Causing death by negligence is a separate category of crimes . In this case, the guilty person acted not out of malice, but by accident. This unlawful act excludes the intentional deprivation of a person’s life, and is most often committed due to frivolity, oversight or negligence. Article 109 of the Criminal Code of the Russian Federation provides for death by negligence in the form of correctional labor (up to two years), restrictions on freedom, forced labor, imprisonment (all for up to two years).
Where is the line between death by negligence and simple murder? Let's figure it out with a lawyer
Causing grievous harm or death by negligence is an act that must be considered taking into account all aspects, through a comprehensive study of the materials of the criminal case, not only by the investigative authorities, but also by the defense.
Simple murder must be distinguished from causing death by negligence. These two illegal acts are even included in separate articles of the Criminal Code of the Russian Federation. It is a priori impossible to commit murder without any motive.
An exception may be causing death by negligence, but this offense is also included in a separate crime. In addition, an accurate definition of all the elements of a crime will help the investigative authorities, the prosecutor’s office and the court to distinguish the line between simple murder and other types of crimes. In turn, determine the punishment according to the available data.
Law enforcement agencies, the Investigative Committee, as well as the prosecutor’s office, if the case is transferred to it, must consider the objective and subjective signs of this crime.
It is necessary to clearly distinguish between the concepts of simple murder and causing death by negligence. In the second case, the main difference is the absence of intent to cause death, as well as a motive for committing a crime. That is, the guilty person did not have the goal or intent to kill the person. It is necessary to distinguish between the concepts of causing death by negligence and accidentally causing death. In the latter case, criminal liability almost never occurs and the court can classify this crime as accidental causing death only if the following conditions are met:
The person could have foreseen the onset of death, but took all the necessary measures and actions aimed at preventing the onset of death, however, for reasons independent of his actions, death nevertheless occurred.
The person could not even imagine that death could occur as a result of the actions taken.
The object of causing death by negligence is the life of a person and his right to it. The objective side is the actions or inactions of the guilty person that led to the death. The crime is classified under Article 109 of the Criminal Code of the Russian Federation and can be committed due to frivolity or negligence.
Second commentary to Art. 26 of the Criminal Code of the Russian Federation
1. The law knows two types of careless forms of guilt - frivolity and negligence.
2. Frivolity is characterized by two signs. Its intellectual content is defined as the anticipation of the abstract (i.e. in general, but not in this specific situation) possibility of the occurrence of socially dangerous consequences of the act committed.
3. The law characterizes the volitional content of frivolity not as hope, but precisely as a calculation to prevent socially dangerous consequences, which has very real, although insufficient, grounds. In this case, the perpetrator relies on specific, real circumstances that, in his opinion, can counteract the onset of a criminal result: on his own personal qualities (strength, dexterity, experience, skill), on the actions of other persons or mechanisms, as well as on other circumstances. But he assesses their significance incorrectly, as a result of which the expectation of preventing a criminal result turns out to be unfounded, arrogant, and without sufficient grounds for this.
4. Negligence is the only type of guilt in which a person does not foresee the socially dangerous consequences of his act either as inevitable, or as actually or even abstractly possible. Negligence is characterized by two signs: negative and positive.
5. A negative sign of negligence is a person’s failure to foresee the possibility of socially dangerous consequences occurring. A positive sign of negligence is that the perpetrator should and could have shown the necessary care and foresight and foreseen the occurrence of socially dangerous consequences actually caused. It is this feature that turns negligence into a type of guilt in its criminal legal understanding. It is established using two criteria: obligation means an objective criterion, and foreseeability means a subjective criterion of negligence.
6. The objective criterion of negligence is normative in nature and means the obligation of a person to foresee the occurrence of socially dangerous consequences in compliance with the requirements of the necessary care and forethought.
7. The subjective criterion of negligence means the personal ability of a person in a specific situation and taking into account his individual qualities to foresee the possibility of the occurrence of socially dangerous consequences.
Qualified legal assistance will help minimize the punishment!
Death due to negligence is difficult to anticipate or predict. Often, one wrong move or action can cause death. Persons who find themselves in a difficult life situation and who require qualified assistance and legal support in order to represent the interests of the accused or injured party in court are advised to contact lawyers specializing in cases involving a crime against life and health.
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Taking into account the gross negligence of the victim when compensating for moral damage
Based on the circumstances of the accident established within the framework of Criminal Case No. 1-30/2019, for which on August 16, 2019, the Vologda District Court rendered a verdict that entered into legal force, the victim was brought a claim for compensation for moral damage against the tortfeasors jointly and severally (Article 1080, 2 Article 1081 of the Civil Code of the Russian Federation).
https://vologodskygor—vld.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=case&case_id=32091260&case_uid=d5ef556a-bc29-4820-994d-02158bf17c09&delo_id=1540005
At the same time, one of the drivers involved in the accident is himself a victim, and his actions are not at fault in the accident. His liability jointly and severally with the driver at fault for the accident arises due to the provisions of Art. 1080 Civil Code of the Russian Federation.
- The court of first instance established the presence of gross negligence in the actions of the victim, since the plaintiff, being a student at the Faculty of Law of a regional university, knew about the illegality of driving a car while drunk, understood the reason for the prohibition of such actions, as well as the risk of possible consequences, but when getting into a car with a drunk driver to her friend, believed that there would be no consequences or deliberately ignored them, i.e. acted with gross negligence.
At the same time, in the proceedings on the UD, the victim was given explanations, and then testimony as a witness and victim that before the accident, she had been drinking alcohol together with the driver who caused the accident - her friend.
In the case under consideration in the court of first instance, the plaintiff did not dispute the above fact; on the contrary, she indicated that she got into the car knowing for certain that a drunk driver was driving it. When asked by the court why she got into the car with a drunk driver, the plaintiff replied: “To control the driver so that nothing would happen.”
The plaintiff’s opinion that she did not commit any actions that influenced her harm to her health is erroneous and does not correspond to the established circumstances.
Thus, if she had not been in the defendant’s car, harm to her health would not have been caused under the specified circumstances and in the specified form.
At the same time, the court of the 2nd instance did not apply paragraph 2 of Art. 1083 of the Civil Code of the Russian Federation and erroneously excluded the plaintiff’s gross negligence.
The conclusion of the appellate court that there were no signs of illegality in the victim’s actions, and they were not causally related to the harm caused to her, is based on a restrictive interpretation of Art. 1083 of the Civil Code and the concept of “gross negligence” in civil law.
2. In legal science, namely in tort law, there are such forms of guilt as intent and negligence. In turn, negligence can be simple and gross. All categories are evaluative. Unintentional torts often result from negligence. Gross negligence is a violation of simple, elementary rules and requirements of prudence and care. The definition of gross negligence was formulated in Roman law. This is a “misunderstanding of what everyone understands” (“Grounds for the emergence of obligations from causing harm: legislation, comments, judicial practice” // Rozina S.V./ ConsultantPlus, 2019).
K.V. Egorov, A.S. Bulnina, G.Kh. Garayev in the textbook “Medical Law” 2021. indicate that “in case of gross negligence, the person’s behavior lacks any attentiveness and prudence” (190 p.).
So, the average, normal, reasonable person knows that being in the front seat of a car driven by a person while intoxicated is highly likely to result in an accident and endanger the life and health of the passenger. Those. a person will not get into such a car, acting on the elementary rules of prudence and concern for his life and health.
I believe that the victim, before getting into the car and going on a trip with the culprit of the accident, should have and could have taken into account the following circumstances:
A) The plaintiff was drunk, and the defendant was drinking with her.
B) The defendant received his license 3 months ago, and does not have relevant experience driving a vehicle in winter, which the plaintiff knew about (they were friends for several years).
C) The probability of getting into an accident in the evening when traveling in winter, taking into account the plaintiff’s lack of driving experience and his drunken state, is already more than 50%.
In the present case, the victim, knowing that the defendant is driving while intoxicated, gets into the car, thereby violating the basic rules of prudence and concern for her life and health. This conclusion is consistent with the position of the trial court.
- In the judicial practice of the Russian Federation, gross negligence is recognized as the intoxication of the victim, which contributed to the occurrence or increase of harm.
For example, in the decision of 09/07/2017 of the Kargasoksky District Court in case No. 2-243/2017 (Tomsk region), when deciding the presence or absence of gross negligence of the victim, it makes the following conclusion: “Under such circumstances, the court considers that there was gross negligence in S.’s actions negligence, since, having reliably known about the fact of consumption of alcoholic beverages on the part of A.V. Dodukh, the deceased S. himself got into the car under her control.”
In this case, the court does not introduce additional signs (illegalty in the actions of the victim) when determining gross negligence.
Courts, when deciding the amount of compensation for moral damage in the presence of gross negligence of the victim (who sat with the driver while intoxicated), reduce the amount of compensation for moral damage by 2 times, based on the following: when assessing the likelihood of adverse consequences for the victim, the possibility of their occurrence is 100% probable is 50%.
At the same time, the Constitutional Court of the Russian Federation in its Determination of February 21, 2008 N 120-О-О gave certain guidelines in the definition of the concept of “gross negligence” , noting that the use of such an assessment concept as a requirement that the court should follow when determining the amount of compensation to the victim, does not indicate the uncertainty of the content of this norm, since the variety of circumstances allowing for the possibility of reducing the amount of compensation or refusing compensation for moral damage in accordance with paragraph 2 of Art. 1083 of the Civil Code of the Russian Federation, makes it impossible to establish an exhaustive list of them in the law, and the use by the federal legislator in this case of such an evaluative characteristic pursues the goal of effectively applying the norm to an unlimited number of specific legal situations, which in itself cannot be regarded as a violation of the constitutional rights and freedoms of the plaintiff.
The question of whether the negligence of the victim is gross negligence or simple carelessness, which does not affect the amount of compensation for harm, is resolved in each case by the court, taking into account the specific circumstances. At the same time, applying a general legal prescription to the specific circumstances of the case, the judge makes a decision within the limits of the discretion granted to him by law, which also cannot be considered a violation of any constitutional rights and freedoms of a citizen.
The question of whether the victim committed gross negligence must be decided in each case taking into account the actual circumstances of the case (the nature of the activity, the situation in which the harm was caused, the individual characteristics of the victim, his condition, etc.).
Thus, in our case, the court of 1st instance has already established all the circumstances that are important for the correct resolution of the case, established gross negligence in the actions of the victim, taking into account the unlimited nature of legal situations within the framework of the application of paragraph 2 of Art. 1083 of the Civil Code of the Russian Federation and resolved the case on the merits within the framework of judicial discretion.
The court of the 2nd instance, when reviewing the decision, violated the principle of freedom of judicial discretion and did not apply a literal interpretation of Art. 1083 of the Civil Code of the Russian Federation, went beyond the legally defined criteria of gross negligence, unreasonably endowing it with the mandatory sign of unlawfulness of the actions of the victim, which is fundamentally incorrect (since it makes the list of legal situations when applying paragraph 2 of Article 1083 of the Civil Code of the Russian Federation closed).
I believe that the courts of appeal and cassation, based on the principle of uniform application of legislation and judicial practice of the Russian Federation, should have left the decision of the first instance court unchanged. Currently, judicial acts of the 1st and 2nd instances are being appealed through the supervisory procedure. It is extremely interesting what position the Supreme Court of the Russian Federation will take in resolving this dispute.
Frivolity as a type of carelessness
Note 2
Frivolity is a criminal act in which a person foresaw that socially dangerous consequences could occur and arrogantly hoped that such actions could be prevented, without sufficient grounds. Frivolity as an intellectual moment is to foresee the possibility of consequences.
Finished works on a similar topic
Coursework Carelessness as a form of guilt 430 ₽ Essay Carelessness as a form of guilt 240 ₽ Test paper Carelessness as a form of guilt 230 ₽
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For example, if a car driver is speeding in a residential area, he anticipates that a cyclist may come out of an alley, a child may run out of a house gate, and the driver may cause harm or even death to someone. The driver anticipates that if he exceeds the speed limit, he may run into a pedestrian or cyclist, but he excludes this possibility for himself.
The legislator did not introduce a mental attitude towards an act into the concept of guilt, since without the onset of consequences it does not have criminal legal significance. This will be a disciplinary offense, an administrative offense, or will not be included in the scope of regulation of the branch of law at all.
The volitional moment of frivolity includes arrogant, unfounded calculation to prevent foreseeable consequences. The person relied on circumstances that could, in the opinion of the perpetrator, prevent socially dangerous consequences. Such real circumstances can be the personal qualities of the participant in the violation (dexterity, strength, speed of reaction, professional skill), the forces of nature, the properties of technical mechanisms. A guilty person with frivolity foresees only the abstract possibility that a socially dangerous consequence may occur.
The legislative interpretation of the intellectual moment of frivolity has much in common with the intellectual moment of indirect intent. This makes it necessary to differentiate between these types of guilt. Indirect intent is characterized by the fact that the perpetrator foresees the possibility of dangerous consequences. This is predetermined by the content of the first act, which leads to a specific consequence (for example, shooting a person will lead to his death).
Another distinctive feature of frivolity is the content of the volitional moment. The subject, with indirect intent, does not want dangerous consequences to occur, but consciously allows them, accepts them, or is indifferent. A person guilty of frivolity consciously does not allow, does not want, and does not treat with indifference. His will and consciousness are active, he applies volitional efforts in order to prevent them. He relies on real circumstances. However, his efforts turn out to be insufficient, his decision is arrogant, as a result of which criminal consequences occur.
In every criminal case involving harm to health of moderate severity or serious harm, causing death, it is necessary to establish differences between frivolity and another act; the danger of intentionally causing adverse consequences is much higher than with frivolity.
Causes and conditions of careless crimes, their prevention
Committing crimes with a careless form of guilt has a number of personal factors, as well as situational elements that can play a role in each specific situation.
Determinants related to the subjective side of crimes are more associated with the irresponsible, undisciplined, careless attitude of the subject of the crime.
Organizational and managerial shortcomings, lack of proper control, impunity of individuals, and the presence of victimized behavior can also contribute to criminal acts.
Preventive measures that are used to prevent crimes of this type are complex and multifaceted. First of all, they have a general social and special criminological direction. The rules for labor protection, safe movement on the road, fire safety, etc. are used as standards when carrying out such work.
The traffic police has the most significant place in the system of bodies involved in the prevention of careless crimes. In order to eliminate the possibility of officials committing criminal acts, which may manifest themselves in official negligence, departmental regulatory bodies are created.
Types of intent
Intention, negligence and its types in criminal law have their own psychological content. The intellectual element of frivolity is the anticipation of the possibility of dangerous consequences of the crime committed. And with negligence it is failure to foresee the results of the subject’s action. The volitional element in the first case is characterized by arrogance and the expectation of preventing consequences. For negligence, it manifests itself in the lack of effort aimed at avoiding the negative results of the act.
It is important to be able to characterize direct intent and indirect intent. Negligence does not relieve responsibility from the person who committed the crime. The intellectual element for the first case is represented by awareness of the danger, anticipation of the possibility or inevitability of the consequences of the offense. It is no different for indirect intent.
The volitional element in the case of a direct crime consists in the desire of the subject for the negative results of his crime to manifest themselves. The harm was not intentional, but the person was aware of his guilt.
And in the second situation, the person did not want dangerous consequences to occur, but consciously allowed them to happen or showed negligence or inaction.
How does the law understand carelessness?
Law has an ambivalent attitude towards the term in question, in terms of the moments that constitute its illegal intention. Part 1, Article 26 of the Criminal Code of the Russian Federation, crimes committed as a result of negligence, negligence, imprudent behavior, are considered acts that were caused by a dismissive, frivolous attitude or an attitude due to lack of foresight.
Misdemeanors are classified as criminal if they result in causing property damage or bodily harm. The introduction of changes to criminal legislation also changed the attitude towards the definition of this concept.
After the entry into force of Federal Law No. 97 in May 2011, negligence in criminal law is an offense that can be classified as criminal if it is provided for in the relevant sections of the Special Part of the Criminal Code of the Russian Federation, which also defines negligence and its types in the criminal legal field.
Otherwise, the legislator regards carelessness as criminal with an alternative form of guilt, which implies intentional carelessness.
In practice, such atrocities include:
- transmission of HIV infection;
- damage to property;
- transfer of information that is a state secret.
Evaluating the examples given, it is quite difficult to justify the moment of imprudent behavior, since the subject who committed such offenses had the opportunity and could predict the results of his behavior.
Frivolity and negligence in criminal law, as well as imprudence, are regarded as criminal if they result in property damage.
Composition of a crime committed through negligence
In their composition, these types of crimes are common and differ only in the subjective side, which manifests itself in the form of negligence.
A careless form of guilt presupposes the presence of a frivolous expectation that the consequences of an unlawful act will be eliminated, or an absolute lack of assumptions about the occurrence of such consequences.
To qualify acts, the form of negligence is important, which can be expressed in the form of frivolity or negligence.
The rest of these crimes are characterized by:
- the presence of a protected object that is encroached upon by the act itself;
- the objective side, which can be expressed both in the form of active actions and inaction;
- subject, which can be both general and special.
Signs of frivolity
An offense of frivolity is a crime in which the guilty person foresaw the occurrence of dangerous consequences, but hoped to prevent them, although there were no grounds for this. Such arrogance is called the volitional element, and taking into account the possibility of harm is called the intellectual element.
Lawyers always remember that each such case is unique and even a thorough study of the issue does not guarantee a positive result. When characterizing the intellectual element, the legislator takes into account only the possibility of foresight, but not the mental attitude of the perpetrator to his actions. Frivolity is the deliberate violation of rules and regulations that have been established to avoid harm. Since a person knowingly commits such an act, this type of negligence is considered more dangerous than negligence.
Frivolity has common characteristics with indirect intent. But if with the latter the perpetrator sees real consequences, then with the former the harm looks abstract. The subject knows that his behavior will lead to a dangerous outcome, but hopes that this will not happen in his case.
And the main difference between indirect intent and frivolity lies in the content of the volitional element. In the first case, the guilty person deliberately acts dangerously and approves of his own actions. And in the second there is no desire or conscious assumption of consequences. The subject even tries not to cause them and shows a negative attitude towards them.
For a better understanding, it is worth familiarizing yourself with an example of a crime of negligence with indirect intent. Two men entered the apartment of a 56-year-old woman, severely beat her, broke her cheekbones and nasal bones, tied her up and gagged her with a rag. She died as a result of mechanical asphyxia. The men foresaw the death of the woman and deliberately allowed it to happen, that is, they acted with indirect intent.
According to the volitional element, the subject not only hopes for the absence of dangerous consequences, but counts on it. At the same time, he is confident in his experience, skill and dexterity. The guilty person believes that he will achieve exactly the result he expects. But his arrogance is unfounded, and usually it is not justified.
The concept of a crime of negligence
Carelessness, characteristic of criminal acts, occupies a significant share among all crimes committed. The progress that has taken place in the scientific and technological direction has had a great influence on the emergence of illegal actions. Their consequences, as a rule, are of increased danger. Crimes committed with guilt in the form of negligence underlie the creation of certain knowledge that contributes to their prevention.
A crime committed carelessly is based on the frivolous attitude of the perpetrator, his arrogance and negligence.
These types of criminal actions also include those that were committed with intent, in the presence of a careless attitude to the consequences.
There is a wide variety of crimes committed in the presence of a careless form of guilt. They can be based on a variety of circumstances arising in the process of implementing social relations.
Crimes may be caused by technical, official and professional negligence. Some of them are characterized by domestic negligence associated with violation of the rules underlying the protection of life, health of people and their property.
This type of action has a special social danger, which is justified by the latency and negligence of the subjects of the acts.
Liability for a crime committed through negligence
The presence of crimes related to negligence occupy a large share among the total number of illegal acts. The absence in such crimes of direct motivation, both to the illegal action itself and to the resulting consequences, creates the basis for the insufficient ability to foresee consequences on the part of the subject.
The very fact of committing such crimes is the cause of defective behavior of individuals, their incorrect attitude towards the actions being carried out and their results.
Criminal liability for crimes of this type is assigned if the subjective side of the committed act falls under the signs of frivolity or negligence. The absence of the required signs of guilt is a reason for refusing to apply criminal liability to persons who have become subjects of illegal actions.
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Criminal negligence - as a special form of guilt
Frivolity is condemned not only by the norms of public morality, but can also lead to legal liability. Considering frivolity as a special type of guilt, it is worth noting that the legislator defines it as more dangerous.
A study of the causes and factors of violations of laws shows that most often they are provoked by impunity. This is especially true for juvenile delinquency. Another significant point is frivolity. Surveys of juvenile offenders further confirm this fact.
Among all the cases from legal practice, the accused or convicted believed that there could be no consequences for their actions, calling the events an accident and the imposed punishment unfair. It is this moment when a person does not fully realize or does not want to admit his guilt, the subsequent responsibility, which makes frivolity a particularly dangerous form of guilt.
Frivolity in criminal law is a special, more severe form of guilt, when the person whose actions caused harm was not fully aware of their consequences.
The majority of road accidents occur due to carelessness, when drivers, relying on driving experience and their own skills, do not comply with safety measures in dangerous road conditions. Such offenses include driving while intoxicated, driving at high speed on ice or wet asphalt, in poor visibility. It is noteworthy that the judicial authorities, as a rule, do not regard such violations as frivolous, qualifying them according to the norms of the administrative code. Nevertheless, an element of frivolity is seen in them.
Thus, careless crimes in criminal law are classified as difficult to prove, difficult to qualify actions and determine punishments.
Case or incident
Inexperienced lawyers may confuse criminal negligence and innocent tort. The latter is also called an incident or chance. According to Article 28 of the Criminal Code of the Russian Federation, a person is not considered guilty if he did not realize or did not foresee the occurrence of dangerous actions.
It is better to consider an example of such actions. Five teenagers went to a forest hut for the winter. They took with them alcoholic drinks and a homemade pistol. After drinking wine, the boys began shooting at empty cans on the street. It was already getting dark, three teenagers went into the hut and sat at a table near the window, which was covered with plastic film. Two remained on the street.
One of the boys suffered from myopia. He started running around the house, trying to find a larger target. But the teenager stumbled and involuntarily pulled the trigger. The bullet flew through the window and hit the guy sitting at the table. The wound turned out to be fatal: the left lung was damaged.
There is no corpus delicti in the actions of the tripped boy . He could not foresee that he would trip and accidentally shoot in such a way as to damage his comrade's chest. In this case, the court will issue an acquittal. There is no objective or subjective criterion of negligence, there is no mental attitude of the teenager to the crime, which excludes a public danger.
Causing harm through negligence is sometimes associated with extreme situations and excessive stress on the body and psyche. This applies to people who operate equipment. In most cases, subjects foresaw the possibility of negative consequences, but could not prevent them.
A crime committed recklessly
Frivolity manifests itself both from an intellectual and volitional point of view. The intellectual component is manifested in the possibility of foresight and the arrogant expectation that the consequences that will occur as a result of the crime will be prevented. The volitional part consists of having a desire to prevent them.
Thus, when committing an act that has a careless form of guilt, a person is conscious only of the actions themselves, without seeing in them a social danger, the manifestation of which is characteristic only for the moment when the consequences actually occur.
An example of a crime associated with frivolity may be causing death by a driver of a vehicle who has reached high speed limits, but believes that in the event of an unusual situation he will be able to brake and prevent an emergency, but at the required moment he realizes a malfunction in the braking system. and hits a pedestrian.
This example allows us to establish that a person has a desire to avoid consequences associated with a public danger, foresees the possibility of its occurrence, however, counting on the serviceability of his own car, he believes that negative consequences cannot occur. The motorist's calculation is not justified; as a result, the pedestrian's death occurs.
