Commentary to Art. 19 Criminal Code
1. The subject, as one of the elements of the crime, is characterized by the presence of three mandatory characteristics: a) it is an individual; b) sane and c) reached the age at which criminal liability begins.
2. In a number of crimes, in addition to the three mandatory signs, the law specifies additional signs that become mandatory. In this case, the subject of the crime becomes special. Such characteristics include, in particular, gender (Articles 106, 131 of the Criminal Code); increased age at which criminal liability begins (Articles 150, 151 of the Criminal Code); citizenship (Articles 275, 276 of the Criminal Code); official position (Articles 201, 285, 290 of the Criminal Code); profession (Articles 123, 124 of the Criminal Code); special position in relation to the victim (Article 125 of the Criminal Code).
3. A legal entity is not recognized in Russian criminal law as a subject of a crime. If a crime is committed in the course of the activities of a legal entity, it is necessary to identify within the structure of such a legal entity an entity subject to criminal liability. Moreover, such a subject can be defined by law (for example, in Articles 176, 177 of the Criminal Code) or by judicial practice (resolutions of the Plenum of the Supreme Court of the Russian Federation). In the absence of such clarification, if the crime constitutes a violation of a prohibition or failure to fulfill an obligation addressed to a legal entity, i.e. is associated with legally significant actions in the sense of other branches of law, a special subject is a person endowed by law, court decision, agreement, local act of a legal entity with the rights and obligations to act on behalf and in favor of the legal entity. If the crime does not fundamentally imply a violation of a special prohibition or failure to fulfill a special duty, but can - albeit in the interests of a legal entity or contrary to them - be committed by any subject (for example, Articles 179, 180 of the Criminal Code), the subject of the corresponding composition is general.
Article 19.1. Arbitrariness
Ruling of the Constitutional Court of the Russian Federation dated November 28, 2019 N 2988-O As for Article 19.1 of the Code of Administrative Offenses of the Russian Federation, contested by the applicant, it is aimed at ensuring the procedure for the exercise of rights established by federal law or other regulatory legal acts. This norm in itself does not regulate relations related to the refusal to initiate a case for an administrative offense, and therefore cannot be regarded as violating the constitutional rights of the applicant in the aspect specified in the complaint. Moreover, contrary to the requirements of Articles 96 and 97 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, the presented materials do not confirm the use by the court in the case of E.A. Huseynov of the legal provisions he challenged in the complaint.
Decision of the Supreme Court of the Russian Federation dated May 30, 2019 N 34-AAD19-1
by the determination of the local authorized police department for servicing the city of Polyarny, the Department of Internal Affairs of Russia for the closed administrative-territorial entity (ZATO) Aleksandrovsk, Murmansk region, dated January 19, 2021, refused to initiate a case of an administrative offense against the bailiff for ensuring the established procedure for the activities of the courts (OUPDS) Department of Bailiffs (Bailiff Department) of the city of Polyarny ZATO Aleksandrovsk, Murmansk Region Khomenko I.N. according to the statement of Yudchenko I.V. due to the lack of an administrative offense provided for in Article 19.1 of the Code of the Russian Federation on Administrative Offences.
Resolution of the Supreme Court of the Russian Federation dated June 2, 2017 N 60-AD17-2
Judge of the Supreme Court of the Russian Federation V.P. Merkulov, having considered the complaint of A.A. Moskalenko. on the decision of the magistrate of judicial district No. 5 of the Petropavlovsk-Kamchatsky judicial district of the Kamchatka Territory dated July 26, 2021, the decision of the judge of the Petropavlovsk-Kamchatsky City Court of the Kamchatka Territory dated October 10, 2021 and the decision of the deputy chairman of the Kamchatka Regional Court dated 15 December 2016, issued against Moskalenko A.A. in a case of an administrative offense provided for in Article 19.1 of the Code of the Russian Federation on Administrative Offences,
Decision of the Supreme Court of the Russian Federation dated July 18, 2019 N 34-AAD19-3
By the determination of the local authorized police department for servicing the city of Polyarny, the Department of Internal Affairs of Russia for the closed administrative-territorial entity (ZATO) Aleksandrovsk, the Department of the Ministry of Internal Affairs of Russia for the Murmansk Region dated December 28, 2021 N 3663, refused to initiate an administrative offense case against the head of the Bailiffs Department (OSB) ) Polyarny CATU Aleksandrovsk Federal Bailiff Service of Russia for the Murmansk Region Pismensky I.E. and acting head of the said body Mysskaya G.V. according to the statement of Yudchenko I.V. due to the lack of an administrative offense provided for in Article 19.1 of the Code of the Russian Federation on Administrative Offences.
Resolution of the Supreme Court of the Russian Federation dated November 5, 2020 N 87-AD20-4
By the determination of the Deputy Volzhsky Interregional Environmental Prosecutor (hereinafter also an official) dated November 26, 2021, the case was denied against O.S. Chepurkov. who was the Kostroma Interdistrict Environmental Prosecutor (on the day of the ruling), cases of administrative offenses provided for in Part 1 of Article 5.61 and Article 19.1 of the Code of the Russian Federation on Administrative Offenses.
Appeal ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated September 19, 2018 N 46-APG18-22
Recognizing that Article 5.2 of the Law of the Samara Region of November 1, 2007 N 115-GD is invalid, the court correctly indicated that the actions of persons expressed in unauthorized restriction of access to public land plots can be qualified under Articles 7.1 and 19.1 of the Code of the Russian Federation on Administrative Offenses .
Resolution of the Supreme Court of the Russian Federation dated December 19, 2018 N 56-AD18-11
Judge of the Supreme Court of the Russian Federation V.P. Merkulov, having considered the complaint of Stavitskaya Irina Leonidovna against the decision of the magistrate of the judicial district No. 28 of the Frunzensky judicial district of the city of Vladivostok, Primorsky Territory, dated 02.22.2018 N 5-56/18, which entered into legal force, the decision of the judge of the Frunzensky district court of the city of Vladivostok, Primorsky Territory dated April 25, 2018 N 12-295/18 and the resolution of the deputy chairman of the Primorsky Regional Court dated July 23, 2018 N 4a-730/2018, held in relation to the leading consultant of the department of regional state construction supervision for the Vladivostok city district and municipalities Territory inspection of regional construction supervision and control in the field of shared construction of the Primorsky Territory Stavitskaya Irina Leonidovna (hereinafter - Stavitskaya I.L.) in the case of an administrative offense under Article 19.1 of the Code of the Russian Federation on Administrative Offences,
Second commentary to Art. 19 of the Criminal Code of the Russian Federation
1. The signs specified in Article 19 of the Criminal Code are general and mandatory for criminal liability. Therefore, in the title of the commented article, the legislator characterized them as “General conditions of criminal liability.” Consequently, they must be met by the subjects of all crimes, including those whose offenses contain special (special) requirements for the subject.
2. Individual - legal status. The theory of law distinguishes, in addition to the individual, the status of a legal entity. Both of these statuses perform one function in law - they are a condition of responsibility. Different types of legal liability correspond to different legal statuses of their subjects. The specificity of criminal liability is its personal nature. Therefore, the subject of a crime (as well as the subject of liability) can only be an individual.
3. Sanity - the mental status of the subject. Unlike legal statuses, it has not a legal, but a natural (presumed) basis: every person is considered sane if he is not declared insane in the manner prescribed by law. Moreover, the significance of this status is limited only by the circumstances of the commission of a crime (another offense). The question of the sanity or insanity of a person arises only in connection with “imputation,” i.e. the question of responsibility for the act he committed. Outside of these circumstances, it is impossible to talk about either the insanity of a person or the status meaning of insanity. Sanity as the mental status of the subject of a crime determines a person’s mental ability to act as a participant in relations with other people, society and the state.
4. The sign of the subject of a crime is not any age, but only that established by criminal law. This sign, although it has a socio-psychological basis, is also status. In contrast to the legal status, this status can be conditionally designated as social, which determines a person’s legally recognized ability to act as an active participant in relations with other people, society and the state.
Article 5. Principle of guilt
Resolution of the Presidium of the Supreme Court of the Russian Federation dated March 29, 2017 N 27P17 The specified norm of the criminal law (Part 3 of Art. of the Criminal Code of the Russian Federation) when qualifying the actions of the organizer of a crime should be interpreted in conjunction with the provisions of Art. , part 1 art. , part 5 art. , art. Criminal Code of the Russian Federation. In accordance with Part 1 of Art. According to the Criminal Code of the Russian Federation, the responsibility of accomplices in a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated November 7, 2018 N 205-APU18-27
Requirements of Art. Art. , , Part 1 and Art. The Criminal Code of the Russian Federation was observed when imposing punishment by the court. The court recognized Barakhoev’s active contribution to the detection and investigation of the crime and the presence of a dependent young child as mitigating circumstances for the punishment.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 31, 2019 N 35-APU19-1
April 15, 2015 under clause “d”, part 2 of art. 161, paragraph “a”, part 3, art. 158, part 3 and art. of the Criminal Code of the Russian Federation to 2 years 4 months of imprisonment; May 23, 2018 under Part 3 of Art. , part 1 art. 161 of the Criminal Code of the Russian Federation to 3 months of correctional labor with the deduction of 5% from the wages of the convicted person to the state income,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 03/05/2019 N 56-APU19-4sp
On March 19, 2014, convicted by the Spassky District Court of the Primorsky Territory under Art. 158 part 2 paragraphs “b”, “c”, 158 part 2 paragraph “b” of the Criminal Code of the Russian Federation using Art. part 2 and the Criminal Code of the Russian Federation to 3 years 6 months of imprisonment, released after serving the sentence,
Determination of the Constitutional Court of the Russian Federation dated February 28, 2019 N 545-O
According to the Criminal Code of the Russian Federation, during the probationary period established by the court when assigning a suspended sentence, the convicted person must prove his correction by his behavior (part three of Article 73). The fact of committing a crime before the expiration of the probationary period refutes the statement about the correction of the conditionally convicted person and provides grounds for imposing punishment based on the totality of sentences. Otherwise, it would be contrary to the objectives of the criminal law, the principles of guilt and justice (Articles , and the Criminal Code of the Russian Federation). Accordingly, this Code establishes that when imposing a punishment based on a cumulative sentence, the unserved part of the punishment under the previous court sentence is partially or fully added to the punishment imposed according to the last court sentence (part one of Article 70); If a conditionally convicted person commits an intentional grave or especially grave crime during the probationary period, the court revokes the conditional sentence and imposes a punishment on him according to the rules provided for in Article 70 of this Code (part five of Article 74). The above norms of criminal law are based on the constitutional principles of fairness and proportionality of responsibility to the values protected by legislation and involve differentiation of public legal responsibility, taking into account the punishment that was previously imposed by a court verdict, but was not executed at the time of the commission of a new crime (rulings of the Constitutional Court of the Russian Federation of February 16 2012 N 370-О-О, dated April 23, 2013 N 572-О, dated July 16, 2013 N 1129-О, dated February 20, 2014 N 352-О and dated September 29, 2015 N 2077-О).
Determination of the Constitutional Court of the Russian Federation dated April 25, 2019 N 1166-O
According to the principle of guilt, enshrined in the article of the Criminal Code of the Russian Federation, objective imputation, i.e. criminal liability for innocent causing of harm is not permitted; 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. At the same time, this Code recognizes as a crime a socially dangerous act committed guilty of guilt, prohibited by it under threat of punishment (part one of Article 14), the basis for criminal liability is the commission of an act containing all the signs of a crime provided for by this Code (Article 8), and specifies the signs of a set of crimes ( Article 17), reveals the concept of types of intent (Article 25).
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated May 21, 2019 N 201-APU19-15
When imposing punishment, the court of first instance fully complied with the requirements of Art. , part 3 art. , Part 1 and Art. The Criminal Code of the Russian Federation, which determines the general principles of sentencing, as well as the sentencing in the presence of mitigating circumstances.
Determination of the Constitutional Court of the Russian Federation dated July 18, 2019 N 1866-O
The fact that a crime was committed during this period refutes the correction of the parolee and provides grounds for imposing a punishment based on the aggregate of sentences, in which the unserved part of the punishment under the previous court sentence is partially or fully added to the punishment imposed by the last court sentence. Otherwise, it would be contrary to the objectives of the criminal law, the principles of guilt and justice (Articles , and the Criminal Code of the Russian Federation). Accordingly, the period for expunging a criminal record in this case is calculated from the moment of serving the sentence imposed according to the totality of sentences (rulings of the Constitutional Court of the Russian Federation dated May 28, 2013 N 793-O, dated September 29, 2015 N 2286-O and March 28, 2021 N 558-O).
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 28, 2019 N 66-APU19-15
convicted under Part 2 of Art. 210, paragraph “a”, part 3, art. 163 (six episodes), based on Art. , Part 3 and Art. , art. of the Criminal Code of the Russian Federation to 2 years 10 months of imprisonment with serving the sentence in a special regime correctional colony, with restriction of freedom for 6 months, with the establishment of restrictions and obligations specified in the sentence;
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated October 24, 2019 N 205-APU19-34
Despite the objections of Magomadov's lawyer, the punishment for the crime committed was imposed in compliance with the procedure and rules established by Art. , part 3 art. , part 1 and art. Criminal Code of the Russian Federation. When determining the type and amount of punishment, the court took due account of the nature and degree of public danger of the crime committed by the convicted person, information about the personality of Tataev, who was brought to criminal responsibility for the first time, is positively characterized, sincerely repented of his crime, as well as information about the state of health of his parents and other circumstances of the case, including those referred to by the defense attorney in the complaint.
Determination of the Constitutional Court of the Russian Federation dated March 26, 2019 N 648-O
Article 161 of the Criminal Code of the Russian Federation, which provides for liability for robbery, i.e., is also aimed at achieving these goals. open theft of someone else's property - an unlawful gratuitous seizure of someone else's property for the benefit of the perpetrator or other persons, committed for mercenary purposes, causing damage to the owner or other possessor of this property (clause 1 of the notes to Article 158 of this Code), as well as Article 73 of this Code, which establishes that If, having imposed correctional labor, restrictions on military service, detention in a disciplinary military unit or imprisonment for a term of up to eight years, the court comes to the conclusion that it is possible to correct the convicted person without actually serving the sentence, it decides to consider the imposed punishment suspended. In this case, a person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences in respect of which his guilt is established, and the basis for such liability is the commission of an act containing all the elements of a crime provided for by this Code, and the perpetrator is given a fair punishment punishment within the limits provided for by the relevant article of the Special Part of this Code, and taking into account the provisions of its General Part, taking into account the nature and degree of public danger of the crime and the identity of the perpetrator, including circumstances mitigating and aggravating the punishment, as well as the impact of the imposed punishment on correction the convicted person and the living conditions of his family (articles , , and of the Criminal Code of the Russian Federation). Relevant issues must be resolved by the court when rendering a sentence.
Third commentary to Article 19 of the Criminal Code of the Russian Federation
1. Russian criminal legislation provides for the general conditions of criminal liability necessary to recognize a person as the subject of a crime. The subject of a crime can only be a person who is capable of realizing his actions, directing them, and also bearing legal responsibility for their commission. Individuals include citizens of the Russian Federation, stateless persons, as well as foreign citizens. The specifics of bringing foreign citizens to criminal liability are given in the comments to Art. Art. 11 and 12 of the Criminal Code. According to the criminal law of the Russian Federation, legal entities are not recognized as subjects of a crime.
2. Sanity means such a mental state of a person in which his intellect and will allow him to control his behavior and realize not only the illegality of the act being committed at the time of its commission, but also the ability to bear criminal liability in connection with this. The number of sane persons also includes persons who have some deviations in mental health (anomalies in the psyche), but do not deprive them of the ability to realize the social danger and the illegality of the acts they commit. At the same time, the criminal law gives the court the right to take this circumstance into account when sentencing a person or to use this condition of the subject as a legal basis for prescribing compulsory medical measures (see commentary to Article 97 of the Criminal Code).
3. An important condition is the age of criminal responsibility, failure to reach which allows us to say that there are no legal grounds for bringing a person to criminal responsibility.
The Criminal Code of the Russian Federation has defined two types of age: general and reduced. The general age of criminal responsibility is 16 years, and for some crimes, the list of which is exhaustive, responsibility begins at the age of 14 (see commentary to Article 20 of the Criminal Code). ‹ Chapter 4. Persons subject to criminal liabilityUp Article 20. Age at which criminal liability begins ›
What is the difference between administrative and criminal liability for assault?
A big controversy, both between lawyers and within the public, was caused by changes in criminal and administrative legislation, after some types of beatings began to be classified as administrative offenses.
It would seem that Art. 6.1.1. Code of Administrative Offenses of the Russian Federation, and Art. 116 of the Criminal Code of the Russian Federation considers liability for beatings. But one article is criminal, and the second is administrative. In what cases does the perpetrator face criminal liability for beatings, and in which cases does he face administrative liability?
If the beatings were inflicted as a result of hooligan motives, national or racial hatred, then the attacker faces criminal liability (Article 116 of the Criminal Code of the Russian Federation). If, for example, the beating was inflicted on the victim as a result of a simple fight, then the perpetrator will face administrative liability (Article 6.1.1 of the Code of Administrative Offenses of the Russian Federation).
Administrative liability for beatings, both family and domestic, entails:
- imposition of a fine from 5 to 30 thousand rubles;
- administrative arrest from 10 to 15 days;
- or compulsory work for a period of 60 to 120 hours.
If we are talking about beatings in the family, then liability can be both administrative and criminal, depending on how many times the act was committed. So, if the beating was inflicted once, then the offender faces administrative liability under Art. 6.1.1. Code of Administrative Offenses of the Russian Federation, and if the victim was beaten once and he has already contacted law enforcement agencies with a statement, then the perpetrator faces criminal liability, and in this case, the act will be qualified under Art. 116.1 of the Criminal Code of the Russian Federation. This article also applies when committing a crime in the form of beatings against other (not close) persons, which is committed repeatedly. Also, it should be mentioned that the period of time during which a person previously subjected to administrative punishment will be subject to criminal liability is 1 year.
Administrative liability is provided for in the general case if there are no qualifying criteria. It should be noted that criminal liability under Art. 116 of the Criminal Code of the Russian Federation occurs only if beatings are committed for hooligan reasons or based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity towards any social group. For example, if two people expressed their disagreement to each other about the situation in the world and reinforced their dialogue with insults directed at the opposite address, then most likely this will be administrative responsibility if no other signs of a crime arise. But, if a person was beaten because, in the opinion of the opponent, his nation, for some reason, is worse than that of his interlocutor, then there is criminal liability. The sanction of the article in this case provides for penalties in the form of:
- compulsory work for up to 360 hours;
- corrective labor for up to 1 year;
- restrictions of freedom for up to 2 years;
- forced labor for up to 2 years;
- arrest for up to 6 months;
- imprisonment for up to 2 years.
Thus, it is necessary to distinguish between administrative and criminal liability for beatings. When qualifying an act, it is necessary to take into account in relation to which category of persons it was committed, establish the period of time during which the injuries were caused and the repetition of bringing the perpetrator to justice.
The draft article was prepared by a student of ChelSU, direction: “Legal support of national security”, specialty: lawyer, 5th year Mikhaleva N.A. under the leadership of the Chairman of the KSCA "Paritet" Vagin V.N.
