Types of intent
A crime is recognized as committed with direct intent if the person who committed it was aware of the social danger of his action (inaction), foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence (Part 2 of Article 25 of the Criminal Code of the Russian Federation).
Indirect intent occurs when a person was aware of the social danger of his actions (inactions), foresaw the possibility of socially dangerous consequences, did not want, but consciously allowed these consequences or was indifferent to them (Part 3 of Article 25 of the Criminal Code of the Russian Federation).
Intention has intellectual and volitional aspects.
1. The intellectual point is:
a) in the awareness by the perpetrator of the socially dangerous nature of the act committed;
b) in anticipation of its socially dangerous consequences.
2. The volitional moment is expressed:
a) in the desire for these consequences to occur;
b) in consciously allowing these consequences to occur.
The intellectual aspect of direct and indirect intent completely coincides. The volitional moment of intent, which records the desire for the occurrence of socially dangerous consequences or their conscious assumption, belongs to the volitional sphere of the psyche of the perpetrator. The law contains indications of two possible types of volitional activity: the desire for socially dangerous consequences to occur (this type is direct intent), or the conscious assumption of the possibility of such consequences occurring (indirect intent).
Intention is the most common form of guilt in practice.
The difference between direct and indirect intent in terms of the content of the intellectual element lies in the different nature of foreseeing consequences. If direct intent is characterized by foreseeing, as a rule, the inevitability, and sometimes the real possibility of the occurrence of socially dangerous consequences, then indirect intent is characterized by foreseeing only the real possibility of the occurrence of such consequences. But the main difference between direct and indirect intent is that the subject’s volitional attitude to the consequences manifests itself in various forms. A positive attitude towards them with direct intent is expressed in desire, and with indirect intent - in a conscious assumption or in an indifferent attitude. Establishing the type of intent is very important for the correct qualification of a crime, which is confirmed by many examples.
§ 2. Wine: concept, forms, types.
Innocent causing of harm The concept of guilt in the Criminal Code is absent. In Part 1 of Art. 24 of the Code are called, and in Art. Art. 25 and 26 of the Criminal Code regulate the forms of guilt: intent and negligence. Guilt is a person’s mental attitude to the social danger of his actions (inaction) and the occurrence of socially dangerous consequences, expressed in the form of intent or negligence. Features of criminal liability for various forms of guilt are defined in Part 2 of Art. 24 of the Criminal Code, according to which “an act committed only through negligence is recognized as a crime only in the case when it is specifically provided for in the relevant article of the Special Part... of the Code.” Intention and negligence are distinguished by a person’s different mental attitude towards the social danger of his actions (inaction) and the occurrence of socially dangerous consequences. The intellectual and volitional elements of guilt are distinguished. Moreover, on the basis of Art. Art. 25 and 26 of the Criminal Code, the substantive content of an intellectual attitude is the social danger of one’s actions (inaction) and the onset of socially dangerous consequences, and the substantive content of a volitional attitude is exclusively socially dangerous consequences. Forms of guilt are divided into types. In accordance with Part 1 of Art. 25 of the Criminal Code distinguishes between direct and indirect (eventual) intent, and with Part 1 of Art. 26 in relation to negligence - frivolity and negligence. In Art. 25 of the Criminal Code does not provide a general description of intent, but its types are regulated. A crime is recognized as committed with direct intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability of the occurrence of socially dangerous consequences and desired their occurrence. A crime is considered committed with indirect intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility of socially dangerous consequences, did not want to, but consciously allowed these consequences or was indifferent to them. Direct and indirect intent have common characteristics. Therefore, to certain limits, types of intent can be studied together. The intellectual moment of both direct and indirect intent is characterized primarily by awareness. If there is intent, a person must be aware of the social danger of his actions (inaction). Hence, on the one hand, awareness of the social danger of one’s actions (inaction) should be considered as an understanding of their harmfulness. On the other hand, it is not required to understand the provisions for actions (inaction) by criminal law. Firstly, about the awareness of the provision of actions (inaction) in Art. 25 of the Criminal Code says nothing. Secondly, there is a presumption of knowledge of criminal laws. This presumption is essentially irrebuttable. The latter eliminates the need to prove each time that the person is aware that the relevant actions (inactions) are provided for by the criminal law. The degree of awareness of the public danger of one’s actions (inaction) varies. However, whether a person reliably understood the social danger of his actions (inaction) or probabilistically is indifferent to intent as such. The intellectual moment of both direct and indirect intent includes foresight. In Russian, “to foresee” means to take into account in advance the possibility of the appearance or occurrence of something. With intent, a person must foresee the occurrence of socially dangerous consequences specified by law as signs of a crime. Therefore, the anticipation of the onset of socially dangerous consequences should be understood as an assumption about the possibility of the onset of those that are provided for by criminal law. Foresight can be different, correlating with the possibility and inevitability of the occurrence of socially dangerous consequences. In Russian, possible and inevitable are revealed as something that in the first case can happen, probable, and in the second - which cannot be avoided or prevented. Hence, foreseeing the possibility of socially dangerous consequences occurring—understanding the likelihood of their occurrence. This happens, for example, when fired from a more or less significant distance. Accordingly, foreseeing the inevitability of the onset of socially dangerous consequences means understanding the unpreventability of their occurrence. This happens, say, when shooting at point-blank range. Based on the nature of foresight, a distinction is made between direct and indirect intent. For direct intent, foreseeing both the possibility and inevitability of the onset of socially dangerous consequences is provided. For indirect intent, only the possibility of the occurrence of socially dangerous consequences is provided for. A more significant distinction between direct and indirect intent occurs based on the volitional moment. With direct intent, a person desires the occurrence of socially dangerous consequences. With indirect intent, the person does not want them, but consciously allows them or treats them indifferently. To desire the occurrence of socially dangerous consequences with direct intent means to need them. A person needs them to occur when: firstly, they are the ultimate goal of socially dangerous actions (inaction), for example, death in a revenge killing; secondly, the intermediate goal of socially dangerous actions (inaction), which serves as a necessary stage in achieving the final goal (criminal or non-criminal), say, the death of the victim in order to hide another crime or facilitate its commission (clause “k”, part 2 of article 105 Criminal Code) or the occurrence of minor damage for the purpose of theft on a significant, large or especially large scale (Article 158 of the Criminal Code). Reluctance to have socially dangerous consequences with indirect intent means that the person does not need them. The consequences in this case are a by-product of his actions (inaction) aimed at achieving another goal (criminal or non-criminal). Reluctance to socially dangerous consequences can be expressed in two ways. The person must consciously allow them or treat them indifferently. Conscious assumption of socially dangerous consequences means a deliberate assumption about them. At the same time, the person is ready to accept them in order to achieve another goal. An indifferent attitude towards socially dangerous consequences means an indifferent assessment of them. The person doesn't care whether they come or not. Intent in the science of criminal law also differs in the moment of its appearance and the degree of accuracy. Based on the moment of occurrence, a distinction is made between premeditated and suddenly arising intent . The former is characterized by deliberation, and the latter by impulsiveness. According to the degree of accuracy, definite and indefinite intent are divided in connection with the unequal prediction of upcoming socially dangerous consequences. definite when a person accurately foresees upcoming socially dangerous consequences. At the same time, it is heterogeneous and, in turn, according to the breadth of foreseen consequences, is classified into simple and alternative. Simple is called intent in which a person accurately foresees the possibility of the occurrence of specific socially dangerous consequences, for example, significant damage to a citizen during theft. Alternative is called intent in which a person accurately foresees the possibility of the occurrence of one of several socially dangerous consequences, say, death or serious harm to health when the victim is hit in the head with an ax. indefinite when a person foresees exclusively the nature of possible socially dangerous consequences. Let’s say that when you hit a person with a fist on the head, as a rule, the possibility of only harm to health is foreseen. Its severity (severe, moderate, light) is not differentiated. Thus, with alternative and uncertain intent, the foresight includes the possibility of the occurrence of several socially dangerous consequences. If, with an alternative and uncertain intent, socially dangerous consequences are not caused, it is necessary to put the most serious of the foreseeable ones at the forefront. Since they do not occur, we must talk about an attempted crime (Part 3 of Article 30 of the Criminal Code). This approach is fully consistent with the principle of subjective imputation (Part 2 of Article 5 of the Criminal Code). Anticipation of the onset of more severe socially dangerous consequences covers less severe ones. On the contrary, foreseeing the occurrence of less serious consequences does not include more serious ones. In Art. 26 of the Criminal Code there is no general description of negligence, but its types are regulated. A crime is considered to be committed due to frivolity if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds, he arrogantly hoped to prevent these consequences. A crime is considered committed through negligence if a person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with the necessary care and forethought he should and could have foreseen these consequences. Frivolity and negligence have no common characteristics. The intellectual moment of frivolity includes the possibility of socially dangerous consequences; therefore, it coincides with the same moment of indirect intent completely, and direct intent - partially. With frivolity, foreseeing the inevitability of consequences, which is associated with his volitional moment, is excluded. When foreseeing the inevitability of socially dangerous consequences, it is impossible to count on their prevention. The latter is a mandatory indicator of frivolity, distinguishing it from intent. With frivolity, a person relies on specific factors. These include personal qualities (strength, dexterity, knowledge, skills, experience, resourcefulness, etc.), the behavior of other persons, the action of natural forces, machines, mechanisms, etc. Reliance on specific factors generates confidence in the non-occurrence of socially dangerous consequences. However, they still occur, since the person was counting on preventing the consequences “without sufficient grounds and arrogance.” In Russian, “sufficient” means satisfying needs, necessary conditions, “foundation” means a reason, a sufficient reason that justifies something, and “arrogant” means overly confident in oneself, expressing such excessive confidence. It turns out that with frivolity, a person hopes to prevent socially dangerous consequences in the absence of the necessary conditions that justify confidence in this. In other words, a person overestimates the importance of relevant factors. They are not enough to prevent consequences. The characteristic of negligence includes only that part of the intellectual moment that is associated with foresight. According to Part 3 of Art. 26 of the Criminal Code, foreseeing the possibility of the occurrence of socially dangerous consequences has two properties: negative and positive. The first is that the person does not foresee the possibility of socially dangerous consequences of his actions (inaction). In other words, a person does not expect such consequences to arise from his socially dangerous actions (inaction). The above feature of negligence distinguishes it from intent and frivolity. With them, a person foresees the possibility or inevitability of the onset of socially dangerous consequences. The positive attribute of negligence is reflected in the words “although with the necessary care and foresight these consequences should and could have been foreseen.” In Russian, “necessary” means necessary, obligatory, inevitable, “attentive” means focused, and “prudent” means able to foresee results and events in the future. Moreover, the latter is important not in itself, but for understanding the criteria for the positive property of negligence: typical and individual. According to the first of them, the person had to foresee socially dangerous consequences. This follows from official or professional duties, rules of conduct provided for a certain field of activity, and rules of precaution that have developed in the communication of people and their daily activities. The individual criterion is based on the characteristics of a particular person. These include the level of education or knowledge, life experience, professional skills or abilities, health status, etc. Most crimes are committed either intentionally or through negligence. At the same time, there is a group of crimes that must simultaneously be considered committed both intentionally and through negligence. In accordance with Art. 27 of the Criminal Code, “if, as a result of committing an intentional crime, grave consequences are caused, which by law entail a more severe punishment and which were not covered by the intent of the person, criminal liability for such consequences occurs only if the person foresaw the possibility of their occurrence, but without sufficient grounds for arrogantly counting on their prevention, or in the event that the person did not foresee, but should have and could have foreseen the possibility of the occurrence of these consequences.” Crimes with two forms of guilt are complex. They consist of two socially dangerous acts. Each of them is criminal in itself. They are combined into one, but necessarily qualified, crime. The latter describes a crime committed intentionally, and its consequence is the onset of socially dangerous consequences caused by negligence. The type of intent and negligence is indifferent. Crimes with two forms of guilt have two manifestations: firstly, a crime with two material elements, for example, intentional infliction of grievous bodily harm, resulting in the death of the victim through negligence (Part 4 of Article 111 of the Criminal Code); secondly, a crime with a formal and material element, for example, a deliberate illegal artificial termination of pregnancy, which through negligence resulted in the death of the victim or the infliction of grievous harm to her health (Part 3 of Article 123 of the Criminal Code). In general, such a crime is considered to be committed intentionally. Consequently, the legislator puts the primary crime at the forefront and does so for completely understandable reasons. Certainty with the form of guilt is needed when categorizing crimes (Article 15 of the Criminal Code) and establishing responsibility for an unfinished crime (Article 30) and complicity in a crime (Article 32). Innocent infliction of harm should be distinguished from crimes committed intentionally and through negligence . With it, the mental activity of the person committing the crime is beyond intent and negligence. In Art. 28 of the Criminal Code presents three types of innocent causing of harm. Firstly, an act is considered committed innocently if the person who committed it did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction). Such innocent causing of harm is beyond intent. Secondly, an act is considered committed innocently if the person who committed it did not foresee the possibility of socially dangerous consequences and, due to the circumstances of the case, should not or could not have foreseen them. Such innocent harm is beyond the scope of negligence. Thirdly, an act is considered committed innocently if the person who committed it, although he foresaw the possibility of socially dangerous consequences of his actions (inaction), could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload. This kind of innocent harm is beyond frivolity. By psychophysiological qualities of a person we mean the speed of perception of the environment or reaction to external stimuli, visual or hearing acuity, etc. Extreme circumstances are those that unexpectedly arose or changed or were unforeseen, say, a natural disaster or a man-made disaster. Neuropsychic overload occurs when the human body, under the influence of deep fatigue, cannot cope with the load placed on it. This happens to drivers, dispatchers, etc. A discrepancy between the psychophysiological qualities of a person and the requirements of extreme conditions or neuropsychic overload occurs when, in order to prevent socially dangerous consequences, it is necessary to apply those psychophysiological qualities that the person does not have at all or have lost.
Types of negligence
According to Art. 26 Part I of the Criminal Code of the Russian Federation, a crime committed through negligence is recognized as an act committed through frivolity or negligence.
A crime is considered to have been committed carelessly if a person foresaw the possibility of socially dangerous consequences of his actions (inactions), but without sufficient grounds, he arrogantly hoped to prevent these consequences.
Arrogance (frivolity) differs from indirect intent in that a person foresees only the possibility of the occurrence of socially dangerous consequences of his action or inaction, but expects to prevent the occurrence of these consequences, but the calculation turns out to be frivolous. With indirect intent, there is no such calculation; the perpetrator foresees the consequences of his actions and consciously allows them, or is indifferent to them.
A crime is considered committed through negligence if a person did not foresee the possibility of socially dangerous consequences of his actions (inactions), although with the necessary care and forethought he should and could have foreseen these consequences.
Criminal negligence differs from intent and criminal frivolity in the lack of foresight of the possibility of socially dangerous consequences. In Art. 24 Part II of the Criminal Code of the Russian Federation states that an act committed through negligence is recognized as a crime only if it is specifically provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation.
The essence of guilt
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According to the norms of Russian law, the main position for applying liability measures is the position of subjective imputation.
The concept and forms of guilt in criminal law and other branches of legislation are important elements for establishing the subjective side of the committed action.
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It is expressed in the fact that a person is held accountable exclusively for those actions (or inactions) that are dangerous to society and the consequences that followed, for which his guilt has been established.
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The concept and significance of the form of guilt lies in the fact that the correct qualification of an act as an offense allows the correct sanction measures to be applied. For example, beliefs, thoughts or dangerous mental states are not punishable. In addition, innocent damage does not entail liability.
Concepts and forms of guilt are expressed through its definition. This is a person’s mental attitude to an action that is dangerous to society that he has committed (or inaction), as well as to the consequences that have arisen because of this.
The concept of the content of the form of guilt
This concept is considered from three sides:
Signs of guilt
They are divided into three groups. In addition to the concept, content, form and meaning of guilt, this is its important element:
- Intelligent traits.
- Strong-willed.
- Emotional.
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Signs of an intellectual nature show those cognitive processes that occur in the psyche of the offender. In the sphere of the concept and forms of guilt, they express a person’s ability to correctly assess the specific situation in which a person finds himself, the consequences of his actions in it and their social significance.
Signs of the volitional type express the conscious direction of physical and mental efforts to perform certain actions or abstain from them, as well as the choice of a certain model of behavior.
Emotional signs play an important role as circumstances that the court takes into account when assigning an individual punishment.
The meaning of guilt
The meaning of the concept of form of guilt is as follows:
Legal meaning of forms of guilt
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From a legal point of view, the concept of the form and types of guilt plays a serious role in the classification of crimes:
Forms of guilt
In the concept of “crime”, a large role is played by combinations of elements of will and consciousness, which together characterize the attitude of the offender to his act.
Russian legislation distinguishes between intent and negligence. If we are talking about the concept of the form of guilt and its types in criminal law, here premeditation or its absence is indicated in the disposition of the article or is implied.
Some categories of offenses imply the presence of unconditional intent (for example, robbery, rape, receiving money as a bribe, etc.). In most cases, the content of this concept is manifested in a person’s anticipation of the negative consequences of his actions.
