Rules for appealing incorrect actions of government agencies in court in 2021

Brief overview of general provisions

For these purposes, you must first refer to the Code of Administrative Proceedings of the Russian Federation (CAC RF).
It is the CAS of the Russian Federation that regulates, among other things, the procedure for legal proceedings when courts consider cases of protection of violated rights of citizens that arose from administrative legal relations (Articles 1, 2).

In this regard, a citizen can challenge the following actions of government bodies:

regulatory legal acts in whole or in part (LLA);
acts containing clarifications of legislation and having normative properties (acts of clarification);
decisions, actions (inaction) of government bodies, non-profit organizations (if they are vested with certain state powers).

These disputes are called administrative cases, not to be confused with cases of administrative violations.

However, the most common situation that a citizen most often encounters is a situation where he is forced to appeal against the actions or inactions of government bodies or government officials, the procedure of which is regulated in the aggregate by the general provisions of the CAS RF and the specifics provided for in Chapter 22 of the CAS RF.

The Code of Administrative Offenses of the Russian Federation does not apply to cases of administrative offenses; in this case, you need to refer to the provisions of the Code of the Russian Federation on Administrative Offenses (CAO RF).

But at the same time, due to these clarifications by the Supreme Court in the Review of Judicial Practice No. 1 for 2021, a citizen has the right to challenge actions committed during the proceedings on an administrative offense and leading to a violation of his rights, in accordance with Chapter 22 of the CAS RF, including if the proceedings on an administrative offense have been terminated or have not been initiated and these actions entail legal consequences for the citizen, and no other procedure for challenging them is provided for by law.

Every citizen is guaranteed the right to go to court for protection of his violated rights. Coercion to waive such a right is invalid.

The administrative plaintiff (applicant) may change the basis or subject of the administrative claim before the issuance of a judicial act, which ends the dispute in the administrative case (Article 46). The subject of the claim is the specific demand of the applicant against the defendant, and the basis of the claim is the factual circumstances and the rule of law on which the specified demand is based.

The legislator also provides for the filing of a collective administrative claim in the case of a large group, homogeneity of the subject of the dispute and the basis of the claims, as well as in the case of a common defendant or co-defendants (Article 42).

Citizens in an administrative case have the right to get acquainted with the materials of the case, file challenges, provide evidence, ask questions in the trial, make motions, give explanations, present their arguments, object to the motions of other participants, and enjoy other procedural rights as a party in the administrative case (Art. 37, , ).

Regarding the provision of evidence, the CAS of the Russian Federation contains rules governing their use (Chapter 6).

Only that evidence that is relevant for the consideration of a particular case should be provided to the court (the principle of relevance).

Evidence is information obtained in accordance with the law (evidence obtained in violation of the law cannot be used) about facts, on the basis of which the court will establish the presence or absence of circumstances justifying the requirements (principle of admissibility).

When referring to the circumstances underlying the claims, the plaintiff is obliged to prove them (Article 62).

A citizen may petition the court to obtain evidence that is missing from him (Article 63), while circumstances that the court recognizes as generally known do not need to be proven.

Circumstances established by a judicial act that has entered into legal force in a case previously considered in court are not proven again and are not subject to challenge.

At the request of a person who has applied to the court, the court may apply preliminary protective measures if there is a clear danger of violation of the rights, freedoms and legitimate interests of the plaintiff (civil rights) and their protection will be impossible or difficult without taking such measures, and also these measures must be related and proportionate stated claims of the plaintiff (Chapter 7).

The court may suspend in whole or in part the effect of the contested decision, prohibit certain actions, and take other measures.

If the provisions of the CAS of the Russian Federation are unclear, it is recommended to refer to the clarifications of the Supreme Court of the Russian Federation in the resolution of the plenum of the Supreme Court of the Russian Federation dated September 27, 2016 No. 36 “On some issues of application by courts of the Code of Administrative Proceedings of the Russian Federation.”

The court may apply several preliminary protective measures for one administrative claim, but until the administrative claim is presented to the court and accepted for consideration by the judge, preliminary protective measures are not taken.

However, a request for preliminary relief may be filed along with an administrative claim or simply requested in the claim itself.

Main sources:

Code of Administrative Procedure of the Russian Federation

Resolution of the Plenum of the Armed Forces of the Russian Federation dated September 27, 2016 No. 36 “On some issues of application by courts of the Code of Administrative Procedure of the Russian Federation”

Criminal omission and its types

Bibliographic description:

Nikulnikov, A.G. Criminal inaction and its types / A.G. Nikulnikov. — Text: direct // New Legal Bulletin. - 2021. - No. 7 (21). — P. 54-60. — URL: https://moluch.ru/th/9/archive/174/5422/ (access date: 12/21/2021).

The article examines the concept, types and legal nature of inaction, the basis of criminal liability for criminal inaction, and also reveals the circumstances that eliminate liability for criminal inaction.

Key words: criminal inaction, types of criminal inaction, grounds for criminal liability, indicators of criminal inaction, circumstances eliminating liability.

The article discusses the concept, types and legal nature of inaction, the ground for criminal liability for criminal inaction, and also discloses circumstances that eliminate liability for criminal inaction.

Keywords: criminal inaction, types of criminal inaction, the objective side of the crime, the grounds for criminal liability, indicators of criminal inaction, circumstances eliminating liability.

The main task in the activities of law enforcement agencies working in the field of criminal law is the correct qualification of the objective side of the crime. The objective side of a crime is an important prerequisite for criminal liability, its foundation, without which it cannot exist. Therefore, the achievement of the tasks facing criminal law and compliance with the principles of criminal law enshrined in Chapter. 1 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), and in addition - the implementation of the main social function of established criminal law norms - the fight against crime [3]. One of the mandatory elements of the objective side of a crime is a socially dangerous act, which can be expressed in the form of an action - active behavior of a person or inaction - passive behavior of a person.

The largest number of crimes are committed in the form of action, that is, in the form of physical influence of the perpetrator on another person, animal, other object of the material world, as well as his use of machines, mechanisms, properties of things to cause harm to relationships protected by criminal law. Inaction is recognized as abstinence from performing certain bodily movements, the nature of which results in a person’s failure to fulfill his legal obligations. Based on the different nature of actions and inactions, the issue of the possibility of criminal prosecution is ambiguously resolved. If criminal liability can be established for any active behavior that jeopardizes public relations, then for inaction this responsibility is established in the presence of conditions that represent a combination of an objective criterion, expressed in the obligation of a person to act in a specific way, and a subjective criterion that determines the real possibility of a person to perform the necessary actions. actions, that is, excluding damage to one’s interests. The difficulties of assigning criminal liability for criminal inaction, the lack of criminal legal means of stimulating the active behavior of citizens, as well as the fairly high level of the criminological situation in our state at present allow us to conclude that there is a problematic situation on this issue.

Also, the presence of this problem is influenced by the public danger of criminal inaction, which is not fully realized by society. As a result, most crimes committed in a passive form are simply not perceived by victims as such, and therefore are not brought to the attention of law enforcement agencies. But even in cases where this information does reach the jurisdiction of these authorities, the disclosure of these crimes does not always occur. In addition, in cases where this does happen, the execution of court decisions on relevant issues is often not implemented. Law enforcement officials have not fully mastered the understanding and awareness of the issue of bringing to criminal liability for committing criminal inaction.

This problem has become particularly relevant due to the slow but continuous increase in the level of passive crime since 2008. A study of statistical data for the Vladimir, Lipetsk, Moscow, Ryazan and Tula regions generally confirmed the level of prevalence of passive crime (5% of criminal cases). Also, the prevalence of passive crime more than doubles in relation to the jurisdiction of magistrates' courts. The overall growth rate of the level of passive crime over the past ten years amounted to 12.5–20.3% [13].

Concept and types of criminal inaction

Criminal inaction is one of the forms of a socially dangerous act, consisting in non-fulfillment or improper fulfillment of a legal obligation incumbent on a person or in failure to prevent the onset of consequences that the person was obliged and could have prevented. Unlike a criminal act, which consists of active body movements, criminal inaction consists of passive behavior. However, this does not mean that a person does nothing at the time of committing a crime, since inaction in the social, legal and physical sense is different from each other. A person can physically act, take part in various phenomena and processes, but in relation to criminal law, be completely inactive. For example, when a person evades payment of alimony, he commits inaction precisely in relation to the fulfillment of his legal obligation. But at the same time, he can perform active physical movements: he can move from place to place, he can carry out any activity, etc.

According to V.N. Kudryavtsev, “criminal inaction is not a vague “dangerous state” of the criminal, but specific behavior that has certain boundaries in time and space. The main features of criminal inaction (as well as actions) are its social danger and the resulting illegality, which are considered in the specific circumstances of the place, time and situation in which the crime was committed” [5].

Until a certain period, the attitude towards criminal inaction in the science of criminal law was somewhat contradictory. Thus, in criminal law there previously existed another position, diametrically opposed to the currently generally accepted position regarding criminal inaction. It boiled down to the fact that inaction is nothing, and nothing can give birth to something. In my opinion, this is a somewhat unfair position, which has been disputed with sufficient thoroughness by the majority of jurists. The criminal inaction of a person is not “nothing”, but on the contrary, it is a certain behavior. The inaction of one person can in a certain way determine the behavior of another, change it, and thereby influence social relations. In any social relations, any behavior of people is interconnected and conditioned. Timeiko G.V. argued: “human inaction is not zero in the world of reality and not a purely internal act of mental activity, but a material factor, the passive behavior of people objectified externally” [9]. Based on this, we can conclude that harm to relationships protected by criminal law can be caused not only by active actions, but also by passive ones, namely, criminal inaction, which in its criminal social nature is similar to an active criminal action, and therefore should be treated similarly . For example, a plane crash is possible both due to the hijacking of an aircraft by terrorists, whose goal is to collide the plane with another aircraft, and as a result of the inaction of the airport dispatcher, who was absent from work at the right time, which resulted in a plane crash.

Criminal inaction can be expressed both in a single act of inaction, which led to the onset of socially dangerous consequences, and in a systemic failure to fulfill the legal obligations imposed on a person. Thus, a single act of inaction will be the refusal of the doctor on duty, due to laziness, to go on call to a seriously ill patient, which resulted in the death of the latter (Article 124 of the Criminal Code of the Russian Federation). A systematic act of inaction is evasion of conscription for military service in the absence of legal grounds for exemption from this service (Article 328 of the Criminal Code of the Russian Federation).

Grounds for criminal liability for criminal omission

The basis is two mandatory indicators: the person’s obligation to act due to the existence of a legal obligation (must act) and the person’s ability to act in a specific situation (could act). Only if both indicators are present can an act committed by a person be recognized as a criminal omission.

The existence of a legal obligation of a person to act in a particular situation may arise from a number of provisions referred to in criminal law as sources of legal obligation. These include:

– regulations of laws and other criminal legal acts;

– professional and official responsibilities;

– previous behavior of a person that caused the risk of socially dangerous consequences;

– voluntary assumption of certain obligations;

- judicial act.

The first group of sources includes a fairly large layer of social relations that are regulated by criminal law. Various regulatory requirements in the form of duties can be enshrined not only in criminal legal acts, but also in other codified sources of law. In acts of criminal law they are only specified, and sanctions are established for failure to fulfill a specific legal obligation. An example is the duty of parents to bear responsibility for the upbringing and development of their children. This obligation in its primary form is formulated in Part 2 of Art. 38 of the Constitution of the Russian Federation, as well as in a number of norms of the Family Code of the Russian Federation (hereinafter referred to as the RF IC) [1] [2]. In particular, parents are obliged to take care of their health, physical, mental, spiritual and moral development (Article 63 of the RF IC), support their minor children (Article 80 of the RF IC) and disabled adult children in need of help (Art. 85 of the RF IC) , and able-bodied adult children must support their disabled parents in need of help and take care of them (Article 87 of the RF IC). Violation of these legal obligations entails criminal liability, in accordance with Articles 156 (failure to fulfill obligations to raise a minor) and 157 (non-payment of funds for the maintenance of children and disabled parents) of the Criminal Code of the Russian Federation. Making decisions for these crimes is a fairly common occurrence in judicial practice.

Official and professional duties require a person to perform certain duties and perform active or passive actions necessary for their service or profession. Thus, failure by the doctor on duty to provide assistance to a seriously wounded person constitutes a crime under Article 124 of the Criminal Code of the Russian Federation (failure to provide assistance to a patient).

A person whose behavior has created a danger for interests protected by criminal law must prevent harm from occurring. In this case, the inaction is preceded by a certain action of the person, according to which he has a corresponding obligation in relation to the criminal law. An illustration of this can be the case when the driver of a car, who has hit a pedestrian and thereby caused significant harm to his health, is obliged to deliver him to the nearest medical facility or provide him with other assistance. Failure to fulfill this obligation entails criminal liability.

A legal obligation that arises as a result of assumed obligations is characterized by the fact that a person voluntarily assumes certain obligations and fulfills them improperly or incompletely.

Failure to comply with a court sentence, court decision or other judicial act (Article 315 of the Criminal Code of the Russian Federation), evasion of the execution of a court sentence that has entered into legal force on confiscation (Part 2 of Article 312 of the Criminal Code of the Russian Federation) presupposes the existence of a court decision by which a person is obliged to commit certain actions. Accordingly, failure to perform these actions entails criminal liability.

In cases where the subject was not assigned a duty to act in a specific situation, but he had the opportunity to act, this does not entail criminal liability for that person. He can only bear moral responsibility on the part of society, but for criminal law his behavior is indifferent. An example is the case on the railway tracks, when a person passing by saw a fault with the railway track, but did not inform the railway workers about this, as a result of which the train crashed.

The second mandatory indicator of criminal inaction is the person’s ability to act in a specific situation. The ability of a person in this case is a legal category that includes a set of objective conditions in which the person was at the time of committing a particular inaction, with the help of which the ability or inability of a person in a particular situation to perform an action is determined, as well as the presence of subjective conditions, which determine a person’s specific abilities, abilities, skills that can, to one degree or another, somehow influence a specific situation. The presence of objective conditions means the presence of a given person, who has a certain legal obligation, in a specific place, at a specific time, in specific living conditions, in accordance with which the person could fulfill the existing legal obligation. The presence of subjective conditions means that a person has a certain level of knowledge, skills, abilities, abilities, and resources with the help of which a legal obligation could be fulfilled by him.

A person’s ability to act in a specific situation may be limited or excluded altogether due to:

a) the need to perform other, more important duties;

b) danger to the life or health of the person himself.

P. "a" can be illustrated by the following situation. A car driver outside the city on a deserted stretch of road, violating traffic rules, hit two people who were mushroom pickers. One of the pedestrians was in serious condition after a collision with a car, while the second one received practically no injuries and the damage to his health could be classified as minor. Due to the fact that the offender’s car, due to its configuration, was not possible to accommodate more than one passenger in it, the driver placed a person who received serious injuries in it and went to the hospital, when, as a person who received minor injuries, he remained on the road.

For point “b”, a striking example would be a fire in an apartment building, in one of the apartments there was a helpless person without the supervision of relatives. All the neighbors on the floor knew that the man was in a helpless state and theoretically could have tried to rescue him from the burning apartment. However, due to fear for their lives, no one did this, as a result of which the person died. The opposite situation may arise when the person who fears for the preservation of his health or life is a firefighter who arrives on a call. Having received information about a helpless person from his neighbors, he is obliged to risk himself in order to perform his professional duties and in view of the availability of relevant skills and abilities.

The question of the presence or absence of the opportunity to act is decided by the law enforcement officer in each specific case, taking into account all objective and objective circumstances. If a person could not act properly due to objective or subjective reasons, then criminal liability for inaction is excluded. In some cases, the legislator himself names the conditions that limit a person’s ability to act (Article 270 of the Criminal Code of the Russian Federation).

As with the commission of a crime through active actions, when inaction it is important to establish its boundaries, that is, the beginning of criminal inaction and its end. The beginning of criminal inaction should be considered the occurrence of conditions and circumstances under which a person had to perform certain actions and had the opportunity to perform them. For example, the inaction of a doctor who did not provide assistance to a patient begins from the moment the call is received (Article 124 of the Criminal Code of the Russian Federation); inaction of a witness or victim who refused to testify - from the moment of reporting this to the inquiry officer, investigator, prosecutor or court (Article 308 of the Criminal Code of the Russian Federation); failure by a serviceman to comply with an order - from the moment of receipt of an order from a superior, given in the prescribed manner, the availability of the opportunity to execute it and the failure to take the first action to execute the order (Article 332 of the Criminal Code of the Russian Federation) and a number of other articles of the criminal law. The end of criminal inaction occurs when the conditions requiring the performance of certain actions disappear, for example, evasion of conscription for military service (Article 328 of the Criminal Code of the Russian Federation) will continue as long as military duty exists for the person. Also, the end of criminal inaction is possible by its suppression by law enforcement agencies, surrender, change of law, termination of the obligation to act in a certain way, the emergence of circumstances that preclude the possibility of performing the required actions (for example, in the event of circumstances that are the basis for exemption from military service, for example, a serious illness , the ongoing inactivity in question ends).

Criminal law distinguishes between types of criminal inaction: pure inaction and mixed inaction.

Pure inaction is characterized by exclusively passive, from the point of view of criminal law, behavior of a person. This type of inaction is quite rare in reality. The disposition of the criminal law norm here is formulated in such a way that in order to bring to criminal liability it is only necessary to establish the fact of a person’s legal inaction. An example of this type of inaction may be failure to provide assistance to a patient (Article 124 of the Criminal Code of the Russian Federation), failure to pay funds for the maintenance of children or disabled parents (Article 157 of the Criminal Code of the Russian Federation), failure to return within the prescribed period to the territory of the Russian Federation objects of artistic, historical and archaeological property of the peoples of the Russian Federation. Federation and foreign countries (Article 190 of the Criminal Code), etc.

Mixed inaction involves committing a crime partly through action and partly through inaction, but ultimately the person behaves passively in relation to the criminal law. A. N. Ignatov believes that “mixed inaction consists of committing inaction, with which the law associates the occurrence of certain consequences.” The Criminal Code of the Russian Federation provides for greater liability for mixed inaction. There are two types of mixed inaction:

a) failure to fulfill an obligation imposed on a person, which is accompanied by an active action that ensures this failure, i.e., in order to be inactive, a person first acts (Articles 198, 199, 339 of the Criminal Code of the Russian Federation);

b) failure to fully fulfill the duties assigned to a person or their improper fulfillment (Articles 261, 293 of the Criminal Code of the Russian Federation).

An example of the first type of mixed criminal inaction is a situation where an individual enters false information into a tax return in order not to pay a legally established tax or to pay it in a smaller amount (Article 198 of the Criminal Code of the Russian Federation).

The second type is particularly characterized by an example where a person lit a fire in the forest in a hot summer, despite the existing ban, resulting in the threat of a forest fire. The subject of the crime did not extinguish the resulting fire, which resulted in the destruction of part of the forest areas. He will be held responsible for careless handling of fire that caused damage to the forest fund (Article 261 of the Criminal Code).

Circumstances eliminating liability for criminal omission

The circumstances that eliminate criminal liability for criminal omission are in many ways similar to the circumstances that exclude liability for a criminal act. This can be explained by a similar social danger and the possible extent of damage caused to social relations both during active and passive criminal actions.

Just like a criminal action, inaction is of a criminal nature when it is volitional on the part of the subject of its commission. Volatility is one of several mandatory signs of a criminal act of any type, including criminal inaction. Therefore, passive behavior that does not contain a volitional character does not entail criminal liability and is not recognized as a crime.

A similar situation, when a person does not express the will to commit a crime, but one way or another “participates” in this crime, can arise under the influence of irresistible physical coercion. Art. 40 of the Criminal Code of the Russian Federation regulates this issue in detail and includes Chapter 8, entitled “Circumstances excluding the criminality of the act.” According to this article, it is not a crime to cause harm to interests protected by criminal law as a result of physical coercion, if, as a result of such coercion, the person could not control his actions (inaction). Thus, a store security guard cannot be held criminally liable for failing to prevent the theft of property entrusted to his protection if, as a result of an attack on him by a group of criminals, he was tied up and immobilized, and was also unable to call anyone for help. . A person who, under the influence of physical coercion, could not control his actions (inaction) is not insane, since there is no medical criterion (chronic mental disorder or other painful mental state). The issue of a person losing the opportunity to direct his actions (inaction) is decided taking into account all the circumstances of the case, properties, skills, abilities and capabilities of the individual. If necessary, a psychological examination should be involved to resolve this issue.

According to Part 2 of Art. 40 of the Criminal Code of the Russian Federation “the issue of criminal liability for causing harm to interests protected by criminal law as a result of mental coercion, as well as as a result of physical coercion, as a result of which the person retained the opportunity to direct his actions, is resolved taking into account the provisions of Article 39 of this Code,” i.e. on grounds of extreme necessity. Mental coercion in this case is recognized as informational influence on a person through the use of a threat of harm, including physical harm, in order to induce a person to commit a socially dangerous action or inaction. However, mental violence with inaction in most cases does not deprive a person of expressing his will or does so only partially. Therefore, in such situations, it is considered only as a circumstance that mitigates criminal punishment, but not as a circumstance that eliminates criminal liability (clause “e” of Part 1 of Article 61 of the Criminal Code). In cases where mental coercion implies a real threat of death to the person himself or his loved ones, such a circumstance excludes the criminality of the act.

In addition, the passive behavior of a person, which was mediated by the influence of force majeure, does not have a criminal legal nature. Force majeure in criminal law is understood as such a state or influence of objective factors of various kinds, due to which a person is deprived of any ability to physically act. There are four such objective factors:

– elemental forces of nature;

- animals;

– painful processes;

- technical issues.

Force majeure excludes criminal liability because a person, due to the influence of a certain objective factor, is deprived of the opportunity to overcome obstacles to the fulfillment of the legal obligation to act.

For example, medicines necessary for the operation of a medical institution were not delivered on time due to the flooding of the bridge during the spring flood; while pursuing a dangerous criminal, a fighting dog attacked a police officer; the doctor was unable to come to the patient due to the fact that he himself was in serious physical condition due to his own illness; Firefighters were unable to extinguish the fire due to a malfunction of the water tower that supplies water to the corresponding area of the settlement.

In cases where obstacles were surmountable, but overcoming them required risking health or life, the issue of criminal liability for refusal to perform certain actions is decided according to the rules of extreme necessity (Article 39 of the Criminal Code of the Russian Federation). This takes into account the nature and degree of risk that could be caused to the person who failed to fulfill his legal obligation, as well as the range of responsibilities of the person and the requirements that are presented to him in a certain situation. The same circumstances may be considered insurmountable for a person who is physically weak and does not have special knowledge, and surmountable for a trained professional in a specific field of activity. For example, a police officer cannot refuse to pursue and apprehend a dangerous armed criminal on the grounds that his life is in danger. Just like a firefighter cannot refuse his duty to save a person from a burning house, even if this process threatens his health and life. However, for any other citizen, a fire, as well as the presence of a weapon in the possession of a dangerous criminal, will be an irresistible force.

In turn, the captain of a ship who did not provide assistance to another ship in distress during a storm, since such assistance created a serious danger to the life and passengers of his ship, will not be held liable under Art. 270 CC. In this case, specific circumstances are taken into account (the presence of a threat to the passengers of one’s ship), which can be classified as circumstances insurmountable for a person.

Conclusion

One of the forms of an act as a sign of the objective side of a crime is criminal inaction, which is much less often a form of criminal behavior and applies to persons who were obliged to act in a particular situation, but did not fulfill their duties. This form has absolutely the same signs of a criminal act as a sign of the objective side of the crime as a criminal act. Therefore, when determining criminal liability for committing criminal inaction, it is quite rational for law enforcement agencies to use general signs of a criminal act, but at the same time it is necessary to rely on certain signs of criminal inaction.

In order for inaction to be recognized as criminal, in addition to the characteristics inherent in any criminal act as a sign of the objective side of the crime, it must also have a number of its own characteristics, which serve as the basis for criminal liability for criminal inaction. These include: the presence of a person’s obligation to act, which may come from certain sources, as well as the person’s ability to act in a specific situation, which, in turn, can also be limited or excluded by a special range of circumstances.

An act in the form of criminal omission may be recognized as non-criminal if in a particular situation there are circumstances that eliminate criminal liability for omission.

Literature:

Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta. 1993. No. 237.
Criminal Code of the Russian Federation dated June 13, 1996 No. 63-FZ (as amended on June 8, 2020) // Collection of legislation of the Russian Federation. 1996. No. 25. Art. 2954.
“Family Code of the Russian Federation” dated December 29, 1995 No. 223-FZ (as amended on February 6, 2020) // Collection of Legislation of the Russian Federation dated 1996. No. 1. Art. 16.
Kudryavtsev V.N., Malein N.S. Legal behavior, its subjects and limits // Jurisprudence. 1980. No. 3.
Kudryavtsev V.N. Objective side of the crime. M.: Legal. lit., 1960. P. 243.
Criminal law course. Volume 1. General part. The doctrine of crime / Ed. N. F. Kuznetsova, I. M. Tyazhkova. M.: IKD "Zertsalo-M", 2002. P 237.
Russian criminal law. Lecture course. T.1. General part / Ed. A. V. Naumova. 4th edition. M.: Wolters Kluwer, 2008. P. 91.
Timeiko G.V. General doctrine of the objective side of crime. Rostov-on-Don, 1977. pp. 29–57.
Trainin A. N. General doctrine of the composition of a crime. M.: Gosyurizdat, 1957. P. 122.
Makarov A.V., Problems of determining the object of a socially dangerous act // Russian Judge, 2005. No. 10.
Criminal omission. The topic of the dissertation and abstract on the Higher Attestation Commission 12.00.08, candidate of legal sciences Rudavin Alexander Alekseevich. Scientific library of dissertations and abstracts - disserCat. URL: https://www.dissercat.com/content/prestupnoe-bezdeistvie#ixzz57qCzhwW0
Rudavin A. A. Concept and criminological characteristics of passive crime: based on materials from Vladimir, Lipetsk, Moscow, Ryazan and Tula // Man: crime and punishment: scientific. magazine / Academy of the Federal Penitentiary Service of Russia, 2013. No. 1. pp. 153–155.
Yanova, L. V. Legal assessment and analysis of inaction [Text] / L. V. Yanova // Bulletin of KSU named after. N. A. Nekrasova. Kostroma, 2006. No. 5. pp. 46–48.

Key terms
(automatically generated)
: criminal omission, criminal liability, Criminal Code of the Russian Federation, person, legal obligation, inaction, possibility of a person, action, objective side of the crime, IC of the Russian Federation.

Jurisdiction of the dispute and determination of the proper defendant

To decide in which court to file an administrative claim, you need to refer to Chapter 2 of the CAS of the Russian Federation, which regulates the jurisdiction and jurisdiction of administrative cases.

As a rule, the district court is the court of first instance in these cases, with some exceptions (Article 19, 21 CAS RF).

An application to a government body is submitted at the location of the government agency, to an official - at the location of the body in which the specified person serves.

If the location of a government agency does not coincide with the territory in which it is vested with powers, or where the official performs the assigned duties, the application is submitted to the court of that district where the specified powers apply.

An application to the federal government regarding the activities of a territorial body can be submitted at the location of the latter.

An application to challenge decisions, actions (inaction) of government bodies and officials, except bailiffs, can be submitted to the court at the place of residence of the plaintiff-citizen.

An application to several defendants located in different places is submitted to the address of one of them (Article 26).

If a citizen filed an administrative claim in court against the wrong person who should meet the stated requirements, that is, he incorrectly chose the responsible authority or responsible official, the court, with the consent of the plaintiff, will replace the improper defendant with the proper one. And if the plaintiff does not agree, the court involves the responsible official as the second defendant (Article 43).

The Constitutional Court clarified the procedure for bringing to criminal liability for negligence

The Constitutional Court issued Resolution No. 21-P in the case of verifying the constitutionality of Part 1 of Art. 293 “Negligence” of the Criminal Code of the Russian Federation. Roman Velichenko, whose brother, Evgeniy Velichenko, was prosecuted under this article, filed a complaint with the Constitutional Court.

According to the investigation, due to negligence, Evgeniy Velichenko, being the state registrar of the territorial body of Rosreestr, did not properly conduct a legal examination of the documents, registering the transfer of the land plot under the purchase and sale agreement to the full namesake of the real owner, which significantly violated the rights and legitimate interests of the latter.

In April 2021, the criminal case was discontinued due to the death of Evgeniy Velichenko. At the same time, the judge established the involvement of the accused in the crime and found no grounds for rehabilitation in connection with a significant violation of the victim’s property rights to the land plot. The appeal upheld this decision, and the cassation and the Supreme Court refused to consider the complaint of the lawyer in defense of the deceased. Roman Velichenko participated in the criminal proceedings and objected at the pre-trial and trial stages to the termination of the case due to the expiration of the statute of limitations for criminal prosecution or due to the death of the accused, but his arguments were not taken into account.

In a complaint to the Constitutional Court, Roman Velichenko indicated that Part 1 of Art. 293 of the Criminal Code of the Russian Federation contradicts the Basic Law, since in the system of current legal regulation it allows an official to be held criminally liable for failure to perform or improper performance of his duties due to dishonest or negligent attitude towards service, when the material damage caused does not reach 1.5 million rubles. (criterion of major damage established by the footnote to the contested article. – Editor’s note).

The Constitutional Court explained that the criminal characteristics of such a crime are the large amount of damage caused and a significant violation of the rights and legitimate interests of citizens, organizations or legally protected interests of society or the state, and the use of the conjunction “or” in the legislative description of negligence suggests that the establishment of one of alternative types of consequences form a sufficient condition for holding liable for negligence if all other elements of this crime are established. This obliges in each case to confirm the occurrence of such consequences in their cause-and-effect relationship with the actions (inaction) of the perpetrator.

“The absence of property damage exceeding one million five hundred thousand rubles among the consequences of the act does not in itself exclude either the criminal punishability of such an act as negligence, or the clarification of circumstances from which a significant violation would follow, including the rights and legitimate interests of citizens due to neglect of official person with his responsibilities. At the same time, the infliction of large damage and, consequently, its establishment in a criminal case in monetary terms does not fundamentally interfere with the conclusion of a significant violation of rights and interests protected by law, which also entails criminal liability with the same elements of crime,” the Constitutional Court noted in the resolution.

In law enforcement practice, the Court noted, such an interpretation of the conditions of criminal liability for negligence is not excluded, when the courts believe that the alternative consequences provided for by criminal law among the conditions of liability for negligence are differentiated into causing property damage on a large scale and non-property damage in the form of a significant violation rights and legitimate interests of victims. At the same time, the restriction of the victim’s right to own, use and dispose of property due to negligence can be interpreted as causing material damage, which excludes the imputation of non-property harmful consequences. With this interpretation, criminal cases are terminated by the courts for lack of corpus delicti, since material damage, on the one hand, does not exceed 1.5 million rubles, and on the other, the very definition of damage and its assessment in material terms exhausts the legal qualification of the crime. This fundamentally excludes the occurrence of alternatively provided harmful consequences in their intangible meaning, the Court emphasized.

In another interpretation, the Constitutional Court explained, as in the case under consideration, the infliction of material damage by negligence, which does not reach the large amount established by criminal law, does not prevent either the assessment of damage beyond its economic (cost) value, or the recognition by the court of such damage as significant, even if its description in the verdict comes down to the deprivation of the owner’s powers, that is, to the termination of only this economic right.

“In any case, the sign of large damage, which must be calculated in a monetary amount, forms a sufficient condition for bringing to criminal liability for negligence, if all other signs of this crime are present. On the other hand, with this definition of negligence, the infliction of large damage forms a mandatory condition for the qualification of this act, since damage of a smaller amount does not allow us to talk about criminal negligence, when the subject of its consequences are precisely and only material assets,” the resolution emphasizes.

The Constitutional Court added that the infliction of material damage not on a large scale does not exclude the finding that the act significantly violated other (besides economically significant) rights and interests protected by law. Criminal liability in this case is not determined by the monetary value of the harm caused. The concept of “significant violation of rights and legitimate interests,” like any evaluative concept, depends on the factual circumstances of a particular case and the proper interpretation of legislative terms in law enforcement practice. Accordingly, the absence of proven damage in an amount exceeding 1.5 million rubles does not in itself prevent the determination of whether rights and legitimate interests of citizens or organizations or interests of society or the state protected by law have been violated (other than property rights and other property rights). At the same time, it is possible that the responsible person, by one act falling under the signs of negligence, causes damage to various rights and legitimate interests, some of which have economically significant content in value terms, while others cannot be represented in price terms.

Thus, the Court found that the contested norm does not contradict the Constitution of the Russian Federation, since it excludes the qualification of an act that resulted in the loss or decrease in the value of property or property rights in an amount not exceeding the amount of large damage established by the current legal regulation as negligence, unless proven, that the relevant property or property right, in addition to monetary value, has non-economic value. In this regard, the Court ordered a review of the court decisions rendered in the case involving the applicant.

Lawyer of the Sverdlovsk Regional Guild of Lawyers Sergei Kolosovsky positively characterized the conclusions of the Constitutional Court. “In the Soviet and post-Soviet years, the legislator, in search of perfection, repeatedly changed the qualifying signs of negligence. In the disposition of Art. 293 of the Criminal Code included and excluded material damage and such assessment categories as a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. The current version of the law establishes liability for improper performance by an official of his duties, resulting in both material damage and a significant violation of the non-material interests of the state and citizens,” he explained.

As a result of repeated changes in the disposition of the law in terms of the consequences that form the crime, according to the expert, law enforcement officials have become somewhat confused and continue to be confused to this day. “On the one hand, intangible categories are vague for law enforcement officers, on the other hand, the latter prefer to follow the path of least resistance and consider the elements of a crime only in cases where the consequences are expressed in commodity-money terms. In this regard, the Constitutional Court of the Russian Federation gave fairly clear guidelines in the judicial act under consideration. At the same time, he listed approximate guidelines by which the harm caused in the presence of material damage, which does not formally fall under the category of major damage, can be classified as significant, regardless of the value of the actual damaged or lost property,” noted Sergei Kolosovsky.

He added that the Court’s findings contain general criteria by which harm to the legally protected interests of society, the state and citizens can be considered significant, therefore they are important not only for practice under Art. 293 of the Criminal Code. “The formulated provisions can be used when working on all official crimes, the elements of which involve causing significant harm as an assessment category,” the lawyer concluded.

Senior partner of ZKS Law Firm Andrey Grivtsov highly appreciated the conclusions of the Constitutional Court, which corrected the law enforcement error. “The error is not related to the imperfection of the provisions of Art. 293 of the Criminal Code of the Russian Federation, but with an incorrect interpretation of this norm on the part of law enforcement officials. Indeed, it is impossible to talk about the presence of a crime under Art. 293 of the Criminal Code of the Russian Federation, if we are talking about socially dangerous consequences in the form of material damage in the amount of less than 1.5 million rubles and the absence of other consequences in the form of a significant violation of the rights or legally protected interests of society and the state. I think that in the situation under consideration this is a mistake by specific law enforcement officials, and not a systemic problem in the interpretation of the law. In any case, I believe that taking into account this clarification of the Constitutional Court of the Russian Federation there will be fewer such errors,” suggested Andrei Grivtsov.

The Chairman of the Presidium of the Lapinsky and Partners Agency, Vladislav Lapinsky, believes that the Court’s conclusions are consistent with the values protected by the Constitution. “These, one way or another, include trust in the authorities and the preservation of the non-property rights of the “little” person. This is very important for understanding the functions of the law as a protector of persons to whom a given crime has caused significant harm, which has a price for them, but this price cannot always be measured in material terms, since negligence is a crime that is mainly committed by people performing public duties. functions and responsibilities,” he noted.

According to the expert, the resolution radically changes the legal approach to assessing harm caused by official crimes and offenses, and this position will be further developed and specified both in law and in other court decisions.

Deadlines for appeal

If the deadline for contesting is missed for reasons that the court may recognize as valid, the missed deadline is subject to restoration (Article 95).

Due to the clarifications of the Supreme Court of the Russian Federation, such reasons may be circumstances that objectively excluded the possibility of a timely appeal to the court and are not dependent on the person filing a petition to restore the deadline, for example, the introduction of a high alert regime or an emergency situation throughout the entire territory of the Russian Federation or in its part , illness, helpless state, untimely sending a copy of a document to the person, as well as other circumstances that deprived the person of the opportunity to go to court within the period established by law, assessed by the court as respectful (clause 30 of the resolution of the plenum of the RF Armed Forces dated March 29, 2016 No. 11).

Also, as stated in the resolution of the plenum of the Armed Forces of the Russian Federation dated September 27, 2016 No. 36, circumstances such as failure to receive procedural documents in connection with a violation of the rules for the delivery of postal correspondence, due to absence from the place of residence due to illness, or being on a business trip can be considered as relevant reasons. , vacation, moving to another place of residence and others.

Missing the deadline for filing an application is not grounds for refusal to accept it for proceedings by the court. The reasons for absence are subject to clarification by the court at a preliminary court hearing or at the court hearing itself.

If the missed deadline for filing an application is due to failure to consider or untimely consideration of a complaint filed in the order of subordination to a superior official, then the specified reason is valid, and the deadline is subject to restoration.

The term may be restored for another valid reason, recognized as such by the court.

Recognition of the reason for absence as disrespectful is grounds for refusal to satisfy the stated requirements, but not refusal to accept the citizen’s application for processing.

The Supreme Court of the Russian Federation explained the obligation of the courts, when a plaintiff files an application with a missed deadline, to take measures to clarify the circumstances that prevented a timely appeal to the court, as well as to investigate the actual circumstances of the administrative case (clause 42 of Review of Judicial Practice No. 4 for 2021).

Thus, the reasons for missing a procedural deadline will be recognized as valid if they arise objectively and are irresistible, but it is necessary to show the court the existence of a cause-and-effect relationship between missing a deadline and the objective circumstances due to which it was missed.

Everything or almost everything about recognizing the inaction of a bailiff as illegal (Part 1)

Dear colleagues!

I would like to share some developments in the field of recognizing through the court as illegal the inaction of a specific bailiff or an entire enforcement body within the framework of enforcement proceedings.

In this article I will describe only those types of claims that I use in my practice, no theory and unnecessary water. Also, I will not overload the text with too many references to subparagraphs and parts, but will indicate only the article of the law on enforcement proceedings. There will also be no motivation part of the claims, only a petition.

First. Recognition of violation of the deadline for initiating enforcement proceedings as illegal.

It is recommended to use this requirement in conjunction with any other violation that resulted in the loss of the ability to enforce the decision.

For example, the debtor has an account, but the debtor managed to withdraw money from it, but if enforcement proceedings were initiated in a timely manner and, as a result, a resolution was sent to the bank on time, the bailiff could “arrest” the said account and “withdraw” money from it, before the debtor does so. And so with any property, I hope you understand the direction of thought.

Also, most often, untimely initiation of proceedings leads to a violation of the deadline for sending a resolution to initiate enforcement proceedings (Article 30 of the Federal Law “On Enforcement Proceedings”).

The requirement might look like this:

1. Recognize as illegal the inaction of the enforcement agency (i.e., the bailiff department, where your writ of execution is presumably gathering dust), resulting in a violation of the statutory deadline for transferring the writ of execution FS No. 123456789 to the bailiff;

2. Recognize as illegal the inaction of the bailiff (full name of the bailiff, directly on whose desk your writ of execution is presumably gathering dust), expressed in not sending to the recoverer within the time limit established by law a resolution to initiate enforcement proceedings under writ of execution FS No. 123456789;

3. Oblige the bailiff, within five days from the moment the court decision enters into legal force, to send to the recoverer a resolution to initiate enforcement proceedings;

Important! In cases where you ask the court to oblige the bailiff to do something, be sure to indicate the time frame within which he is obliged to perform these actions.

Second. Recognition of the bailiff's inaction as illegal, expressed in failure to send a resolution to terminate enforcement proceedings.

One of the most common scenarios is when the bailiff issued a decree to terminate enforcement proceedings, naturally, due to the impossibility of executing the writ of execution due to the debtor’s lack of property, but at the same time, the bailiff forgot to send you, within the prescribed period, the decree itself and executive document (Article 46, 47 of the Federal Law “On Enforcement Proceedings”).

The requirement might look like this:

1. Declare illegal the inaction of the bailiff, full name, expressed in failure to comply with the deadline established by law for sending a copy of the resolution on the completion of enforcement proceedings with the original of the writ of execution No. dated DD.MM.YYYY to the recoverer;

2. Oblige the bailiff, within five days from the moment the court decision enters into legal force, to send to the claimant a resolution on the completion of enforcement proceedings with the original of the enforcement document No. dated DD.MM.YYYY;

Also, the second point can be stated in a different edition (more successful, in my opinion).

2. Oblige the enforcement agency to send to the claimant a copy of the resolution on the completion of enforcement proceedings No. IP dated DD.MM.YYYY with the original of the enforcement document, and in the absence of the original of the enforcement document due to the destruction of the materials of the enforcement proceedings after the expiration of the storage period or its loss during forwarding - send the claimant a certificate of the loss of the writ of execution;

Third. Recognition of inaction during enforcement proceedings as illegal.

One of the rarest scenarios and, most likely, you won’t need it at all, but I’ll also describe it just in case.

This may sound a little unexpected, but according to current legislation, the bailiff is obliged to take enforcement measures aimed at timely and full repayment of the debt, including: sending certain requests to the relevant authorities in order to establish whether the debtor has income or property.

Depending on your situation, the requirement may look like this:

Declare illegal the inaction of the bailiff, full name for enforcement proceedings No. from DD.MM.YYYY, expressed in not sending requests and not requesting answers from the Russian Guard about whether the debtor has weapons, in untimely sending requests and requesting answers from the registry office about whether the debtor has a spouse , in untimely sending of requests and requesting answers from Gostekhnadzor about the availability of self-propelled and other specialized vehicles by the debtor, in untimely sending of requests and seeking answers from the State Inspectorate for Small Vessels about the availability of relevant property at the debtor, in not contacting the debtor in order to establish his property status and the seizure of such property.

Assign the duty to the bailiff full name to eliminate violations of the claimant's rights by: sending requests and requesting responses from regulatory and registration authorities, including by sending requests and requesting responses from the Russian Guard, Rosreestr, Civil Registry Office, Gostekhnadzor, State Inspectorate for Small Vessels, and also making contact with the debtor in order to establish his property status and seize the debtor’s property.

In addition to the above request, you can wait for a response from the registry office and make all the same requests regarding property in relation to your spouse [1].

Declare illegal the inaction of the bailiff, full name, within the framework of enforcement proceedings No. dated DD.MM.YYYY, expressed in the failure to take measures to foreclose on the debtor's wages - full name;

If the debtor is still employed, then, accordingly, oblige the bailiff to foreclose on wages. In the same case, if the debtor is no longer employed and the possibility of collection is lost, then this is the path to a claim for recovery of damages from the “treasury”.

To recognize as illegal the inaction of the bailiff, full name, within the framework of enforcement proceedings No. from DD.MM.YYYY, expressed in evasion from the actual search for the property of the debtor, full name, namely, vehicles owned by him, including from announcing an executive search, from security safety of this property, including from the seizure of it and the commission of subsequent actions not intended to pay off the requirements of the writ of execution at the expense of the value of the specified property.

Here the situation is the same as in the first case, if the debtor still has the car, then he must be seized and sold. If the car evaporates like the morning fog, then this is again the path to a claim for damages from the “treasury”.

Assign the duty to the bailiff, Full Name, to eliminate violations of the rights of the claimant, Full Name, according to enforcement No. dated DD.MM.YYYY, by seizing vehicles belonging to the debtor, Full Name.

The above example can be used for real estate and, in general, for any property that the bailiffs for some reason do not want to seize.

It is mandatory (!) in the text of the administrative statement of claim that it must be indicated that “in the order of subordination, the action/inaction of the bailiff or the enforcement agency was not disputed by you,” if you did not appeal to a superior bailiff for the protection of your rights.

Moreover, it is recommended that if you do not have any documents, you should also indicate this in the text of the claim “a copy of the writ of execution, the resolution to initiate enforcement proceedings, etc. the administrative plaintiff does not have any” in order to cut off unnecessary questions in advance, but they always exist and will always exist.

Suggestions, comments and questions can be sent to the author’s email address or Instagram.

[1] For those who do not know how to search for the spouse’s property and foreclose on it: article;

Application requirements

The legislation provides for an open list of requirements that may be contained in the application, but basically these are statements:

on declaring illegal in whole or in part a decision made by a government agency, or an action (inaction) committed by it;
on the obligation of a government agency to make a decision on a specific issue or take certain actions in order to eliminate violations of the rights of a citizen;
on the obligation of a government agency to refrain from performing certain actions.

An administrative claim can be titled accordingly.

It is important to take into account the position of the Supreme Court of the Russian Federation, according to which a citizen has the right to combine several interconnected claims in one administrative claim, but it is not allowed to consider other administrative claims in cases challenging regulatory legal acts (clause 53 of the resolution of the plenum of the RF Armed Forces dated September 27 .2016 No. 36).

The requirements for the form and content of the application are set out in detail in Article 125 of the CAS RF.

One of the main requirements is that the applicant needs to indicate which rights are violated, and what exactly the violation is expressed in, the existence of a cause-and-effect relationship between the violation of rights and the actions of the official.

It is recommended to send a copy of the application and the documents attached to it to other persons participating in the case, attaching to the application documents confirming their direction.

If this is not done, the court itself will notify of the received demands, sending to other persons copies of the statements, which in this case must be provided by the plaintiff himself along with the application (clause 1, part 1, article 126).

It is important to note that a document confirming payment of the state fee must be attached to the application, otherwise the court will leave the application without progress until the applicant provides the specified document.

It is also necessary to provide documents confirming the circumstances referred to by the citizen.

A complete list of documents that must be attached to the application is specified in Article 126 of the CAS of the Russian Federation.

Classification of criminal legal inaction

Classification is a generally accepted and frequently used method of understanding the essence of a phenomenon. A methodologically correct classification with clearly defined criteria can contribute to a more in-depth study of individual aspects of the problem. In the science of criminal law and other branches of legal knowledge, there are a significant number of classifications of inaction. Some of them are auxiliary, functional in nature and are produced to solve specific scientific problems. Others are of a detailed nature and are produced with the aim of demonstrating a multidimensional phenomenon under study. The classifications that directly relate to the very essence of inaction, reflecting its specificity and being the basis for solving many theoretical and practical issues, are of greatest scientific importance. It is in the context of these classifications that discussions most often unfold, since it is in them that the achievement of theoretical uniformity is required. It is generally accepted to classify inaction into “pure” and “mixed”, but there is no theoretical consensus in this case. Therefore, it is this classification that will be subjected to more careful analysis.

Researchers often provide detailed classifications, trying to reflect the diversity of possible manifestations of inaction. This kind of classification of inaction can be presented in the following form: 1) by spheres of life of society and the state (international legal and domestic); 2) according to the complexity of the external manifestation (a single act or a system of acts of failure to fulfill an obligation); 3) by nature (failure to perform permitted, prohibited or prescribed actions); 4) for legal consequences (involving measures of legal liability or measures of protection); 5) according to the degree of awareness, etc.

S. A. Kapitanskaya makes a similar classification in relation to lawful inaction: 1) by subject (individual and collective); 2) for the most typical motives (based on a conscious attitude to the performance of duties, based on a feeling of fear of punishment, selfish interests, social protest, etc.); 3) according to the degree of social significance (socially useful or acceptable), etc. [1, p.10]

Yu. V. Istomina identifies the following criteria for classifying inaction (in relation to civil servants): 1) according to the method of commission (negligence, connivance, abuse, patronage, obstruction, evasion, concealment, etc.); 3) depending on the volitional source of occurrence (forced and committed at one’s own discretion); 4) by volume (full and partial), etc. [2, p.183]

Within the framework of this study, of course, criminal law classifications are of greatest interest.

For example, J. Fletcher names the following forms of inaction: 1) failure to perform a specific action; 2) banal inaction, when the league is required to simply perform current duties, which is not associated with the action of external, hostile forces. His co-author A.V. Naumov offers his own classification: 1) “inaction - causing”; 2) “inaction that is not causing harm, but usually manifests itself in leaving another person in danger or in failure to provide assistance necessary for his salvation”; 3) violation of specific duties assigned to certain citizens [3, p. 140].

The most detailed analysis requires the classification of inaction into “pure” and “mixed”. In the science of criminal law, a situation has arisen where, using the same terminology, authors offer different classification options. It is necessary to make a reservation that we are talking specifically about “mixed” inaction, and not about a mixed form of behavior, when a crime can be committed to the same extent both in the form of action and in the form of inaction.

If there is a comparative unanimity among the authors regarding “pure” inaction (we are talking about responsibility directly for the very fact of criminal inaction), then regarding “mixed” inaction the opinions of the authors differ significantly. However, there are reasons to express disagreement with the generally accepted interpretation of “pure” inaction. “Pure” inaction in the science of criminal law is usually interpreted as inaction not associated with the onset of socially dangerous consequences. The most common and long-standing gradation must be recognized as the division of inaction into pure and mixed. The first type, also called omission (delictumommissionis), is exhausted by the very fact of inaction and is not associated with any consequences. Another group of crimes committed by inaction is called mixed inaction (delictumommissionisperdelictumommissionem), for example, a mother does not feed her child, who as a result dies of hunger.

The optimal criterion for classifying inaction into “pure” and “mixed” should recognize the presence or absence of elements of activity in inactive behavior.

Two types of “mixed” inaction can be distinguished: 1) failure to prevent harm caused by external forces that arose independently, regardless of the culprit; 2) failure to prevent harm caused by external forces arising as a result of previous innocent actions of this person. The second type of inaction deserves special attention, which is quite close to what the author of the study is inclined to call “mixed” inaction.

In addition to identifying “mixed” inaction as inaction with consequences, we believe that cases when the perpetrator commits actions that allow him to create the appearance of legality of inaction (for example, a person liable for military service, in order to evade conscription, causes injury to himself) should also be recognized in this capacity.

“Mixed inaction” occurs when a person fulfills only part of the legal duties assigned to him, and either does not fulfill the other part at all, or performs it incompletely and improperly. For example, a mother, although she feeds her child, is clearly not enough; the doctor, having come to the patient when called, provided him with first aid, but did not take measures for hospitalization. It is also possible to distinguish criminal legal inaction, in which the subject, evading the legal obligations assigned to him, commits certain active actions. However, he does not connect these cases with the concept of “mixed” omissions.

The presented options are quite enough to get an idea of the theoretical disagreement in the interpretation of “mixed” inaction. Which of the given options can be considered correct? The forms of activity seen by the authors in inactive behavior differ significantly from each other. According to the author, “mixed” inaction should be formed by cases of the addition of a type of activity that gives grounds to talk about the simultaneous existence of two forms of behavior in one illegal act. Such “mixing” takes place only in V. B. Malinin’s interpretation. As for other options for including elements of activity in passive behavior, here there is only one form of behavior - inaction. The activity that accompanies it constitutes nothing more than specific modes of inaction. The action here does not have independent criminal legal significance. Both action and inaction occur as if simultaneously—they are inseparable from each other. Subjective guilt is aimed at only one of them - inaction.

Thus, based on the criterion of the presence or absence of elements of activity in passive behavior, the following classification can be proposed: 1) “pure” inaction, resulting exclusively from passive behavior, regardless of the fact of the occurrence of socially dangerous consequences; 2) “inaction with elements of active behavior”: a) improper performance of duties; b) the use of an active method when committing an attack in the form of inaction (mainly in evasion); 3) “mixed” inaction (where both action and inaction take place simultaneously as independent forms of behavior, however, with the decisive role of inaction).

The ambiguous interpretation of the criminal law concept of “inappropriate action” deserves special attention. The author believes that this issue should be resolved based on the form of guilt in relation to the crime. So, if the doctor, having provided the patient with first emergency aid, did not take measures for his further hospitalization, despite the need for such, then there is inaction of the doctor. Having performed only part of the actions to provide assistance, the doctor, however, did not fulfill his duty in full. Here the category of “inappropriate action” appears as a method of inaction. But if the same doctor, due to his inexperience, inattention or other subjective factors, used medications that were inappropriate for the clinical case, thereby causing harm to the patient’s health, then in this case we are dealing with behavior in the form of an action. Accordingly, the question of identifying a third form of behavior has neither theoretical nor practical grounds.

Of certain scientific interest is the classification of inaction depending on the external forms of its manifestation. This issue has practically not been subjected to theoretical analysis in the science of criminal law. According to the author, it is advisable to distinguish three forms of external manifestation of criminal inaction: 1) inaction-non-fulfillment, which consists in a simple failure by the subject to fulfill the legal obligation assigned to him. In this case, the danger of causing harm to a criminal legal object is contained in the failure to fulfill the obligation itself, and is not associated with the influence of external factors (all types of evasion can be included here); 2) inaction - non-intervention associated with failure to fulfill the obligation to suppress the danger of causing harm that arose in addition to the guilty party (failure to provide assistance to the patient), or due to his previous actions (the special case of being left in a dangerous state); 3) inaction-connivance, which is a particular type of non-intervention, but due to the specificity of the external circumstance to be suppressed (criminal behavior of another person), must be identified as an independent form of criminal inaction.

The classification of inaction depending on the type of passive behavior specified in criminal law is also worthy of attention. Thus, such types of criminal inaction as evasion, refusal to perform duties, and leaving in a dangerous state have common specific features. Researchers need to take into account the specific manifestations of one or another type of inaction in order to uniformly interpret the relevant criminal acts.

Literature:

Kapitanskaya S. A. Lawful inaction as a form of legal behavior. - Kazan: Kazan State University Publishing House, 2005. - 123 p.
Istomina Yu. V. Inaction of civil servants: administrative and legal content and ways to overcome illegality // Bulletin of Voronezh State University. 2014. No. 1. - pp. 183–185.
J. Fletcher, L. V. Naumov Basic concepts of modern criminal law. - M.: Lawyer, 1998. - 349 p.