Types and forms of complicity in a crime - Criminal law (general part)

Depending on the functional roles performed by accomplices in the crime, two types of complicity :

complex.

Depending on the degree of cohesion of the accomplices, there are four forms of complicity :

a group of persons without prior agreement;
a group of persons by prior conspiracy;
organized group;
criminal community (criminal organization).

The division of complicity into types and forms is not mutually exclusive, and a number of cases of joint commission of a crime can be attributed to both one of the types of complicity and one of its forms.

Types of complicity

The basis for identifying types of complicity can be based on the criterion of functional roles performed by accomplices, i.e. the absence or presence, in addition to co-executors, of other types of accomplices. On this basis the following can be distinguished:

simple complicity or co-execution (in which all persons, without exception, jointly participating in the commission of a crime are co-principals);
complex complicity (in which, along with the performer (co-performers), there are an organizer, an instigator and (or) an accomplice).

Identifying the types of complicity is important when qualifying a crime committed in complicity:

1) with simple participation:

the actions of all accomplices are qualified only under the article of the Special Part of the Criminal Code of the Russian Federation, which provides for liability for the crime they committed;
if such an article provides for a qualifying feature of the commission of a crime by a group of persons, a group of persons by prior conspiracy or an organized group, then with the imputation of this qualifying feature (Part 2 of Article 34 of the Criminal Code of the Russian Federation).

2) with complex complicity:

the actions of the performer (co-performers) are qualified similarly to simple complicity. The actions of the organizer, instigator, accomplice are qualified accordingly under Parts 3, 4, 5 of Art. 33 of the Criminal Code of the Russian Federation and under the article of the Special Part of the Criminal Code of the Russian Federation, which provides for liability for the crime committed by them (with the imputation, if there are co-perpetrators, and when the article of the Special Part of the Criminal Code of the Russian Federation also indicates a qualifying sign of a group commission of a crime). Link to Art. 33 of the Criminal Code of the Russian Federation in relation to the actions of an organizer, instigator, accomplice is not required if, at the same time as they perform organizational, instigating and complicit functions, they are co-perpetrators of a crime (Part 3 of Article 34 of the Criminal Code of the Russian Federation).

Involvement in crime

Involved in the crime committed are not only accomplices, but also other people related to the crime. In domestic criminal law, such persons are called “touched” to the crime.

Involvement in crime is an attack on the opportunity to prevent or solve a crime. Unlike complicity, with implication, the actions of the offenders do not have a causal connection with the crime.

In this case, touchiness is divided into several types:

Concealment (Article 316) – its main feature is considered to be the fact that it was not promised in advance. This behavior is detrimental to solving crimes.
Connivance is the deliberate allowance of illegal actions.
Failure to report illegal behavior (not provided for by the Criminal Code of Russia, but was present in the Code of the RSFSR - Article 19).

Some scientists and scientists believe that incitement should be considered another type of touching. This distinction is based on the fact that incitement involves inducing one person to another to commit an offense, while the instigator is not actively involved.

But today the list of types of touch is exhaustive.

Forms of complicity

The basis for identifying forms of complicity can be based on the criterion of cohesion of accomplices, which allows us to identify such forms of complicity as:

a group of persons (without prior agreement),
a group of persons by prior conspiracy,
organized group,
criminal community (criminal organization) (parts 1-4 of Article 35 of the Criminal Code of the Russian Federation).

The commission of a crime by a group of persons, a group by prior conspiracy, or an organized group is a qualifying feature of many crimes (for example, clause “g”, part 2 of article 105, clause “b”, part 2 of article 131, part 2, 4 of art. 162 of the Criminal Code of the Russian Federation).

Crime committed by a group of persons (without prior conspiracy)

According to Part 1 of Art. 35 of the Criminal Code of the Russian Federation, a crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement.

This differs from all other forms of complicity in the absence of prior conspiracy, that is, the spontaneity, suddenness of the emergence and implementation of the intent to commit a crime. By virtue of the direct instructions of the law, a mandatory feature of a group of persons without prior conspiracy is the presence of two or more co-perpetrators (in this case, the “group execution of a crime” should be taken into account); aiding and abetting a single perpetrator in the commission of a crime (incitement to commit it) does not constitute this form of complicity.

Due to the suddenness of criminal acts, a group of persons without prior conspiracy is mainly encountered as a type of simple complicity. However, complex complicity is also possible here, when in the process of carrying out a criminal offense the co-perpetrators have an accomplice (in even more rare cases, an instigator) or when a crime committed in complex complicity is the result of a sudden modification of the original plan.

Crime committed by a group of persons (by prior conspiracy)

In Part 2 of Art. 35 of the Criminal Code of the Russian Federation states that a crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime.

A preliminary conspiracy to commit a crime presupposes an agreement expressed in any form (written, oral, conclusive) that took place before the direct execution of the objective side of the crime (see, for example: paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 No. 1 , paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 No. 29).

In judicial practice, it is considered that the constitutive feature of a group of persons by prior conspiracy is the presence of two or more co-executors (see, for example: paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 No. 1, paragraph 12 of the resolution of the Plenum of the Supreme Court RF dated December 27, 2002 No. 29 (in this case, one should take into account what was said earlier about the “group execution of a crime”). Thus, in one of the cases, the indication that a murder was committed by a group of persons by prior conspiracy was excluded from the verdict (clause “g” Part 2 of Article 105 of the Criminal Code of the Russian Federation), since it was established that of the two accomplices, one was the perpetrator, and the other was the accomplice (see: BVS RF. 2002. No. 2.S. 16-17).

A group of persons in a preliminary conspiracy can refer to both simple and complex complicity.

A distinctive feature of an organized group (Part 3 of Article 35 of the Criminal Code of the Russian Federation), which allows it to be separated from a group of persons by prior conspiracy, is stability. Stability can be evidenced by such signs as the stability of the group, the close relationship between its members, the coordination of actions and their planning, the presence of recognized leadership, the constancy of the forms and methods of criminal activity, technical equipment, the duration of the group’s existence, the number of crimes it has committed, etc. At the same time, the law does not exclude the creation of an organized group of only two persons, and for the commission of one crime, but requiring careful preparation.

The particular social danger of crimes committed by an organized group has led to the development by judicial practice of a rule according to which the actions of all members of an organized group, regardless of their role in the crime, are qualified as co-perpetrators. In addition, the very creation of the most dangerous type of organized group - a gang - is criminalized by the legislator in Art. 209 of the Criminal Code of the Russian Federation, and the creation of an organized group in other cases entails criminal liability for preparation for the crimes for which it was created (Part 6 of Article 35 of the Criminal Code of the Russian Federation).

Criminal community (criminal organization)

The most dangerous form of complicity is a criminal community (criminal organization) (Part 4 of Article 35 of the Criminal Code of the Russian Federation). A criminal community (criminal organization), due to established judicial practice, is characterized by three distinctive features:

cohesion, i.e. the presence of common goals among members of the organization, intentions that turn them into a single whole, the presence of well-established connections, organizational and management structures, a financial base, a single cash register from contributions from criminal activities, conspiracy, a hierarchy of subordination, uniform and strict rules of relationships and behavior with sanctions for violation of the unwritten charter of the community, a special criminal-cultural community, etc.;
organization, i.e. a clear distribution of functions between accomplices, careful planning of criminal activities, the presence of internal strict discipline;
the purpose of creation is to commit grave and especially grave crimes.

The special social danger of a criminal community (criminal organization) determined the criminal punishability of the very fact of creating such a community (organization) (Article 210, 2821 of the Criminal Code).

It should also be noted that although in none of the articles of the Special Part of the Criminal Code of the Russian Federation the commission of a crime by a criminal community (criminal organization) is a qualifying feature of a crime, nevertheless, if the article of the Special Part of the Criminal Code of the Russian Federation contains such a qualifying feature as the commission of a crime by a group persons, a group of persons by prior conspiracy or an organized group, the commission of a crime by the specified community (organization) must be qualified with its imputation. Moreover, all actions of all participants in a criminal community (criminal organization), regardless of their role in the crime, are qualified as co-perpetrators.

2.7

Legal significance of the excess of the performer

The excess of the perpetrator is a situation in which one member of a criminal group commits an act that was not agreed upon by all its members. At the same time, the other accomplices did not plan and did not want to commit the unlawful act committed by an individual accomplice.

For example, during a theft, one of the criminals, contrary to the agreement, opens a safe with the help of explosives, or when committing a murder, one of the perpetrators commits it with particular cruelty.

When qualifying this act, the perpetrator himself will be responsible for the excess, and other participants will be held responsible only for those intentional actions that were originally planned.

There are quantitative and qualitative forms of kurtosis. With quantitative excess, the criminal goes beyond the scope and commits a larger volume of the objective side or replaces the form of criminal assault, for example, in the case of a planned simple murder, he commits a qualified one.

Qualitative excess involves replacing a crime with another or causing harm to another object, for example, during a theft, an accomplice commits rape.

The influence of complicity on punishment

Generally, complicity is considered a more dangerous form of criminal activity than the commission of a crime by one person. It is indicated that the essence of complicity is “not a simple combination of forces of several criminal elements, but such a combination of efforts that gives their activities a new quality. When several accomplices commit a crime together..., as a rule, more serious damage is caused than when one person commits the same crime.”

Other points of view are also expressed. Thus, according to M.D. Shargorodsky, complicity is not an aggravating or mitigating circumstance of criminal liability, it “is not a qualifying or aggravating circumstance.” R. R. Galiakbarov writes: “It is impossible to assert that complicity in a crime always increases the social danger of the crime. There are exceptions to this rule, especially when the crime is committed by the perpetrator together with an accomplice and other accomplices provided for by law.”