The concept and signs of murder. Types of murders. Manslaughter

Under murder

means intentionally causing the death of another person.

Direct object

murder is a person's life, so it is important to determine the moment of the beginning of life and the moment of its end.

The starting point of life

The moment is considered when the complete expulsion or extraction of the product of conception from the pregnant woman’s body is stated, that is, when the fetus has separated from the woman in labor, with the exception of the umbilical cord, which has not been cut, and the fetus has breathing or heartbeat, pulsation of the umbilical cord or voluntary muscle movement.

Moment of death

associated with the statement of irreversible death of the entire brain.

Objective side of the murder:

an act, which can be either in the form of action or inaction, aimed at causing the death of another person;
as a result of this act, socially dangerous consequences must occur in the form of the death of another person;
There must be a necessary causal connection between the act and the consequences.

Material composition

– the murder is considered completed from the moment the victim dies. It does not matter when death occurred: immediately or after some time. Actions of a person directly aimed at causing the death of another person, if due to circumstances beyond the control of the perpetrator they did not lead to this result, are qualified as attempted murder.

The subjective side of murder

characterized by guilt in the form of direct or indirect intent. Attempted murder is possible only with direct intent.

On the subjective side, murder differs from the intentional infliction of grievous bodily harm resulting in the death of the victim,

in that in case of murder the intent of the perpetrator is aimed at depriving the victim of life, and in the commission of a crime under Part 4 of Art.
111 of the Criminal Code of the Russian Federation, the attitude of the perpetrator towards the death of the victim is expressed in negligence. The subject of the murder
is a sane individual who has reached the age of 14 years.

Types of murder:

1) simple -

murder without qualifying or privileged characteristics (Part 1 of Article 105 of the Criminal Code of the Russian Federation);

2) qualified –

aggravated murder, i.e. murder:

two or more persons;
a person or his relatives in connection with the performance of official activities by this person or the performance of public duty;
a person who is known to the perpetrator to be in a helpless state, as well as associated with the kidnapping of a person or the taking of a hostage;
women who are known to be pregnant by the perpetrator;
committed with particular cruelty;
committed in a generally dangerous manner;
committed by a group of persons, a group of persons by prior conspiracy or an organized group;
for mercenary reasons or for hire, as well as associated with robbery, extortion or banditry;
for hooligan reasons;
in order to hide another crime or facilitate its commission, as well as involving rape or sexual assault;
motivated by national, racial, religious hatred or enmity or blood feud;
for the purpose of using the victim’s organs or tissues;

3) privileged

– murder with mitigating circumstances (Articles 106, 107, 108 of the Criminal Code of the Russian Federation).

Ancestral

the object of murder is a person (according to the title of Section VII of the Criminal Code of the Russian Federation “Crimes against a person”).
In legal theory, there is an opinion that there is a difference between the concepts of “person” and “person”. Thus, N.I. Matuzov, analyzing them, o is a concept somewhat similar
to “man”[1]. This understanding of personality is typical for the socio-philosophical and political-legal (in private law) aspects, when a personality is usually understood as a person who is capable of independently exercising his rights and fulfilling certain responsibilities [2] (including bearing responsibility), actively interacting with surrounding people and the natural environment.

From the position of criminal legal protection of the individual, his rights and freedoms, one should agree with the opinion available in the scientific literature that the concepts of “personality” and “man” (as a socio-biological being born by man) are identical, equivalent, there are no differences between them and , according to I.P. Petrukhin, the Constitution of the Russian Federation puts an equal sign between these concepts [3].

Indeed, there are people who, for some reason (circumstances), cannot independently manage their rights and responsibilities (the mentally ill, the mentally ill, newborns, adolescents, the elderly, etc.). From the point of view of criminal law, the life, rights and freedoms of any person

[4] are the object of criminal legal protection. Therefore, one should agree with the proposal of a number of representatives of criminal law science to change the name of Section VII of the Criminal Code of the Russian Federation[5] (to “Crimes against humans”).

Vidov

the object of murder is the life and health of another person (according to the title of Chapter 16 of the Criminal Code of the Russian Federation “Crimes against life and health”).

Subspecific (group)

the object should be recognized as the life of another person (follows from the title of Chapter 16 of the Criminal Code).

Direct

the object of murder is the life of a specific person, a specific individual, the one and only.

From the concept of murder given in Part 1 of Article 105 of the Criminal Code of the Russian Federation, it follows that it ( homicide

[6]) should be distinguished from
suicide,
which is characterized by the following features:

a) voluntary,

b) conscious,

c) without the influence of other persons,

d) a personal act of taking one’s own life by any means[7].

According to Russian legislation, suicide (it is more logical to talk about attempted suicide

)
is not criminal
and does not entail criminal liability.

Consequently, so-called “complicity” in suicide is also not criminally punishable. However, a caveat should be made. Participation is possible in two forms:

— co-performer

when another person takes a direct part in taking the life of the victim and

— co-assistance

when another person only assists the victim in taking his own life, playing the role of instigator, accomplice or organizer.

Therefore, the following cases are exceptions:

a) “ co-executor”

“in suicide - the direct participation of another person in the process of taking the life of a suicide, which is qualified as a “simple” murder at the request of the victim (for example, introducing a toxic substance into the victim’s body, knocking out a chair from under the legs of a hanged man, cutting the rope from a person hanging at a height ).

b) “ co-assistance”

“in the suicide of a person who is not aware of the significance of this act, who is unable to adequately respond to the environment, to give an adequate assessment of what is happening to him due to his individual characteristics (mentally ill, mentally ill, juvenile, elderly, etc.), which
is recognized
as the culprit, who on the basis of the provisions of Part 2 of Article 33 of the Criminal Code of the Russian Federation, it should be qualified as
indirect
(“mediocre” - through the use of the force of the victim himself) execution of murder.

Complete what's finished

murder is possible only by causing harm to its
object
(human life), since the elements of murder are constructed by the legislator as material[8].
Consequently, it is important to determine the moment of the beginning of life and its end, because before its beginning and after its end it is impossible to commit a completed murder (since one of the elements of the crime is missing - the object). In such situations, we can only talk about attempted
murder or another crime.

Life

– this is a temporary state, a period of spontaneous psychophysiological existence.
It has an initial ( birth
) and final (
death
) moment.

The biological essence of man lies in the functioning and development of a living organism of the highest order. “An organism is a historically established integral, constantly changing system, which has its own special structure and development, capable of metabolism with the environment, growth and reproduction” [9].

Birth

(childbirth is the physiological process of the birth of a baby, a cub[10]) as the moment of the beginning of life is interpreted differently in the legal literature. There are mainly three possible solutions offered. This is 1) the moment of the onset of labor[11]; 2) the moment of separation of the fetus from the mother[12] and 3) the moment of spontaneous breathing[13].

When determining the moment of the beginning of life, one should agree with the judgment of those scientists who believe that the beginning of life

human is
the moment when at least part of the body of a baby with a heartbeat emerges from the mother’s body
[14]
.
From this moment on, the fetus becomes a child and its life is protected by criminal law[15].

In this case, for qualification it does not matter how the newborn is removed from the mother’s body:

— natural

way through the birth canal or

— Caesarean

section (an obstetric operation to remove the fetus through an incision in the abdominal wall and uterus when childbirth through the natural birth canal is impossible (for example, a narrowed pelvis, severe general illness of the woman), as well as in case of fetal asphyxia).

If the baby was born stillborn

, then an attack on him at the moment of the appearance of at least part of his body with the aim of taking life should be qualified, according to the direction of the intent of the perpetrator, as
attempted
murder.

To resolve the issue of responsibility for a completed attack on a person’s life, the time of death (the moment of the end of life) is important.

Death

a person is an irreversible cessation of the vital functions of his body.
Currently, in accordance with Part 2 of Article 9 of the Law of the Russian Federation “On Transplantation of Human Organs and (or) Tissues” dated December 22, 1993, the time of a person’s death
is determined
by the moment of irreversible death of the entire brain (brain death) [16] .
Consequently, the moment of death is determined by the moment of the onset of irreversible and total organic changes in the brain, when all functions of all its parts disappear (biological death).

If the brain continues to function, albeit in the absence of breathing and cardiac arrest, increasing oxygen starvation of other organs and tissues (clinical death [17]), the person is considered alive and remains under the protection of criminal law.

Assault on the deceased

the person (corpse) should be classified as
attempted
murder based on the intent of the perpetrator.

[1] Matuzov N.I. Personality. Rights. Democracy. – Saratov, 1972. – P.69.

[2] See: Krasikov A.N. Crimes against the person. – Saratov, 1999. – P.6.

[3] See: Constitution of the Russian Federation. A comment. – M., 1994. – P.138.

[4] PERSONALITY, -i, g.

1. Man as a carrier of some. properties, face / Explanatory dictionary of the Russian language https://www.vedu.ru/ExpDic/

[5] See: Krasikov A.N. Decree. slave. – P.7.

[6] Same. – P.45.

[7] See: Boyarov S.A. The theory and practice of “simple” murder. Abstract... candidate of legal sciences. – Saratov, 2003. – P.13.

[8] The classification of crimes into “formal” and “material” only seems to be a resolved issue, as it is presented in educational literature. In fact, this is one of the controversial and most confusing problems in the science of criminal law. However, in relation to murder, which is cited as a classic example of material composition, this dispute is not fundamental. See: Zemlemkov S.V. Criminal legal problems of criminal harm Novosibirsk, 1991. – P.54-61; Komissarov A.N. On the material and formal elements of crimes // Questions of theory and practice of applying criminal law norms. M., 1980 – P.38-50; Sharapov R.D. Classification of crimes into formal and material: myth or reality? // Criminal law, 2000. - No. 3.

[9] Gain M.G. and others. Human anatomy. M., 1985. – P.20.

[10] See: Explanatory Dictionary of the Russian Language/https://www.vedu.ru/ExpDic/

[11] See: Zhizhilenko A.A. Crimes against the person. M.; L., 1927. – P.27. See also: New criminal law of Russia: Textbook. Benefit. A special part. M., 1996. – P.28; Criminal law. Special part: Textbook for universities. M., 1997. – P.37.

[12] See: Grodzinsky M.M. Crime against the person. Kharkov, 1924. – P.4; Volkov G.I. Criminal law. M., 1925. – P.118; Piontkovsky A.A. Soviet criminal law. T.II. Part Special. M.; L., 1928. – P.341.

[13] See: List Fr. Textbook of criminal law. A special part. M., 1905. – P.5; Criminal law of the Russian Federation. Special part: Textbook for law schools // Edited by B.V. Zdravomyslov. M., 1996. – P.20-21; Krasikov A.N. Responsibility for murder under Russian criminal law. Saratov, 1999. – P.39 (The author recognizes the moment of the beginning of life as live birth, the concept of which is disclosed in the Instruction “On determining the criteria for live birth, stillbirth, and the perinatal period” dated December 4, 1992. Live birth is the complete expulsion or extraction of the product of conception from the mother’s body, regardless depending on the duration of pregnancy, and the fetus after such separation breathes or shows other signs of life, such as heartbeat, pulsation of the umbilical cord or voluntary muscle movements, regardless of whether the umbilical cord is cut and whether the placenta is separated.

[14] See: Boyarov S.A. Decree. slave. – P.15. The author rightly notes that the definition of live birth given by medicine confirms the fact of human birth for statistics. For criminal defense purposes, heartbeat and breathing are of obvious and fundamental importance. Of these functions, heartbeat and placental respiration begin before the baby is born. Consequently, the birth of at least a part of the baby’s body with the indicated functions is the beginning of his life.

[15] From a medical point of view, a fetus is an embryo from the ninth week of intrauterine development until the moment of birth (see: Encyclopedic Dictionary of Medical Terms. M., 1983. - Vol. 2. - P. 335). The difference between a fetus and a child on the basis of birth was also pointed out by V.D. Nabokov, who considered the moment of birth to be the beginning of labor not in the physiological sense (the appearance of pain, the onset of contractions, etc.), but in the sense of the appearance of any part of the child’s body outside. It is from this moment that the concept of a fetus, in his opinion, is replaced by the concept of a child (Nabokov V.D. Elementary textbook of the Special Part of Russian Criminal Law. Issue 1. St. Petersburg, 1903. – P.5).

[16] See also: Order of the Ministry of Health of the Russian Federation dated March 4, 2003 N 73 “On approval of the Instructions for determining the criteria and procedure for determining the moment of death of a person, cessation of resuscitation measures,” which states: “1. The death of a person occurs as a result of the death of the organism as a whole. In the process of dying, stages are distinguished: agony, clinical death, brain death and biological death.

Agony is characterized by the progressive extinction of external signs of the body’s vital activity (consciousness, blood circulation, breathing, motor activity).

In clinical death, pathological changes in all organs and systems are completely reversible.

Brain death is manifested by the development of irreversible changes in the brain, and partially or completely reversible changes in other organs and systems.

Biological death is expressed by postmortem changes in all organs and systems that are permanent, irreversible, cadaveric in nature...

3. Ascertainment of a person’s death occurs in the event of brain death or biological death of a person (irreversible death of a person).”

[17] Clinical death can last 5-6 minutes, and when the body cools, this period increases, according to various estimates, to 10 or 30 minutes.

MURDER UNDER QUALIFIED CIRCUMSTANCES

Types of skilled murder:

1) two or more persons - the actions of the perpetrator were covered by a single intent and were committed simultaneously;

2) a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty - close relatives of the injured person, along with close relatives, may include other persons who are related to him or her, as well as persons whose life, health and well-being knowingly for the guilty person the road to the victim due to the established personal relationships;

3) persons who are known to the perpetrator to be in a helpless state - seriously ill and elderly people, young children, persons suffering from mental disorders that deprive them of the ability to correctly perceive what is happening;

4) associated with kidnapping or hostage-taking - causing the death of a kidnapped person or hostage and murder of other persons, committed by the perpetrator in connection with the kidnapping or hostage-taking;

5) women who are known to be pregnant by the perpetrator;

6) committed with special cruelty - the concept of special cruelty is associated with the method of murder and with other circumstances indicating the manifestation of special cruelty by the perpetrator;

7) committed in a generally dangerous manner - a method of intentionally causing death, which the perpetrator knows to pose a danger to the life of not only the victim, but at least one other person;

committed by a group of persons, a group of persons by prior conspiracy or an organized group - murder is recognized as committed by a group of persons when two or more persons, acting together with the intent to commit murder, directly participated in the process of taking the life of the victim, using violence against him, and not necessarily so that the damage resulting in death was caused by each of them.

A preliminary conspiracy to murder involves an agreement between two or more persons that took place before the commencement of actions directly aimed at taking the life of the victim. Organized group – a group of two or more persons united by intent to commit one or more murders;

9) for selfish reasons - murder in order to obtain material gain or get rid of material costs;

10) for hire - murder due to the receipt by the perpetrator of the crime of material or other reward;

11) associated with robbery, extortion or banditry - murder in the process of committing these crimes;

12) from hooligan motives - murder committed on the basis of obvious disrespect for society and generally accepted moral norms, when the behavior of the perpetrator is an open challenge to public order and is caused by the desire to oppose himself to others, to demonstrate a disdainful attitude towards them;

13) in order to hide another crime or facilitate its commission;

14) involving rape or violent acts of a sexual nature - murder in the process of committing these crimes or for the purpose of concealing them;

14) based on national, racial, religious hatred or enmity or blood feud;

15) for the purpose of using the victim’s organs or tissues.

5.Article 106. Murder of a newborn child by a mother

Commentary on Article 106

1. The legislator considers the murder of a newborn child by a mother to be committed under mitigating circumstances, taking into account the special mental state of the woman during or after childbirth.

The law distinguishes three types of infanticide: a) during childbirth or immediately after childbirth; b) in a traumatic situation; c) in a state of mental disorder that does not exclude sanity.

2. Murder during childbirth occurs during childbirth before the end of the physiological process of childbirth, i.e. until the expulsion of the fetus and placenta through the natural birth canal. Killing immediately after childbirth means that it occurs immediately after the end of the physiological process of childbirth, i.e. during the first hours.

The issue of qualifying the mother's murder of a newborn child during or immediately after childbirth based on premeditated intent is controversial. It is widely believed that in these cases there is no mitigating circumstance and therefore the act should be qualified under Part 2 of Art. 105 of the Criminal Code (see: Krasikov A.N. Crimes against the human right to life. Saratov, 1999. P. 124). We cannot agree with such a position, since the law does not bind qualifications under Art. 106 of the Criminal Code with one or another type of intent. Of course, it is unfair to qualify the mother’s actions under Art. 106 of the Criminal Code, if she planned this murder in advance and carried it out in cold blood during or immediately after childbirth, but, unfortunately, the law does not make exceptions depending on the difference in the time of formation of intent.

3. Murder in a psychotraumatic situation is possible if two conditions are present.

First, the injured child must be a newborn. At this time, the child adapts to environmental conditions. The duration of the neonatal period varies from person to person and varies within a few, most often three to four, weeks. In full-term infants, this period is shorter than in premature infants (see: Pediatrics. M., 1991. Book 2. P. 298).

The second condition is the presence of a traumatic situation. It can be caused by a variety of factors. For example, the father of a newborn child abandoned him, the mother’s parents or other persons humiliate and insult her for having a child out of wedlock, the mother does not have the means to care for the child, etc.

4. Murder in a state of mental disorder that does not preclude sanity occurs when the mother of a newborn child has a mental disorder, i.e. she cannot fully understand the actual nature and social danger of her actions (inaction) or manage them (Part 1 of Article 22 of the Criminal Code). This circumstance is established by examination.

5. The subject of infanticide is special. The performer here can only be the mother of a newborn child who has reached the age of 16 years. If there was complicity in the form of co-execution, then other persons are liable under Art. 33 and paragraph “c” of Part 2 of Art. 105 of the Criminal Code, because the mitigating circumstances specified in Art. 106 of the Criminal Code do not apply to them.

6.Article 107. Murder committed in a state of passion

Commentary on Article 107

1. Affect is the mental state of the perpetrator, which is determined by short-term, intense emotion associated with instinctive and unconditional reflex activity. Most often, this type of murder is characterized by emotions of anger, hatred and resentment. The state of affect lasts, as a rule, a short period of time, usually several minutes. Strong emotional excitement should arise suddenly, as a reaction to a direct stimulus.

2. Murder in a state of passion is usually committed immediately after exposure to an irritating factor. There is no time gap here or it is insignificant.

3. Violence that caused a state of passion can be either physical (for example, beating) or mental (threats to cause harm to health). Bullying can be expressed in humiliation of human dignity, mockery of a person. A serious insult is expressed in gross humiliation of the honor and dignity of a person, often expressed in an indecent form. As for the criterion for assessing the degree of humiliation of honor and dignity, both objective and subjective factors must be taken into account. For example, the word “fascist” can cause a different reaction in a veteran or war participant or in a representative of the younger generation, if he belongs to that part of it for which nothing is sacred.

4. Simply illegal and even immoral actions (inaction) are sufficient for affect to arise. As for the concept of immoral acts, in connection with the revaluation of a number of moral values in our country, certain disagreements may arise in the understanding of their content. Enduring moral values, concepts of good and evil, conscience, honor and dishonor, loyalty and betrayal, shame and shamelessness, which are the same for most members of society, should form the basis for the assessment of a particular act.

5. The affect in which a murder is committed can be caused not only by an unexpected circumstance provided for by law, but also by a long-term psychologically traumatic situation that arose in connection with the systematic illegal or immoral behavior of the victim. In this case, any, at first glance, not so significant circumstance can serve as the last straw that overflows the cup of patience and becomes the detonator that causes an explosion of emotions that leads to murder.

As an example, we can cite the case against G. G.’s husband abused alcohol for many years, created scandals in the family, beat his wife, drank away her salary and her elderly mother’s pension. G. was forced to support not only her husband, but also his mother, who lived with them, and three children on her salary. One evening she came home from work and found out that her husband, who was very drunk, had been picked up by her daughter on the street and, with the help of neighbors, brought her home on a blanket and put her to bed. Seeing him in bed, having recovered, G. began to drag him by the hair, beat him with her hands, strangle him by the throat, causing fractures of the cartilage of the larynx and hyoid bone, which is why the victim soon died (BVS RSFSR. 1990. N 11. P. 2, 3).

6. In part 2 of Art. 107 of the Criminal Code provides for the murder of two or more persons in a state of passion. On the concept of murder of two or more persons, see the commentary to paragraph “a” of Part 2 of Art. 105 of the Criminal Code. The presence of other aggravating circumstances provided for in Part 2 of Art. 105 of the Criminal Code, does not exclude qualification under Art. 107 of the Criminal Code.

Criminal legal characteristics of simple murder

Murder, provided for in Part 1 of Article 105 of the Criminal Code, or “simple” murder, is the so-called main element of this type of crime.

According to Part 1 of Art. 105 of the Criminal Code is subject to qualification of murders committed without aggravating circumstances specified in Part 2 of this article. However, the wording of the law does not fully characterize “simple” murder. To qualify, it is necessary to have the absence of not only aggravating, but also mitigating circumstances entailing the application of Art. 107 and 108 of the Criminal Code of the Russian Federation.

In Part 1 of Art. 105 of the Criminal Code does not provide specific signs of the objective side of this type of murder, with the exception of a general indication that it consists of deliberately causing the death of another person.

Plenum of the Supreme Court of the Russian Federation in paragraph 4 of the resolution of January 27, 1999. Among the murders subject to qualification under Part 1 of Art. 105 of the Criminal Code named, for example, those committed in a litter or fight in the absence of hooligan motives, out of jealousy, motivated by revenge, envy, hostility, hatred that arose on the basis of personal relationships [2].

When examining the motives and circumstances of the murder, giving grounds for the application of Part 1 of Art. 105 of the Criminal Code, it must be taken into account that they do not have independent significance for qualification. For example, establishing the motive of jealousy when committing a murder does not at all exclude its qualification under Part 2 of Art. 105 or under Art. 107 of the Criminal Code, depending on the presence of aggravating or mitigating circumstances affecting qualifications.

At the same time, this does not mean that the motives and circumstances in which Part 1 of Art. 105 of the Criminal Code should not be clarified and investigated in every criminal case. They can serve as a certain guideline when deciding on the qualification of murder. Their analysis can help to more deeply and fully understand the specific situation of the murder, which is important for assigning punishment and for establishing and eliminating the causes of murders and the conditions conducive to their commission [4].

In general, the criminal legal characteristics of simple murder are expressed as follows.

The direct object of such a murder is social relations in the sphere of ensuring the safety of human life (human life).

The objective side is expressed in the unlawful deprivation of the life of another person and can be characterized by both action and inaction (failure to fulfill obligations to care for the elderly, etc.). The composition is material - the crime is considered completed from the moment of the death of the victim.

The subject of the crime is a sane individual who has reached the age of 14 (Part 2 of Article 20 of the Criminal Code of the Russian Federation).

The subjective side is direct or indirect intent (attempted murder is possible only with direct intent).

So, murder out of jealousy . In all cases of this murder, jealousy acts as a base, selfish, albeit natural feeling for every person, which does not mitigate the murder. It does not matter whether the perpetrator had grounds for jealousy; in this case, only the motive itself is important. Most often, such murders arise on the basis of erotic jealousy, which is a set of specific human feelings, such as envy, hatred, malice, anxiety, anger, desperation, passion, thirst for revenge, etc. It is often accompanied by painful doubts, complex manifestations in intellectual and volitional spheres, a variety of forms of behavior, including socially dangerous ones. When investigating such cases, it is necessary to find out the nature of jealousy. The whole point is that there is jealousy, which does not exclude sanity, but there is also one that borders on mental illness, therefore, if a murder is committed in the second case, then the complete insanity of the person who committed this murder cannot be ruled out.

In most cases, the reason for murder out of jealousy is the real or imaginary betrayal of a loved one. Other cases are also possible: refusal to marry, continue intimate relationships, etc. At the same time, it may seem that in all these cases the motive for murder is revenge, but it is worth considering the point that revenge in this case arises from jealousy, and the reason for jealousy is betrayal or unrequited love. In practice, to qualify murder under Part 1 of Article 105 of the Criminal Code of the Russian Federation, the distinction between motives of revenge on the basis of personal hostility and jealousy does not matter, since in any case this norm applies. However, in this case, we cannot exclude the need to establish the actual motive for the murder, which may have an impact on the sentencing.

In some cases, murder out of jealousy can be committed in a state of sudden, strong emotional disturbance caused by cynical actions on the part of another person, for example, the betrayal of this person in the presence of the perpetrator. To distinguish between such situations, it is important to find out how the intent to kill arose - unexpectedly or it was hatched gradually. In this situation, in the first case, the possibility of applying Article 107 of the Criminal Code of the Russian Federation is not excluded, in the second - only Part 1 of Article 105 of the Criminal Code of the Russian Federation [3].

Revenge killing . Revenge is doing evil for wrong done. By committing evil to another person according to the principle of “an eye for an eye,” the perpetrator seems to want to restore justice to himself, which, however, cannot to any extent be recognized as a mitigating circumstance. At the same time, the evil or insult for which the guilty person takes revenge is not an objective phenomenon; the only important thing here is that the guilty person himself considers the actions of the victim to be evil and offensive towards himself. Objectively, the actions of the person who is being taken revenge may contain neither evil nor resentment. Revenge arises from an interpersonal conflict when a person rejects the possibility of resolving it “peacefully”, preferring the “forceful” option.

In practice, the reason for revenge murder can be various actions of the victim, both lawful and not: insult or violence, unworthy behavior, the desire to protect oneself from the culprit, etc. In this case, revenge can arise as a result of such actions of the victim that did not and, from the point of view of generally accepted rules of behavior, could not offend or cause any harm to the perpetrator due to their insignificance. In this case, it becomes necessary to distinguish between murder for revenge, which arose on the basis of personal relationships, and murder for hooligan motives. To do this, you need to find out whether there really was any significant reason for revenge.

It is also necessary to differentiate murders from revenge that arose on the basis of personal relationships, from blood feud and revenge in connection with the performance by the victim of his official or public duty (here the distinction is made according to the rules described above), as well as from murder in a state of passion or when limits are exceeded necessary defense. In the latter case, although there is a motive of revenge, it is still necessary to resolve questions about the qualification of these murders in conjunction with all the circumstances of the crime committed [3].

Killing in a fight or quarrel . Such murders are not directly provided for in Part 1 of Article 105 of the Criminal Code of the Russian Federation, and, in addition, committing a murder under such circumstances does not at all exclude other qualifications. Only in the absence of aggravating and mitigating circumstances can such actions be qualified under Part 1 of Article 105 of the Criminal Code of the Russian Federation, because, on the one hand, deprivation of life in such situations is possible both in a state of passion, and when exceeding the limits of necessary defense, and in a state of necessary defense , and through negligence; and on the other hand, it is necessary to proceed from what the motives for the murder are, since a quarrel or fight does not exclude the presence of motives that lead to the recognition of murder as committed under aggravating circumstances, since a fight or quarrel is often only a reason to aggravate relations with the victim and then commit murder.

It must be emphasized that for the correct qualification of murders during a fight or quarrel, it is important not to mechanically state these circumstances, since they are not the point that has a decisive influence on the qualification of this murder, but only indicate the circumstances of its commission, it is necessary to find out motives for this crime.

Very often in such situations the question arises about the distinction between a simple murder and one committed under aggravating circumstances (from hooligan motives). In this case, you need to approach the question of who was the initiator or active participant in the fight or quarrel very carefully. There is an opinion that if the instigator or an active participant in a fight or quarrel is guilty, then he acts from hooligan motives, and if he is not, then there is a “simple” murder. This opinion is not entirely correct, because, nevertheless, regardless of who the instigator was, both the hooligan motives of the perpetrator, as well as a state of passion or exceeding the limits of necessary defense, cannot be excluded. The motive for committing the murder is very important here.

Other types of "simple" murder . Murder committed by the perpetrator in connection with the unlawful actions of the victim, which exclude the application of Part 2 of Art. 105, Art. 107, 108 of the Criminal Code of the Russian Federation, also qualifies under Part 1. Art. 105 of the Criminal Code of the Russian Federation.

This type of murder may also include murders committed as a result of the unlawful use of weapons by a government official or a person protecting state or public property, when the victim does not fulfill their legal requirements.

These are also those murders that are committed during premature defense. In these cases, there is no attack, therefore, such a murder cannot be considered committed either in a state of necessary defense or when its limits are exceeded.

Murder without mitigating and aggravating circumstances (simple murder), provided for in Part 1 of Article 105 of the Criminal Code of the Russian Federation, also includes the so-called murders of compassion, although taking into account the mitigating circumstance specified in paragraph “e” of Part 1 of Article 61 of the Criminal Code RF. Here, if the murder occurs at the request of the victim or out of compassion and does not contain the signs specified in Part 2 of Article 105 of the Criminal Code of the Russian Federation (for example, murder for mercenary reasons, when a person, by killing a sick person, wants to get rid of the material costs of care behind it), it must be qualified under Part 1 of Article 105 of the Criminal Code of the Russian Federation [3].

An analysis of investigative and judicial practice shows that there is reason to note some of the most common circumstances aggravating or mitigating murder, in combination with circumstances characteristic of the application of Part 1 of Article 105 of the Criminal Code of the Russian Federation: for example, jealousy with hooligan motives, as well as a state of passion ; revenge based on personal relationships with hooligan motives, blood feud, as well as a state of passion or exceeding the limits of necessary defense; quarrel and fight with hooligan motives of particular cruelty, as well as with a state of passion, or exceeding the limits of necessary defense; It is in these cases that mistakes are predominantly made when delimiting the crimes provided for in Part 1 of Art. 105, on the one hand, and part 2 of Art. 105, Art. 107 and part 1 of Art. 108 of the Criminal Code - on the other.

Literature:

Criminal Code of the Russian Federation. Adopted on May 24, 1996 // Collection of legislation of the Russian Federation. 1996. No. 25. Art. 2954.
On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation): Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 27, 1999 No. 1 (as amended on March 3, 2015 No. 9) // ATP “ConsultantPlus”.
Belyaev V.G. Issues of qualification of murders. Volgograd, 1994.
Borodin S.V. Crimes against life. M., 1999.
Plaksina T. A. Criminal liability for murder: Part 1. General issues of liability for murder. Barnaul, 1998.

Signs of murder

Murder differs from intentional infliction of bodily harm leading to the death of the victim on the subjective side. The intent of the perpetrator in a murder is aimed at directly taking the life of the victim.

The subject of the murder is a sane person who has reached 14 years of age.

Murder is committed by action or omission. In practice, the most common murders are those committed as a result of an act. In this case, the anatomical integrity and functions of vital organs are disrupted. Most actions that cause death are physical in nature. Sometimes murder is committed as a result of mental influence on a person. Murder by omission is observed when the guilty person is obliged to take care of the victim and could and should have taken certain actions that would have prevented the death of the person.

Finished works on a similar topic

Coursework The concept, signs and types of murder 490 ₽ Abstract The concept, signs and types of murder 230 ₽ Examination The concept, signs and types of murder 190 ₽

Receive completed work or specialist advice on your educational project Find out the cost

Main signs of murder:

violent nature of death, death is caused by force on a person;
illegality - any murder (except for the lawful deprivation of life) is prosecuted by law;
murder is a criminal act that causes the death of a person or encroaches on his life; it is necessary to distinguish murder from unintentional causing of death;
taking the life of another person.

Justifiable deprivation of life is the infliction of death in a state of necessary defense, as a result of the execution of a death sentence. Murder is the unlawful taking of another person's life (not aiding or killing someone). A request for murder from another person does not exclude responsibility for the crime. A person who knowingly carries out euthanasia bears criminal liability for committing murder.

Lecture 7. OBJECT OF THE CRIME

The concept, content and significance of the object of a crime Since the times of Roman law, it has been generally accepted that the object of a crime is one of the most important characteristics that allows one to identify and distinguish crimes of a public and private nature from the total mass of illegal acts. The solution to many problems of criminal legal regulation and protection depends on clarifying the essence of the object of the crime and defining its concept. Today, in the domestic criminal law doctrine, four main views can be distinguished on the essence of the object of the crime. First of all, characteristic of criminal law of the Soviet period is its traditional understanding as social relations. B. S. Nikiforov, who thoroughly studied the concept of social relations, Fr. In recognizing social relations as the object of a crime, the rational grain is that every crime encroaches on social relations. The same conclusion can be reached by reasoning like this: since it is true that all crimes encroach on social relations, it is also true that each of them separately also encroaches on social relations. Denial of the concept of recognizing social relations as the object of a crime leaves many questions unanswered, in particular, why a crime is socially dangerous and what exactly is its social danger, what determines the need to apply criminal punishment to the person who committed it. The object of a crime is “the target at which every crime hits.” Social relations act as such a conditional target. The absence of an encroachment on social relations determines the absence of a crime and vice versa. Unlike representatives of the Soviet school of criminal law, the majority of whom considered (and consider) the object of a crime to be social relations protected by criminal law, on which a criminal attack was carried out, the science of the late 19th - early 20th centuries. and a number of modern authors justify three more options for answering the question about the concept of the object of a crime. One of these trends in defining the object of a crime, expressed in the literature, is the opinion that “the direct object of a crime is a person, i.e. the one against whom the criminal attack is directed.” The founder of the concept (the object of a crime is a person) is considered to be V.D. Spasovich, who outlined his doctrine in 1863, the essence of which is as follows: the object of a crime is a person or many persons to whom the crime ultimately causes harm or creates a threat of harm. Harm is caused by direct impact on a person or impact on things that are within the circle of his possession and are the embodiment of his personality.

Without going into how justified it is to see in a person, as is often stated, the highest value, within the framework of the doctrine of crime, the very idea of recognizing a person as an object of crime outwardly looks untenable. Vulnerability is manifested at least in the fact that it becomes impossible to distinguish between individual crimes. The object of a crime cannot be material objects, and especially people (victims), since mixing these concepts neutralizes their essence and meaning. At the same time, what has been said does not mean at all that, for example, when committing a murder, the perpetrator does not have any influence on the victim. But we should not forget that any impact is specific in nature and is not on a person in general, but on one or another social relationship. Therefore, even with encroachments on something that does not exist in isolation from its bearer, the transformation of the object into the subject of a crime does not occur. As for criminal acts in the form of, for example, substitution of a child, his abduction, of course, the perpetrator of such acts actually treats the child or minor as an object, thing, etc. It is in connection with this attitude, expressed in the corresponding actions of the perpetrator, that the legislator establishes criminal liability, because a person from the moment of his birth acquires rights, the constant protection of which is the duty of the state.

The next scientific position is to consider a legal benefit protected by criminal law as an object. According to this point of view, the object of the crime is a legal good: life, health, property and other values that are encroached upon by the crime and which are therefore protected by criminal law. In line with the concept of the object of a crime as a legal good (the essence was formulated by II. D. Sergievsky and S. V. Poznyshev), it is a person who is ultimately subjected to criminal harm. But in the mechanism of crime, the working term “object of crime” is used, which is understood as a legal benefit, affecting which the crime ultimately causes harm to a person. Thus, S.V. Poznyshsv believed that “the objects of crimes are specific relationships, things and states of persons or things that are protected by law under penalty of punishment and which, for brevity, he called “legal benefits.” A.V. Naumov notes that the object of the crime is “the benefits and interests that are encroached upon by the crime and which are protected by criminal law.” It seems that it is incorrect to consider a benefit as an object of criminal legal protection. Its consumer properties in various social relations can be used not only for socially useful, but also for antisocial purposes. If, in the context under consideration, we adhere to the argument that life is a blessing, we can give examples of the inconsistency of the proposed theory, since, for example, taking the life of a victim in the process of a robbery is a crime, and taking the life of an attacker in a state of necessary defense is lawful behavior. In case of murder, the object of the crime is not the life of an individual, but social relations established and sanctioned (put under the protection of norms and sanctions) by the state, guaranteeing the inviolability of the life of everyone who is within the scope of this criminal law. With a different understanding of the object of the crime, it is difficult to explain on what basis a person is subject to criminal liability who, for the purpose of intentionally causing the death of another person (i.e., for the purpose of murder), out of ignorance of the absence of life, shoots at a corpse. If we consider a person’s life to be the object of a crime, and in this case there is none, then one of the elements of the crime is missing, there is no corpus delicti as a whole, therefore, what was done is not criminal at all. And finally, there is still an insufficiently represented view in the theory of criminal law on the object of a crime as a certain interest protected by law. Thus, V. A. Krasnopeev comes to the conclusion that “it is not the social relationship as a whole that is subject to criminal legal protection, but the legitimate interests of individuals and (or) legal entities, as well as the interests of society and the state that underlie the social ties that form the public attitude." Such a proposal can hardly be considered constructive. First of all, on formal grounds, because the semantic meaning of the word “interest” means benefit, benefit, etc. Of course, these elements can be found in many specific crimes. However, not all of them. And if present, they usually determine the motive of the crime, but not its object. In addition, we believe that replacing social relations in the concept of the object of a crime with its constituent parts is nothing more than a play on words. For a social relationship cannot but suffer violations when its constituent parts are violated. In light of the above, it is important to find out what social relations are, what their content and structure are, and on this basis, determine the object of the crime at the level of a specific attack. It seems that the most effective way to specify the direct object of the crime is to identify the content of social relations that are subject to change as a result of the commission of a crime, and to determine their social essence. Attempts to interpret the concept and structure of social relations in criminal law have been made for quite a long time and by now represent a wide range of different points of view. From the mid-19th – early 20th centuries. In socio-philosophical literature, the content of a “classical” social relationship distinguishes three constant structural elements: the subjects of a social relationship (its participants), the content of a social relationship, as well as the objects (objects) about which a social relationship arises. We believe that the first and most important element of social relations should be recognized as the participants (subjects) of these relations. Awareness of the significance of this structural element was characteristic of many specialists in criminal law. This is perhaps the most recognized element of the entire structure of social relations. So, B. S. Nikiforov Fr. An act that does not affect the interests of people, which, therefore, does not violate or destroy “normal” social relations from the point of view of the state, i.e. cannot be recognized as socially dangerous and criminal. again, relationships between people. In this regard, the statement of M. Sh. Lekveishvili is of interest that “social relations, although complex in their internal structure, are unthinkable without their subjects.” The criminal legal significance of subjects of public relations is filled with an important semantic load. Of the entire structure of social relations, this is undoubtedly its most “real” element. An adequate definition of the subjects (participants) of social relations is necessary to specify the social relationship itself. The subjects of relations can be: individuals, their groups, collectives, associations, classes, the state, its bodies, and finally, society as a whole. The next element of social relations is its content. The content of a social relationship is understood as the interaction and interconnection of its subjects (participants), which manifests itself both in active human activity and in inaction prohibited or required by society. As the last structural element of a social relationship, one should consider its object (subject) or that about which any relationship arises and exists. The study of the subject of social relations as a structural element of social relations contributes to the knowledge of the content of the object of crime protected by criminal law and the determination of the scope of criminal legislation, the “mechanism” of causing socially dangerous consequences, as well as the solution of a number of other issues important for the correct application of criminal law. There are no objective social relations. All existing social relations, based on the properties of their subject, are divided into two categories: material and intangible. The first group includes things, and the second includes social or spiritual values. The legislative list of objects of crime in general form is presented in Part 1 of Art. 2 of the Criminal Code of the Russian Federation. These are human and civil rights and freedoms, property, public order and public safety, the environment, the constitutional system of the Russian Federation, peace and security of mankind. In total, the Criminal Code of the Russian Federation defines 18 groups of public relations (Chapters 16–34). Based on the above, the object of the crime can be defined as social relations protected by criminal law, on which a criminal attack has been carried out. You should pay attention to the last clause, since without it we may not be talking about the object of a crime, but about the object of criminal legal protection or, what is the same thing, about the subject of criminal legal regulation. To correctly understand the mechanism of a crime’s violation of social relations protected by criminal law, it is important to take into account the relationship between the object and the subject of the crime. From the above, it follows that the subject of a crime is an element of the object of encroachment, by acting on which a person violates the latter (the object of the crime). The subject of the crime is a mandatory attribute of the object of the crime, understood as a set of social relations. Therefore, the subject of the crime cannot be interpreted, as is sometimes proposed in the literature, only as a material expression of the object; it cannot be considered (the subject of the crime) as an optional feature of the crime. And if this is so, then there are no pointless crimes. Another thing is that, unlike the object of a crime, the subject of the crime does not always undergo changes (for example, when stealing someone else’s property), and that an indication of the object of the crime is not always clearly expressed in the criminal law. So, from the contents of Part 1 of Art. 158 of the Criminal Code of the Russian Federation, it is obvious that the subject of theft is “other people’s property”. In the crimes provided for in ch. 16 of the Criminal Code of the Russian Federation, the subject may be “life” (for example, in Articles 105–107 of the Criminal Code of the Russian Federation) or “health” (for example, in Articles 111–115 of the Criminal Code of the Russian Federation) of a person; for slander (Article 1281 of the Criminal Code of the Russian Federation) - “knowingly false information.” In some cases, the object of the crime is violated by the influence of not one, but several objects, as can be the case with banditry (Article 209 of the Criminal Code of the Russian Federation). Here, the subject of the crime can be “citizens or organizations.” The correct definition of the subject of the crime is mainly important for the qualification of the crime (for example, under Article 105 or 277; 204 or 290; 284 or 293 of the Criminal Code of the Russian Federation). The instruments and means of committing the crime should be distinguished from the subject of the crime, i.e. what the criminal uses to influence the object, and through it the object of the crime. The same object can serve in one case as the subject of a crime, and in another as an instrument or means of committing a crime. Thus, the use of a pistol during robbery (Article 162 of the Criminal Code of the Russian Federation) is perceived as the use of a crime weapon, and a pistol during the theft of weapons (Article 226 of the Criminal Code of the Russian Federation) is the subject of a crime. Classification of objects of crime Depending on the range of social relations protected by criminal law, on which a criminal encroachment is carried out, and the degree of their generalization (based on the relationship between the categories of general, special and individual), the theory of criminal law traditionally recognizes the classification of objects of crime into general, generic, specific and direct objects (this is the so-called “but vertical” division). All social relations placed under the protection of criminal law are united into a common object, homogeneous - into a generic object, special - into a specific object, specific - into a direct one. The general object of a crime is a set of social relations protected by criminal law from criminal attacks. The characteristics of the general object of the crime are contained in Part 1 of Art. 2 of the Criminal Code of the Russian Federation. The general object of the crime is the same for all crimes, since any of the crimes causes damage to one or another relationship specified in Part 1 of Art. 2 of the Criminal Code of the Russian Federation. The generic object of a crime is a certain part (genus) of a common object that combines homogeneous social relations. The principle of dividing the Special Part of the Criminal Code of the Russian Federation into sections is based on the generic object of the crime, which, accordingly, is reflected in the name of a particular section. For example, the generic object of the crimes regulated in section. IX of the Criminal Code of the Russian Federation, there are relations that guarantee public safety and public order. The specific object of a crime is a certain part of the generic object, covering relationships that are similar in nature. The specific object is the basis for dividing the sections of the Special Part of the Criminal Code of the Russian Federation into chapters. For example, within the framework of such a generic object of crime as relations in the economic sphere (Section VIII), such specific objects are distinguished as property relations (Chapter 21), relations in the sphere of economic activity (Chapter 22), relations ensuring the established order services in commercial and other organizations (Chapter 23). If the section of the Special Part of the Criminal Code of the Russian Federation consists of one chapter (for example, section XI and chapter 33 “Crimes against military service”), the coincidence of the generic object of the crime with the specific one can be traced. The significance of the generic and specific objects of crime lies in the fact that: firstly, the content and social role of the corresponding group of homogeneous social relations predetermine the nature of the public danger of criminal attacks on them, and thereby the place of this or that type of crime in the system of the Special Part of the Criminal Code of the Russian Federation ; secondly, taking into account the content of these objects of crime, the place for the newly adopted norms of criminal law is determined; thirdly, the correct definition of these objects affects the differentiation of outwardly similar crimes, which, however, encroach on different types of relations (for example, the differentiation of crimes provided for in Articles 105 and 277; 158 and 226 of the Criminal Code of the Russian Federation). The direct object of a crime is a certain part of a specific object, representing a specific social relationship that is violated by the commission of a certain crime. It is for the purpose of protecting specific relationships that make up the content of the generic or specific object of a crime that specific criminal law prohibitions are issued. As a rule, each crime has one direct object and violates one specific relationship. However, there are crimes that simultaneously encroach on two or more direct objects. In this case, one of the immediate objects is the main one, and the other is additional (depending on the connection with the generic object). A classic example of a dual-object crime is robbery (Article 162 of the Criminal Code of the Russian Federation), which causes harm not only to property relations (the main direct object), but also to human health (an additional direct object). In addition, an additional object may be either necessary or optional. The necessary additional object is associated with the infliction or threat of infliction of certain harm by a criminal attack. The optional object may not be at risk of harm. An optional object is not a mandatory sign of a crime, but causing harm to it indicates an increased social danger of the act committed, which must be taken into account when assigning punishment. The division of the immediate object into main, additional and optional in the theory of criminal law is sometimes called the division of the object of the crime “horizontally”.