The objective side of the crime. Mandatory signs of the objective side of a crime

General provisions

The concept of the objective side of a crime is directly related to the features of the external manifestation of a socially dangerous act. Here they usually consider such signs as the dangerous acts themselves, their consequences, cause-and-effect relationships, as well as the place, method, time, setting and instruments of committing the crime.

These elements play an important role for correct qualification, imposing a fair sanction, and establishing the composition that is the basis for determining criminal liability. If we talk about what the objective side of a crime is, the Criminal Code of the Russian Federation sees it not in the idea itself or the thoughts of a person aimed at causing dangerous actions for society, but first of all in a dangerous act that by its nature violates the established norms of criminal law. This element is considered the main criterion for assessing the goals and intentions of the criminal, which is why when investigating crimes, it is the objective side that must first be established.

Current problems of criminal law. Textbook for undergraduates

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Rep. ed. Podroikina I.A.
Legal

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Preface

Chapter 1. Current problems of the doctrine of crime

1.1. The evolution of the concept of crime in the history of Russian criminal law

1.2. Problems of defining a crime and its signs in modern criminal law

1.3. The problem of determining the insignificance of an act

1.4. The problem of categorizing crimes

Chapter 2. Problems of the institution of multiple crimes

2.1. Problems of determining the plurality of crimes and its forms

2.2. Problems of the institution of aggregation of crimes in the criminal legislation of the Russian Federation

2.3. Problems of the institution of recidivism of crimes in the criminal legislation of the Russian Federation

Chapter 3. Problems of the doctrine of the elements of a crime. Problems of the doctrine of the object and objective side of crime

3.1. Problems of the doctrine of crime in the history of Russia and in modern criminal law

3.2. Problems of determining the object of a crime and its signs. Classification of objects vertically and horizontally

3.3. Current problems of the doctrine of the objective side of crime

Chapter 4. Current problems of the doctrine of the subject and the subjective side of the crime

4.1. The concept of the subject of the crime. Individual and age as obligatory signs of the subject of a crime - problems and prospects

4.2. Sanity of minors when applying Part 3 of Art. 20 of the Criminal Code of the Russian Federation - problems of definition and legal nature

4.3. Problems of the doctrine of sanity and insanity. “Limited sanity” – problems of definition, relationship with insanity

4.4. Current problems of the doctrine of the subjective side of crime

Chapter 5. Problems of the doctrine of the stages of a crime and an unfinished crime

5.1. The problem of the relationship between the stages of a crime and an unfinished crime

5.2. Problems of the doctrine of an unfinished crime in modern criminal law

5.3. Types of unfinished crime, their difference from detection of intent and completed crime

5.4. Problems of the institution of voluntary refusal, its difference from an unfinished crime and active repentance

Chapter 6. The doctrine of complicity. Problems of qualification of group crimes

6.1. The concept and signs of complicity in a crime. The problem of determining complicity in criminal law

6.2. Problems of determining the types of accomplices and qualifications of complicity in the distribution of roles

6.3. Problems of determining forms of complicity and qualifications for various forms and types of complicity

6.4. Problems of liability of accomplices in crime. Special issues of liability of accomplices

Chapter 7. Problems of the doctrine of criminal punishment

7.1. The institution of punishment at different stages of socio-historical development

7.2. Problems of determining the signs and purposes of punishment in modern criminal legislation

7.3. Problems of delimiting criminal punishment from administrative punishment

Chapter 8. Problems of building a punishment system in modern criminal legislation

8.1. Historical experience in constructing a penal system

8.2. Foreign experience in building a penal system

8.3. Problems of constructing the “Ladder” of punishments in modern criminal legislation of Russia

8.4. Problems of regulation and prospects for certain types of basic punishments under the Criminal Code of the Russian Federation

8.5. Problems of regulation and prospects for “Mixed” types of punishment under the Criminal Code of the Russian Federation

Chapter 9. Main law enforcement problems in the field of criminal law protection of life and health

9.1. Concept, general characteristics and types of crimes against life and health, evolution of legislation on liability for crimes against life and health

9.2. Problems of qualification of crimes against life

9.3. Problems of qualification of crimes against health

Chapter 10. Concept and main signs of crimes against property. Problems of qualification of crimes against property

10.1. Concept, general characteristics and types of crimes against property

10.2. Problems of defining theft and its signs

10.3. Problems of qualification of crimes against property associated with theft

10.4. Problems of qualifying crimes against property that cause property or other damage not related to theft

Chapter 11. Main law enforcement problems in the field of criminal law protection of public safety

11.1. Concept, characteristics of objective and subjective characteristics, classification of crimes against public safety, genesis of legislation on liability for crimes against public safety

11.2. Problems of qualifying crimes of a terrorist nature

Chapter 12. Current problems of anti-corruption in the field of criminal law protection of state power, interests of the civil service and service in local governments

12.1. Corruption crimes and their place in the system of crimes against state power, the interests of public service and service in local governments

12.2. Problems of determining the characteristics of a special subject of corruption crimes against state power, the interests of the civil service and service in local governments

12.3. Criminal legal problems of combating bribery and other corruption crimes encroaching on the interests of state power, civil service and service in local governments

Only part of the chapter is available for free reading! To read the full version you must purchase the book

3.3. Current problems of the doctrine of the objective side of crime

The objective side of the crime is quite fully disclosed in the criminal law literature. The objective side is a set of external signs of a crime that characterize it as a socially dangerous act provided for by criminal law; This is an external act of a socially dangerous encroachment on public relations protected by criminal law, causing them harm or creating a threat of harm.

The objective side of a crime is a set of circumstances that actually exist and are guessed in advance by the legislator, which in their organic unity and interconnection constitute and characterize “the process of socially dangerous and unlawful encroachment on interests protected by law, considered from its external side, from the point of view of the sequential development of those events and phenomena that begin with a criminal action (inaction) of the subject and end with a criminal result.”

In the science of criminal law, traditionally, the signs of the objective side include: an act in the form of action or inaction, socially dangerous consequences, causation, time, place, method, tools, means and environment for committing a crime. At the same time, there is no consensus in the literature regarding which of the listed features should be considered mandatory and which should be considered optional.

Thus, a number of authors believe that the optional features of the objective side of a crime must include: time, place, method, setting, weapon and means of committing a crime. Moreover, the number of authors adhering to this approach in the science of criminal law is very significant.

According to others, optional signs of the objective side are socially dangerous consequences, a causal relationship between the act and the consequences, time, place, method, setting, instruments and means of committing a crime. At the same time, as you can see, regarding such signs as time, place, method, tools, means and environment for committing a crime, researchers do not have any disagreements; they are unanimous in the opinion that these signs are optional. But regarding the status of socially dangerous consequences and the causal relationship, opinions are divided.

The second point of view seems more correct to us, since both the truncated and formal and material compositions have only one mandatory feature - a socially dangerous act. As for socially dangerous consequences and causation, they are always present only in compounds with a material structure, therefore it would be more correct to classify these signs not as mandatory, but as optional.

The objective side, in comparison with other elements of the crime, includes a larger number of features that characterize it; they are outlined more fully in the law. In this regard, B. A. Kurinov rightly notes that such attention of the legislator to the formation of signs of the objective side in the criminal law is not accidental; it is in the external side of the crime that the social danger of the act is first of all objectified, it is “the characteristics of the objective side of the crime in the criminal law that reflect the state (direction) and “volume” of criminal repression in the country.”

So, the only mandatory sign of the objective side of a crime is the act. An act is a socially dangerous, unlawful, conscious, volitional, complex action or inaction that has violated or created a real threat of violation of social relations protected by criminal law.

Based on this definition, we can identify the signs of the act. Firstly, public danger is a material sign of a criminal act, which means that it is capable of causing harm to social relations protected by criminal law. Secondly, illegality, which is a normative expression of the social danger of an act, and presupposes prohibition by criminal law. Thirdly, awareness, i.e. the person committing a specific act understood the actual nature and content of the social danger of the act. Awareness of the actual nature of the act means that the person understands the content of the act, as well as the circumstances of the time, place, method, instrument, means and environment of the act, and understands how the cause-and-effect relationship will develop. A person’s awareness of social danger presupposes an adequate perception of the direction of the act on those social values that are protected by criminal law. So, for example, when striking another person, a person realizes that thereby he can harm his health or take his life. If a person, committing a socially dangerous act, does it unconsciously, then such an act cannot be recognized as criminal. For example, when using a person as a drug courier “blindly”, when he does not know that, along with permitted items, he is transporting narcotic drugs. Awareness of the social danger of an act cannot be confused with awareness of its illegality. Ignorance of the law does not exclude criminal liability.

Fourthly, a socially dangerous act must be volitional, that is, it is committed when the person has a real physical opportunity to choose a different (non-criminal) behavior option. Therefore, a person cannot be subject to criminal liability if he acted (failed to act) against his own will, under the influence of any external factors: 1) force majeure; 2) irresistible physical coercion; 3) mental coercion that meets the requirements of extreme necessity (threat). In addition, there is no free will in the presence of internal insurmountable obstacles (mental illness, disorder of consciousness), with impulsive reactions resulting from a sudden strong impulse that is irresistible (for example, a sentry leaves his post as a result of poriomania, i.e. impulsive vagrancy) .

Fifthly, a socially dangerous act is complex. The physical property of a criminal act, like any human behavior determined by consciousness and will, is expressed in the commission of one or several homogeneous or heterogeneous movements (acts). However, the act cannot be reduced to a simple body movement devoid of social meaning. It differs from ordinary body movement not only in that it is a conscious and volitional act of human behavior, but also in that it is complex in nature, including a number of body movements. For example, when taking a life by strangulation with a rope, it is necessary to take a rope, throw it around the victim’s neck and tighten it, i.e., perform a whole series of movements, while in the criminal legal sense, one act has been committed - murder.

An act can manifest itself in two forms - action and inaction. The first form represents the active behavior of the person, the second - passive. But in any case, both forms must retain the characteristics that characterize the act as a whole.

Next, we should move on to consider the optional signs of the objective side of the crime, which, as indicated above, include socially dangerous consequences, causation, time, place, method, tools, means and environment of the crime.

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Current problems of criminal law. Textbook for undergraduates

The textbook has been prepared in accordance with the Federal State Educational Standard of Higher Professional Education of the third generation for students in the field of study 030900.68 “Jurisprudence” (qualification (degree) “Master”). The book examines the most pressing problems of modern criminal law, related to the difficulties of law enforcement, contradictory trends and prospects for the development of domestic legislation and giving rise to heated scientific discussions. An analysis of Russian legislation is presented taking into account historical experience, empirical and sociological research data, comparative legal material, answers are given to a number of controversial issues of the General and Special Parts of Criminal Law, the theory and practice of qualifying the most common crimes, the effectiveness of criminal law, its most important institutions and individual normal The textbook is intended for undergraduates, graduate students, teachers of law schools, researchers and legislators, as well as other persons dealing with problems of criminal law. Legislation is current as of November 2013.

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Legal Rep. ed. Podroikina I.A. Current problems of criminal law. Textbook for undergraduates

Qualifying Traits

Signs of the objective side of a crime characterize the external side of the subject’s dangerous behavior. The group of such distinctive features includes:

the causal connection that has arisen between the consequences and the act;
time, place, situation in which the dangerous action was committed;
dangerous consequences expressed in the form of harm;
the method of carrying out the act, the means and instruments of commission.

Not all of the signs of the objective side of the crime proposed above are basic; most often they play an optional role for qualification. The law considers dangerous action to be a mandatory characteristic.

Signs

The objective side of a crime in criminal law is part of the crime, the content of which lies in the action committed by the criminal, regardless of his subjective assessment of his actions. The act must pose a threat to society and be prohibited by law.

The main features of the objective side of the crime are expressed:

An act that threatens others - criminal law implies a conscious, controlled course of action of a person that is dangerous in nature and contrary to the rules of law. Dangerous actions appear in the form of active actions (attack, theft) and refusal to perform necessary actions (failure to comply with safety precautions, failure to provide assistance to a patient).
The dangerous consequences of an offense - the main threatening factor in committing criminal acts (inaction) appears in the negative transformations that follow them, causing certain damage. This may be harm to health, moral or property damage. This also includes damage in the political sphere.
The connection between the violation and its consequences is a very important condition. We are talking about an event that develops over time. The importance of establishing a causal relationship is justified by the fact that an unlawful act naturally leads to certain phenomena. A stable sequence of “action – consequence” is necessary to prove that the damage received was the result of the act of the accused. If such a sequence is not proven, then other factors led to the formation of specific consequences and there are no grounds for bringing the suspect to criminal liability.

Causation may arise due to intent or coincidence. If there is a coincidence, the result is not a direct consequence of illegal actions. For example, a person received a concussion as a result of an attack, but tripped while leaving the clinic, fell and broke his neck. Although the victim was admitted to the hospital due to the attack, the final consequence was not related to it.

In another case, on the contrary, the result is a direct consequence of the internal process of the offense.

The role of the objective side

The importance of the objective side of the crime follows from the role of the crime itself. The basis for bringing to responsibility is the commission of an act that includes the fundamental elements of the crime. Therefore, in order to bring the subject to justice, it is necessary to determine the characteristics of a specific criminal act.

The objective side of the crime makes it possible to draw a parallel between several related offenses, which, in turn, will allow the authorized person to make a correct assessment of the actions of the criminal, thereby determining a fair punishment. For example, causing harm to health can entail a wide range of sanctions that are imposed based on the consequences that occur.

Thus, the significance of the objective side is manifested in the following:

firstly, it is expressed in the form of a legal basis for qualifying a criminal act;
secondly, it forms the basis for establishing criminal liability;
thirdly, it allows you to distinguish between similar elements of composition;
fourthly, it contains a criterion for distinguishing an offense from a crime.

Meaning

The objective side in criminal law, to one degree or another, influences the entire course of the criminal case. This is part of the crime on which criminal liability is based.

In addition, the objective side is used to protect against errors in the criminal legal assessment of an offense, and also contains criteria that make it possible to distinguish between crimes that have similar characteristics; in certain situations, it makes it possible to detect an additional object of activity of offenders.

Signs of the objective side are often used as mitigating and aggravating circumstances. For example, the law was violated under duress (mitigating factor) or a particularly active role in the course of the crime was noted (aggravating factor).

In such cases, they are not considered from the point of view of assessing the act, but influence the choice of a preventive measure.

A dangerous act is the first sign of the objective side

Mandatory signs of the objective side of a crime are expressed in the form of inaction or action, which are called a criminal act. In the physical sense, action is expressed by the active behavior of a person. The main feature of the act is considered to be its social danger, as well as causing harm to objects that are protected by law. If actions do not pose a public danger, they cannot be considered criminal, and therefore do not entail criminal liability.

The objective side of a crime, which is expressed in the form of an act, does not always have a criminal characteristic. Such cases include actions that, due to their insignificance, do not pose a danger to society.

19. CONCEPT, CONTENT, MEANING AND SIGNS OF THE OBJECTIVE SIDE OF A CRIME

Objective side of the crime

– one of the four elements of a crime, which consists of the perpetrator committing a specific act that poses a public danger and is prohibited by criminal law under threat of punishment.

The objective side as an element of the crime

- this is a set of legally significant signs provided for by the Criminal Code of the Russian Federation, characterizing an external act of socially dangerous encroachment.

Signs of the objective side include:

1)required:

a) an act that encroaches on a particular object, which can be expressed in two forms:

in action – it represents an act of active socially dangerous and illegal behavior; inaction is a socially dangerous act of behavior, consisting in a person’s failure to perform an action that he should and could have performed. Criminal inaction is characterized by two elements: objective – the obligation to act and subjective – the opportunity to commit a behavioral act. The action must be limited by a certain volitional impulse and conscious;

b) socially dangerous consequences

– the result of a criminal act;

c) a causal relationship between action (inaction) and consequences

– an objective connection between phenomena, one of which (cause), in the presence of certain conditions, gives rise to another phenomenon (effect). Features of causal relationships: cause gives rise to effect. The scope of the causes, primarily the stage of motivation and decision-making, when it comes to the formation of a motive, a goal, and the determination of the means of achieving it as criminal; the cause always precedes the effect in time; the action of the same cause under the same conditions always gives rise to the same effect; the effect does not repeat the cause;

2) optional:

– situation

– a set of circumstances affecting the nature and degree of public danger of the act (combat situation, zone of environmental disaster or zone of environmental emergency);

– crime scene

– this is the territory in which the criminal act is committed (home, burial places);

– time of crime

– the period during which the crime was committed (wartime, during or immediately after childbirth);

– method of committing a crime

– is a set of techniques and methods used to commit a criminal act.

The meaning of the objective side of the crime:

– affects the correct classification of a socially dangerous act;

– plays a role in distinguishing crimes that are similar in other respects;

– analysis of the objective side allows in some cases to establish the presence of a second, additional object;

– individual elements of the objective side are used by the legislator as qualifying features;

– signs of an objective party can be considered by the court as mitigating or aggravating circumstances that do not affect qualifications, but are taken into account when determining the type and amount of punishment.

Table of contents

Socially dangerous act - distinctive features

The signs of the objective side of the crime are determined by the totality of characteristic features and properties of a criminal nature. The act must be illegal, socially dangerous, volitional and conscious. This concept is used in two meanings - a narrow and a broad sense.

In a narrow sense, this element represents a generic form of human behavior. In a broad sense, the action is expressed in an abstract, indefinite form of influence. The illegality of an act is expressed by the fact that a specific inaction or action is prohibited by law under threat of punishment, and the implementation of such influence is always considered a violation of the provisions of the Criminal Code.

An illegal and dangerous action can be expressed as a sign of the objective side only in case of awareness. This means that the person’s consciousness must embrace the content and nature of the public danger. Also, the subject must be aware of what exactly his criminal attack is aimed at and what harm his actions can cause to others.

Topic 5. Object of a criminal offense. The objective side of a criminal offense

The object of a criminal offense

public relations, benefits and interests protected by criminal law are recognized, to which harm is caused by a criminal offense or a threat of harm is created.

The object of a criminal offense affects the nature and degree of social danger of a criminal offense; is the basis for distinguishing criminal offenses from each other; serves as a criterion for the classification of criminal offenses.

In the theory of criminal law, the objects of a criminal offense

classified
“vertically”
(general, generic, direct objects) and
“horizontally”
(main, additional, optional direct objects).

The general object of a criminal offense is the totality of social relations protected by criminal law. Article 2 of the Criminal Code, formulating the tasks of criminal law, gives an approximate list of social relations protected by criminal law from criminal attacks - rights, freedoms and legitimate interests of man and citizen, property, rights and legitimate interests of organizations, public order and security, environment, constitutional order and territorial integrity of the Republic of Kazakhstan, legally protected interests of society and the state, peace and security of mankind.

The generic object of a criminal offense is a group of homogeneous social relations that are encroached upon by criminal offenses. The direct object of a criminal offense is recognized as specific social relations that are harmed by a criminal offense. For example, in murder, the generic object is the person, and the immediate object is the person’s life.

When committing certain criminal offenses, an encroachment is committed simultaneously on two objects. For example, during robbery there is an attack on property (the main direct object), as well as on the person (an additional direct object). Encroachment on optional objects is possible in simple single-object criminal offenses. For example, in case of hooliganism, the main object is public order, and the optional object can be a person or property. Sometimes, when committing a given crime, an attack occurs simultaneously on all three objects. But the elements of hooliganism will exist even in the absence of an encroachment on its optional objects.

Subject of a criminal offense

are things of the material world (that which is available for perception, measurement, recording, evaluation), by influencing which a person encroaches on social relations protected by criminal law. The subject of a criminal offense should be distinguished from the instruments and means of committing a criminal offense (by the nature of their use during the commission of a criminal offense and by belonging to the elements of a criminal offense). For example, if a pistol is illegally acquired or stored, it becomes the subject of a crime (Article 287 of the Criminal Code), and if a person kills another person by shooting from this pistol, then the pistol will become an instrument of crime (Article 99 of the Criminal Code).

The objective side of the criminal offense

- this is a set of external signs of a criminal act that characterize an act of volitional behavior of a person, occurring in the objective world. The objective side of the criminal offense is most fully reflected in the disposition of the articles of the Special Part of the Criminal Code.

All signs of the objective side of a criminal offense can be divided into two groups: mandatory and optional.

To the mandatory features

The objective side in the material elements of criminal offenses includes a socially dangerous act, a socially dangerous consequence, a causal relationship between the act and the consequence. In formal cases - a socially dangerous act.

A socially dangerous act is a conscious and volitional act of a person, the external form of which is active behavior (action) or passive behavior, expressed in the failure to perform certain actions that the person should and could have performed (inaction).

Socially dangerous consequences should be understood as harm caused to the object of criminal legal protection as a result of a socially dangerous act committed. All consequences of a criminal offense can be divided into two groups: material (property damage, physical - harm to human life or health) and intangible (moral, organizational, political harm).

A causal connection is an objective connection between a socially dangerous act and criminal consequences, when the act was a necessary condition (direct cause) for the occurrence of these consequences and naturally caused their occurrence in a specific situation. The criteria (conditions) of causation in criminal law are: 1) a socially dangerous act always precedes socially dangerous consequences in time; 2) a socially dangerous act actually gives rise to a criminal consequence or creates a real threat of its occurrence; 3) the consequence occurred precisely from this act without the influence of any other circumstances.

The time, place, setting, method, instruments and means of committing a crime are optional signs of the objective side of a criminal offense

(provided that they are not indicated by the legislator among the signs of a specific criminal offense).

Basic and additional literature: listed in section 5. pp. 1-19, 20-30.

Topic 6. Subject of a criminal offense

Subject of a criminal offense

A sane individual is recognized as having committed a socially dangerous act prohibited by criminal law and having reached the age established by criminal law at the time of the commission of the crime.

The subject of a criminal offense can only be an individual, i.e. person (citizen of the Republic of Kazakhstan, foreign citizen or stateless person). To be recognized as a subject of a criminal offense, it must have the following mandatory features:

: sanity, reaching a certain age.

Sanity is the ability of a person, during the commission of a socially dangerous act provided for by criminal law, to realize the actual nature and social danger of his actions (inaction) and to direct them. Persons deprived of this ability due to a mental disorder are recognized as insane and are not subject to criminal liability (Article 16 of the Criminal Code).

This ability arises only upon reaching a certain age, in connection with which the criminal law establishes that a person who has reached the age of 16 at the time of committing a criminal offense is subject to criminal liability. For certain crimes, criminal liability begins at the age of 14. An exhaustive list of such crimes is enshrined in Part 2 of Article 15 of the Criminal Code. This list includes crimes whose social danger is obvious, crimes that are widespread among representatives of a given age group, crimes that are committed out of childish mischief, etc.

When establishing the age of criminal responsibility, calendar (passport) age is taken into account, but current criminal legislation also takes into account social age. Thus, in exceptional cases provided for by law, a minor who has reached the established age is not subject to criminal liability provided: 1) if he is lagging behind in mental development not associated with a mental disorder (pedagogical neglect), 2) commits a crime of minor or moderate gravity, 3 ) cannot fully understand the actual nature and social danger of his actions (inaction) or manage them.

A person who, at the time of committing a socially dangerous act provided for by the Criminal Code, was in a state of insanity, is not subject to criminal liability.

The concept of insanity is enshrined in Article 16 of the Criminal Code. Insanity

- this is the inability of a person to realize the actual nature and social danger of his actions (inaction) or to manage them due to a chronic mental illness, temporary mental disorder, dementia or other painful mental state.

The concept of insanity includes two criteria: 1) legal (psychological) and 2) medical (biological).

Legal (psychological) criterion

includes two characteristics: a) intellectual and b) strong-willed. An intellectual sign means a person’s inability to realize the actual nature and social danger of his act, i.e. lack of understanding by a person of the social meaning of his behavior. The volitional sign of the legal criterion consists in the inability of a person to manage his actions (inaction) and direct them in the proper direction.

Medical criterion

insanity presupposes the presence of one of the four mental disorders specified by law: a) chronic mental illness; b) temporary mental disorder; c) dementia; d) other painful mental state.

To declare a person insane, it is sufficient to have one of the signs of the legal criterion and one of the signs of the medical criterion.

The current Criminal Code in Article 17 addresses the issue of criminal liability of persons with a mental disorder that does not exclude sanity. In legal literature, this state is usually called limited (or reduced) sanity.

According to the legislative definition, the concept of limited sanity also includes two criteria: legal (could not fully understand the actual nature and social danger of one’s actions (inaction) or control them) and medical (mental disorder that does not exclude sanity).

Such a person is recognized as sane and subject to criminal liability. But mental disorder is taken into account by the court when assigning punishment as a mitigating circumstance and can serve as a basis for imposing compulsory medical measures.

Limited sanity should not be considered as an intermediate state between sanity and insanity. In its content and legal consequences, limited responsibility is closely related to sanity.

Along with the concept of a general subject in criminal law, there is also the concept of a special subject of a criminal offense

. It is understood as a person who, along with the indicated mandatory characteristics, also possesses additional characteristics provided for by the relevant norms of the Special Part of the Criminal Code. The signs of a special subject are varied and can relate to various personality traits (gender, age, family relationships, job position, etc.

Basic and additional literature: listed in section 5. pp. 1-19, 20-30.

Topic 7. The subjective side of a criminal offense

The subjective side of a criminal offense is

a set of characteristics established by law that characterize the internal side of a criminal offense.

Required feature

the subjective side of a criminal offense is guilt, i.e. the mental attitude of a person to the act he commits and its consequences, expressed in the form of intent or negligence. The law also provides for double (mixed) guilt.

The content of guilt is characterized by two aspects: intellectual and volitional. The intellectual moment of guilt includes the person’s awareness of the social danger of his actions (inaction) and the anticipation of the possibility or inevitability of the onset of socially dangerous consequences. The volitional moment means the attitude of the subject’s will to the upcoming harmful changes in reality as a result of the commission of a crime.

The different ratio of intellectual and volitional aspects underlies the division of guilt into forms, and within the same form - into types.

Criminal law provides for the following forms of guilt:

: intent, negligence.

The current criminal legislation of the Republic of Kazakhstan (Article 20 of the Criminal Code) distinguishes between two types of intent

: direct and indirect (eventual).

A criminal offense is recognized as committed with direct intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence.

A criminal offense is recognized as committed with indirect intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility of socially dangerous consequences, did not want, but consciously allowed these consequences to occur, or was indifferent to them.

Awareness of the social danger of one's action or inaction, as a sign of an intellectual moment, coincides with direct and indirect intent. These types of intent differ in the degree of anticipation of the onset of socially dangerous consequences and, mainly, in terms of volition.

The theory of criminal law and judicial practice distinguish other types of intent. Based on the moment of formation, intent is divided into pre-meditated and sudden. A type of suddenly arising intent is affected intent.

Depending on the degree of certainty of the perpetrator’s foresight of the socially dangerous consequences of the act he commits, intent is divided into definite (specific) and indefinite (non-specific).

The current criminal legislation of the Republic of Kazakhstan (Article 21 of the Criminal Code) distinguishes between two types of negligence

: arrogance and carelessness.

A criminal offense is recognized as committed due to arrogance

, if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds, he frivolously counted on preventing these consequences.

Criminal arrogance in its intellectual aspect has some similarities with the intellectual element of direct and especially indirect intent. In all cases, the perpetrator foresees the onset of socially dangerous consequences of his actions (inaction). However, the nature of foresight with intent differs significantly from the nature of foresight with criminal arrogance. Foresight with intent is always concrete in nature, but with arrogance, criminal consequences are foreseen in a general, abstract form.

Arrogance and indirect intent also differ in their volitional moment. With indirect intent, the perpetrator, although unwilling, consciously allows harmful consequences to occur or is indifferent to them. With arrogance, the volitional moment is characterized by the fact that a person, without sufficient grounds for this, frivolously hopes to prevent the socially dangerous consequences of his act. The calculation of the perpetrator to prevent the harmful consequences of his act always presupposes a calculation of real, specific circumstances that should, in his opinion, prevent the onset of the consequences. Relying not on real circumstances, but on chance, eliminates arrogance.

A criminal offense is committed due to negligence

if a person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with due care and forethought he should and could have foreseen these consequences.

Negligence differs from direct and indirect intent and arrogance in that a person does not realize the social danger of his action or inaction, does not foresee the possibility of socially dangerous consequences (intellectual moment). Criminal liability arises for the fact that a person did not make the necessary volitional efforts to foresee the socially dangerous consequences of his act.

The volitional moment of negligence is characterized by a combination of two signs. The first is that the person had to foresee the socially dangerous consequences of his action or inaction (objective criterion), the second is that he could have foreseen them (subjective criterion).

The current criminal legislation also distinguishes double (complex) guilt

(Article 22 of the Criminal Code of the Republic of Kazakhstan), when one criminal offense combines two forms of guilt - intent in relation to the act and its consequences, and negligence in relation to additional grave consequences resulting from this act. In general, such a criminal offense is recognized as committed intentionally.

Optional characteristics

the subjective side of a criminal offense is the motive of the crime (the motivation that guides a person when committing a crime) and the purpose of the crime (the final result that the perpetrator strives to achieve).

Correctly establishing the subjective side of a criminal offense is of great practical importance

: it acts as a subjective basis for criminal liability, allows you to distinguish criminal behavior from non-criminal behavior, accurately qualify criminal offenses, distinguish elements of a criminal offense that are similar in objective terms from each other, determine the degree of danger of the person who committed the criminal act, and individualize punishment.

Article 19 of the Criminal Code, through a ban on objective imputation, enshrines the principle of subjective imputation

. The essence of this principle boils down to the fact that criminal liability arises only for those socially dangerous acts and socially dangerous consequences that have occurred in respect of which guilt in the form of intent or negligence has been established.

Criminal liability for innocent causing of harm is not permitted.

The rule on innocent tortfeasibility

(Article 23 of the Criminal Code) provides for four options for innocent causing of harm:

1) the criminal law establishes liability only for the intentional commission of a particular act, and in this particular case the same act was committed, but through negligence;

2) incident, i.e. the person who committed a socially dangerous act did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction) or did not foresee the possibility of socially dangerous consequences occurring and, due to the circumstances of the case, should not or could not have foreseen them; This version of innocent harm is similar to negligence, however, unlike negligence, the incident is characterized by the absence of an objective or subjective criterion.

3) a person who foresaw the onset of socially dangerous consequences when committing an act, counted on their prevention with sufficient grounds; This option of innocently causing harm is similar to arrogance, however, unlike arrogance, the person’s calculation of preventing socially dangerous consequences in the latter case is justified.

4) a person who foresaw the onset of socially dangerous consequences when committing an act, could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload. The conclusion about the inconsistency of the psychophysiological qualities of the harm-doer with the requirements of extreme conditions or neuropsychic overload should be based on the conclusion of a forensic psychological examination.

There are no special rules in the criminal legislation of the Republic of Kazakhstan regulating issues of errors

. They are considered and resolved by theory on the basis of provisions about wine and its forms. An error is a special form of a subject’s mental attitude to the act he has committed and its consequences and is therefore considered when covering the issue of the subjective side of a criminal offense.

An error is a person’s misconception (misconception) about the legal properties or factual circumstances of the act he commits. In the theory of criminal law, errors are usually divided into legal and factual.

A legal error is a person’s incorrect understanding of the legal properties and legal consequences of the act he commits. It may consist in an erroneous assessment of the illegality of the act committed by him from the point of view of criminal law, in the incorrect qualification or punishability of the act, or in an error about the nature of the expected criminal punishment.

A factual error is a person’s misconception about the factual circumstances of the act he committed. A factual error refers to individual elements of a criminal offense committed by a person: to the object, to the objective side, or to qualifying circumstances. In accordance with this, the following types of factual error are distinguished: a) error in the object of the attack; b) error in the nature of the action; c) an error in the development of a causal relationship between the subject’s act and the resulting result.

Basic and additional literature: listed in section 5. pp. 1-19, 20-30.

Unlawful act - forms

Having determined what features the objective side of the crime may have, it is necessary to pay attention to the distinction between the forms of committing the act.

Action in legal meaning is expressed in the form:

physical impact on material objects or people (for example, theft of property, murder);
verbal or written inducement of a person to action (for example, insult, slander).

Inaction is a passive form of human behavior, which must be unlawful, volitional, conscious and socially dangerous. This element of the composition acquires criminal legal significance only in the presence of certain characteristics, for which it is necessary to determine:

a real possibility of carrying out a specific action;
what exactly is the inaction, what action was not performed by the person;
that the person was obliged to take some action in order to prevent the onset of negative consequences.

The obligation to act in a certain way arises in the presence of the following circumstances:

official position or profession (for example, when a doctor is obliged to provide care to a patient, and due to failure to fulfill direct official obligations, the patient’s health was damaged);
direct indication of a by-law or law;
norms of law and morality;
obligations that were assumed under the agreement;
obligations to perform certain actions in relation to a specific person.

Dangerous consequences - the second sign

The objective side of the crime includes consequences dangerous for society, which are usually understood as harm caused to relationships protected by criminal law.

The consequences are classified as follows:

moral;
property;
physical.

Criminal legislation implies crimes with formal and material elements. This division provides a prerequisite for determining the moment of completion of a specific criminal act. In the first case, it is considered completed after the actual action is completed, regardless of the consequences that occur. In the second case, the presence of a completed composition is associated with the onset of specific negative consequences.

For example, murder is classified as a completed act only after the death of the victim. If the death of the person does not occur, the crime is regarded as an attempt on life.

Bibliography

Criminal Code of the Russian Federation: Federal Law of the Russian Federation of July 13, 1996 No. 63-FZ// SZ RF. – 1996. – No. 25. – Art. 2954.
Avdeev V.A. Subjective and objective signs of a crime that influence its qualification. Research Article. // State and law. – 2014. – No. 2. – P. 33-38.
Basova T. B. Criminal law of the Russian Federation. General and special parts: textbook / T.B. Basova, E.V. Blagov, P.V. Golovenkov [and others]; edited by A.I. Chuchaeva. - M.: CONTRACT: INFRA-M, 2017. - 704 p.
Zayarnaya N.V. Criminal legal regulation of the subjective and objective aspects of a criminal act: dissertation of the candidate of jurisprudence. sciences, spec. 12.00.08. – Rostov-on-Don, 2015. – 210 p.
Kobets N.P. General characteristics of the objective side of the crime according to the current criminal legislation of the Russian Federation // Symbol of Science. – 2022. – No. 02-2/2017. – pp. 187-189.
Podkopaeva O. M. Some issues of qualification of crimes on the objective side // Priority scientific directions: from theory to practice. – 2016. – No. 26-2. – P. 175.

Causality

The objective side of the crime is the causal relationship, which is manifested in the relationship between the consequences and the act. Causality is expressed in a process that occurs over time. The first criterion of causation is the temporal sequence of the act committed and the consequences. In order for an inaction or action to be recognized as the cause of a dangerous consequence, it is necessary to determine whether the act preceded the resulting consequence and whether it created a threat of its occurrence.

There are the following types of causation:

Mediated and direct.
Complex and simple.
Branched and straight.

Rules for establishing a connection between a consequence and an action

It is necessary to determine whether the condition and cause of the occurrence of the consequence was the inaction or action of the subject.
The objectivity of the connection implies its study, regardless of the form of guilt.
First, the presence of an objective connection between the consequence and the action is established, and only then is guilt established.
It is necessary to establish legality or immorality as the main condition for the occurrence of consequences.
The subject's action must be antisocial in nature.

Optional signs of the objective side of the crime

Such conditions should include:

Time.
Place.
Way.
Circumstances.
Means and tools.

The proposed elements are not included in all formulations. The optional signs of the objective side of the crime have their own individual features and characteristics, which need to be understood separately.

Time is a certain period during which the crime was committed. The Criminal Code of the Russian Federation rarely indicates such a constructive feature. It is usually present when it comes to crimes committed while serving a sentence or serving in the military.
A crime scene is a specific area where an illegal act occurred. The territory of the state has criminal legal significance, since taking into account this fact the issue of jurisdiction is decided.
Means and instruments – substances, objects with the help of which a crime was committed. These include master keys, weapons, poisons, documents. It is necessary to establish a line between a means and an instrument to carry out qualifications.
Setting – the specific conditions in which a crime is carried out. This sign is associated with circumstances aggravating and mitigating punishment.
Method – methods and techniques that the perpetrators use to commit a crime. The method can also distinguish between similar crimes (for example, forms of theft: robbery and theft).

Thus, optional features can act as:

qualifying characteristics for a crime;
mandatory features;
aggravating or mitigating circumstances.

The concept and meaning of the objective side of the crime

The objective side of a crime is an external act of a socially dangerous encroachment on an object protected by criminal law; a set of specific external signs characterizing the content and conditions of committing a socially dangerous act.

People's behavior, including criminal behavior, has a lot of characteristics that individualize it. Some of these signs characterize the objective side of the crime.

The objective side of the crime includes:

action or inaction that encroaches on a particular object;
socially dangerous consequences;
causal connection of action or inaction with socially dangerous consequences;
method of committing the crime;
place where the crime was committed;
time of commission of the crime;
the context of the crime;
means and instruments for committing a crime.

(red - necessary signs, the rest - optional)

Any human actions have external (objective) and internal (subjective) signs. External - ensure the manifestation of human behavior in objective reality; internal - mental processes (needs, interests, motives, etc.) that occur in a person’s mind and determine his behavior. In life they form a psychophysical unity.

The division of human behavior into objective and subjective signs is possible only conditionally with the aim of deeper knowledge of them, as well as determining the role and significance of each sign in the commission of a socially dangerous act and its criminal legal classification.

Objective signs - common to all crimes - are studied in the General Part of Criminal Law.

So, in Art. 14 of the Criminal Code of the Russian Federation states that “a crime is recognized as a socially dangerous act committed guilty of guilt, prohibited by this Code under threat of punishment.”

Thus, the legislator establishes that a crime is an act that is socially dangerous and illegal, i.e. gives a description of such an objective feature as an act. the objective side of the crime most fully reflected in the disposition of the articles of the Special Part. For example, in Art. 214 of the Criminal Code, a crime such as vandalism is defined as follows: “... desecration of buildings or other structures, damage to property on public transport or in other public places.” This is how the signs of the objective side are revealed, i.e. characteristics of the actions that constitute vandalism are given. The dispositions of criminal law norms describe mainly the objective side of the crime.

The Criminal Code of the Russian Federation of 1996 in its definition of a crime does not disclose the concept of an act (Part 1 of Article 14). However, already in Part 2 of the same article it is said: “An action (inaction) is not a crime,” i.e. actually recognizes the division of acts into 2 types. An indication of action or inaction is contained in other articles of the General Part (for example, in Part 2 of Article 5, Part 3 of Article 9, Part 1 of Article 20, Parts 2 and 3 of Article 22, Parts 2 and 3 Article 25, Part 3, Article 26, Article 30 of the Criminal Code, etc.).

In the articles of the Special Part, when determining the objective side, the signs necessary for the specific individualization of the act are indicated, which makes it possible to distinguish between various crimes that are similar in object, subject, and subjective side. Analysis by the legislator, practice, and theory of objective signs of human behavior makes it possible to identify recurring types of behavior harmful to society and, on this basis, recognize them as a crime.

The previously mentioned signs of the objective side play an unequal role. Action or inaction is a mandatory sign of the objective side of any crime. The principle of recognizing as a crime only a specific socially dangerous action or inaction, and not a person’s beliefs, way of thinking, or personal characteristics, is consistently implemented in the Criminal Code of the Russian Federation.

Consequences and causation: obligatory signs or not?

Mandatory features of many crimes are consequences and causation. Some norms are designed by the legislator in such a way that the objective side includes, in addition to the act, socially dangerous consequences and the causal relationship between the act and the consequence. For example, in Part 1 of Art. 264 of the Criminal Code provides for liability for violation by a person driving a vehicle of traffic rules, which through negligence resulted in the infliction of grave or moderate harm to human health. In this case, the objective side includes: violation of traffic rules, consequences - causing certain harm to human health and a causal relationship between violation of traffic rules and the resulting consequences. In the theory of criminal law, such elements of a crime are conventionally called material . In such cases, consequences and causation are mandatory elements of a crime.

In other cases, the legislator, when constructing a norm, includes only the act, taking the consequences beyond the scope of the crime. There are criminal law norms that contain only signs of action (inaction). For example, articles on desertion, unauthorized absence, and failure to report a crime are structured this way. These are the so-called “ formal compositions ”.

The lack of indication in the article of specific consequences in these cases does not mean that the act is harmless. Any crime causes harm to the object, since harmfulness is a mandatory feature of any crime.

The question is whether to classify consequences and causation as mandatory features or consider them optional features, i.e. optional, scientists solve it differently. A number of authors classify consequences and causation as optional features, others consider them mandatory, and others identify them as a special independent group of basic, but not always included in the disposition of the norms of the Special Part.

It seems theoretically unjustified to classify consequences and causation as optional features of the objective side, since the legal characteristics and significance of mandatory and optional features are different.

The objective side of a crime is a set of external signs of specific socially dangerous behavior that harms law-protected interests.

The importance of the objective side of a crime is primarily determined by the fact that its accurate establishment is the key to the correct qualification of a socially dangerous act. Detailed, clear descriptive dispositions of the norms of the Special Part contribute to a clearer, consistent understanding of the legislator’s thoughts and uniform application of the law.

When bringing to criminal liability for committing a socially dangerous act, first of all, the signs of the objective side are established. Consequently, the objective side, determining the content of the crime, thereby determines the boundaries of the encroachment within which responsibility for a particular crime is established.

Example

Thus, in the case of L., the Supreme Court stated: “A person who has not committed actions that form the objective side of robbery cannot be held liable as a co-perpetrator of open seizure of property” * (236). L. was found guilty of the fact that, having informed A. that Ch. had a large sum of money, he remained downstairs when A., going up to Ch.’s apartment, forced her to give him the money, which they divided among themselves. The Supreme Court emphasized that the robbery was committed by A.L., but he did not commit any actions that constitute the objective side of open theft of property.

The objective side also plays a significant role in distinguishing crimes that are similar in other respects. The question arises especially acutely when distinguishing between acts that encroach on the same object and have the same form of guilt. Thus, different types of theft can be distinguished only by signs of the objective side. Theft (Article 158 of the Criminal Code), fraud (Article 159 of the Criminal Code), robbery (Article 161 of the Criminal Code) encroach on the same object, are committed intentionally, for selfish purposes, they have a common subject. It is possible to differentiate between these crimes and, therefore, to correctly apply the law only on the basis of the objective side, which is described differently in these articles.

Analysis of the objective side allows in some cases to establish the presence of a second, additional object. Yes, Art. 162 of the Criminal Code defines robbery as an attack for the purpose of stealing someone else’s property, committed with the use of violence dangerous to life or health, or with the threat of such violence. The legislator classified this crime as a crime against property. However, the description of this act in the law allows us to highlight the second obligatory object and classify robbery as a dual-object crime.

Certain elements of the objective side are used by the legislator as qualifying features, for example, the method of committing a crime. Thus, a generally dangerous method of committing murder classifies this crime as particularly serious (clause “e”, Part 2, Article 105 of the Criminal Code). Hooliganism (Part 1 of Article 213 of the Criminal Code), classified by the legislator as a crime of minor gravity, when using weapons or objects used as weapons (Part 3 of Article 213 of the Criminal Code), is considered in accordance with the categorization of crimes as grave (Part. 4 Article 15 of the Criminal Code). Finally, signs of an objective party can be considered by the court as mitigating or aggravating circumstances that do not affect qualifications, but are taken into account when determining the type and amount of punishment. For example, committing hooliganism associated with bullying the victim.

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