Material and formal elements of the crime. Formal elements of the crime: examples

Meaning and assessment of the crime

March 19, 2021 6:15 pm

Signs of a crime can be mandatory and optional, constant and variable, evaluative and blanket

On March 19, during the next webinar of the FPA RF, Associate Professor of the Department of Criminal Law of the Moscow State Law University named after O.E. Kutafina (MSAL), Ph.D. Anastasia Ragulina gave a lecture on the topic “Current issues of corpus delicti.”

At the beginning of her speech, Anastasia Ragulina recalled the definition of a crime - “a set of objective and subjective characteristics provided for by criminal law that characterize a socially dangerous act as a crime.” She also explained what general and specific elements of a crime are.

An element of a crime is its component part, which includes mandatory and optional features. Mandatory elements of a crime are the elements included by the legislator in each specific element of the crime provided for by the Special Part of the Criminal Code of the Russian Federation. Optional elements of a crime are elements that are included by the legislator only in some specific elements of a crime.

The lecturer noted that according to the degree of expression in the law, the signs of a crime are divided into positive and negative. Positive signs of a crime are expressed in positive concepts, i.e. in concepts that reflect the characteristics inherent in the subject. The lecturer explained all these theoretical points with specific examples.

According to the degree of immutability and stability, the signs of a crime are divided into constant and variable. At the same time, the content of permanent signs remains unchanged throughout the entire period of validity of this criminal law and does not depend on the specific circumstances of the crime committed. The characteristics specified in the disposition of articles of the General and Special Parts of the Criminal Code of the Russian Federation are constant. A change in the law may lead to the replacement of one characteristic with another or to the fact that the characteristic acquires a different content.

Variables are signs whose content can change without changing the text of the disposition of the article of the Special Part of the Criminal Code of the Russian Federation during the validity of one criminal law. The content of these features is determined not only by the text of the article, but also by other factors. Variable signs are evaluative and blanket.

In this part of the lecture, Anastasia Ragulina described in detail the assessment criteria. According to her, their legislative description is general. They are specified officially by law enforcement or informally by doctrinal interpretation. The content of evaluation criteria is explained in the decisions of the Plenums of the Supreme Courts for certain categories of cases. Clarification of the understanding of evaluative characteristics is also possible in decisions on specific cases.

Blanket signs are those whose specific content is disclosed in a normative legal act related to another branch of law. The blanket element of a crime is externally stable, but its content can change significantly due to changes in the normative legal act referred to in the criminal law.

Next, Anastasia Ragulina spoke about the meaning of the crime. She noted that the presence of all the elements of a crime in a person’s act is the basis for criminal liability, and the composition of a crime is a tool for qualifying crimes. There is also the concept of “alternative composition” - this is a composition that includes two or more characteristics, any of which is sufficient to justify responsibility (qualification) for this composition.

Citing a number of specific compositions, the expert recalled, in particular, Art. 315 of the Criminal Code of the Russian Federation, which establishes liability for malicious failure by a government official, civil servant, municipal employee, as well as an employee of a state or municipal institution of a commercial or other organization of a court verdict, court decision or other judicial act that has entered into legal force, as well as obstruction of their execution. The subject of obstruction in this case is general. This is evidenced by the Determination of the Constitutional Court of the Russian Federation dated February 17, 2015 No. 395-O “On the refusal to accept for consideration the complaint of citizen Alexey Evgenievich Kuznetsov about the violation of his constitutional rights by Article 315 of the Criminal Code of the Russian Federation.”

Talking about the shortcomings of the current criminal law, Anastasia Ragulina suggested paying attention to one “imperfection” of Art. 177 of the Criminal Code of the Russian Federation. This article establishes liability for evasion of repayment of accounts payable and evasion of payment for securities. Moreover, the large size refers only to debt, but not to securities, as evidenced by the conjunction “or”. Nevertheless, the Methodological Recommendations say: “Criminal actions to evade repayment of accounts payable or payment for securities must be committed exclusively on a large scale.”

Next, we talked about qualification errors, that is, about incorrectly establishing the presence or absence of a crime, as well as its compliance with the description in the norms of the General and Special Parts of the Criminal Code of the Russian Federation.

The main causes of qualification errors are shortcomings in legislation and shortcomings in law enforcement. The lecturer outlined the types of qualification errors. First of all, this is an incorrect legal assessment of what was done: excessive qualifications or qualifications with a reserve; qualification of evaluative signs of a crime; qualification of single complex and cumulative crimes; qualification of socially dangerous consequences; qualification of minor acts and crimes bordering on misdemeanors.

Further, the speaker in her speech explained what continuing crimes are. The concept of a continuing crime is given in the Resolution of the 23rd Plenum of the Supreme Court of the USSR dated March 4, 1929 “On the conditions for applying statute of limitations and amnesty to continuing and continuing crimes.” The Supreme Court considers a continuing crime as an act consisting of a number of identical criminal actions aimed at a common goal and collectively constituting a single crime.

The speaker's presentation can be found here.

Please note that today, March 19, the webinar will be available until 24.00 (Moscow time). The broadcast will be repeated on Saturday, March 20.

Konstantin Katanyan

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What is pre-criminal activity?

This category includes preparation for a crime and attempted crime. These acts are called pre-criminal activity because they precede the completed offense. It is when they are not absorbed by the completed crime that they have criminal legal significance.

Preparation is acts that are aimed at creating the necessary conditions for the commission of a crime in the future by a certain person, but are not brought to the desired result for reasons that do not depend on the will of a particular person.

Attempt is the actions of a person that are aimed directly at committing an offense, but are not completed due to circumstances beyond his control.

These stages define the crime as unfinished.

The subjective side of the crime

The subjective side of a crime is characterized by a specific form of guilt (intention or negligence), motive and purpose.

At the same time, guilt is an obligatory, necessary sign of the subjective side of any crime, and the motive and purpose are optional, that is, optional and require their establishment only where this is directly stated in the law (dispositions of the article of the Criminal Code) or if they clearly follow from the content of the crime crimes.

Guilt is the mental attitude of a person to an action or inaction committed by him, its consequences, expressed in the form of intent or negligence (Article 24 of the Criminal Code of the Russian Federation).

From this we can conclude that wine is characterized by the following features:

• content;
• essence;
• form;
• degree.

The content of guilt is a reflection in the psyche (consciousness) of a person of the objective signs of the committed act. There are no crimes that are identical in content of guilt.

The essence of guilt determines the social nature of guilt, consisting of a person’s negative attitude towards those values ​​and benefits protected by the norms of criminal law.

The form of guilt is intent or negligence.

Each of these forms contains signs that characterize the person’s consciousness and his will. Therefore, the first of these signs are called intellectual, and the second - volitional.

The different ratio of intellectual and volitional signs of mental activity of the person who committed the crime makes it possible to construct various forms of guilt and their types.

A crime is considered committed intentionally if the person who committed the crime was aware of the socially dangerous nature of his act (action or inaction), foresaw socially dangerous consequences, and desired or consciously allowed the occurrence of these consequences.

Types of intent

From this formulation it is obvious that the law provides for two types of intent:

• straight;
• indirect (eventual).

Intent is direct if the person was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence (Part 2 of Article 25 of the Criminal Code of the Russian Federation).

Intention is indirect if the person was aware of the social danger of his actions (inaction), foresaw the possibility of socially dangerous consequences, did not want, but consciously allowed these consequences or was indifferent to them (Part 3 of Article 25 of the Criminal Code of the Russian Federation).

Crime by negligence

A crime is considered committed through negligence if the person who committed it foresaw the possibility of the onset of socially dangerous consequences of his act, but frivolously counted on preventing them, or, although he did not foresee the possibility of the onset of socially dangerous consequences of his act, he should and could have foreseen them.

Negligence is divided into:

• criminal frivolity (arrogance);
• criminal negligence.

1. A crime is recognized as committed due to frivolity if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds for this he arrogantly (frivolously) counted on preventing these consequences (Part 2 of Article 26 of the Criminal Code of the Russian Federation).
2. A crime is considered committed due to negligence if a person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with the necessary care and forethought he should and could have foreseen these consequences (Part 3 of Article 26 of the Criminal Code of the Russian Federation).

The degree of guilt is a quantitative category. It determines the severity of the criminal act committed.

The crime and its elements

Aggregate - a type of multiplicity of crimes

Multiplicity of crimes is the commission by one person of two or more socially dangerous acts, each of which contains all the signs of specific crimes.

The Criminal Code of the Russian Federation does not contain the concept of plurality. Plurality of crimes consists of two or more crimes that retain criminal legal consequences. The Criminal Code distinguishes two types of multiplicity of crimes:

1) totality (Article 17 of the Criminal Code of the Russian Federation);

2) relapse (Article 18 of the Criminal Code of the Russian Federation).

Aggregate crimes - the commission of two or more crimes, for none of which the person was convicted, except for cases where the commission of two or more crimes is provided for in the articles of the Special Part of the Criminal Code as a circumstance entailing a more severe punishment.

In case of aggregation of crimes, a person bears criminal liability for each crime committed under the relevant article or part of an article of the Criminal Code of the Russian Federation.

Object of crime

The object of a crime is social relations protected by criminal law, which are encroached upon by the criminal.

Such social relations are:

• social order, its political and economic systems;
• property relations;
• personal, political, labor, property and other rights and freedoms of citizens;
• law and order in society.

The normative point in defining the object is necessary, since not all relationships are the objects of a crime, but only those that are protected, that is, protected by the norms of criminal law.

In the science of criminal law, all social relations, that is, all objects, are classified. Moreover, such a classification has not only cognitive significance, but also practical significance - codification and law enforcement.

Three types of objects

From this point of view, three types of social relations and three types of objects are distinguished.

1. Common object of crime.
2. Generic (or special, group) object of crime.
3. The direct (specific) object of the crime.

The general object of the crime is all social relations protected by the norms of criminal law.

The generic object of a crime is a part of a general object, including a certain group of homogeneous social relations protected by criminal law. The generic object is primarily important for the legislator when codifying the norms of criminal law.

All elements of crimes are located in the Criminal Code (hereinafter referred to as the Criminal Code of the Russian Federation) according to a certain system, and sections of the Special Part of the Criminal Code of the Russian Federation are formed based on a single generic object of certain groups of crimes (crimes against life and health; crimes against freedom, honor and dignity of the individual; crimes against property, etc.).

The generic object also has practical significance - in each specific case of committing an act, it is necessary to establish the group of social relations that this act causes harm, and then go to a specific norm of the Criminal Code of the Russian Federation.

The direct object of a crime is social relations to which a specific crime causes damage or harm.

For example, the object of murder is relations to protect human life, or, more simply, human life. This is part of the generic object of crimes against the life and health of the individual.

The crime and its elements

Subject of the crime

The subject of a crime is an individual who, at the time of committing the crime, was aware of the nature of his actions and could control them, that is, sane, and also reached the age of criminal responsibility.

The current criminal legislation is based on a mixed form of the concept of insanity.

Part 1 of Article 21 of the Criminal Code of the Russian Federation directly states that a person who, at the time of committing a socially dangerous act, was in a state of insanity, that is, could not realize the actual nature and social danger of his actions (inaction) or direct them due to chronic mental disorder, temporary mental disorder, dementia or other painful mental condition.

Such a person may be subject to compulsory medical measures by court decision.

Age of criminal responsibility

The criminal law distinguishes two age categories of criminal liability:

• general;
• reduced (Article 20 of the Criminal Code of the Russian Federation).

The general age of criminal responsibility is from 16 years (Part 1 of Article 20 of the Criminal Code of the Russian Federation).

The reduced age of criminal responsibility is set at 14 years for crimes, an exhaustive list of which is given in Part 2 of Art. 20 of the Criminal Code of the Russian Federation. These include:

• murder (Article 105 of the Criminal Code of the Russian Federation);
• intentional infliction of grievous bodily harm (Article 111 of the Criminal Code of the Russian Federation);
• intentional infliction of moderate harm to health (Article 112 of the Criminal Code of the Russian Federation);
• kidnapping (Article 126 of the Criminal Code of the Russian Federation);
• rape (Article 131 of the Criminal Code of the Russian Federation);
• violent acts of a sexual nature (Article 132 of the Criminal Code of the Russian Federation);
• theft (Article 158 of the Criminal Code of the Russian Federation);
• robbery (Article 161 of the Criminal Code of the Russian Federation);
• robbery (Article 162 of the Criminal Code of the Russian Federation);
• extortion (Article 163 of the Criminal Code of the Russian Federation) and other crimes.

This list is not subject to broad interpretation.

The reduced age of criminal responsibility is determined by three criteria.

1. The ability to recognize already at the age of 14 the social danger and illegality of the acts specified in Part 2 of Art. 20 of the Criminal Code of the Russian Federation;
2. The prevalence of many of these crimes is among teenagers;
3. Great social danger (gravity) of these crimes.

Causality

Causality in criminal law is a mandatory sign of the objective side of the material elements of crimes and is necessary for the imputation of socially dangerous consequences.

Causality is objective, i.e. existing outside and independently of human consciousness, the connection between the phenomena of the material world, which characterizes their genesis - the relationship between the generating (cause) and generated (effect) phenomena. Cause and effect are philosophical categories that reflect one of the forms of universal objective connection, interdependence and interdependence of objects, phenomena and processes occurring in nature and society. A cause is understood as a phenomenon that naturally, with internal necessity, gives rise to another phenomenon, considered as a consequence.

The criminal law concept of causation is based on this philosophical concept, but has some specifics. In philosophy, both cause and effect can be various phenomena and processes. In criminal law, a socially dangerous act of a person is always considered as a cause, and socially dangerous consequences provided for by criminal law are always considered as a consequence. Therefore, a causal connection in criminal law is not necessarily a connection between events that are “neighboring” in external sequence. Let us explain this with a simple example. If a person is bitten by a dog, then from a philosophical point of view we can consider the dog bite as the cause, and the injury to the victim as the consequence. But from the point of view of criminal law, a dog as a cause of harm in itself cannot interest us. Therefore, it is necessary to examine why the dog bit the victim. If, for example, the owner set the dog on the victim, then the cause of the injury will be considered a socially dangerous action of the specified person. Taking into account the above, in criminal law there is a direct causal relationship (between neighboring phenomena, for example, property damage as a result of theft) and a causal relationship complicated by the intervention of external forces.

The first monographic study of the problem of causation in criminal law was undertaken by Professor T.V. Tsereteli, who pointed out: “A judge examining the issue of causation in the aspect of criminal liability interrupts his research where unlawful and guilty behavior can no longer be assumed, i.e. when the study of further links of causation cannot be of interest for the practical purposes of criminal law.” Unfortunately, establishing a causal relationship often causes significant difficulties in the course of law enforcement activities.

It seems necessary to highlight the so-called criteria (stages) for determining a causal relationship.

1. Studying a specific action (inaction) of a subject for social danger and illegality in a specific time and situation.
2. The action must precede the result in time.
3. The act must create a danger of causing harm to the object. The act must create a danger of causing harm of the same nature as the harm that occurred.
4. The action must serve as a necessary condition.
5. The act must be not just a necessary condition, but the cause of harmful consequences, taking into account all the features of the situation and the forces involved.

A causal connection in criminal law is such an objective connection between a socially dangerous act of a person and the socially dangerous consequences that occur, in which the act precedes the consequence in time, prepares and determines the real possibility of its occurrence and is a necessary condition causing the onset of the consequence. Until now, the problem of causation in criminal law is debatable2. We emphasize that to establish a causal relationship, the presence of all the criteria discussed above should be analyzed.