Competition of criminal law norms in sentencing: concept and types

On what principle does competition of legal norms work?
The very concept of competition denotes a kind of competition between something or someone. And in the end, the side that has more facts and advantages wins. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

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Content

The competition of criminal law norms are precedents in which a socially aggressive crime cannot be considered with the help of one article.

Typically, such debates arise when an atrocity can be described by two or more articles of the Criminal Code of the Russian Federation.

There are 2 primary concepts that need to be distinguished from each other: competition and collision.

The competition of legal norms in criminal law shows an action committed by a criminal, which under any circumstances should not go unpunished. The only question is “to which point does the crime relate more?”

The conflict is manifested in the duality of the offense, and if under previous circumstances more than one of the legal norms compete with each other, then here there is a contrast in which such behavior is permissible in one legal norm, but not in another.

competition itself is responsible for resolving controversial issues in criminal proceedings;
competition is qualified on issues related to the same crime with varying degrees of punishment.

There are no regulations in the Criminal Code of the Russian Federation that would mark the same offense in different ways. In any case, even the smallest detail is different, for which in one case the offender can go to prison, and in another case receive a fine. One way or another, the case is examined from all sides to reach a more correct verdict.

Positional collisions

The division of competition into intra-industry, inter-industry and inter-legal competition depends on the location and source of conflict of laws rules. Intra-industry conflicts arise between articles related to the same branch of law. Lawyers have provided for an internal division of this concept into types of competition of norms in criminal law:

conflict between the articles included in the General Part;
conflict between the articles included in the Special Part;
a conflict between articles, one of which is included in the General and the other in the Special part of the Criminal Code of the Russian Federation.

Intersectoral competition can be described as legal relations that arise between legal regulations of different legal branches (for example, criminal, penal-executive, criminal procedural, administrative, constitutional, and so on).

Interindustry collisions are divided into the following subtypes:

conflict between constitutional and sectoral;
conflict of material and procedural (that is, articles of criminal procedural and criminal substantive law);
conflict of regulatory and protective (for example, conflict of civil and criminal or tax law);
conflict of articles of a protective nature that relate to different legal branches (for example, competition between administrative and criminal law norms).

Interlegal competition appears in the relations of legal norms that belong to different systems of law. They are divided into two subspecies:

conflicts of articles of domestic and international law in the criminal sphere;
conflicts of articles of criminal national law and norms of foreign criminal law.

Legal provisions that relate to competition regulations

In order to correctly understand the meaning of the concept of competition in the context of criminal law, one should resort to practice (life situations). In general, regulations regarding competition are extremely rarely practiced in court proceedings, however, if such a precedent exists, then punishing the perpetrator for a criminal act becomes somewhat more difficult.

For example, in other countries, such as Spain, the Criminal Code considers an action that falls under several legislative acts, then the case should be reconsidered, along with certain rules that state that an additional norm takes precedence over the main one, and a special norm can be used directly in in case there is no common one.

The general (main) norm indicates a more dangerous act, and at the same time the special (additional) norm shows the circumstances in which the act provides for a reduced sentence.

According to Article 105, intentional infliction of bodily harm resulting in the possible death of an innocent person. And based on Article 107, unintentional infliction of bodily injury that resulted in death, committed in a state of emotional instability (affect).

A state of emotional instability is a condition caused by some kind of stress or fear. For example, a mother saw that her child was being beaten and, in order to protect her child, killed the culprit by hitting him on the head with a vase.
Intentionally inflicting bodily harm resulting in possible death is an act committed according to a preliminary plan.

So, if there is enough evidence and proof, the defendant can receive a reduced court decision, or a more severe punishment for an act committed in his right mind.

Simply put, there is a competition of norms when assigning punishment.

Types of competition

Competition in criminal law has 3 minor types when qualifying crimes.

temporal (in other words, involved in a certain time frame);
spatial (in other words, fundamental on the territorial aspect);
hierarchical (based on legal force).

Temporal competition demonstrates the elimination of the same problem by more than one act of the Criminal Code, which was established during the investigation at different hourly stages. The main rule of this type is the annulment of competition (Article 10 of the Criminal Code of the Russian Federation).

Spatial competition also represents the elimination of one problem, but from the point of view of territorial significance. That is, an offense started in one country and completed in another. To eliminate this type of competition, it is allowed to take into account the very place where the violation began (Article 11 of the Criminal Code of the Russian Federation).

Hierarchical competition is called competition that is characterized by a variety of legal powers. In Russia, this type of competition is extremely rare, so almost no one attaches special importance to this type.

It is quite difficult to relate life situations to these species, but there are precedents for spatial competition.

A criminal named B. escapes from prison in Russia and immediately flees to China. Russia has an agreement with China on the deportation of criminals to their home country. After deportation to Russia, citizen B. appears in court and receives 8 years of imprisonment in a strict regime. But before the decision was made to return the criminal to his homeland, China intended to try him according to its laws. Due to the fact that Chinese judicial practice in this case turned out to be more loyal, the country was forced to send the defendant home.

repeated competition;
competition between the part and the whole;
competition of the general and special part of the whole with the exclusive norm;
competition between general and special norms.

For a more extensive understanding, it is necessary to analyze each type step by step, citing real life situations.

Competition between general and special norms

The main type is competition between general and special norms. Most often, this type of competition leans towards a special norm.

According to Part 3 of Art. 17 of the Criminal Code of the Russian Federation, if a crime provides for two norms of criminal law at once: special and general, then the person’s actions will be determined only according to the special norm.

A special norm is one that specifies the properties of a general crime applied to a specific object of an attempt: for example, the elements of deliberate harm to the health of a police officer (Article 317) are considered as special in relation to actions related to murder (Article 105); along with this, the specifics are established based on the characteristics of the victim and the goals of the accused.

There are circumstances where more than one of the special rules competes with each other. For example, Part 2 and Part 4 of Art. 158, and the part that determines the more severe punishment takes precedence. In opposite circumstances, it may be that several privileged members are in almost the same punishment category.

For example, mutilation resulting in death in an unstable mental state and mutilation resulting in death due to self-defense. Under such circumstances, the act is positioned as a qualification of crime in the competition of criminal legal norms and is assessed unquestioningly according to mitigating conditions.

the task of this type is to turn to literature that will more accurately describe the crime;
the state of instability is determined by testing to assess the emotional state.

At the moments at which the qualifying and privileged compositions come into force, the one that has more advantages is resorted to. For example, if there was infliction of fatal injuries in a state of emotional instability, the defendant will be responsible for the action under Article 107 of the Criminal Code of the Russian Federation.

Other competition norms

In 2021, the issue of competition between regulations issued at different times remains relevant.

According to the rules, a criminal law norm issued at a later date is subject to application, except in cases where the old norms eliminate punishment, mitigate criminal liability or otherwise improve the position of the accused, based on the provisions of Art. 10 of the Criminal Code of the Russian Federation.

The competition between foreign and national legislation is considered on the basis of agreements on mutual legal assistance. If there is a bilateral agreement, priority must be given to the norms of foreign legislation.

In competition between the norms of international law and the norms of national legislation, preference is given to the norms of international law, in accordance with Part 2 of Art. 1 of the Criminal Code of the Russian Federation.

Only criminal law norms aimed at solving the same issue can compete with each other. They also differ in the time of adoption of the law, in whether they belong to international or national legislation.

The difference between them also exists in the presence or absence of any additional features, for example: Art. 105, 106, 107, 108, 277, 295, 317 of the Criminal Code of the Russian Federation.

Since competing norms help regulate the same issues, a certain relationship can be seen between them.

The theory of criminal law states that if by the time these norms are applied, one of them is abolished, then the crime should be classified according to the remaining norm. Experts only partially agree with this position.

For example, there is one responsibility for the theft of someone else’s property and another responsibility for the theft of especially valuable items, but they are also someone else’s property.

Upon repeal of Art. 164 of the Criminal Code of the Russian Federation, the acts of an attacker who stole especially valuable things can be classified under articles that provide punishment for the theft of someone else's property.

If an ordinary thing belonging to someone else is stolen, then the article for theft of someone else’s property will be canceled . If there is an article for the theft of especially valuable items, then the crime will not be classified under Art. 164 of the Criminal Code of the Russian Federation, since an ordinary thing does not belong to objects of special value, and the actions of the criminal will not constitute a crime. As a result, if a special norm is repealed, the general norm applies, but not vice versa.

Competition of rules differs from a set of crimes, in which more than two criminal law rules may be applied. The most difficult thing is to distinguish competition from an ideal aggregate when one crime is committed.

In competition, one or more illegal results may be caused, but the act is covered simultaneously by each of the competing rules.

With an ideal combination, more than two socially dangerous consequences are achieved and liability is provided in accordance with various criminal law norms.

Competition between the part and the whole

Competition between the part and the whole comes into force in cases where one of the criminal law norms refers to the entire act in its entirety, and the second only to a separate part of it. When there is competition between simple and complex compounds (part and whole), a norm with a complex composition is applied if all its signs are observed in the crime.

The fundamental rule for resolving questionable situations regarding competition of this type: in such situations, a norm that shows a greater degree of crime and is based on a greater number of crime factors.

If we take as a basis the crime of robbery, causing particularly serious harm to health (possibly death), then in such cases the factors responsible for the crime itself, and not for preparation and conspiracy, will come into force.

If one and the same crime can be included in the assessment in a competitive area, then in the case of a part and a whole, the one that evaluates the situation fully is used. That is, parts with different degrees of severity are assigned to a more serious offense.

There are also precedents in which the corpus delicti is assessed in accordance with its qualifications, that is, when committing attacks on someone else’s property with the infliction of particularly serious bodily injuries on the owner of the property. In such circumstances, the article responsible for theft of illegal weapons into private property comes into force.

the main thing is a more severe punishment;
the assessment is made based on the final result (that is, after completion of the action, without including preparation for the crime).

Consequently, in the competition of a separate part or an entire crime, the one that determines a more severe or severe punishment wins.

Qualification of the crime

1. Qualification of crimes is one of the most important concepts in the theory of criminal law. In their activities, law enforcement officials (inquirers, investigators, prosecutors, judges) are constantly faced with the need to qualify a socially dangerous act committed by a particular person. For them, the classification of crimes is an essential part of law enforcement practice. What is the classification of crimes, what is the procedure for its implementation and what basic rules should be followed?

The concept of “qualify” means to characterize an object or phenomenon in accordance with its specific characteristics, features and assign it to a certain group, category, type, category. It follows that the qualification of crimes presupposes a legal analysis of the committed criminal act, identifying all its necessary signs, classifying the act as a certain type (type, group) of criminal offenses and, ultimately, establishing a specific criminal law norm that should be applied in this situation.

In the theory of criminal law, qualifications are usually considered in two aspects.

Firstly, this is the activity of specially authorized government bodies and officials, the content of which is to establish the exact correspondence of the signs of a given socially dangerous act committed with the signs of a crime provided for by a specific criminal law norm.

The established compliance must be exact and complete. The absence in the description of the act of at least one of the elements of a crime, called a criminal law norm, excludes qualification in accordance with the latter.

For example, in order to qualify an act as the murder of a woman who is known to be pregnant by the perpetrator (clause “d” of Part 2 of Article 105 of the Criminal Code), it is necessary to establish a number of mandatory features:

a) the person committed an act directed against the life of a pregnant woman; b) the assault was an action (for example, a shot) that resulted in the biological death of the victim and was the main immediate cause of the specified consequence and caused it with necessity; c) the person acted intentionally and was aware of the fact that the victim was pregnant; d) the person is sane and has reached the age of criminal responsibility established for this type of crime, i.e. 14 years old.

If the person, while committing this act, was not aware of the fact that the victim was pregnant, the qualification of the act in accordance with paragraph “g” of Part 2 of Art. 105 of the Criminal Code is excluded; it would be a simple murder, provided for in Part 1 of Art. 105 of the Criminal Code.

Secondly, qualification is considered as the result of activities related to establishing the exact correspondence of the characteristics of the crime to the characteristics of a specific crime provided for by the criminal law. This result must be legally enshrined in official procedural acts (in a decision to initiate a criminal case, in a decision to charge a person as an accused, in an indictment, in a court verdict).

If we take into account both considered aspects of qualification, then we can ultimately define it as follows: qualification of crimes is the establishment of an exact and complete correspondence of the signs of an actually committed socially dangerous act to the signs of a specific crime provided for by the criminal law, and its legal consolidation in the relevant procedural acts.

Article 8 of the Criminal Code establishes that the basis for criminal liability is the commission of an act containing all the elements of a crime provided for by criminal law. Consequently, the legal basis for qualification is also the corpus delicti, which is a model of a criminal offense. It is obvious that the external expression of even one type of criminal offense is very diverse and specific (for example, burglary, pickpocketing, theft committed with or without any tools, etc.). The presence of a model - the corpus delicti - helps to isolate from the whole variety of signs of an actually committed crime those basic, mandatory ones, without which it is impossible to carry out qualification.

As a rule, when qualifying crimes, only the norms of the Special Part of the Criminal Code are subject to application. This is explained by the fact that they contain a description of the necessary elements of a crime. But this does not mean that the person carrying out the qualification should ignore the provisions of the General Part of the Criminal Code. This is unacceptable; in the qualification process it is necessary to rely on the provisions of the General Part and be guided by them, otherwise very serious and gross errors are possible. Another thing is that when qualifying, one should not refer to specific articles of the General Part of the Criminal Code. However, in two situations such references are necessary, otherwise the qualification will be erroneous: firstly, in the case of an unfinished crime (a reference to Article 30 of the Criminal Code is required); secondly, in the case of a crime being committed with complicity, when qualifying the actions of accomplices who are not the perpetrators of the criminal offense - on Art. 33 of the Criminal Code.

In order for the qualification to be correct, it is necessary to accurately understand the meaning and content of the law, as well as to identify as completely as possible all the factual circumstances of the specific criminal act committed, since often even one circumstance that is insignificant at first glance, ignored or unidentified, can radically change the qualification deed.

The importance of having the right qualifications is great. Firstly, it is one of the most important guarantees of the implementation of the principle of legality enshrined in Art. 3 of the Criminal Code of the Russian Federation. Secondly, without the correct qualifications it is impossible to implement the principle of justice (Article 6 of the Criminal Code). Thirdly, it also acts as a guarantee of the realization of the rights of persons who have committed a criminal act and are brought to criminal liability. Fourthly, through correct qualification, the state’s criminal policy is ultimately correctly implemented.

2. As mentioned above, the legal basis for qualification is the corpus delicti, which is analyzed in the following order:

An object

- generic, specific, direct (main, additional, optional), subject of the crime.

Objective side:

the type of composition (material, formal), a list of mandatory external signs of the composition, the moment of completion of the crime are determined, then these signs are characterized.

Subjective side:

the content of guilt is revealed taking into account the characteristics of the objective side, the role of optional features is determined: purpose, motive, emotions.

Subject of the crime:

characterized by sanity, age, signs of a special subject. This concludes the analysis of the main composition, after which the qualified compositions are revealed. This procedure is observed when analyzing all types of crimes (Articles 105-360 of the Criminal Code).

3. Classification of crimes is a complex process subject to numerous laws and regulations. In practice, the greatest difficulties arise when qualifying an act in situations of competition of criminal law norms.

Competition or rivalry in criminal law arises when one criminal act falls under two or more rules. In this situation, the problem of choosing a norm arises, which is subject to rules depending on the type of competition. The following types of competition are distinguished:

1. Competition between general and special norms. The general rule is more generalized, abstract and designed for a fairly wide range of criminal acts. The special norm is more specific and provides for encroachments isolated from this wide range, which have certain specifics. Qualification Rule: A special standard applies. Thus, in the event of an encroachment on the life of a law enforcement officer in connection with his performance of functions to protect public order, competition arises from the following norms: clause “b”, part 2 of Art. 105 of the Criminal Code (general) and Art. 317 (special), the latter applies.

2. Competition of norms with aggravating and mitigating circumstances. In this situation, the second one applies. Thus, in the case of the murder of a obviously pregnant woman by a person in a state of passion caused by the immoral actions of the victim, clause “d” of Part 2 of Art. 105 and part 1 of Art. 107 of the Criminal Code, the latter applies.

3. Competition of norms with aggravating and especially aggravating circumstances - the second one applies. When committing a theft involving illegal entry into a home, and on a large scale, clause “c” of Part 2 of Art. 158 and paragraph “b”, part 3, art. 158 of the Criminal Code. Clause “b” of Part 3 of Art. applies. 158 of the Criminal Code.

4. Competition between the part and the whole. The norm, which is called the “whole,” covers the complete encroachment, and the “part” covers its individual components. This situation arises, for example, when committing a robbery associated with causing grievous harm to the victim’s health. Preference is given to the norm that most fully covers the signs of the committed act, i.e. "whole". In our example, clause “c” of Part 3 of Art. 162, the competing norm is Parts 1-3 of Art. 111 of the Criminal Code.

5. Competition between the norms of Russian and foreign law - the former apply.