjective perception of the factor of the sufficiency of measures to prevent harmful consequences. A person must be aware that he has taken all, in his opinion, necessary and possible measures to prevent harm or reduce it to a minimum level.
A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.
The concept of a threat to the lives of many people is not defined in law. There are no clear criteria in judicial practice, but basically the content of this concept includes the existence of a threat to the lives of more than two persons.
An environmental disaster means the presence of significant damage caused to nature, as a result of which populations of organisms, their species, communities cease to exist or are reduced to critical sizes, and an imbalance occurs in the ecosystem or biosphere as a whole.
A public disaster (earthquake, flood, fires, epidemics, etc.) represents conditions under which the normal functioning of state and public institutions and the population is significantly disrupted, creating a danger of loss of life and property.
Under such conditions, the risk cannot be justified by the social significance of the result. The possibility of causing the specified large-scale harm, the person’s awareness and anticipation of such consequences, in the opinion of the legislator, make the risk unreasonable, which entails criminal liability.
Failure to comply with the conditions for the legitimacy of a justified risk means the absence of this circumstance as a circumstance excluding the criminality of the act. In such a situation, the act will contain signs of a certain corpus delicti, but the commission of a crime when the conditions for the legitimacy of a justified risk are not met should be considered as a circumstance mitigating punishment (clause “g”, part 1 of article 61 of the Criminal Code of the Russian Federation). In this case, the crime committed can be either intentional or careless. Failure to comply with the conditions for the validity of the risk is possible in situations where a person commits any actions (inaction) aimed at achieving a socially useful goal, but this goal could have been achieved in the absence of risk or when the person did not take sufficient measures to prevent harm to protected persons criminal law interests, despite the fact that there was a real opportunity to take such measures.
Justified risk should be distinguished from the institution of extreme necessity. With a justified risk, a person causes harm in conditions of its probability or the absence of immediate danger, when the danger of harm is a consequence of the actions of the person himself. Causing harm in conditions of extreme necessity, on the contrary, is carried out when there is an immediate danger, which, as a rule, does not arise in connection with the actions of a person.
Conditions for the legality of actions in case of justified risk:
Target orientation of actions . The risk must be associated with the achievement of a socially useful goal . This means that the predicted but unachieved result could be useful to the whole society or a significant part of it. For example, the development of a new energy source, the creation of new transport communications, etc.;
The inability to achieve a goal through actions that do not involve risk . The risk must be forced , i.e. a socially useful goal is unattainable through non-risky actions. The subjective factor is important when determining the condition under consideration . Thus, if a person is convinced that he has chosen the only possible option of behavior and his consciousness does not, could not and should not have embraced the possibility of other less risky options, in our opinion, we should talk about compliance with the condition of the impossibility of achieving the goal by actions not associated with risk, despite the objectively existing possibility of such an option;
Taking sufficient steps to prevent harm . Those at risk must take sufficient measures to prevent harm to legally protected interests. In this case, a person should not act at random, but with a calculation of possible options for the development of events, taking measures to prevent the onset of harmful consequences. The sufficiency of the measures taken is assessed according to a subjective criterion , i.e. according to the conviction of the risk subject, taking into account his education and experience; according to his assessment of the situation and the degree of likelihood of harmful consequences;
Absence of threats to life, ecology and society . The risk must not be obviously associated with a threat to the lives of many people, an environmental disaster or a public disaster. The presence of threats of this kind excludes the justification of the risk, and the occurrence of any, regardless of their severity, socially dangerous consequences entails criminal liability for causing harm through negligence and, in more rare cases, for intentional (with indirect intent) causing harm.
Compliance with the above conditions for the legality of actions with a justified risk excludes criminal liability for causing harm, including if the harm caused was greater than the social benefit that would have been achieved if the risker’s actions were successful.
Commentary to Art. 41 Criminal Code
1. The conditions for the legality of actions in the event of a justified risk are as follows: a) the risk must be associated with the achievement of a socially useful goal; b) the risk must be forced, i.e. a socially useful goal is unattainable through non-risky actions; c) those at risk must take sufficient measures to prevent harm to legally protected interests. In this case, a person should not act at random, but with a calculation of possible options for the development of events, taking measures to prevent the onset of harmful consequences. The sufficiency of the measures taken is assessed according to a subjective criterion, i.e. according to the conviction of the risk subject, taking into account his education and experience; according to his assessment of the situation and the degree of likelihood of harmful consequences; d) the risk must not be obviously associated with a threat to the lives of many people, an environmental disaster or a public disaster. The presence of threats of this kind excludes the validity of the risk, and the occurrence of any socially dangerous consequences, regardless of their severity, entails criminal liability for causing harm through negligence and, in more rare cases, for intentionally causing harm.
2. Compliance with the above conditions for the legality of actions in the event of a justified risk excludes criminal liability for causing harm, including if the harm caused was greater than the social benefit that would have been achieved if the actions of the risker were successful.
3. In contrast to extreme necessity, justified risk is associated with the risker’s independent creation of a source of danger (which is his act), while extreme necessity is associated with the elimination of a source of danger that has arisen externally.
In what cases is a risk considered unreasonable?
Part 3 of Article 41 of the Criminal Code of the Russian Federation provides for conditions under which, in any case, the risk is considered unreasonable: if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or social disaster.
Knowing means that a person foresees and consciously allows for the possibility of the occurrence of the specified consequences before committing all planned actions.
The concept of a threat to the lives of many people is not defined in law. There are no clear criteria in judicial practice, but basically the content of this concept includes the existence of a threat to the lives of more than two persons.
An environmental disaster means the presence of significant damage caused to nature, as a result of which populations of organisms, their species, communities cease to exist or are reduced to critical sizes, and an imbalance occurs in the ecosystem or biosphere as a whole.
A public disaster (earthquake, flood, fires, epidemics, etc.) represents conditions under which the normal functioning of state and public institutions, the normal functioning of the population is significantly disrupted, and a danger of loss of life and property is created.
Under such conditions, the risk cannot be justified by the social significance of the result. The possibility of causing the specified large-scale harm, the person’s awareness and anticipation of such consequences, in the opinion of the legislator, make the risk unreasonable, which entails criminal liability.
Committing a crime in violation of the conditions of legality of a justified risk is considered as a circumstance mitigating punishment (clause “g”, Part 1, Article 61 of the Criminal Code of the Russian Federation).
Article 41. Justified risk
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- Article 41. Justified risk
1. It is not a crime to cause harm to interests protected by criminal law at a reasonable risk to achieve a socially useful goal.
2. The risk is recognized as justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.
3. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.
Commentary on Article 41
A socially useful result sometimes cannot be achieved through actions (inaction) that are not associated with justified risk. Risk means an act that can lead to an unfavorable outcome, causing harm, but the risk taker hopes for a positive outcome, to achieve the required result.
Article 41 of the Criminal Code of the Russian Federation regulates situations in which actions associated with risk led to damage. Formally and in essence, such an act may mean the presence of a certain crime and, accordingly, the onset of criminal liability. However, taking into account the possible social significance of actions associated with risk, the legislator establishes a number of conditions under which the actions of the person who caused harm during the risk are not recognized as a crime.
The first such condition is the target orientation of actions associated with risk. These actions must necessarily be aimed at achieving a socially useful goal. This means that the predicted but not achieved result could be useful to the whole society or a significant part of it. For example, the introduction of a new effective medical drug, the development of a new energy source, the creation of new transport communications, etc. At the same time, personal interest in the result does not at all exclude the social usefulness of the goal, but, on the contrary, often accompanies it.
The second condition for the legitimacy of a risk is its validity. The concept of validity is given in Part 2 of Art. 41 of the Criminal Code of the Russian Federation. This provision states that a risk is recognized as justified if a socially useful goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.
Thus, the risk validity factor is also determined by two conditions. Firstly, it is the impossibility of achieving a goal through actions that do not involve risk. This requirement of the law, in our opinion, does not mean that there is objectively no way to achieve a goal in a specific situation otherwise (without risk). This requirement forces a person who is going to carry out an act associated with risk to consider possible options for achieving the goal and, if possible, choose an option that does not involve risk. The subjective factor is important when determining the condition under consideration. Thus, if a person is convinced that he has chosen the only possible option of behavior and his consciousness does not, could not and should not have embraced the possibility of other less risky options, in our opinion, we should talk about compliance with the condition of the impossibility of achieving the goal by actions not associated with risk, despite the objectively existing possibility of such an option.
The second condition for the validity of the risk is the adoption of sufficient measures to prevent harm to the interests protected by criminal law. With any measures involving risk, there is a possibility that, as a result of the actions taken (inaction), harm will be caused to the interests protected by criminal law. The absence of such a probability would mean the absence of risk. However, if, despite the measures taken, harm was still caused, it means that objectively the measures to prevent harm were insufficient. Is it possible in this case to talk about the sufficiency of these measures, as required by law? Probably yes. But in this case, one should also turn to the person’s subjective perception of the factor of the sufficiency of measures to prevent harmful consequences. A person must be aware that he has taken all, in his opinion, necessary and possible measures to prevent harm or reduce it to a minimum level.
A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.
The concept of a threat to the lives of many people is not defined in law. There are no clear criteria in judicial practice, but basically the content of this concept includes the existence of a threat to the lives of more than two persons.
An environmental disaster means the presence of significant damage caused to nature, as a result of which populations of organisms, their species, communities cease to exist or are reduced to critical sizes, and an imbalance occurs in the ecosystem or biosphere as a whole.
A public disaster (earthquake, flood, fires, epidemics, etc.) represents conditions under which the normal functioning of state and public institutions and the population is significantly disrupted, creating a danger of loss of life and property.
Under such conditions, the risk cannot be justified by the social significance of the result. The possibility of causing the specified large-scale harm, the person’s awareness and anticipation of such consequences, in the opinion of the legislator, make the risk unreasonable, which entails criminal liability.
Failure to comply with the conditions for the legitimacy of a justified risk means the absence of this circumstance as a circumstance excluding the criminality of the act. In such a situation, the act will contain signs of a certain corpus delicti, but the commission of a crime when the conditions for the legitimacy of a justified risk are not met should be considered as a circumstance mitigating punishment (clause “g”, part 1 of article 61 of the Criminal Code of the Russian Federation). In this case, the crime committed can be either intentional or careless. Failure to comply with the conditions for the validity of the risk is possible in situations where a person commits any actions (inaction) aimed at achieving a socially useful goal, but this goal could have been achieved in the absence of risk or when the person did not take sufficient measures to prevent harm to protected persons criminal law interests, despite the fact that there was a real opportunity to take such measures.
Justified risk should be distinguished from the institution of extreme necessity. With a justified risk, a person causes harm in conditions of its probability or the absence of immediate danger, when the danger of harm is a consequence of the actions of the person himself. Causing harm in conditions of extreme necessity, on the contrary, is carried out when there is an immediate danger, which, as a rule, does not arise in connection with the actions of a person.
Justified risk and extreme necessity
If absolutely necessary, harm is caused to eliminate an external source of danger that directly threatens the individual, his rights and other legally protected interests. If there is a justified risk, such an immediate danger may not exist (for example, when testing new equipment) or it may only be probable. In contrast to extreme necessity, justified risk is associated with the risker’s independent creation of a source of danger (which is his act).
In addition, if absolutely necessary, the harm caused must be less than the harm prevented, whereas with a justified risk, the amount of harm is not decisive for assessing the actions of the risker.
