The objective side of a crime consists of a complex of superficial signs indicating unlawful human actions. Criminal liability comes only for real actions; it is impossible to bring someone to it for an unfulfilled plan or random ideas. The obvious attributes of the act described in criminal law help determine the facts of violation of the law and their characterization.
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Signs
The objective side of a crime in criminal law is part of the crime, the content of which lies in the action committed by the criminal, regardless of his subjective assessment of his actions. The act must pose a threat to society and be prohibited by law.
The main features of the objective side of the crime are expressed:
- An act that threatens others - criminal law implies a conscious, controlled course of action of a person that is dangerous in nature and contrary to the rules of law. Dangerous actions appear in the form of active actions (attack, theft) and refusal to perform necessary actions (failure to comply with safety precautions, failure to provide assistance to a patient).
- The dangerous consequences of an offense - the main threatening factor in committing criminal acts (inaction) appears in the negative transformations that follow them, causing certain damage. This may be harm to health, moral or property damage. This also includes damage in the political sphere.
- The connection between the violation and its consequences is a very important condition. We are talking about an event that develops over time. The importance of establishing a causal relationship is justified by the fact that an unlawful act naturally leads to certain phenomena. A stable sequence of “action – consequence” is necessary to prove that the damage received was the result of the act of the accused. If such a sequence is not proven, then other factors led to the formation of specific consequences and there are no grounds for bringing the suspect to criminal liability.
Causation may arise due to intent or coincidence. If there is a coincidence, the result is not a direct consequence of illegal actions. For example, a person received a concussion as a result of an attack, but tripped while leaving the clinic, fell and broke his neck. Although the victim was admitted to the hospital due to the attack, the final consequence was not related to it.
In another case, on the contrary, the result is a direct consequence of the internal process of the offense.
19. CONCEPT, CONTENT, MEANING AND SIGNS OF THE OBJECTIVE SIDE OF A CRIMEObjective side of the crime
– one of the four elements of a crime, which consists of the perpetrator committing a specific act that poses a public danger and is prohibited by criminal law under threat of punishment.
The objective side as an element of the crime
- this is a set of legally significant signs provided for by the Criminal Code of the Russian Federation, characterizing an external act of socially dangerous encroachment.
Signs of the objective side include:
1)required:
a) an act that encroaches on a particular object, which can be expressed in two forms:
in action – it represents an act of active socially dangerous and illegal behavior; inaction is a socially dangerous act of behavior, consisting in a person’s failure to perform an action that he should and could have performed. Criminal inaction is characterized by two elements: objective – the obligation to act and subjective – the opportunity to commit a behavioral act. The action must be limited by a certain volitional impulse and conscious;
b) socially dangerous consequences
– the result of a criminal act;
c) a causal relationship between action (inaction) and consequences
– an objective connection between phenomena, one of which (cause), in the presence of certain conditions, gives rise to another phenomenon (effect). Features of causal relationships: cause gives rise to effect. The scope of the causes, primarily the stage of motivation and decision-making, when it comes to the formation of a motive, a goal, and the determination of the means of achieving it as criminal; the cause always precedes the effect in time; the action of the same cause under the same conditions always gives rise to the same effect; the effect does not repeat the cause;
2) optional:
– situation
– a set of circumstances affecting the nature and degree of public danger of the act (combat situation, zone of environmental disaster or zone of environmental emergency);
– crime scene
– this is the territory in which the criminal act is committed (home, burial places);
– time of crime
– the period during which the crime was committed (wartime, during or immediately after childbirth);
– method of committing a crime
– is a set of techniques and methods used to commit a criminal act.
The meaning of the objective side of the crime:
– affects the correct classification of a socially dangerous act;
– plays a role in distinguishing crimes that are similar in other respects;
– analysis of the objective side allows in some cases to establish the presence of a second, additional object;
– individual elements of the objective side are used by the legislator as qualifying features;
– signs of an objective party can be considered by the court as mitigating or aggravating circumstances that do not affect qualifications, but are taken into account when determining the type and amount of punishment.
Table of contents
Meaning
The objective side in criminal law, to one degree or another, influences the entire course of the criminal case. This is part of the crime on which criminal liability is based.
In addition, the objective side is used to protect against errors in the criminal legal assessment of an offense, and also contains criteria that make it possible to distinguish between crimes that have similar characteristics; in certain situations, it makes it possible to detect an additional object of activity of offenders.
Signs of the objective side are often used as mitigating and aggravating circumstances. For example, the law was violated under duress (mitigating factor) or a particularly active role in the course of the crime was noted (aggravating factor).
In such cases, they are not considered from the point of view of assessing the act, but influence the choice of a preventive measure.
Bibliography
- Criminal Code of the Russian Federation: Federal Law of the Russian Federation of July 13, 1996 No. 63-FZ// SZ RF. – 1996. – No. 25. – Art. 2954.
- Avdeev V.A. Subjective and objective signs of a crime that influence its qualification. Research Article. // State and law. – 2014. – No. 2. – P. 33-38.
- Basova T. B. Criminal law of the Russian Federation. General and special parts: textbook / T.B. Basova, E.V. Blagov, P.V. Golovenkov [and others]; edited by A.I. Chuchaeva. - M.: CONTRACT: INFRA-M, 2017. - 704 p.
- Zayarnaya N.V. Criminal legal regulation of the subjective and objective aspects of a criminal act: dissertation of the candidate of jurisprudence. sciences, spec. 12.00.08. – Rostov-on-Don, 2015. – 210 p.
- Kobets N.P. General characteristics of the objective side of the crime according to the current criminal legislation of the Russian Federation // Symbol of Science. – 2021. – No. 02-2/2017. – pp. 187-189.
- Podkopaeva O. M. Some issues of qualification of crimes on the objective side // Priority scientific directions: from theory to practice. – 2021. – No. 26-2. – P. 175.
Optional characteristics and their meaning
The objective side of a crime in criminal law, in addition to the main ones, has additional, optional features, these are:
- place and time;
- situation;
- means, methods, tools.
Place – part of the area where the criminal act occurred.
Time is the period of committing acts that violate the law. Most often this sign is used to establish aggravating circumstances.
Setting – refers to some conditions in which the offense occurred, a certain situation.
Instruments are objects used directly to commit a crime, as well as substances or devices. A means is something that facilitates or simplifies the commission of illegal actions. The mention of the use of tools or special means in criminal law indicates that the act poses a greater threat to others. These signs are most often used to qualify an offense. For example, robbery committed without the use of weapons or in the presence of weapons has a different composition and, accordingly, different penalties.
Method – a method used by an offender to realize illegal intentions. The established order of actions taken by the accused to carry them out. Can be used to separate crimes that are similar in composition (robbery, burglary, theft).
The listed circumstances are a condition of any rule of law, then these signs are applied as mandatory and become important in assessing the offense committed. Under other conditions, auxiliary signs are taken into account only for choosing a correctional measure, since they affect the level of danger and the form of the crime.
The importance of establishing place and time is important in any criminal case.
To get a complete picture of the crime that occurred, the investigation seeks to establish in what context it was committed. And also with the help of what, that is, means and instruments. Without the listed characteristics, it will be considered that the circumstances of the case are not fully determined.
Despite the fact that the listed features are considered additional, they cannot be classified as formal or optional. In many cases, they are part of the crime and play a big role in solving it.
Optional signs, along with the main ones, are taken into account to determine the level of guilt of the defendant and help determine the required amount of punishment, as they allow the offense to be detailed.
Objective side of the crime
The objective features that characterize an act as a crime also include the objective side of the crime . It is a set of external signs of criminal behavior that constitute a socially dangerous, illegal act, which is committed at a certain time, in a specific place, in a certain way, with the help of specific tools or means and in a certain environment, and as a result of which socially dangerous consequences occur ( or there is a threat of such consequences).
Thus, the objective side of a crime is a set of interrelated mandatory elements, which include: the act, the socially dangerous consequences that occurred (or that could occur as a result of the act) and the causal relationship between them.
The main content of the objective side of the crime is the act, which represents its most significant part . The act combines the remaining signs of the objective side of the crime and represents a volitional act of human behavior, expressed either in an action inaction prohibited by criminal law .
The Criminal Code of the Russian Federation establishes an exhaustive list of socially dangerous acts recognized as crimes.
Speaking about a socially dangerous action, the law provides for the active behavior of a person, which includes not only his various body movements, but also processes directed by him, for example, the behavior of animals, the actions of mechanisms or other persons.
A criminal act is described in the dispositions of articles of the Special Part of the Criminal Code with varying degrees of specificity. In most cases, the disposition indicates the exact signs of the action being committed by the criminal: “transfer, acquisition, sale, storage, transportation or carrying of firearms, their main parts, ammunition, explosives or explosive devices” (Article 222 of the Criminal Code of the Russian Federation). Other articles provide only a general description of the actions: “Murder, i.e. causing the death of another person” (Part 1 of Article 105 of the Criminal Code of the Russian Federation). This approach is determined by the content of the criminal act and the methods of its commission, as well as the degree of public danger.
Criminal inaction is the second form of a socially dangerous act and consists in the passive behavior of the subject. Inaction has its own criminal legal characteristics. Criminal liability for inaction is possible only if the inaction is prohibited by criminal law, and the person was obliged to act properly, but did not act and as a result of his inaction, socially dangerous consequences occurred or there was a threat of their occurrence. The absence of at least one of the listed conditions excludes criminal liability for inaction.
Crimes are committed by various actions or inaction, the description of which is not always indicated in the dispositions of the criminal law norms of the special part of the Criminal Code, but not all acts will be of a criminal nature. An action or inaction of a person is recognized as a crime only when it is of a conscious, volitional nature, i.e., it expresses the will of the perpetrator.
By establishing criminal liability for certain acts, the legislator determines the limits of harm caused to social relations protected by criminal law, which serve as a criterion for distinguishing a crime from other types of offense. Thus, socially dangerous consequences in a number of crimes are a mandatory element of the objective side of the crime.
The consequences can be material (material or physical harm) and intangible (moral harm). Each criminal offense committed by a guilty person causes harm to objects protected by law or creates a threat of causing such harm. The elements of crimes often indicate what exactly the socially dangerous consequences are. This can be either specific in nature (for example, Article 111 of the Criminal Code lists in detail the types of serious harm caused to health), or the most general instructions. If the dispositions of the articles of the Special Part of the Criminal Code provide for the mandatory occurrence of certain consequences, then such elements of the crime are usually considered material, for example, theft, murder, etc.
If the very fact of committing actions or inaction is recognized as a crime, regardless of whether socially dangerous consequences have occurred or not, such a crime is considered to be formal (for example, illegal possession of firearms, drugs, leaving in danger, etc.). The application of the concept of material and formal elements is nothing more than a legislative device with the help of which a formula for corpus delicti is created. It allows you to limit the description of a criminal act in a criminal law norm, without including socially dangerous consequences, and thereby freeing the law enforcement officer from the need to establish and prove the occurrence of such consequences, as a mandatory sign of the objective side of the crime.
With the help of legislative technology, the so-called truncated corpus delicti is formulated. This design is achieved by transferring the end of the crime to an earlier stage - attempt or preparation. Such offenses include, for example, robbery (Article 162 of the Criminal Code of the Russian Federation), i.e. “an attack for the purpose of stealing someone else’s property, committed with the use of violence dangerous to life or health, or with the threat of using such violence.” Thus, the legislator seeks to facilitate the application of criminal law.
Despite the fact that a number of criminal law norms of the Special Part of the Criminal Code do not contain references to socially dangerous consequences as a mandatory sign of a criminal act, it is necessary to understand that such an act would not be considered criminal if it did not cause certain harm to society. This is also indicated by the concept of crime given in Part 1 of Art. 14 of the Criminal Code of the Russian Federation.
Causality in the objective aspect of the material elements of a crime is a mandatory element and allows us to link together the criminal act itself and the socially dangerous consequences that have occurred (or could have occurred). It should be noted that the causal relationship exists objectively, in addition to our consciousness, in phenomena, things and processes occurring in the reality around us. Determining a causal relationship allows you to exclude elements of chance in an act and thereby protect against the unlawful application of criminal liability. The pattern of occurrence of certain consequences is always inherent in any act (action or inaction), and they necessarily occur under appropriate conditions as an inevitable result of a given action or inaction. On the contrary, accidental consequences are not natural, and therefore a person cannot be held responsible for their occurrence.
In a causal connection is understood as such an objective connection between a criminal act and the socially dangerous consequences that have occurred, in which the act precedes the specified consequence and acts as an indispensable and natural condition for the occurrence of this consequence.
Thus, a causal relationship always presupposes the presence of an external sequence of phenomena that are cause and effect, where a socially dangerous act (action or inaction) must always precede the socially dangerous consequence in time. At the same time, to correctly establish the objective side, it is not enough to determine their external sequence. It is required that a socially dangerous act (action or inaction) in a certain way entail the onset of socially dangerous consequences.
The question of causation always arises when a person is held criminally liable for harmful consequences. At the same time, the need to prove such a connection increases if several persons took part in the act to one degree or another. This is due to a certain difficulty in establishing the true cause of socially dangerous consequences that have occurred. For example, a car driver, moving at a set speed along a city street, hits a teenager who suddenly ran out from behind a kiosk standing by the roadway. In this case, it is necessary to clearly establish in connection with whose actions the socially dangerous consequences occurred.
Any crime is committed in a certain place, in a specific environment and at a certain time. In addition, when committing a crime, the perpetrator often uses certain means to achieve his goals and at the same time commits it in a certain way. Therefore, along with the mandatory signs, the objective side of the crime also includes the so-called optional , i.e. additional signs, which include: the method, means, place, time and setting of the crime.
The method and means of committing a crime are inextricably linked with the act itself, and the place, time and circumstances of the commission of a crime are the general conditions under which any crime is committed.
The method of committing a crime as the totality of those techniques, methods and movements that were used by a person when committing a crime. Inextricably linked with the act and forming its integral part, the method often has such a significant impact on the degree and nature of the social danger of the act that it is included in many crimes as a mandatory element of the main or qualified offense.
Means of committing a crime are tools or other devices that are used to influence the subject of the offense, the victim or other elements of social relations that are the object of the crime. The means of committing a crime are taken into account in some crimes as a qualifying element of the objective side, for example, robbery committed with the use of weapons or objects used as weapons (clause “d”, part 2 of article 162 of the Criminal Code of the Russian Federation).
The place where a crime was committed is understood to be a specific territory in which a criminal encroachment was committed, for example, a public place when committing hooligan acts (Article 213 of the Criminal Code of the Russian Federation), the territory of a nature reserve during illegal hunting (clause “d”, Part 1, Article 258 of the Criminal Code of the Russian Federation) ).
The time of commission of a crime is a certain period of time during which the crime was committed. It is quite rarely indicated in the articles of the Special Part of the Criminal Code, but very often it is implied, for example, the murder of a newborn child by a mother during or immediately after childbirth (Article 106 of the Criminal Code of the Russian Federation), escape from a place of imprisonment, from arrest or from custody committed by a person serving a sentence or in pre-trial detention (Article 313 of the Criminal Code of the Russian Federation).
The situation in which a crime is committed is often one of the conditions that the perpetrator uses to achieve his criminal goals and which characterize a greater or lesser degree of public danger of the crime or criminal. The circumstances of the commission of a crime in some elements of the Special Part of the Criminal Code is included in the obligatory sign of the objective side, for example, the deliberate abandonment without help of a person who is in a condition dangerous to life or health and is deprived of the opportunity to take measures for self-preservation due to childhood, old age, illness or due to his helplessness, in cases where the culprit had the opportunity to provide assistance to this person and was obliged to take care of him or himself put him in a condition dangerous to life or health (Article 125 of the Criminal Code of the Russian Federation). The situation in which the crime was committed also plays a certain role in determining the punishment and is therefore noted as aggravating circumstances, for example, the commission of a crime in a state of emergency, a natural or other public disaster, as well as mass riots (clause “l” of Part 1 of Art. 63 of the Criminal Code of the Russian Federation).
Optional signs of the objective side play a dual role. They can act as additional, qualifying signs that determine the social danger of an act, or they can be taken into account only when assigning punishment as circumstances mitigating or aggravating the punishment. In the first case, optional features affect qualifications, in the second, they mainly affect the term and size of the punishment.
Socially dangerous act
The physical manifestation of a criminal act is expressed by the commission of a movement.
In a general sense, the same can be said about the ordinary behavior of a person with will and consciousness. However, a legal act is distinguished by a more complex nature, a number of conscious movements that have a social meaning. There are cases when legal norms indicate a chain of human actions that form one crime. For example, abuse of minors involves a systematic violation of the rights of children and adolescents.
Sometimes the term “action” is replaced by “activity”. This mainly applies to offenses related to the work of enterprises, organizations, institutions, and so on.
For example, deliberate bankruptcy includes a number of directed actions leading an enterprise to financial insolvency.
Signs of an offense dangerous to society:
- A clear threat to society.
- Illegality.
- Understanding that actions pose a danger to others.
- Conscious desire to commit an offense.
Action and inaction are forms of a dangerous act.
Actions are active actions that have characteristics inherent in the act.
Actions also include the implementation of an illegal plan through an intermediary. These are cases where the criminal achieves his goal by using other people or animals. The persons involved are often not the subject of the crime, that is, they have not reached the age of majority or are mentally ill. In addition, the person attracted by the criminal may be misled and not realize the danger of his actions.
The actions can be divided as follows:
- one-stage – an offense has been committed, a consequence has occurred;
- multi-stage - a chain of actions has been completed, a consequence has occurred;
- the first or second, but the onset of the consequences is distant in time.
Inaction consists of passivity in relation to existing responsibilities or to the obvious possibility of dangerous consequences. A person simply does not do what he should, does it poorly, or ignores the threat without making any attempt to prevent it.
Inaction, which is part of the concept of the objective side of a crime, differs from the concept of inaction in the physical sense. From the point of view of the law, a certain course of action by the perpetrator is recognized as inaction. For example, a citizen works two jobs, but refuses to pay alimony.
This form of action manifests itself both in a single fact of committing a violation and in systematic illegal behavior. For example, an attempt to evade military service is a single fact, failure to fulfill the duties of raising a minor is systematic.
Another definition of inaction speaks of it as a refusal of a necessary action prescribed by regulations. This means that a citizen is subject to criminal liability only in the case of a legally assigned obligation to take some action.
Such responsibilities are established by laws, judicial and regulatory acts, and job descriptions.
Violations of moral and ethical standards also lead to dangerous results if a person who has a chance to prevent it does not act. There is no criminal liability for this.
To admit guilt, it is necessary to reliably establish the reality of the possibility of action. For this purpose, an objective assessment is made of such circumstances as place, time, etc., as well as the physical capabilities of the accused. If obstacles to performing the necessary actions are detected, criminal liability is excluded.
In some cases, the duty to act is limited by law. This is usually due to the fact that more dangerous consequences are expected as a result than if there was no action.
The beginning of the fact of inaction is considered to be the moment of occurrence of certain circumstances requiring action, the end is the moment when actions are no longer necessary or impossible.
Topic 5. Object of a criminal offense. The objective side of a criminal offense
The object of a criminal offense
public relations, benefits and interests protected by criminal law are recognized, to which harm is caused by a criminal offense or a threat of harm is created.
The object of a criminal offense affects the nature and degree of social danger of a criminal offense; is the basis for distinguishing criminal offenses from each other; serves as a criterion for the classification of criminal offenses.
In the theory of criminal law, the objects of a criminal offense
classified
“vertically”
(general, generic, direct objects) and
“horizontally”
(main, additional, optional direct objects).
The general object of a criminal offense is the totality of social relations protected by criminal law. Article 2 of the Criminal Code, formulating the tasks of criminal law, gives an approximate list of social relations protected by criminal law from criminal attacks - rights, freedoms and legitimate interests of man and citizen, property, rights and legitimate interests of organizations, public order and security, environment, constitutional order and territorial integrity of the Republic of Kazakhstan, legally protected interests of society and the state, peace and security of mankind.
The generic object of a criminal offense is a group of homogeneous social relations that are encroached upon by criminal offenses. The direct object of a criminal offense is recognized as specific social relations that are harmed by a criminal offense. For example, in murder, the generic object is the person, and the immediate object is the person’s life.
When committing certain criminal offenses, an encroachment is committed simultaneously on two objects. For example, during robbery there is an attack on property (the main direct object), as well as on the person (an additional direct object). Encroachment on optional objects is possible in simple single-object criminal offenses. For example, in case of hooliganism, the main object is public order, and the optional object can be a person or property. Sometimes, when committing a given crime, an attack occurs simultaneously on all three objects. But the elements of hooliganism will exist even in the absence of an encroachment on its optional objects.
Subject of a criminal offense
are things of the material world (that which is available for perception, measurement, recording, evaluation), by influencing which a person encroaches on social relations protected by criminal law. The subject of a criminal offense should be distinguished from the instruments and means of committing a criminal offense (by the nature of their use during the commission of a criminal offense and by belonging to the elements of a criminal offense). For example, if a pistol is illegally acquired or stored, it becomes the subject of a crime (Article 287 of the Criminal Code), and if a person kills another person by shooting from this pistol, then the pistol will become an instrument of crime (Article 99 of the Criminal Code).
The objective side of the criminal offense
- this is a set of external signs of a criminal act that characterize an act of volitional behavior of a person, occurring in the objective world. The objective side of the criminal offense is most fully reflected in the disposition of the articles of the Special Part of the Criminal Code.
All signs of the objective side of a criminal offense can be divided into two groups: mandatory and optional.
To the mandatory features
The objective side in the material elements of criminal offenses includes a socially dangerous act, a socially dangerous consequence, a causal relationship between the act and the consequence. In formal cases - a socially dangerous act.
A socially dangerous act is a conscious and volitional act of a person, the external form of which is active behavior (action) or passive behavior, expressed in the failure to perform certain actions that the person should and could have performed (inaction).
Socially dangerous consequences should be understood as harm caused to the object of criminal legal protection as a result of a socially dangerous act committed. All consequences of a criminal offense can be divided into two groups: material (property damage, physical - harm to human life or health) and intangible (moral, organizational, political harm).
A causal connection is an objective connection between a socially dangerous act and criminal consequences, when the act was a necessary condition (direct cause) for the occurrence of these consequences and naturally caused their occurrence in a specific situation. The criteria (conditions) of causation in criminal law are: 1) a socially dangerous act always precedes socially dangerous consequences in time; 2) a socially dangerous act actually gives rise to a criminal consequence or creates a real threat of its occurrence; 3) the consequence occurred precisely from this act without the influence of any other circumstances.
The time, place, setting, method, instruments and means of committing a crime are optional signs of the objective side of a criminal offense
(provided that they are not indicated by the legislator among the signs of a specific criminal offense).
Basic and additional literature: listed in section 5. pp. 1-19, 20-30.
Topic 6. Subject of a criminal offense
Subject of a criminal offense
A sane individual is recognized as having committed a socially dangerous act prohibited by criminal law and having reached the age established by criminal law at the time of the commission of the crime.
The subject of a criminal offense can only be an individual, i.e. person (citizen of the Republic of Kazakhstan, foreign citizen or stateless person). To be recognized as a subject of a criminal offense, it must have the following mandatory features:
: sanity, reaching a certain age.
Sanity is the ability of a person, during the commission of a socially dangerous act provided for by criminal law, to realize the actual nature and social danger of his actions (inaction) and to direct them. Persons deprived of this ability due to a mental disorder are recognized as insane and are not subject to criminal liability (Article 16 of the Criminal Code).
This ability arises only upon reaching a certain age, in connection with which the criminal law establishes that a person who has reached the age of 16 at the time of committing a criminal offense is subject to criminal liability. For certain crimes, criminal liability begins at the age of 14. An exhaustive list of such crimes is enshrined in Part 2 of Article 15 of the Criminal Code. This list includes crimes whose social danger is obvious, crimes that are widespread among representatives of a given age group, crimes that are committed out of childish mischief, etc.
When establishing the age of criminal responsibility, calendar (passport) age is taken into account, but current criminal legislation also takes into account social age. Thus, in exceptional cases provided for by law, a minor who has reached the established age is not subject to criminal liability provided: 1) if he is lagging behind in mental development not associated with a mental disorder (pedagogical neglect), 2) commits a crime of minor or moderate gravity, 3 ) cannot fully understand the actual nature and social danger of his actions (inaction) or manage them.
A person who, at the time of committing a socially dangerous act provided for by the Criminal Code, was in a state of insanity, is not subject to criminal liability.
The concept of insanity is enshrined in Article 16 of the Criminal Code. Insanity
- this is the inability of a person to realize the actual nature and social danger of his actions (inaction) or to manage them due to a chronic mental illness, temporary mental disorder, dementia or other painful mental state.
The concept of insanity includes two criteria: 1) legal (psychological) and 2) medical (biological).
Legal (psychological) criterion
includes two characteristics: a) intellectual and b) strong-willed. An intellectual sign means a person’s inability to realize the actual nature and social danger of his act, i.e. lack of understanding by a person of the social meaning of his behavior. The volitional sign of the legal criterion consists in the inability of a person to manage his actions (inaction) and direct them in the proper direction.
Medical criterion
insanity presupposes the presence of one of the four mental disorders specified by law: a) chronic mental illness; b) temporary mental disorder; c) dementia; d) other painful mental state.
To declare a person insane, it is sufficient to have one of the signs of the legal criterion and one of the signs of the medical criterion.
The current Criminal Code in Article 17 addresses the issue of criminal liability of persons with a mental disorder that does not exclude sanity. In legal literature, this state is usually called limited (or reduced) sanity.
.
According to the legislative definition, the concept of limited sanity also includes two criteria: legal (could not fully understand the actual nature and social danger of one’s actions (inaction) or control them) and medical (mental disorder that does not exclude sanity).
Such a person is recognized as sane and subject to criminal liability. But mental disorder is taken into account by the court when assigning punishment as a mitigating circumstance and can serve as a basis for imposing compulsory medical measures.
Limited sanity should not be considered as an intermediate state between sanity and insanity. In its content and legal consequences, limited responsibility is closely related to sanity.
Along with the concept of a general subject in criminal law, there is also the concept of a special subject of a criminal offense
. It is understood as a person who, along with the indicated mandatory characteristics, also possesses additional characteristics provided for by the relevant norms of the Special Part of the Criminal Code. The signs of a special subject are varied and can relate to various personality traits (gender, age, family relationships, job position, etc.
Basic and additional literature: listed in section 5. pp. 1-19, 20-30.
Topic 7. The subjective side of a criminal offense
The subjective side of a criminal offense is
a set of characteristics established by law that characterize the internal side of a criminal offense.
Required feature
the subjective side of a criminal offense is guilt, i.e. the mental attitude of a person to the act he commits and its consequences, expressed in the form of intent or negligence. The law also provides for double (mixed) guilt.
The content of guilt is characterized by two aspects: intellectual and volitional. The intellectual moment of guilt includes the person’s awareness of the social danger of his actions (inaction) and the anticipation of the possibility or inevitability of the onset of socially dangerous consequences. The volitional moment means the attitude of the subject’s will to the upcoming harmful changes in reality as a result of the commission of a crime.
The different ratio of intellectual and volitional aspects underlies the division of guilt into forms, and within the same form - into types.
Criminal law provides for the following forms of guilt:
: intent, negligence.
The current criminal legislation of the Republic of Kazakhstan (Article 20 of the Criminal Code) distinguishes between two types of intent
: direct and indirect (eventual).
A criminal offense 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 socially dangerous consequences and desired their occurrence.
A criminal offense is recognized as 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, but consciously allowed these consequences to occur, or was indifferent to them.
Awareness of the social danger of one's action or inaction, as a sign of an intellectual moment, coincides with direct and indirect intent. These types of intent differ in the degree of anticipation of the onset of socially dangerous consequences and, mainly, in terms of volition.
The theory of criminal law and judicial practice distinguish other types of intent. Based on the moment of formation, intent is divided into pre-meditated and sudden. A type of suddenly arising intent is affected intent.
Depending on the degree of certainty of the perpetrator’s foresight of the socially dangerous consequences of the act he commits, intent is divided into definite (specific) and indefinite (non-specific).
The current criminal legislation of the Republic of Kazakhstan (Article 21 of the Criminal Code) distinguishes between two types of negligence
: arrogance and carelessness.
A criminal offense is recognized as committed due to arrogance
, if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds, he frivolously counted on preventing these consequences.
Criminal arrogance in its intellectual aspect has some similarities with the intellectual element of direct and especially indirect intent. In all cases, the perpetrator foresees the onset of socially dangerous consequences of his actions (inaction). However, the nature of foresight with intent differs significantly from the nature of foresight with criminal arrogance. Foresight with intent is always concrete in nature, but with arrogance, criminal consequences are foreseen in a general, abstract form.
Arrogance and indirect intent also differ in their volitional moment. With indirect intent, the perpetrator, although unwilling, consciously allows harmful consequences to occur or is indifferent to them. With arrogance, the volitional moment is characterized by the fact that a person, without sufficient grounds for this, frivolously hopes to prevent the socially dangerous consequences of his act. The calculation of the perpetrator to prevent the harmful consequences of his act always presupposes a calculation of real, specific circumstances that should, in his opinion, prevent the onset of the consequences. Relying not on real circumstances, but on chance, eliminates arrogance.
A criminal offense is committed due to negligence
if a person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with due care and forethought he should and could have foreseen these consequences.
Negligence differs from direct and indirect intent and arrogance in that a person does not realize the social danger of his action or inaction, does not foresee the possibility of socially dangerous consequences (intellectual moment). Criminal liability arises for the fact that a person did not make the necessary volitional efforts to foresee the socially dangerous consequences of his act.
The volitional moment of negligence is characterized by a combination of two signs. The first is that the person had to foresee the socially dangerous consequences of his action or inaction (objective criterion), the second is that he could have foreseen them (subjective criterion).
The current criminal legislation also distinguishes double (complex) guilt
(Article 22 of the Criminal Code of the Republic of Kazakhstan), when one criminal offense combines two forms of guilt - intent in relation to the act and its consequences, and negligence in relation to additional grave consequences resulting from this act. In general, such a criminal offense is recognized as committed intentionally.
Optional characteristics
the subjective side of a criminal offense is the motive of the crime (the motivation that guides a person when committing a crime) and the purpose of the crime (the final result that the perpetrator strives to achieve).
Correctly establishing the subjective side of a criminal offense is of great practical importance
: it acts as a subjective basis for criminal liability, allows you to distinguish criminal behavior from non-criminal behavior, accurately qualify criminal offenses, distinguish elements of a criminal offense that are similar in objective terms from each other, determine the degree of danger of the person who committed the criminal act, and individualize punishment.
Article 19 of the Criminal Code, through a ban on objective imputation, enshrines the principle of subjective imputation
. The essence of this principle boils down to the fact that criminal liability arises only for those socially dangerous acts and socially dangerous consequences that have occurred in respect of which guilt in the form of intent or negligence has been established.
Criminal liability for innocent causing of harm is not permitted.
The rule on innocent tortfeasibility
(Article 23 of the Criminal Code) provides for four options for innocent causing of harm:
1) the criminal law establishes liability only for the intentional commission of a particular act, and in this particular case the same act was committed, but through negligence;
2) incident, i.e. the person who committed a socially dangerous act did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction) or did not foresee the possibility of socially dangerous consequences occurring and, due to the circumstances of the case, should not or could not have foreseen them; This version of innocent harm is similar to negligence, however, unlike negligence, the incident is characterized by the absence of an objective or subjective criterion.
3) a person who foresaw the onset of socially dangerous consequences when committing an act, counted on their prevention with sufficient grounds; This option of innocently causing harm is similar to arrogance, however, unlike arrogance, the person’s calculation of preventing socially dangerous consequences in the latter case is justified.
4) a person who foresaw the onset of socially dangerous consequences when committing an act, could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload. The conclusion about the inconsistency of the psychophysiological qualities of the harm-doer with the requirements of extreme conditions or neuropsychic overload should be based on the conclusion of a forensic psychological examination.
There are no special rules in the criminal legislation of the Republic of Kazakhstan regulating issues of errors
. They are considered and resolved by theory on the basis of provisions about wine and its forms. An error is a special form of a subject’s mental attitude to the act he has committed and its consequences and is therefore considered when covering the issue of the subjective side of a criminal offense.
An error is a person’s misconception (misconception) about the legal properties or factual circumstances of the act he commits. In the theory of criminal law, errors are usually divided into legal and factual.
A legal error is a person’s incorrect understanding of the legal properties and legal consequences of the act he commits. It may consist in an erroneous assessment of the illegality of the act committed by him from the point of view of criminal law, in the incorrect qualification or punishability of the act, or in an error about the nature of the expected criminal punishment.
A factual error is a person’s misconception about the factual circumstances of the act he committed. A factual error refers to individual elements of a criminal offense committed by a person: to the object, to the objective side, or to qualifying circumstances. In accordance with this, the following types of factual error are distinguished: a) error in the object of the attack; b) error in the nature of the action; c) an error in the development of a causal relationship between the subject’s act and the resulting result.
Basic and additional literature: listed in section 5. pp. 1-19, 20-30.
Socially dangerous consequences
The harm that the criminal caused where his illegal activities were directed (people, animals, the state, organization, and so on) are socially dangerous consequences.
An offense includes only consequences that are distinguished by the damage caused or the creation of an alleged threat. This result should be provided for in the Criminal Code.
The consequences of a crime harm the normal development of the object of the unlawful act or relations in society.
The nature of the damage caused is divided into:
- Physical.
- Property.
- Moral.
- Political.
The social danger of an act consists of its illegal results.
The conclusion suggests itself that the consequences are one of the parts of the crime, connecting the illegal act and the object of the criminal’s actions.
There is another way to separate the consequences:
- material – damage caused to property or physical harm;
- intangible – harm to rights and legitimate interests, moral damage.
When determining what type of damage has been caused, the negative consequences that have occurred become apparent.
The Criminal Code does not always provide a clear idea of the punishable consequences of an offense. Certain articles contain specific reference to harm that is subject to criminal prosecution. For example, causing death. More often, the wording has a somewhat vague definition, such as grave harm, grave consequences, significant damage, large size, etc. These concepts significantly complicate the establishment of compliance of an act with the norms of law and require additional interpretation.
Cheat sheet on criminal law. General part | Page 1 | Online library
Anna Anatolyevna Rozhdestvina
Criminal law cheat sheet
1. SUBJECT, METHOD AND SYSTEM OF CRIMINAL LAW
The subject of criminal law differs depending on the concept of criminal law as:
– branches of legislation;
– branches of law;
– science of criminal law.
The subject of criminal law as a branch of legislation is criminal legislation, i.e. e. a system of norms adopted by the highest body of federal power - the State Duma of the Federal Assembly, defining the principles and grounds of criminal liability, the range of acts declared criminal, the types and amounts of punishment for them, the grounds for exemption from criminal liability and punishment.
The subject of criminal law as a branch of law is criminal legislation and criminal legal relations related to lawmaking and law enforcement. Criminal legal relations arise from the moment the law officially comes into force, when it already begins to have a socio-psychological impact on those unstable citizens who refrain from committing a crime solely because of the threat of punishment.
The subject of the science of criminal law includes:
– commentary – doctrinal interpretation of criminal law;
– development of recommendations for legislation and law enforcement practice;
– study of the history of criminal law;
– comparative analysis of domestic and foreign law;
– development of the sociology of criminal law – studying the real life of criminal law by measuring the level, structure and dynamics of crime, studying the effectiveness of the law, the mechanism of criminal legal regulation, the validity and conditionality of the criminal law, criminalization (decriminalization) of acts;
– study of international criminal law. The subject of criminal law also includes the relationship of criminal law with related branches of law. Criminal law borders on a number of branches of law and sciences: criminology, criminal executive law, criminal procedural law, criminal statistics, administrative, civil, financial, tax, international law, etc.
The method of criminal law is a way of studying the norms of criminal legislation and criminal legal relations.
The main methods of criminal law are:
– legal – includes legal and technical methodology and methods of interpreting the law;
– criminal statistical – knowledge of the qualitative uniqueness of criminal legal phenomena and concepts through quantitative indicators;
– sociological – includes surveys (questionnaires, interviews, expert assessments) of various categories of persons – law enforcement officials, the population, convicts, etc. – on various aspects of criminal law;
– systemic – studies of criminal legal phenomena and concepts are carried out as a study of systems;
– comparative legal (comparative) – used when comparing codes of different legal systems and states;
– historical-comparative, etc.
The criminal law system includes two parts:
1) General - its subject includes four main institutions: criminal law; crime; punishment; exemption from criminal liability and punishment;
2) Special - it contains sections, chapters and articles about specific crimes and the corresponding sanctions for them.
2. OBJECTIVES AND PRINCIPLES OF CRIMINAL LAW
Criminal law sets itself two tasks:
1) protective. It consists of:
a) in protecting from criminal attacks: the rights and freedoms of man and citizen; property; public order and public safety; environment; constitutional system of the Russian Federation;
b) ensuring peace and security of mankind;
2) preventive – it consists in preventing crimes.
The means of solving the protective problem are:
– consolidation of the grounds and principles of criminal liability;
– determination of the range of acts declared criminal;
- establishing punishment for them.
The preventive (preventive) task is solved by the following basic means:
– general prevention of criminal law;
– general and special prevention of punishment;
– norms on voluntary renunciation of crime;
– norms on active repentance;
– rules on circumstances excluding the criminality of an act;
– standards with a double precautionary orientation.
The principles of criminal law are the fundamental, guiding ideas and principles in the field of combating crime enshrined in the norms of criminal law.
Criminal law is based on the principles of: legality; equality of citizens before the law; guilt; justice; humanism.
The principle of legality is expressed in the fact that the criminality of an act, as well as its punishability and other criminal legal consequences, are determined only by the Criminal Code of the Russian Federation. Application of criminal law by analogy is not allowed.
The principle of equality of citizens before the law establishes that any person who has committed a crime is subject to criminal liability; Not all persons are subject to the same limits of criminal liability.
Guilt is a mandatory sign of the subjective side of the crime. Guilt is the internal mental attitude of a person to what he has done. It can be in the form of intent or negligence. A person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences for which his guilt has been established. Criminal liability for innocent causing of harm is not permitted.
The principle of justice is revealed from the point of view of imposing punishment and applying other measures of a criminal legal nature in relation to the person who committed the crime. Punishment or measures of a criminal legal nature must correspond to:
– the nature and degree of public danger of the crime;
– the circumstances of its commission;
- the identity of the culprit.
No one can be criminally liable twice for the same crime.
The principle of humanism is considered in two aspects:
1) criminal legislation ensures human safety;
2) humanism is manifested in relation to the person who committed the crime - suspended sentence, amnesty, pardon, exemption from criminal liability, exemption from punishment, criminal liability and punishment of minors, the use of compulsory medical measures, etc.
3. FEATURES OF THE STRUCTURE OF THE RULES OF THE RF Criminal Code. TYPES OF ELEMENTS OF STANDARDS OF THE RF Criminal Code AND THEIR CHARACTERISTICS
The structure of the norms of the General and Special Parts of the Criminal Code of the Russian Federation differs.
The norms of the General Part of the Criminal Code of the Russian Federation can be:
– positive (regulatory) – their use in itself is not associated with a specific crime;
– law enforcement nature – include coercion.
Positive norms are divided into the following types:
– declarative, establishing the tasks and principles of criminal legislation;
– general regulatory, establishing general regulations and concepts of crime, complicity in a crime, criminal record, etc.;
– encouraging, establishing the procedure for applying a suspended sentence, parole from serving a sentence, replacing imprisonment with another, more lenient type of punishment, etc.;
– permitting, defining the right to necessary defense, causing harm when detaining a person committing a crime, etc.;
– exempt from criminal liability.
Law enforcement rules are rules establishing:
– replacement of one punishment with another in cases of malicious evasion of paying a fine, performance of compulsory labor, correctional labor and restriction of freedom;
– options for actually serving a conditionally assigned sentence or execution of its unserved part in case of non-compliance with the requirements specified in the law during the probationary period for suspended sentences, parole and deferment of serving a sentence for pregnant women and women with young children, various options for actually serving a conditionally assigned sentence are provided punishment or execution of its unserved part. The norms of the General Part are descriptive in nature. The legal norm of the Special Part consists of:
Causality
A causal connection in criminal law is a sign of illegal actions, a link connecting a threatening activity and the resulting consequences, part of the objective side of an act that violates the law.
Finding facts connecting the crime and the damage that occurred, confirming their connection, is a mandatory element to create the opportunity to bring the criminal to justice.
There is no precise definition of cause-and-effect relationship in Russian law. The scientific approach expresses its essence in the existence of a cause - a certain action (phenomenon) that generates another action (phenomenon) that is a consequence of the cause. As a result of one cause, many different consequences can arise, and vice versa, one consequence becomes the result of various causes.
An important feature of the cause-and-effect relationship is expressed in the inequality of causes. They are divided into main and secondary. To make an accurate assessment, each cause must be studied separately.
The connection is not always intentional; in some cases, it is a coincidence.
In criminal law, intentional communication is significant; to recognize it, it is necessary to find out the following facts:
- Regarding time, the cause appeared earlier than the effect.
- There is a real possibility of a consequence occurring as a result of the cause that occurred.
- Without this specific cause, this specific effect will not occur.
Establishing causality is difficult. The difficulty lies in the lack of obviousness of the connection between the crime and the consequence in most cases. There are situations when time passes between events and the effect, in addition to the cause, is influenced by other factors, then the task of ascertaining the facts and connecting it takes a long time.
