Updated July 21, 2021 554 Author: Dmitry Petrov
Hello, dear readers of the KtoNaNovenkogo.ru blog.
Most people periodically experience guilt, but do not realize the reasons for its occurrence or confuse it with other states of mind.
This feeling, like a heavy stone on your chest, does not allow you to relax and engage in everyday activities.
Moral discomfort can help a person change for the better, and sometimes it can destroy life. In this article you will learn how psychologists and lawyers relate to the phenomenon of guilt.
What is wine? Definition of concept and content
Russian criminal law defines the concept of guilt as the mental attitude of the subject to the objective signs that are part of the crime.
Guilt includes:
- Awareness by an individual subject of the socially dangerous consequences of his actions (inaction).
- The presence or absence of intent to commit them.
- Desire or reluctance, anticipation or lack thereof, of the consequences of these actions.
ON THE CONCEPT AND FORM OF GUILT IN CIVIL LAW
It is not for nothing that the concept of guilt occupies one of the central places in legal science, because its role is too great in all its structural parts: both in theory, when problems of legal liability are considered, and in law enforcement practice (in the criminal legal sphere). In civil legal relations, guilt is not as important as in criminal legal relations, but it would be wrong not to consider it.
Before defining guilt in civil law, it is necessary to understand what meaning it has in other branches of law and compare them. Russian legislation does not have a precise definition of the term “guilt”, so the statements below cannot be considered complete.
Guilt in criminal law is a person’s mental attitude towards a socially dangerous action/inaction and its consequences. It is a mandatory condition without which criminal liability cannot occur.
Guilt in administrative law is an element of the subjective side of the offense, which is defined as a person’s mental attitude to a socially dangerous action/inaction and its consequences.
Guilt in international law is the established fact that a subject has committed an internationally wrongful act, entailing his international responsibility1.
The definition of the concept of guilt, as noted above, is not directly enshrined in any norm of civil legislation, which is why, together with an unlawful act, it can be considered collective. It must contain common features that will be characteristic of all types and forms of guilt.
Because While criminal law literature considers guilt as a mental phenomenon, there are supporters of a similar idea in civil law literature. For example, M.A. Stepanov writes: “Traditionally, the guilt of an individual is considered to be the mental attitude of the person to the unlawful act committed by him and its consequences at the time of the commission of the act or immediately preceding it”2.
E.A. Sukhanov believes: “in civil law, as a general rule, guilt is considered not as a subjective, mental attitude of a person to his behavior, but as his failure to take objectively possible measures to eliminate or prevent the negative results of his actions dictated by the circumstances of a particular situation”3.
In his opinion, in some cases there is no need to establish the guilt of a person for improper fulfillment of the obligations imposed on him, because the very fact of an offense, which could have been avoided with the exercise of ordinary care or prudence, acquires civil legal significance4.
So, in accordance with paragraph 2 of paragraph 1 of Art. 401 of the Civil Code, guilt in civil law is recognized as the failure of the offender to take all possible measures to prevent the adverse consequences of his behavior, necessary with the degree of care and prudence that was required of him by the nature of his duties and the specific conditions of turnover5.
Consequently, guilt, according to E.A. Sukhanov, ceases to be considered a certain subjective category of human mental relations, but is equated to the area of objectively possible behavior of participants in property relations. This behavior is compared with the real circumstances of the case, namely all the responsibilities that lie on a particular person and the requirements of care and prudence arising from them.
1 See: Matveeva Ya.A. Strategy of contractual relations in Russia // Money and Credit. 2001 No. 3. P. 25-30.
2 Stepanov M.A. Proving the guilt of a delinquent and the causal connection of the offense with its consequences in civil cases regarding claims for compensation for moral damage // Law and Law. 2001. N 11.
3 Sukhanov E.A. Russian civil law: in 2 volumes. A common part. Property right. Inheritance law. Intellectual law. Personal non-property rights. T 1. // “Statute”, 2011. P. 217.
4 Same. Right there.
5 See Civil Code of the Russian Federation (part one) dated November 30, 1994 N 51-FZ (as amended on August 3, 2018, as amended on July 3, 2019) (as amended and supplemented, entered into force on June 1, 2018). 2019) // SPS ConsultantPlus.
Also, in civil law there is a place for the presumption of guilt of the offender (the person who caused the harm), because he will be required to prove the absence of his guilt in the offense committed (according to paragraph 2 of Article 401 and paragraph 2 of Article 1064 of the Civil Code of the Russian Federation).
This occurs due to the fact that the offender initially appears to be guilty, which means that there is no point in proving the guilt of the first person to the victim; it, in turn, wishing to be freed from responsibility, must independently prove the absence of guilt.
Now we can conclude that guilt is the conscious mental attitude of the offender both to his action/inaction and to its result, which can be equated to antisocial behavior. On the other hand, guilt also consists of the attitude of society towards the offender and the actions he committed.
It is impossible to consider guilt as a condition of civil liability without touching upon such a topic as forms of guilt.
As it turned out, the concept of “guilt” is not provided for in Russian civil legislation, but there are two forms of it: intent and negligence6. Before talking about them, it is necessary to understand what a “form of guilt” is in its essence?
So, the definition from criminal law states that a form of guilt is a legally enshrined combination of intellectual and volitional processes occurring in the psyche of the guilty person in relation to the legally significant objective properties of an unlawful act, in interaction with external conditions7.
In civil law, guilt is not a measure of responsibility, as in criminal law, but only a condition. It follows from this that the form of guilt will not influence the severity of the punishment, but only the amount of civil liability (clause 1 of Article 15 of the Civil Code of the Russian Federation states that, regardless of the form of guilt, the offender is obliged to compensate for the losses caused in full).
Despite the fact that Russian civil law enshrines two forms of guilt, some researchers identify a larger number of different classification options. For example, one of the most famous opinions can be considered the theory of M.I. Braginsky and V.V Vitryansky, who claim that there are three forms of guilt: intent, negligence and gross negligence8.
Because this classification practically does not contradict modern legislation, but only complements it; it can be taken into account and used, but it would be more correct to focus on the opinion of the law.
Intentional form of guilt in civil law. So, intent is observed in the actions of the subject in the event that the person who committed the offense initially foresaw the socially dangerous nature of his act, desired the occurrence of these consequences and/or consciously sought to put them into practice.
Consequently, intent is characterized by a person’s attitude towards the committed act. The offender knows what will happen because of his offense, but commits it anyway.
It can be noted that the definition of “intention” in civil law is closely related to the definition from criminal law, and perhaps they can be considered identical. That is why it is difficult to disagree with the opinion of A.K. Konshina, who stated that “it is unacceptable to transfer the concept of “guilt” as a psychological attitude of a person when dividing into intent and negligence from the sphere of criminal law to the sphere of civil law without taking into account traditional civil law constructions”9.
In her article, A. Konshina characterizes intentional guilt as intentional actions/inactions of a person seeking to fail to fulfill or improperly fulfill the obligations assigned to him.
6 See: Civil Code of the Russian Federation (part one) dated November 30, 1994 N 51-FZ (as amended on August 3, 2018, as amended on July 3, 2019) (as amended and supplemented, entered into force on June 1, 2018) .2019) Art. 401. // SPS ConsultantPlus.
7 See: Ivanov I.S. On the issue of the relationship between forms of guilt and their main features // Russian Investigator, 2005, No. 11.
8 M.I. Braginsky, V.V. Vitryansky Contract law. General provisions (book 1) // M: Statute, 2009. P.178
9 Konshina A. Fault of a legal entity in civil law // Russian Legal Journal. 2006. N 3.
Intent as a form of guilt has the following main features:
· awareness by the offender of all the factual circumstances of the offense;
· foreseeing the harmful consequences of one’s behavior;
· understanding of the illegality of one’s actions;
· desire for such consequences to occur.
Only if all four elements can be found in an act can we talk about intent as a form of guilt in civil law. However, it is the second element that constitutes intent; lack of foresight indicates not intent, but negligence.
Just as in criminal law, in civil law two forms of intent can be distinguished: direct and indirect. However, the property consequences for both forms of intent are the same, which makes it possible to consider them simultaneously.
The most important difference between direct intent and indirect intent should be considered the very attitude of a person to his actions. In the first case, the offender wants any consequences to occur, while in the second, he does not want them, but allows their existence.
However, because According to their civil consequences, both direct and indirect forms of intent are the same, we can conclude that there is no point in distinguishing between them, therefore, they are united by a common concept.
A careless form of guilt in civil law. The concept of negligence, as well as intent, is discussed in most detail in criminal law, but one cannot ignore the fact that in civil law “negligence” has a special specificity, directly dependent on the specifics of the social relations it regulates.
The specificity is expressed in the fact that in civil law the principle of dispositiveness prevails, which means that many issues/transactions are resolved orally, making it much easier to show negligence, simply hoping for the good faith of the other party to the agreement.
The peak of research on negligence in civil law occurred in the mid-twentieth century. G.K. Matveev, for example, is known for comparing negligence and intent10.
The foundations of the civil approach to the concept of negligence were laid in Roman law. According to B.S. Antimonov, Roman law distinguished between such concepts as diligence, gross imprudence and ordinary imprudence11.
Modern Russian legislation is not only familiar with the concept of “negligence”, but also often uses it in practice. For example, paragraph 4 of Article 227 of the Civil Code states that the finder of a thing is responsible for its loss or damage only in the case of intent or gross negligence.
What do legislators mean by negligence?
A person may be declared innocent if, with the degree of care and prudence required of him by the nature of the obligation and the conditions of turnover, he took all measures for the proper fulfillment of the obligation12. It follows from this that negligence is the failure to show the degree of care and prudence required by obligations.
Y. Tereshko, for example, in his article discusses which person can be considered innocent13.
In his opinion, it is possible to prove the absence of guilt if you show all the necessary caution and care, which were originally provided for by the legislator, and do everything to prevent harm.
Some authors distinguish two degrees of negligence: gross and light, but it is very difficult to distinguish between them.
According to E.A. Sukhanov, gross negligence can be defined as an unforgivable violation of the simplest, elementary requirements of care and prudence, which everyone knows14.
10 See: Matveev G.K. Guilt in Soviet civil law // Ed. K.P. Nikolaev. Kyiv: Kyiv State. University, 1955. P. 156.
11 Antimonov B.S. The importance of the victim’s guilt in a civil offense. // M., 1950. P. 69.
12 See: Civil Code of the Russian Federation (part one) dated November 30, 1994 N 51-FZ (as amended on August 3, 2018, as amended on July 3, 2019) (as amended and supplemented, entered into force on June 1, 2018) .2019) Art. 401. // SPS ConsultantPlus.
13 See: Tereshko Yu. Unprofitable shopping // EZh-Lawyer. 2007. N 43.
14 Sukhanov E.A. Russian civil law: in 2 volumes. Special part. T 2. // “Statute”, 2011. P. 168.
M.I. Braginsky and V.V. Vitryansky believes that it is almost impossible to distinguish guilt in the form of gross negligence from intentional guilt, these concepts are so closely related15.
That is why modern Russian legislation does not consider only intent or only negligence as a condition of liability for breach of obligation. The articles state that the condition is guilt in the form of intent OR gross negligence, but not separately.
However, there is also a slight degree of negligence; determining the degree of negligence rests entirely with the discretion of the court, because, in the end, the judicial decision is determined precisely by the legal consciousness of the judge.
To understand the very essence of this concept, it is necessary to turn to judicial practice.
For example: in the city of Sibay, Republic of Bashkortostan, a civil case was considered based on the claim of the Shaimardanovs against Zhuravlev for the return of losses caused by the fact of non-return of a found item that was lost due to gross negligence.
During the court hearing, it was established that Zhuravlev showed gross negligence when he took the car keys that Shaimardanova had forgotten in the store, confused them with his own, and then lost them while intoxicated.
The court found Zhuravlev guilty of gross negligence in his actions and called on him to pay the damages to Shaimardanov16.
Thus, based on the above, the following conclusions can be drawn.
Guilt is a condition for the onset of civil liability. It does not play such a huge role in civil law as, for example, in criminal law, because in some cases liability can occur without the guilt of the person who committed the unlawful act, but it cannot be ignored in the context of civil science.
The most important problem of guilt in civil law is that scientists have not yet come to a consensus on the concept of guilt, its forms and types.
However, guilt is usually understood as the failure of the offender to take all possible measures to prevent the adverse consequences of his behavior, necessary with the degree of care and prudence that was required of him by the nature of his duties and the specific conditions of turnover.
As a basis for civil liability, guilt has two forms: intent and negligence.
By intent we mean that guilt in which the offender knows what will happen because of his act, but commits it anyway. Intention also includes two elements: direct and indirect.
Carelessness is the failure to show the degree of care and prudence required of a person under obligations. However, the Civil Code of the Russian Federation does not explain what “care” and “prudence” are, as a result of which it is quite difficult to examine negligence in all necessary aspects.
In civil law, unlike criminal law, there is a presumption of guilt. It is a process of proving one's own innocence. The offender initially appears guilty, which means that the victim has no point in proving the guilt of the first person; it, in turn, wishing to be freed from responsibility, must independently prove the absence of guilt.
Meanwhile, in civil law there is completely no special legal institute that would deal with the problem of studying civil liability, its conditions and grounds for termination. These grounds include necessary defense, extreme necessity, chance, force majeure and the guilt of the victim). It seems advisable to develop such a legal institution that would make it possible to solve many problems much faster and more efficiently.
15 See: M.I. Braginsky, V.V. Vitryansky Contract law. General provisions (book 1) // M: Statute, 2006. P 205.
16 Resolution of the Judicial District No. 4 in the city of Sibay of the Republic of Bashkortostan dated February 29, 2016 in case No. 2-92/2016 //RosPravosudie.
Bibliography
1. Antimonov B.S. The importance of the victim’s guilt in a civil offense. // M., 1950. P. 69.
2. Braginsky M.I., Vitryansky V.V. Contract law. General provisions (book 1) // M: Statute, 2009. P. 178.
3. Civil Code of the Russian Federation (Part One) dated November 30, 1994 N 51-FZ (as amended on August 3, 2018, as amended on July 3, 2019) (as amended and supplemented, entered into force on June 1, 2019 ) // SPS ConsultantPlus.
4. Ivanov I.S. On the issue of the relationship between forms of guilt and their main features // Russian Investigator, 2005, No. 11.
5. Konshina A. Fault of a legal entity in civil law // Russian legal journal. 2006. N 3.
6. Matveeva Y.A. Strategy of contractual relations in Russia // Money and Credit. 2001. No. 3. P.25-30.
7. Matveev G.K. Guilt in Soviet civil law // Ed. K.P. Nikolaev. Kyiv: Kyiv State. Univ., 1955. P. 156.
8. Resolution of the Judicial District No. 4 in the city of Sibay of the Republic of Bashkortostan dated February 29, 2016 in case No. 2-92/2016 // RosPravosudie.
9. Stepanov M.A. Proving the guilt of a delinquent and the causal connection of the offense with its consequences in civil cases regarding claims for compensation for moral damage // Law and Law. 2001. N 11.
10. Sukhanov E.A. Russian civil law: in 2 volumes. A common part. Property right. Inheritance law. Intellectual law. Personal non-property rights. T 1. // “Statute”, 2011. P. 217.
11. Tereshko Yu. Unprofitable shopping // EZh-Lawyer. 2007. N 43.
The principle of guilt in criminal law
This principle is legally enshrined in the criminal law - Article 5 of the Criminal Code of the Russian Federation. The principle states that there is no objective imputation in Russian law - criminal liability for innocent causing of harm is not allowed.
The subject is subject to liability for those actions and dangerous consequences for which his guilt has been established.
This concept is close to the concept of the principle of presumption of innocence. The accused is considered innocent until his guilt is proven and established by a court verdict. The principle is enshrined in the Constitution of the Russian Federation and the Criminal Procedure Code.
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Intention and its types
In 90% of judicial practice, cases of intentional commission of crimes are considered.
Intention is present when the accused foresaw the consequences of his actions.
There are two types of intent:
- Straight. In this case, the purpose and expected consequences of criminal actions coincide. Accordingly, the crime itself is committed to achieve this result.
- Indirect. The consequences that arose as a result of the offense were not planned by the offender and arose as a concomitant of his goal.
These two types significantly influence the qualification of the offense and can change the types of punishment.
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Signs of intent
The main signs of intentional commission of a crime are:
- Awareness of the consequences. The criminal clearly understands what results his actions will lead to.
- Goal setting. Achieving these results is his goal.
In general, it can be noted that the main characteristic feature is the desire for the corresponding consequences of illegal actions to occur.
What forms (types) of guilt are provided for in the Criminal Code of the Russian Federation?
A separate chapter of the Criminal Code of the Russian Federation - 5ya - is devoted to forms of guilt. We examined the types of guilty actions in more detail earlier, giving detailed examples.
In short, guilt manifests itself in the form of intent and negligence . Intention, in turn, is divided into direct and indirect, and negligence into frivolity and negligence.
Distinguishing guilt by degree of foresight
If a person could not foresee the occurrence of negative consequences of his own actions or inaction, then his actions cannot be criminally punishable. It is precisely such actions that constitute innocent harm.
As an example, we can cite a situation where poison was added to food to bait insects, and one of the relatives, not knowing about it, ate this product.
This type of action differs from criminal negligence precisely in the inability to foresee the consequences.
Crimes with two forms of guilt
Along with the forms of guilt, the fifth chapter also gives the meaning of crimes with two forms of guilt.
These are crimes where the main element, which can be both formal and material in its structure, is intentional, and individual qualifying characteristics can be committed through negligence, and the consequences are more serious than with the main one.
In general, such crimes are considered intentional and can only be qualified .
General characteristics of guilt
I. Kant said that when a person commits a criminal act, the blame falls entirely on that person.
Finished works on a similar topic
Coursework Guilt and culpability in an unlawful act 490 ₽ Essay Guilt and culpability in an unlawful act 240 ₽ Test work Guilt and culpability in an unlawful act 200 ₽
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Characteristic elements (moments) of guilt:
- intellectual - the ability of a person to understand the social meaning and actual signs of the situation in which he finds himself, the consequences of his behavior;
- volitional is the ability of a person to consciously direct mental and physical efforts to achieve goals, make decisions, choose and implement a certain type of behavior.
Concepts used to characterize guilt: form of guilt; amount of guilt; the essence of guilt; degree of guilt. The form of guilt is a combination of volitional and intellectual signs established by law, which indicate a person’s attitude to the act he commits and its consequences. There are two forms of guilt - intent and negligence.
The volume of guilt implies a combination of the mental relations of the person who committed the unlawful act to all objective legally significant signs. This feature reflects the specific limits of the content of guilt.
The essence of guilt is the person’s negative attitude towards the values of society expressed in the offense. The justification and essence of guilt is seen in the special mental properties of a person - the presence of a mechanism for controlling one’s behavior and psychological motivation for choice, taking into account the freedom to act at one’s own discretion.
The degree of guilt as a quantitative characteristic represents the social essence of negligence and intent (guilt), reflects the various deformations of the social orientation of the person who committed unlawful acts or a crime. The degree of guilt, as a quantitative characteristic, shows the comparative severity of guilt, allows you to individualize punishment and responsibility for committing an unlawful act.
