Question No. 2. Characteristics of the signs of a crime. Public danger

Question No. 2. Characteristics of the signs of a crime. Public danger

Social danger, being an important social property of a crime, is expressed in the crime causing harm or creating a threat of harm to interests (benefits) protected by criminal law. Public danger is an objective sign of a crime, since only those acts that pose a danger to legally protected values ​​are declared criminal and punishable. The meaning of such a sign as a public danger is as follows:

— public danger makes it possible to distinguish a crime from other offenses (civil torts, administrative offenses, disciplinary offenses);

- serves as a basis for the criminalization of acts;

— taken into account when dividing crimes into four categories.

Crimes differ from each other in nature and degree of public danger. The nature of public danger is its qualitative side, depending on what object the crime encroaches on, what the content of the consequences caused by the crime are, the method of committing the crime, the form of guilt, etc.

For example, in theft, the nature of the danger must be established on the basis of their characteristics: seizure of property, illegality, gratuitousness of seizure, seizure of someone else’s property, lack of consent of the owner to seize property

In this case, the nature of the danger can appear at several levels:

- the nature of the danger of all crimes;

- the nature of the danger of a certain group of crimes;

— the nature of the danger of the type of crime;

- the nature of the danger of a crime of a certain type.

Due to the rather high abstractness of the first two levels, as a general rule, they do not have much practical significance. For example, the nature of the danger of all crimes determines crime as a social phenomenon; the nature of the danger of a group of crimes is the qualitative isolation of this particular group of crimes. But in its practice, the court pays little attention to this, only sometimes group isolation helps it determine the qualitative isolation of each type of crime and a crime of a given type. The nature of the public danger of the last two levels is more significant from a practical point of view.

The practical significance of the nature of public danger is expressed in the following:

- as a basis for qualifying a crime;

- as a basis for differentiation from related crimes;

- as the basis for grouping types of crime;

— as a basis for constructing sanctions;

- as the basis for sentencing.

The degree of public danger represents the quantitative side of public danger. The degree of public danger can be influenced by the comparative value of the object of the crime, the amount of homogeneous damage, the degree of guilt, etc.

When deeply studying the degree of public danger, the following problem arises. The degree of social danger as a quantitative certainty presupposes the possibility of its measurement. As B.P. writes Kravtsov and P.P. Osipov: “The degree of public danger is something that can be measured and expressed mathematically. Attempts at such measurements have been made for quite some time. Back at the beginning of the 20th century, N.D. Oranzhereev proposed mathematical formulas for measuring crime and punishment and, comparing both, created a unified formula for assigning punishment for a crime; this was immediately criticized for the fact that the engineer was minding his own business, that only lawyers could understand these issues, that the introduction of such a grading scheme meant a return to the formal system of evidence. Indeed, the formal system of evidence has ceased to exist; instead, the trial is based on the conviction of the judge. A judge's opinion will always be based not only on the law but also on their subjective beliefs, so their personal ideas about many social issues will necessarily result in a different decision on a particular case.

That is why the degree of public danger must have some kind of quantitative measurement. But in this case, other problems arise: how to measure, how to express the measure of public danger, and who will measure. There is no consensus on all these issues. Some authors believe that the degree of public danger can be determined through a combination of relevant elements (Kuznetsova N.F.), others - through expert assessments (Bluvshtein Y.D.), others - through a sanction (Demidov Y.A.)

As for the first of the above positions, we must recognize its obviousness and correctness, since, indeed, the degree of social danger is constituted by its structural units, which have already been mentioned above. However, all this does not prejudge the answer to the question - how to measure the amount inherent in the degree of public danger. After all, something else is obvious: any quantity must have its own measure if it is of a real nature. Hence, referring to the components of the analyzed phenomenon does not solve the problem of measurement, since it does not specify the measure. Therefore, it is necessary, if we agree with the existence of the degree of danger, to learn to measure it, otherwise all talk about the degree as a quantitative equivalent of social danger will be fiction. In this regard, P. S. Tobolkin is right when he stated that “many misunderstandings in the interpretation of the nature of the conflict between the person who committed the crime and society could be removed if the concept of a measure of public danger were developed in the theory of criminal law,” but the author of this the problem is touched upon only superficially, and no “measure” of public danger is visible in its specially highlighted paragraph.

The second position - the proposed proposal for an expert assessment of the degree - is more fruitful, since it leads us to a quantitative measure of the degree of public danger. The essence of the decision is that the author elected an expert team consisting of 12 people, which equally represented investigators from the Ministry of Internal Affairs, prosecutors, judges and lawyers, to whose decision the relevant issues regarding the assessment and ranking of the danger of legally established types of crimes were brought up. According to the researcher, the Spearman rank correlation coefficient for this assessment was 0.55, which indicates exceptional consensus among experts. This may be true from the author’s point of view, but to us this optimism seems exaggerated. Firstly, one should agree with the critical attitude towards the analyzed approach expressed by B.P. Kravtsov and P.P. Osipov. Secondly, it is difficult to call an exceptional unanimity or even a high coefficient of 0.55, with a maximum adequate estimate of a coefficient of 1, i.e., with an error in the estimate of almost half. Thirdly, ultimately, the lawyers involved in the experiment assessed not the social danger of the act, but the crime itself and the sanction for it; No matter how much the researcher wanted, the experts could not abstract themselves from sanctions as a state assessment of danger. Essentially, in the proposed assessment, there was a superposition of a possible erroneous assessment of the type of crime in the sanction with an erroneous perception of the justification of the sanctions and the expert’s possible assessment of the danger of the type of crime. Fourthly, when any expert assesses the danger of a type of crime, we will never be able to avoid its fallibility, defective legal consciousness, which will necessarily affect the results of the experiment, regardless of the number of experts; It is possible that the disagreement curve for a representative estimate will be somewhat flattened, but the fluctuations in the estimate will be quite significant. In our opinion, expert assessment cannot be a reliable tool for determining the degree of public danger.

More fruitful is the attempt to measure the degree of danger through a sanction, since in this case we get precisely a strict quantitative criterion - an assessment of the type of crime in the appropriate terms (imprisonment, arrest, restriction of freedom, correctional labor, etc.) or monetary equivalent (fine , correctional work). True, in this case we are faced with one negative point - we change the places of cause and effect, since the sanction, without a doubt, is a consequence of the existence of the type of crime; as a result, we must determine the social danger of the latter on the basis of something other than sanctions as a consequence of public danger. However, until criminal law has its own ohms, watts, liters, kilograms, etc., we will be forced to use sanctions as a measure of the degree of public danger, not forgetting the indirect, inverted nature of such a measurement.

So, the degree of public danger of a crime is determined:

a) the nature and extent of the damage that it causes or may cause to relations protected by the relevant norm of criminal law;

b) criminal policy, which is guided by the hierarchy of social values ​​existing in society. It further indicates to the legislator the adjustments that need to be made if the parameters of the degree of danger were incorrectly determined or errors, inaccuracies, technical errors, etc. crept into the disposition or sanction. The hierarchy of social values ​​suggests a system of both the Special and General parts of the Criminal Code . The principles and rules of legislative technology provide significant assistance in this operation.

The degree of social danger of a crime finds its final expression in sanctions. As already mentioned, the main indicator of public danger is the damage caused to the object of the crime, which should first of all be reflected in the sanction. Next, the subjective side of the crime should be reflected, in particular intent or negligence, since they can be of particular importance in determining the nature and size of the sanction. Then comes age, relapse and other circumstances characterizing the personality, etc. There are also technical rules that determine the degree and nature of the sanction.

Illegality

Illegality is the second sign of a crime, inextricably linked with public danger. It means that such an act is illegal, that is, the criminal law considers it as criminal. According to the Criminal Code, only an act that is provided for by criminal law is recognized as a crime.

Illegality is a formal sign of a crime. The essence of this feature is that only an act that is prohibited by criminal law is recognized as a crime. Illegality is the legal expression of public danger.[28] But illegality is not just a formal sign of a crime, but evidence that the issue of combating this socially dangerous action has become a matter of national importance.

So, recognizing an act as unlawful represents the state’s official recognition of the social danger of the corresponding act. Its prohibition by criminal law is recognition of a significant degree of its social danger. Thus, declaring an act criminal is a political act of state power.

A person who has committed a crime violates the legal prohibition of such behavior. In relation to criminal law, we are talking about criminal wrongfulness. Other offenses (for example, administrative) are also illegal, but they are not provided for by criminal law.

Wrongfulness is the legal expression of the social danger of an act. Just as there cannot be a criminal act that does not cause significant harm, so there cannot be a criminal act that is not unlawful. To recognize an act as criminal, it must be provided for by criminal law.

Article 3 of the Criminal Code of the Russian Federation emphasizes that “The criminality of an act, as well as its punishability and other criminal law consequences are determined only by this Code” and “The application of criminal law by analogy is not allowed.” Article 8 of the Criminal Code of the Russian Federation states that “The basis of criminal liability is the commission of an act containing all the elements of a crime provided for by this Code.” Article 9 of the Criminal Code states that criminality and punishability are determined by the law in force at the time the act was committed.

Thus, in the Russian Federation no one can be prosecuted and convicted if the act he committed is not illegal, unless it is directly provided for by criminal law.

Illegality (criminal illegality) is a formal sign of a crime that cannot be considered in isolation from the social danger of the act. Social danger is an objective property of an act; it does not depend on the will of the legislator or law enforcer. An act at a certain stage of development of society comes into sharp conflict with the changed economic, political and spiritual conditions of life of a given society and, because of this, as well as due to its significant prevalence in real life, acquires a significant danger for social relations protected by criminal law. Thus, the social danger of an act is gradually recognized, and from the moment of its recognition, the need to combat this type of act by criminal law methods is objectively maturing. Having identified the objectively existing social danger of an act and realizing the impossibility of effectively combating it without the use of criminal legal means, the state, represented by the legislative body, expressing the general views of society, formulates a criminal legal ban on the commission of this type of act and establishes criminal punishment for its commission. “At the law-making level, the legislator, reflecting the moral state of society, determines the range of the most important human rights and freedoms that need criminal legal protection.”[29] Thus, the criminal wrongfulness of an act is a subjective (at the legislative level) expression of the social danger of this act . This means that an act that is objectively intolerable to society due to its social danger to the existing system of social relations is criminalized, that is, directly prohibited by criminal law under threat of punishment. On the other hand, an act prohibited by criminal law, due to a change in the nature of social relations or for other reasons, may at a certain stage lose its danger to society to such an extent that there is no need to combat this phenomenon by means of criminal law or will cease to be socially dangerous at all . In this case, the act, as devoid of its socially negative content, is decriminalized, that is, the criminal legal ban on its commission is abolished.

Although public danger and illegality are two obligatory interrelated signs of a crime, nevertheless, public danger is decisive for recognition as a crime. It is public danger that is the basis for recognizing an act as criminal, for its criminalization.

For a correct understanding of the relationship between these two signs of a crime, the provision enshrined in Part 2 of Article 14 of the Criminal Code is important. It says here: “An action or inaction, although formally containing signs of any act provided for by the Special Part of this Code, but due to its insignificance does not pose a public danger, that is, does not cause harm and does not create a threat of harm to the individual or society, is not a crime. or the state."

Before the adoption of the Criminal Code of the Russian Federation, doubts were expressed about the need to preserve the norm about the insignificance of the act, since it was assumed that its content, as not introducing a single positive quality, had nothing to do with the concept of a crime.

Meanwhile, the legislator, following historical traditions, quite rightly preserved this norm and left it in Article 14 of the Criminal Code (“The Concept of Crime”). After all, the rule on the insignificance of an act does not simply state the possibility of an exception to the rules. It organically complements the concept of crime by defining acts that, despite their apparent criminal wrongfulness, are not crimes.

Acts in which the presence of a crime is associated with the fact of harm (for example, “harm to the rights and legitimate interests of citizens” in violation of the equality of citizens - Article 136 of the Criminal Code and violation of privacy - Article 137 of the Criminal Code) or public dangerous consequences expressed in evaluative concepts (for example, “a significant violation of rights and legitimate interests” in the case of abuse of official powers - Part 1 of Article 285 of the Criminal Code, abuse of official powers - Part 1 of Article 286 of the Criminal Code and negligence - Part 1 of Art. 293 of the Criminal Code or “significant damage” in the case of deliberate destruction or damage to property - Part 1 of Article 167 of the Criminal Code), if this harm or such consequences were not caused (here we mean cases of an unfinished crime). In such situations, the act simply lacks one of the elements of a crime.

The insignificance of an act can be of two types. The first type, when an action (inaction), formally containing signs of a crime, does not pose a public danger. These are cases when, for example, a box of matches, a pencil, etc. is stolen. There is no public danger in such acts; they, essentially, do not cause harm to other people’s property protected by criminal law, and do not violate social relations regulated by other branches of law. This type of insignificant action is rare in practice and, due to its obviousness, usually does not cause difficulties in understanding.

The second type is not directly provided for by criminal law, but logically follows from it. These are cases where the act has a social danger, but it is small, not exceeding a civil, administrative or disciplinary offense, due to which the act cannot be considered criminal. This type of insignificance is relatively common and quite difficult to understand. The difficulty is how to distinguish a misdemeanor from a crime and what criteria to use.

The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation in the case of Isaikin, Gnatiev and others (three fourteen to fifteen year old teenagers were convicted of secret theft of other people's property, committed by prior conspiracy by a group of people: in August 1995, with the purpose of stealing, they came to a summer cottage where collected 26 watermelons with a total weight of 28 kg worth 1,000 rubles per 1 kg, causing damage to the victim in the amount of 28,400 rubles), taking into account that the watermelons were stolen for an insignificant amount (the minimum wage at the time of the crime was 55,000 rubles. ), returned to the victim, who considered the damage caused to her to be insignificant and asked not to bring the teenagers to criminal liability, came to the conclusion that the actions of minors, although formally they contain signs of a crime under Part 2 of Art. 144 of the Criminal Code of the RSFSR (theft), but due to their insignificance they do not pose a public danger[30].

At the same time, in the case of Nikitin, who stole 50 liters of diesel fuel in the amount of 12,180 rubles, taking into account the fact that Art. 49 of the Code of Administrative Offenses of the RSFSR provides for liability only for petty theft of state or public property (diesel fuel belonged to the Yamash collective enterprise, which consisted of the property of individual members of the collective), the Presidium of the Supreme Court of the Chuvash Republic indicated: “If the value of the stolen property of others does not exceed one minimum monthly amount of remuneration, criminal liability under Art. 144 of the Criminal Code of the RSFSR is not excluded”[31]. In the case of Kholodov, who was previously recognized as a particularly dangerous repeat offender, who stole property worth 23,000 rubles from S. (the minimum wage at the time of the crime was 43,700 rubles), the judicial panel for criminal cases of the Supreme Court of the Russian Federation, canceling the cassation ruling and the resolution of the presidium of the Murmansk Regional Court, indicated that “criminal liability for the theft of someone else’s property occurs regardless of the value (size) ) kidnapped"[32].

Consequently, the mere external formal correspondence of the committed act to the characteristics of a specific crime does not allow it to be considered as such if it does not represent the degree of danger that is inherent in the crime (substantial harm). In the presence of such cases, a criminal case cannot be initiated, and the case initiated must be terminated.

Guilt

Moving, further, to the construction of the sign of the crime “guilt”, it should be noted that it is ambiguous in Art. 3 and art. 8 and 9 of the Criminal Code of the Russian Federation. Art. 8 and 9 interpret guilt as a generic concept of intent and negligence. In Art. 3 of the Criminal Code of the Russian Federation uses the term “guilt,” which is revealed as the intentional and careless commission of a socially dangerous and criminally punishable act, that is, a crime. In a similar sense, the concept of “guilty”, “guilty” is used in criminal procedure legislation, as well as in Art. 160 of the USSR Constitution.

In the Russian language[33], “guilt” and “guilt” are understood in at least three legally different senses. Firstly, in the procedural: imputation of the crime and a summary of the person’s guilt in the crime committed. Secondly, as the subjective side of the crime: guilt as a generic concept of intent and negligence. Thirdly, as the crime itself, the participation of a person in it. Such ambiguity, of course, cannot be tolerated by either substantive or procedural criminal law. Therefore, the term “guilt” must be interpreted in the sense of Art. 8 and 9 of the Criminal Code of the Russian Federation, which define intent and negligence. Guilt in criminal law should be understood as a synonym for guilt. For example, in the concept of a crime, a “guilty” act means only whether it was committed intentionally or recklessly.

Guilt, along with social danger and illegality, is a constructive feature of a crime. [34]

Since the 1940s, guilt has become an almost universally accepted sign of crime in educational literature. And finally, in the Fundamentals of Criminal Legislation of the USSR and the Republics of 1991, this feature received legislative recognition. In Art. 14 of the Criminal Code states that a crime is a socially dangerous act committed guilty of guilt, prohibited by the Criminal Code under threat of punishment. In the history of Russian criminal law, unlike, for example, Austrian or German law, guilt was not included among the signs of a crime. Many criminologists opposed the inclusion of the sign of guilt in the concept of crime (N.S. Tagantsev, N.D. Durmanov), since an act committed without intent and carelessness is not criminally unlawful. Consequently, the sign of guilt is contained in the sign of criminal wrongfulness.

Guilt as a constructive feature of a crime directly follows from the principle of guilt enshrined in Art. 5 of the Criminal Code: “A person is subject to criminal liability only for those socially dangerous actions (inactions) and socially dangerous consequences for which his guilt has been established.” Based on the principle of subjective imputation, the criminal legislation of the Russian Federation prohibits objective imputation, that is, criminal liability for innocent causing of harm. [35]

The criminal wrongfulness of an act presupposes a certain mental attitude towards it on the part of the person who committed it. The law is addressed to people with consciousness and will, and therefore, a criminally unlawful act (action or inaction) initially includes a mental attitude to this act in the form of intent and negligence.

Thus, if we take into account that wrongfulness presupposes the prohibition by criminal law of committing acts intentionally and carelessly, then it becomes obvious that committing acts without intent and carelessness cannot be criminally unlawful. Guilt is characterized by a person’s mental attitude towards an act prohibited by criminal law and its consequences. Consequently, guilt is a necessary property of the wrongfulness of acts that are considered criminal, but it is not an independent sign of a crime.

If an act is committed without guilt (accidentally), then, despite its objective social danger, it cannot be recognized as a crime and therefore does not entail criminal liability. This provision is axiomatic for the criminal law of all developed countries. However, for the first time in domestic legislation it is enshrined only in the Criminal Code of the Russian Federation. In accordance with Art. 28 of the Criminal Code, an act, even if it falls within the legislative description of a crime, but was committed without intent or negligence, is considered committed innocently and is not recognized as a crime. This article of the Criminal Code also recognizes as innocent an act in which the person, although he foresaw the possibility of socially dangerous consequences, could not prevent them due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload (Part 2 of Article 24 of the Criminal Code). [36]

Guilt as a sign of a crime is associated with social danger and illegality of the act. If these signs are absent, then the question of guilt cannot arise.

Punishability

In a number of publications on criminal law, including textbooks, one can find reference to the fourth property of a crime - punishment. Meanwhile, this sign of a crime is not recognized by all scientists, which gives rise to a fairly extensive discussion. Opponents of identifying this feature as characterizing a crime believe that punishment in the sense of the threat of punishment is covered by the concept of criminal wrongfulness. Punishment, as the real punishment of a person for a crime, is a consequence of the commission of a crime, occurs after its commission and therefore cannot be the content of the crime that preceded it.

The opposite position would be contrary to the principle of legality, according to which only the legislator, and not the court imposing punishment, can criminalize or decriminalize an act. The court, the prosecutor's office, investigation, inquiry, while imposing criminal liability or exonerating it, do not have the power to criminalize or penalize an act. There is no judicial criminalization or decriminalization, which is sometimes recognized in publications.

The non-recognition of punishment (punishment) as a property of a crime confirms the fact of the existence of latent, that is, unpunished crime. Criminal statistics record about three million crimes per year in Russia over the last decade. About a million cases go to trial. In reality, without taking into account suspended sentences, about half of the people are punished by the courts. In reality, from nine to twelve million crimes are committed annually in the Russian Federation [37].

If we recognize punishment as a mandatory property of a crime, then it turns out that only half a million actually punished acts are the essence of a crime, and the rest are not crimes. The common saying “not caught is not a thief” is actually not true. “Not caught” means “not convicted,” and is not recognized, for example, as a convicted thief according to the presumption of innocence. But he is a thief regardless of conviction. According to Art. 8 of the Criminal Code of the Russian Federation, the basis for criminal liability is the commission of an act containing all the elements of a crime. An “uncaught thief” is a typical subject of latent crime.

Supporters of including the sign of punishment in the characteristics of a crime, including N.D. Durmanov, rightly so [38].

Indeed, there are a great many immoral offenses. There are many more of them than crimes, even in the largest criminal code, but the state and public reactions to them are completely different than to crimes. The difference lies in the fact that the latter are punished on behalf of the state, and therefore punishability should be a sign of a crime.

The main problem that arises in this case is related to the very concept of “punishability”. Usually this is understood as the threat of punishment for an act committed. And all lawyers agree with this understanding of punishability, since it is obvious. The problem is different, how to understand punishability as a sign of a crime. After all, the threat of punishment is embedded in the sanction of a criminal law norm, but the sanction itself cannot be included in a crime, since the threat of punishment contained in it is a consequence of the crime committed and cannot be included in it. Essentially, disposition and sanction, crime and punishment are two main components of criminal law. Consequently, by including punishability among the signs of a crime, a situation occurs in which the sanction is included in the disposition, and, consequently, punishment in the crime. Thus, punishability in any situation appears solely as a characteristic of the legal consequences, but not as the legal nature of the crime.

Immorality

The last sign of a crime identified in the science of criminal law is immorality. There is also no unity regarding this characteristic, since some authors recognize it as such, and some authors believe that such a characteristic should not exist. In fact, I think no one doubts the fact that crime is immoral. However, this does not prejudge the issue of recognizing immorality as a sign of a crime.

There are several arguments against this feature.

- Firstly, “the signs of a crime are intended to reflect the specific features of the crime, which make it possible to distinguish it from other offenses. Immorality is inherent not only in crimes, but also in other offenses,” that is, immorality is not a specific feature of a crime. And indeed it is. But what has been said can just as well be extended to public danger; after all, N.F. Kuznetsova herself identifies social danger with harmfulness and ultimately recognizes social danger as a characteristic of all offenses, and not just crimes, which does not prevent her from classifying public danger as the most important signs of a crime. In our opinion, the approach to considering the signs of a crime should be the same. This is why this argument doesn't work.

“Secondly, “the sign of immorality is completely absorbed by the broader concept of the social danger of a criminal act.” One should agree with this argument, since indeed the crime contradicts the existing and established normative framework of the morality of society; This is especially evident in the example of the subjective elements of crime as characteristics of an antisocial personality orientation that is contrary to generally accepted morality; and all structural elements of a crime constitute a public danger.

— Thirdly, “indication of immorality as a sign of a crime is unnecessary, since it does not add anything to the characterization of the crime as an act of social danger and illegality.

As a result, we see that the immorality of the act is duplicated in two signs of a crime - social danger and illegality. Against this background, there is no need to repeat it three times by recognizing immorality as an independent sign of a crime.

To summarize what has been said, in our opinion, one should not single out guilt, punishability and immorality as independent signs of a crime; To determine it, two important and undeniable signs are enough - social danger and illegality.

What is an offense, signs and types of offenses

In legal discipline, there are several types of offenses:

1. Misdemeanors of civil law type. An individual causes harm to a person or his property, legal entity or individual. For example, an illegal transaction took place and contractual obligations were not fulfilled. A typical type of liability for an offense is property liability.
2. Misdemeanors of the administrative group. Violations that affect the freedoms and rights of members of society or public order as a whole. A person threatens administrative or executive authorities, encroaches on established norms of law and order. For example, minors drink alcohol in a public place.
3. Procedural violations. The law establishes a certain course of procedure that the individual must follow. Failure to comply with the order leads to increased severity of possible penalties or punishment. If a citizen does not appear at a court hearing, he is put on the wanted list. Consequently, the preventive measure will be higher.
4. Disciplinary types of violations. Labor sector misconduct. A person systematically or one-time violates educational, military, or service discipline. Disciplinary liability is required. Such illegal actions include being late for work, attending work without a uniform, and failure to carry out instructions from management.
5. Material types of illegal acts. Provides for the infliction of financial or property damage by an employee to the enterprise or plant where he works. This is equipment breakdown, financial shortfalls at the cash desk, etc.