The concept and types of circumstances excluding the criminality of an act

Necessary defense

According to Art.
37 of the Criminal Code of the Russian Federation it is not a crime to cause harm to an offender in a state of necessary defense, i.e. when protecting the personality and rights of the defender or other persons, the legally protected interests of society or the state from a socially dangerous attack, if this attack was associated with violence dangerous to the life of the defender or another person, or with an immediate threat of the use of such violence. All citizens without exception have the right to carry out the necessary defense (Part 3 of Article 37 of the Criminal Code of the Russian Federation). For a certain category of persons (for example, employees of internal affairs bodies, etc.), necessary defense is a legal obligation, failure to comply with which entails disciplinary or criminal liability.

As is clear from the legislative definition, necessary defense consists of causing harm to the attacker. In this regard, criminal law identifies the conditions for its legality.

Conditions for the legality of necessary defense:

a) related to the encroachment:

• public danger;
• reality;
• presence of encroachment;

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Conditions of legality relating to encroachment

The social danger of an attack presupposes that the actions of the offender were aimed at causing such harm to an individual, society or the state that is characteristic of crimes.
However, this does not mean that it must necessarily be criminal. The Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 No. 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime” states that under assault, protection from which is permissible within the limits established by part 2 of Article 37 According to the Criminal Code of the Russian Federation, it is necessary to understand the commission of socially dangerous acts involving violence that is not dangerous to the life of the defender or another person (for example, beatings, causing minor or moderate harm to health, robbery committed with the use of violence that is not dangerous to life or health). In addition, such an encroachment is the commission of other acts (actions or inaction), including negligence, provided for in the Special Part of the Criminal Code of the Russian Federation, which, although not associated with violence, however, taking into account their content, can be prevented or suppressed by causing harm to the offender. Such attacks include, for example, intentional or careless destruction or damage to someone else’s property, rendering life support facilities, vehicles or communications routes unusable. A socially dangerous attack must be carried out through action. In addition, it must be capable of immediately causing harm to social relations protected by criminal law. In fact, the institution in question is intended to suppress such acts.

Reality as a sign of a socially dangerous attack means that it exists in reality, and not in the imagination of the person defending himself. Otherwise, a situation of so-called imaginary defense arises (more precisely, defense against imaginary encroachment).

Imaginary defense is a defense against an imaginary, apparent, but actually non-existent encroachment. Its legal consequences are determined by the rules of error of fact. In cases where the circumstances of the incident gave reason to believe that a real attack was being committed, or the person who used the means of defense did not and could not realize the error of his assumption, his actions should be considered as committed in a state of necessary defense. If in this case the person exceeded the limits of protection permissible in the conditions of the corresponding real attack, he is subject to liability as for exceeding the limits of necessary defense.

If a person causes harm without realizing the imaginary nature of the attack, but due to the circumstances of the case he should and could have realized this, the actions of such a person are subject to qualification under the articles of the Criminal Code, which provide for liability for causing harm through negligence.

A socially dangerous attack that has already begun but has not yet ended is recognized as existing. However, it must be borne in mind that the state of necessary defense arises not only at the very moment of a socially dangerous attack, but also in the presence of a real threat of attack. It also occurs when the defense immediately followed the act of at least a completed assault, but due to the circumstances of the case, the moment of its completion was not clear to the defender. The transfer of weapons or other objects used in the attack from the attacker to the defender cannot in itself indicate the end of the attack.

b) related to defense (in accordance with Parts 1 and 2 of Article 37 of the Criminal Code of the Russian Federation).

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Conditions of validity relating to protection

The conditions of legality relating to defense must be determined depending on the type of defense required. For the necessary defense provided for in Part 1 of Art. 37 of the Criminal Code of the Russian Federation, they are:

1. a wide range of legally protected interests can be protected, which necessarily includes the life of the defender or another person;
2. harm is caused to the offender;
3. protection must be timely.

For the necessary defense provided for in Part 2 of Art. 37 of the Criminal Code of the Russian Federation, the following are recognized as such:

1. a wide range of legally protected interests can be protected, which does not include the life of the defender or another person;
2. harm is caused to the offender;
3. protection must be timely;
4. when defending, the limits of necessary defense must not be exceeded.

Thus, exceeding the limits of necessary defense is possible only with its second type, while its first type excludes excess. In this case, the absence of at least one of the conditions related to protection during the necessary defense provided for in Part 1 of Art. 37 of the Criminal Code of the Russian Federation, in fact, means the absence of the very state of necessary defense. The responsibility of the “defendant” in such circumstances arises on a general basis.

The protected interests of both the defender and other persons, society and the state may be subject to protection. Among them, according to Part 1 of Art. 37 of the Criminal Code of the Russian Federation includes the life of a person.

One of the conditions for the legality of defense is to cause harm only to the offender. When an attack is committed by a group of persons, the defender has the right to apply to any of the attackers such protective measures as are determined by the danger and nature of the actions of the entire group.

Based on the provisions of Part 1 of Art. 37 of the Criminal Code of the Russian Federation, in case of an attack associated with violence dangerous to the life of the defender or another person, or with an immediate threat of using such violence, any harm, including death, is possible. With the necessary defense provided for in Part 2 of Art. 37 of the Criminal Code of the Russian Federation, defense is recognized as legitimate if the limits of necessary defense have not been exceeded.

Timely defense means that defense can only be carried out during the period of attack. The actions of the defender who caused harm to the attacker cannot be considered committed in a state of necessary defense if the harm was caused after the attack was prevented or completed and the use of means of defense was clearly no longer necessary. In these cases, liability arises on a general basis.

Defense must not exceed the limits of necessary defense. Exceeding the limits of necessary defense is considered to be intentional actions that are clearly inconsistent with the nature and danger of the attack. Causing harm to the offender while repelling a socially dangerous attack through negligence does not entail criminal liability.

When deciding whether there are signs of exceeding the limits of necessary defense, it is necessary to take into account not only the correspondence of the means of defense and attack, but also the nature of the danger threatening the defender, his strength and ability to repel the attack, as well as all other circumstances that could affect the real balance of forces of the attacker and the person defending himself (the number of those who encroached and those who defended, their age, physical development, the presence of weapons, the place and time of the attack, etc.).

The actions of the defending person are not considered to be an excess of the limits of necessary defense if, due to the surprise of the attack, he could not objectively assess the degree and nature of the danger of the attack (Part 2.1 of Article 37 of the Criminal Code of the Russian Federation).

Causing harm when detaining a person who has committed a crime

In accordance with Part 1 of Art. 38 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to a person who has committed a crime when he is detained in order to bring him to the authorities and suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the measures necessary for this were not exceeded .

Like necessary defense, the legality of causing harm when detaining a person who has committed a crime is determined by two groups of conditions:

a) related to the crime committed:

1. existence of a crime;
2. evasion of a person from arrest.

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Conditions of legality relating to the crime committed

Various circumstances may indicate that the detainee has committed a crime:

• the person is caught in the act of committing it;
• there are traces of a crime on him and his clothes;
• victims or eyewitnesses pointed to this person as having committed a crime, etc.

Evasion of a person from arrest means either an attempt to hide, or his categorical refusal to go to the appropriate authority. If the detainee actively resists arrest, actions to detain the person who committed the crime develop into necessary defense.

b) related to detention:

1. harm is caused only to the person who committed the crime;
2. forced nature and purpose of causing harm;
3. not exceeding the measures necessary for detention.

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Conditions of legality relating to the detention of a person

The first condition (harm is caused only to the person who committed the crime) means that it is unacceptable to cause harm to a person who has not committed the crime, i.e.
to third parties. The indication in the law of the commission of a crime should be understood broadly - both the commission of a crime and the commission of a socially dangerous act by a person who is not recognized as the subject of the crime, if the detainee was not aware of this. In this case, bringing a person to justice for violating the conditions of the legality of detention would mean objective imputation, unacceptable in Russian criminal law. The right to cause harm during arrest arises from the moment the crime is committed (including unfinished crime) and terminates from the moment the statute of limitations expires.

Causing harm to a person is forced, i.e. It was impossible to detain the criminal by other measures not related to causing harm. Damage can be both property and physical.

The purpose of detention is specified in the law: to bring him to the authorities and suppress the possibility of him committing new crimes. It excludes causing death to the detainee. The legality of causing such harm must be determined within the framework of the institution of extreme necessity.

Measures of detention must correspond to the nature and degree of danger of the crime and the circumstances of the detention.

Exceeding the measures necessary to detain a person who has committed a crime is recognized as their obvious discrepancy with the nature and degree of public danger of the crime committed by the detainee and the circumstances of the detention, when the person is unnecessarily caused clearly excessive harm not caused by the situation (Part 2 of Article 38 of the Criminal Code of the Russian Federation) . Thus, the law connects excess detention measures with two circumstances:

• the nature and degree of public danger of the crime committed;
• the situation of detention.

Causing excessive harm entails criminal liability only if there is an intentional form of guilt. A special part of the Criminal Code of the Russian Federation contains two crimes committed when the measures necessary to apprehend the criminal were exceeded:

1. murder (part 2 of article 108 of the Criminal Code of the Russian Federation);
2. infliction of grievous or moderate harm to health by exceeding the measures necessary to detain the person who committed the crime (Part 2 of Article 114 of the Criminal Code of the Russian Federation).

According to paragraph “g” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, these crimes are considered committed under mitigating circumstances.

Intentional infliction of other harm to health, as well as infliction of physical harm through negligence during the detention of a person does not entail criminal liability.

Attention!

According to Articles 37-42 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to an attacker in a state of necessary defense, that is, when protecting the personality and rights of the defender or other persons, legally protected interests of society or the state from a socially dangerous attack, if this attack was associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence.

Protection from an attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, is lawful if it does not exceed the limits of necessary defense, that is, deliberate actions that are clearly inconsistent with the nature and danger encroachments.

The actions of a defending person do not exceed the limits of necessary defense if this person, due to the surprise of the attack, could not objectively assess the degree and nature of the danger of the attack.

The specified provisions of the article apply equally to all persons, regardless of their professional or other special training and official position, as well as regardless of the ability to avoid a socially dangerous attack or seek help from other persons or authorities.

It is not a crime to cause harm to a person who has committed a crime when he is detained to be brought to the authorities and to suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the measures necessary for this were not exceeded.

Exceeding the measures necessary to detain a person who has committed a crime is recognized as their obvious discrepancy with the nature and degree of public danger of the crime committed by the detainee and the circumstances of the detention, when the person is unnecessarily caused clearly excessive harm not caused by the situation. Such an excess entails criminal liability only in cases of intentional harm.

It is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means and at the same time the limits of extreme necessity were not allowed to be exceeded.

Exceeding the limits of extreme necessity is considered to be the infliction of harm that is clearly inconsistent with the nature and degree of the threatened danger and the circumstances in which the danger was eliminated, when harm was caused to the specified interests equal to or more significant than that prevented. Such an excess entails criminal liability only in cases of intentional harm.

It is not a crime to cause harm to interests protected by criminal law as a result of physical coercion if, as a result of such coercion, the person could not control his actions (inaction).

It is not a crime to cause harm to interests protected by criminal law at a reasonable risk to achieve a socially useful goal.

The risk is considered 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.

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.

It is not a crime to cause harm to interests protected by criminal law by a person acting in pursuance of an order or instruction that is binding on him. The person who gave the illegal order or instruction bears criminal liability for causing such harm.

A person who has committed an intentional crime in pursuance of a knowingly illegal order or instruction bears criminal liability on a general basis. Failure to comply with a knowingly illegal order or instruction excludes criminal liability.

Oksana Orlova

Senior Prosecutor of the Department of State Prosecutors of the Khabarovsk Territory Prosecutor's Office

Urgent necessity

In Art. 39 of the Criminal Code of the Russian Federation states: “It is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the legally protected interests of society or the state, if this danger could not exist.” eliminated by other means without exceeding the limits of extreme necessity.”

Thus, there is a situation of collision between two legally protected interests: the protected and the violated. By causing harm to one of them, a threatening danger to another interest is eliminated. For example, to prevent the spread of a fire in a village, the house next to the burning one is dismantled. In this case, harm to one owner is due to the need to protect the interests of all other owners who may actually suffer from the fire. The same situation occurs when transported cargo is dumped into the sea from a ship that is in danger of disaster.

In connection with the above, the legitimacy of extreme necessity is associated with a number of conditions related to:

1) to the imminent danger:

• the presence of a threat to legally protected interests;
• reality of danger;
• presence of danger.

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Conditions of legality characterizing danger

The presence of a threat to interests protected by law presupposes such actually existing circumstances or such a development of events (cause-and-effect relationships) that will inevitably lead to harm to them. The sources of such threats are quite diverse, among them are:

1. natural forces of nature - flood, earthquake, tornado, tornado, storm, fire, etc.;
2. attacks by animals (both wild and domestic), if they were not initiated by humans (in this case we may be talking about necessary defense);
3. physiological and pathological processes - illness, hunger, etc.;
4. faulty condition of mechanisms, etc.

In some cases, a state of extreme necessity may be caused by socially dangerous actions of a person (for example, in a state of extreme necessity, a doctor acts, transferring narcotic drugs or psychotropic substances under the threat of harm to health or life). The same condition can be caused by a conflict of two duties (for example, calling a doctor to two patients at the same time).

The specified threat must be real - real, actually occurring. If the danger was far-fetched, i.e. when there is no real threat to legally protected interests, and a person only mistakenly assumes its existence, causing harm cannot be considered committed in a state of extreme necessity. In this case, liability issues are resolved according to the rules of error of fact.

The sign of the presence of a threat follows from the legislative establishment of the conditions for the legality of extreme necessity. This danger must directly threaten the person and other legally protected interests. In other words, this danger has already arisen and exists now, at the present time, it has not yet passed or been eliminated. The institution in question therefore received the name of extreme necessity, i.e. a situation that requires immediate action. This threat can be short-term or have a sufficient duration over time.

Before a real threat of harm to legally protected interests arises and after it is eliminated (disappeared), there is no state of emergency.

2) to protection:

• causing harm as the only means of eliminating the impending danger;
• harm is caused to third parties;
• the limits of extreme necessity were not allowed to be exceeded.

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Conditions of legality of extreme necessity relating to defense

There are three conditions for the legitimacy of extreme necessity related to protection from imminent danger:

• causing harm as the only means of eliminating the impending danger;
• harm is caused to third parties;
• the limits of extreme necessity were not allowed to be exceeded.

Causing harm as the only means of eliminating an impending danger presupposes that the danger could not be eliminated by other measures. For example, after unsuccessful attempts to extinguish a forest fire, a fire (counter fire) is started. If such a possibility existed (for example, eliminating the source of danger itself) and it was realized by the person who caused harm to other legally protected interests, a state of emergency does not arise. Liability in this case arises on a general basis.

In a state of extreme necessity, harm is caused to third parties. They mean not only individuals, but also society and the state. The impending danger, causing a state of extreme necessity, is not aimed at their interests, but it is they who are harmed in order to eliminate this danger; it is not caused by the actions of third parties; the latter have nothing to do with it and are not guilty of it. If the danger is caused by the behavior of the person who is harmed, the presence of the institution in question is excluded; in this case, we should talk about necessary defense or causing harm to the person who committed the crime.

Causing harm in a state of necessary defense is recognized as lawful if its limits have not been exceeded. Exceeding the limits of necessary defense is the infliction of harm that is clearly inconsistent with the nature and extent of the threat and the circumstances in which the danger was eliminated, when harm was caused to the individual, the rights of a given person or other persons, the interests of society or the state protected by law, equal to or more significant than that prevented ( Part 2 of Article 39 of the Criminal Code of the Russian Federation). In this case, the socially useful or socially acceptable nature of causing the harm in question is excluded.

Thus, the limits of extreme necessity will be considered exceeded if:

1. the harm caused is obvious, i.e. obvious to the person, did not correspond to the nature and degree of the threatening danger and the circumstances of its elimination;
2. the specified discrepancy is manifested in the fact that the harm caused was equal to or greater than that prevented;
3. This harm was intentional.

Causing harm when exceeding the limits of extreme necessity entails criminal liability on a general basis, however, committing a crime in violation of the conditions of its legality is recognized as a mitigating circumstance (clause “g” of Article 61 of the Criminal Code of the Russian Federation).

Other types of circumstances excluding the criminality of an act

In addition to necessary defense, detention of the person who committed the crime, and extreme necessity, these circumstances also include:

• physical or mental coercion (Article 40 of the Criminal Code of the Russian Federation),
• justified risk (Article 41 of the Criminal Code of the Russian Federation),
• execution of an order or instruction (Article 42 of the Criminal Code of the Russian Federation).

Physical or mental coercion

In Part 1 of Art. 40 of the Criminal Code of the Russian Federation states that it is not a crime to cause harm to interests protected by criminal law as a result of physical coercion if, as a result of such coercion, the person could not control his actions. Physical coercion means forceful influence on a person or deprivation of personal liberty in order to force him to submit to the will of another person. It can be expressed in the use of physical force (damage to health, blows, beatings, torture, poisoning, etc.), coercion can also be achieved by restricting a person’s freedom (keeping in a pit, locking in a room, etc.). Physical coercion excludes the criminality of an act if it is irresistible. The insurmountability of physical coercion is understood as such an impact on a person (on his health or freedom), which entails a complete loss of his free will, which allows him to be used as a tool or means to cause harm to interests protected by criminal law. A person is unable to resist such coercion.

As a result of irresistible physical coercion, a person is usually forced to remain inactive. For example, locking the switchman in a booth, as a result of which he is deprived of the ability to move the switches; tying up the guard so that he cannot prevent the theft of the property he protects, etc.

In some cases, through this coercion, the coercer gets the person to perform the actions he desires (for example, to force him to steal a vehicle).

An action or inaction committed under the influence of irresistible physical coercion is deprived of such a sign of a criminal act as a volitional character. In the criminal legal sense, the behavior of a person in this situation does not constitute an act as a sign of the objective side of the crime. Therefore, it is not subject to criminal liability.

Since there is so-called indirect harm, therefore, the one who forced him to commit a crime must bear criminal liability. This person is recognized as the perpetrator of the crime, and the person who actually committed it acts in this case as an instrument or means of committing the crime.

The use of hypnotic influence on another person is also equivalent to physical coercion. Actions committed in a state of hypnosis also exclude criminal liability for that person. In this case, the perpetrator of the crime is the person who used a hypnotized person to commit it.

Thus, irresistible physical coercion is one of the manifestations of force majeure.

It must be borne in mind that with this coercion, harm is caused to interests protected by criminal law, i.e. the object of a specific crime.

In accordance with Part 2 of Art. 40 of the Criminal Code of the Russian Federation, the issue of criminal liability for causing harm to interests protected by criminal law as a result of mental coercion, as well as as a result of physical coercion, as a result of which the person retained the ability to direct his actions, is resolved according to the rules of extreme necessity (Article 39 of the Criminal Code of the Russian Federation). In this case, we are talking about surmountable impact. Such coercion means that a person retains free will (although the will may be significantly limited), and he is able to act at his own discretion, and not be an instrument of crime in the hands of the coercer.

Mental coercion is understood as informational influence on the human psyche in order to impose one’s will on the coerced person and force him to commit a crime. Its most typical type is the threat of harm to the legally protected interests of the individual. The threat must be specific and real, the person had reason to fear its implementation. Another type of mental coercion is blackmail.

As already indicated, harm caused under the influence of surmountable physical or mental coercion is assessed according to the rules of extreme necessity: if it is less than the harm that was caused or threatened to be caused to a person, then his criminal liability is excluded; if it is equal to or greater than the harm that was caused or threatened to cause to the person, then it is subject to criminal liability. The specified coercion is recognized as a mitigating circumstance (clause “e”, part 1, article 61 of the Criminal Code of the Russian Federation).

The legislator does not recognize mental compulsion as insurmountable. Meanwhile, some forms of mental coercion can lead to paralysis of the will, as a result of which a person causes harm to interests protected by criminal law (for example, while at gunpoint, a cashier gives out money at the request of a criminal). In this case, the liability of this person is also excluded.

Criminal law recognizes justified risk as a circumstance excluding the criminality of an act (Article 41 of the Criminal Code).

Justified risk

In Art. 41 of the Criminal Code of the Russian Federation states: “It is not a crime to cause harm to interests protected by criminal law with a justified risk to achieve a socially useful goal.”

Risk is nothing more than making a decision without the necessary information. Its formula is quite simple: the situation is uncertain, in other words, there is no proper information that adequately reflects the situation; there is a need to act, how to act is not completely clear. The greater the uncertainty, the greater the risk, and vice versa.

The risk is the possible harm to relationships protected by criminal law. But we must keep in mind that it is a by-product of risky actions and its occurrence is probabilistic. The inevitability of harm does not exclude the criminality of the act.

The areas of activity in which reasonable risk is possible are varied. Some types of professional activities are inherently risky: conducting scientific research, testing, experiments, operating transport, developing new drugs, rescue work in emergencies and natural disasters, etc. These include economic and commercial risk, which is associated with causing property damage damage.

In addition to professional activities, justifiable risk can occur in other areas of human life, in particular tourism, travel, sports, so-called extreme leisure, etc.

Based on the time of making a decision on actions in a state of risk, two types can be distinguished:

1. initially the situation was not risky and did not create a danger of causing harm to public relations protected by criminal law;
2. The situation was like this from the start.

According to the law, a risk can be justified if a socially useful goal could not be achieved by actions (inactions) not related to risk, and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law (Part 2 of Article 41 of the Criminal Code of the Russian Federation) . 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 public disaster (Part 3 of Article 41 of the Criminal Code of the Russian Federation). Thus, the mandatory conditions characterizing the institution in question are:

• presence of a socially useful purpose;
• the impossibility of achieving it without risk;
• sufficiency of measures to prevent harm;
• compliance with the prohibition of risks associated with the creation of a threat to the lives of many people, with the threat of an environmental disaster or public disaster.

A socially useful goal is the expected result of risky actions that is of interest to society, its individual members, the state, science, industry, technology, medicine, etc. It can be expressed in the creation of new types of equipment, technology, obtaining more effective drugs than existing, economic benefits, etc.

The specified goal should be quite specific and, in principle, achievable. An abstract goal and its insignificant probability of achievement indicate the adventurous nature of actions that entail criminal liability on a general basis.

The realization of a personal goal excludes the validity of the risk.

The impossibility of achieving a socially useful goal without risk means that the risk in the current situation was forced, since there were no other ways of achieving it that would guarantee a known positive result. The risk taker had no other options for behavior. If a socially useful goal could be achieved without risk, but nevertheless it was allowed, for causing harm to public relations under such circumstances, the criminal liability of a person is not excluded.

The sufficiency of the measures taken by a person to prevent harm presupposes that the person at risk, aware of the possibility of causing harm to social relations through his actions to realize a socially useful goal, did everything to ensure that harm was not caused. Consequently, justified risk excludes actions “for luck”, hope “at random”. The “sufficiency of measures” is determined not by their objective ability to prevent harm, but by their subjective perception by the person at risk. Consequently, the law deals with such measures that a specific person could take. The question of their sufficiency is decided in each specific case based on the scope of activity and the degree of risk.

The law does not allow a risk if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a public disaster (for example, the death of three or more people, irreparable damage to the environment, a violation of the protection of vital interests of society). Knowing means that a person foresaw their inevitability or real possibility.

Committing a crime in violation of the conditions of justified risk is recognized as a circumstance mitigating punishment (clause “g”, Part 1, Article 61 of the Criminal Code of the Russian Federation).

Circumstances excluding criminal liability

Criminal liability.

Criminal liability

is a complex social and legal consequence of committing a crime, which includes four elements:

ü the obligation of a person, based on the norms of criminal law and arising from the fact of committing a crime, to give an account of what he has done to the state represented by its authorized bodies;

ü a negative assessment of the committed act expressed in a court verdict and censure of the person who committed this act,

ü the punishment or other measure of a criminal legal nature assigned to the perpetrator;

ü criminal record as a specific legal consequence of conviction with serving the assigned sentence.

Essence

criminal liability is expressed in the obligation of the person who committed the crime to give an account to the state of what he did, to be convicted and punished. The basis of criminal liability is what the person who committed the crime is criminally responsible for. If the socially dangerous act committed does not contain any elements of a crime described in the law, then criminal liability cannot arise.

Criminal liability

- this is a conviction of a person and a socially dangerous act committed by him, expressed in a court conviction that has entered into legal force, associated with adverse consequences for the person in the form of punishment or other measures of a criminal legal nature and a criminal record.

Criminal liability begins on the day the conviction comes into force and ends with the expungement or expungement of the criminal record.

Criminal prosecution is carried out by the court.

Depending on the content, criminal liability can be of three types (forms):

1) criminal liability, consisting of: conviction in a guilty verdict of a guilty person and what he has done; assignment of punishment in the sentence; criminal record;

2) criminal liability may consist of a court conviction and suspended sentence;

3) when releasing minors from punishment in accordance with the use of compulsory educational measures, criminal liability consists only of the fact of conviction, which does not create a criminal record. The basis of criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation.

Criminal liability can exist and be realized only within the framework of criminal law. The subjects of criminal law relations, as can be seen from its definition, are, on the one hand, the person who committed the crime, and on the other hand, the state, which acts in the person of the body authorized by it (court). The content of the criminal legal relationship is the corresponding rights and obligations of the subjects. The state has the right to demand from the offender an account of what he has done, to subject him to conviction and measures of criminal coercion. Corresponding to this right of the state is the obligation of the offender to account to the state for his actions, to be subject to conviction and criminal law coercive measures. At the same time, the offender has the right to answer only on the basis of the law violated (i.e. for a specifically committed crime) and only within the limits outlined by law.

Circumstances excluding crime

- these are acts aimed at eliminating the threat created for objects of criminal legal protection by causing harm, recognized as socially useful and socially expedient. Formally, these acts fall under separate provisions of the Special Part of the Criminal Code, but since they do not contain a material sign of a crime (public danger), they do not entail criminal liability. In addition, in contrast to minor acts, acts (circumstances) that exclude crime are socially useful or socially neutral.

The criminal law establishes six types of circumstances excluding the criminality of an act:

1) necessary defense (Article 37 of the Criminal Code of the Russian Federation); 2) causing harm during the detention of a person who committed a crime (Article 38 of the Criminal Code of the Russian Federation); 3) extreme necessity (Article 39 of the Criminal Code of the Russian Federation); 4) physical or mental coercion (Article 40 of the Criminal Code of the Russian Federation); 5) justified risk (Article 41 of the Criminal Code of the Russian Federation); 6) execution of an order or instruction (Article 42 of the Criminal Code of the Russian Federation).

Necessary defense

- this is the lawful protection of the personality and rights of the defender and other persons, as well as the interests of society and the state protected by law from a socially dangerous attack by causing harm to the attacker. The main distinguishing feature of necessary defense, separating it from other circumstances that exclude the criminality of the act, is causing harm to the offender.

Causing harm when detaining a person who has committed a crime

- a circumstance that excludes the criminality of an act in which it is permissible to cause harm to a person who has committed a completed criminal act and is trying to avoid responsibility for it, in order to detain him for transfer to law enforcement agencies and prevent this person from committing new crimes. This circumstance differs from necessary defense in that the harm is caused at the moment when the offense is no longer present, when the offender has already completed the actions aimed at causing criminal harm.

Urgent necessity

- one of the circumstances that excludes the criminality of an act in cases where a person, in order to prevent damage to his personal interests, the interests of other persons, society and the state, is forced to cause harm to other protected interests. The difference between extreme necessity and necessary defense and similar institutions of other branches of law is that harm is caused not to the person who created the danger of harm, but to third parties.

Physical or mental coercion

- one of the circumstances excluding the criminality of the act. Physical or mental coercion is the unlawful use of violence (physical or mental) against a person, which is carried out with the aim of causing that person to commit a socially dangerous act against his will. Liability in such a situation is excluded due to the fact that the actions are committed by the person against his own will and, therefore, innocently.

Justified risk

- represents lawful behavior (action or inaction) of a person aimed at achieving a socially useful goal, the implementation of which is likely to result in adverse consequences, including causing harm to interests and benefits protected by criminal law.

Execution of an order or instruction

- a person who has carried out socially dangerous actions within the framework of the execution of an order or instruction that is obligatory for him may be released from liability. The conditions for exemption from liability for the execution of an order are: The requirement to perform certain actions must come from the competent authority or person vested with the appropriate powers.

Prosecutor of the criminal justice department, lawyer 1st class A.P. Shmelev