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Article 1 of the Criminal Code of the Russian Federation. Criminal legislation of the Russian Federation

1. The criminal legislation of the Russian Federation consists of this Code. New laws providing for criminal liability are subject to inclusion in this Code.

2. This Code is based on the Constitution of the Russian Federation and generally recognized principles and norms of international law.

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Comments on Article 1 of the Criminal Code of the Russian Federation

Article 1 of the Criminal Code of the Russian Federation defines the range of formal sources of Russian criminal law, referring primarily to the Constitution, generally recognized principles and norms of international law and criminal legislation. The latter plays a special role in criminal law regulation, since it is criminal laws that determine crime and the punishability of socially dangerous acts.

Criminal legislation of the Russian Federation is a legislative form of consolidation of legal norms (rules of conduct) of Russian criminal law. Criminal law is a fundamental branch of law, an integral part of the legal system of the Russian state. It, along with criminal procedural and criminal executive law, forms the so-called criminal legal complex, which forms the legal basis for the fight against crime.

The only federal law that is the source of the criminal legal system of Russia is the Criminal Code of the Russian Federation.

Criminal law provisions cannot be contained in any other federal legislative act. Criminal legislation, therefore, is the only and exclusive source of Russian criminal law: neither other federal laws, nor decrees of the President of the Russian Federation, much less by-laws of state authorities can establish the criminality and punishability of socially dangerous acts, or any other general provisions related to criminal liability of a citizen.

In reality, the criminal legislation of Russia includes not only the Criminal Code, but also other regulatory legal acts of legislative and executive authorities, in particular operational laws on the implementation or application of the Criminal Code of the Russian Federation or its individual provisions, resolutions of the State Duma of the Federal Assembly of the Russian Federation on the announcement of an amnesty , resolutions of the Government of the Russian Federation adopted for the purpose of applying certain norms of the Criminal Code of the Russian Federation (for example, Decree of the Government of the Russian Federation dated October 1, 2012 N 1002 “On approval of significant, large and especially large amounts of narcotic drugs and psychotropic substances, as well as significant, large and especially large amounts for plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances, for the purposes of Articles 228, 228.1, 229 and 229.1 of the Criminal Code of the Russian Federation.”

A criminal law (Criminal Code of the Russian Federation) is a normative legal act adopted by the highest legislative body of state power in the manner established by the Constitution of the Russian Federation, containing legal norms that are mandatory for compliance and execution, and having supreme legal force in relation to other normative legal acts.

Criminal law differs from other laws in the subject of legal regulation and content.

The subject of regulation of the criminal law are criminal legal relations arising in connection with and regarding the commission of a crime and the application of punishment and other criminal legal measures to the perpetrator. The criminal law establishes the grounds and principles of criminal liability, determines the range of socially dangerous acts recognized as crimes, measures of state coercion that constitute criminal punishment, and other measures of state influence applied for the commission of crimes, regulates the grounds for exemption from criminal liability, punishment and serving a sentence.

The basis for criminal liability in accordance with Art. 8 of the Criminal Code of the Russian Federation is the commission of an act containing all the elements of a crime provided exclusively by the Criminal Code of the Russian Federation and no other regulatory legal act. At the same time, it should be noted that the content of blanket norms is essentially determined by laws and other normative legal acts related to other branches of law. However, this circumstance does not indicate that criminal legal issues are regulated by laws other than the Criminal Code of the Russian Federation. And in these cases, only the criminal law determines the parameters of the crime, and the provisions of other legislative and other regulatory legal acts serve to disclose the content of criminal law norms.

Criminal legislation is administered by the Russian Federation . Therefore, the adoption of a criminal law, its amendment, or addition can only be carried out at the federal level. Subjects of the Russian Federation do not have the right to adopt criminal legal acts, not only on issues of establishing criminality and punishability of acts, but also on other issues related to the sphere of criminal legal regulation.

New laws establishing the criminality of an act, its punishability and other criminal legal consequences cannot be applied without including them in the structure of the Criminal Code of the Russian Federation. An exception to this rule in accordance with Part 3 of Art. 331 of the Criminal Code of the Russian Federation constitutes wartime legislation.

The criminal law has the highest legal force - not a single normative act can contradict the Criminal Code of the Russian Federation, otherwise the latter will always be in force.

Structure of criminal law.

Criminal law

1. The concept of criminal law and its features

2. Structure of criminal law

3. Interpretation of criminal law

4. Effect of criminal law over time

5. Action of criminal law in space

Law is an act of the highest state authority, adopted in a special manner, regulating the most significant relations and having the highest legal force.

Signs of criminal law:

1. Criminal law – federal law (procedure for its adoption)

2. Normativity of the criminal law: the criminal law can only be formed by laws containing legal norms. The norm of criminal law contains a rule of proper behavior, which is binding and a measure of responsibility for its non-compliance.

Classification of criminal law norms:

1. Binding norms (almost all the norms of the general part of the Criminal Code of the Russian Federation; special part: Art. Art. 125, 270, 345)

2. Prohibitory norms (most articles of the special part of the Criminal Code of the Russian Federation; incentive norms - special types of exemption from criminal liability (note to Art. 126, 205, 206, 222, 291 of the Criminal Code of the Russian Federation))

3. Enabling norms (law enforcement agencies and the court, under certain conditions, can exempt a person from criminal liability and punishment (Chapter 11, 12 of the Criminal Code of the Russian Federation); citizens - Chapter 8 (Article 37-42)

Criminal law is the only source of criminal law, which is a written legal act containing rules establishing principles and general principles of criminal liability, determining which acts are criminal and the punishment for them.

Structure of criminal law.

The current criminal law consists of the Criminal Code of the Russian Federation. It is divided into two parts: general and special. The general part contains those provisions that are relevant for any crime.

Three main divisions in the general part:

1. Criminal law

2. Crime

3. Punishment

Articles of the special part provide for liability for certain crimes (Articles 105 – 360).

The construction of a special part is based on the object of encroachment, i.e. a relationship, a benefit that is harmed or put in danger of harm by a crime.

A norm of criminal law is an article of a special part of the Criminal Code of the Russian Federation. With rare exceptions, the article consists of two parts. As a rule, there is no hypothesis (except Art. 215 of the Criminal Code of the Russian Federation and more). The first part is disposition. It gives the name or description of the signs of this crime. The second part is the sanction. It indicates the specific type and amount of punishment for a given crime.

Types of dispositions:

1. According to the construction technique and method of describing the signs of a crime, the following are distinguished:

1. Simple disposition - the legislator calls the crime a well-known term, but does not disclose its characteristics (Articles 126, 135 of the Criminal Code of the Russian Federation)

2. Descriptive disposition - the crime is named by a well-known term and its main features are given (Articles 105, 158 of the Criminal Code of the Russian Federation)

3. Reference disposition - to establish the signs of this crime, one must refer to another article of the Criminal Code of the Russian Federation (Articles 112, 117 of the Criminal Code of the Russian Federation)

4. Blanket disposition - to establish the signs of this crime, one must turn to the regulations of other industries (Articles 143, 264)

5. Alternative disposition - one crime contains several actions (Articles 222, 228 of the Criminal Code of the Russian Federation), several consequences (Part 2 of Article 167 of the Criminal Code of the Russian Federation)

Types of sanctions:

1. Relatively specific: a) the minimum and maximum punishment is indicated; b) only the maximum punishment is indicated (the lower limit of punishment is determined according to the article of the general part of the Criminal Code for a given type of punishment)

2. Alternative: several types of punishment are indicated (“OR”)

3. With administrative prejudice (Article 178.4)

Crime and its signs

1. Minority of the act

2. Classification of crimes

A crime is a socially dangerous act committed guilty of guilt, prohibited by the Criminal Code under threat of punishment.

1. Crime is a socially dangerous act. A crime is only an act that is socially dangerous in content. Public danger is a social (material) sign of a crime. It is expressed in causing damage or creating a real threat of causing damage to law enforcement interests. Social danger has two indicators: 1. The nature of public danger (qualitative characteristic) is determined by the content of those relationships, benefits that are encroached upon by the perpetrators (determined by the object of the crime); 2. Degree of public danger (quantitative characteristics) all crimes of the same type differ in the degree of public danger (parts of one article of the Criminal Code). Social danger is a value that is influenced by objective and subjective circumstances. Objective danger: 1. The importance of those relationships, benefits that the perpetrator encroaches on (Article 158 - Article 330 of the Criminal Code of the Russian Federation (theft - arbitrariness)) 2. The severity of the consequences (parts 1,3,5 of Article 264 of the Criminal Code of the Russian Federation) ; 3. Method of committing the crime (Article 159 – Article 162); 4. The time of commission of the crime is military (Article 331 of the Criminal Code of the Russian Federation). Subjective danger: 1. Form of guilt – intent or negligence (part 1 of article 105 – part 1 of article 109); 2. Motive and purpose of the crime (Article 228 – Article 360); 3. Identity of the culprit (parts 2,4,6 of Article 264)

2. Wrongfulness is the official recognition by the state of the social danger of certain human behavior. Criminal wrongfulness means that a socially dangerous act is defined by criminal law as a crime.

3. Guilt. A crime is a person’s conscious behavior, that is, an action is committed under the control of consciousness and will. Being illegal, it always presupposes the presence of guilt - a mental attitude to the committed act in the form of intent or negligence. Guilty infliction presupposes sanity - the ability of a person to realize the nature of his actions and direct them. In the absence of guilt, there is no and cannot be a crime (insane, minor, innocent causing harm).

4. Punishability. The sign means that a measure of state coercion (sanction) is provided for the crime committed.

Classification of crimes

Classification is carried out according to the following criteria:

1. The nature of public danger - crimes are divided into types (chapters of the special part of the Criminal Code of the Russian Federation)

2. According to the form of guilt - intentional and careless

3. According to the degree of public danger - into categories (Article 15 of the Criminal Code of the Russian Federation):

1. Crimes of minor gravity - intentional and careless crimes, the punishment for which is up to three years in prison.

2. Crimes of moderate gravity:

1. Intentional - punishment up to 5 years in prison

2. Careless - a sentence of more than three years in prison

3. Serious crimes - only intentional, punishment up to 10 years

4. Particularly serious - only intentional, a sentence of more than 10 years of imprisonment or a more severe punishment.

These categories are the basis for differentiation of responsibility, because Certain criminal legal consequences are also associated with a certain category of crime: responsibility for preparation for a crime (Part 2 of Article 30 of the Criminal Code); limitation of punishment for an unfinished crime (Article 66 of the Criminal Code); establishment of relapse (Article 68 of the Criminal Code); imposition of punishment (Article 69, 70 of the Criminal Code); exemption from punishment (Article 75, 76 of the Criminal Code); criminal record (Article 86 of the Criminal Code).

Corpus delicti

1. Concept, elements and characteristics of the composition

2. Types of crimes

Art. 8 of the Criminal Code of the Russian Federation establishes that the only basis for criminal liability is the commission of an act containing all the elements of a crime.

The corpus delicti is a set of characteristics established by criminal law that characterize a socially dangerous act as a crime.

A joint venture occurs when a crime has been prepared, attempted and completed. The joint venture has in its actions an organizer, an instigator and an accomplice (the performer himself carries out the joint venture)

SP cannot be identified with the concept of crime. The concept of crime is a general characteristic of an act as socially dangerous and allows us to distinguish criminal behavior from non-criminal behavior.

The SP is a legislative definition of a specific crime.

All specific joint ventures have common characteristics; their totality forms the general concept of joint venture. The general concept of joint venture cannot act as a basis for criminal liability, because this is a scientific abstraction.

The general concept of SP is the theoretical basis for the correct qualification of the committed act.

Elements and characteristics of joint venture

Each SP contains 4 elements:

1. The object of the crime is social relations, benefits, interests - what the perpetrator is encroaching on (a sample list is indicated in Article 2 of the Criminal Code of the Russian Federation)

2. The objective side of a crime is an act of external behavior of a person, expressed in action or inaction. A mandatory feature of any composition is an act, i.e. action or inaction. In material compositions, the objective side is formed by three signs: the act, the consequences and the causal relationship between them. Optional features: time, place, method, weapon, means and setting of the crime.

3. The subject of a crime is a person who has committed crimes, physical, sane, and has reached a certain age.

4. The subjective side of a crime is the mental activity of a person in the process of committing a crime. A mandatory feature is guilt - a mental attitude towards an act in the form of intent or negligence. Optional features: motive, purpose of the crime and emotional state (affects).

In each corpus delicti, all 4 elements must be established; the absence of one of them means the absence of corpus delicti as a whole.

Mandatory signs of a joint venture are signs that are characteristic of all specific crimes. It is necessary to establish: object, act, guilt, age and sanity.

Optional signs of a joint venture: in the object - the subject of the crime; on the objective side in material compositions - consequence, causation, time, place, method, instrument, means, setting; in the subject – special features of the subject; in the subjective side – motive, goal, emotions.

Types of compositions

1. Depending on the degree of public danger of the same type of crime, it is customary to distinguish:

1. Basic composition - composition without mitigating or aggravating circumstances, i.e. a set of objective and subjective signs that always exist when committing this type of crime (Part 1 of Article 105 of the Criminal Code of the Russian Federation) - all the first parts of the special part of the Criminal Code.

2. Qualified composition - a composition that, in addition to the elements of the main composition, also contains aggravating circumstances (Part 2 of Article 105 of the Criminal Code of the Russian Federation) - all the second parts of the special part of the Criminal Code.

3. Particularly qualified composition - parts three and four of the special part of the Criminal Code - they contain more aggravating circumstances.

4. Privileged compositions - compositions with mitigating circumstances (Articles 106,107,108).

2. According to the method of describing the characteristics in the law, the following are distinguished:

1. Simple composition - all elements are one-dimensional (part 1 of article 105 and part 1 of article 109)

2. Complex (composite) compositions - any of the elements of the composition is complicated: 1. Composition with two objects (Articles 162,264); 2. Composition with two consequences, i.e. the objective side is complicated; 3. Composition with two forms of wine, i.e. the subjective side is complicated and contains an indication of intent and negligence (part 4 of article 111, part 2 of article 167, part 3 of article 306); 4. Alternative - a composition that indicates several actions or methods of action, or several consequences.

3. Depending on the legislative structure, the following are distinguished:

1. Formal charges are a criminal offense, i.e. action or inaction.

2. Material composition – ends from the moment the consequences occur (action, consequence, causation)

3. Truncated compositions - completed from the moment of preparation or attempt.

In the theory of UE, a distinction is also made between general and special composition:

1. General – composition covering a wider range of criminal acts (clause b, part 2, article 105)

2. Special – a variety of the general composition. It coincides in its characteristics with the general one, but is separated from it according to the characteristics of any element of the composition.

General rule: if a person has committed a crime that falls under the characteristics of a general and special norm, then the special one is applied. This is called “competition of norms”, i.e. when one crime falls under the characteristics of several norms of the special part, and only one needs to be chosen.

Object of crime

1. Concept and meaning of an object

2. Classification of objects

3. The subject of the crime and its relationship with the object, instruments and means of the crime.

The object of a crime is a social relationship (good) protected by criminal law, at which a socially dangerous act is directed and to which harm is caused or a real threat of harm is created.

The theoretical definition of social relations and its internal structure include the following elements:

1. A subject about which there is a public attitude. The subject of social relations is important for criminal law only when it coincides in its form and content with the subject of the crime.

2. Subject of public relations. Determining the subject composition of a social relationship makes it possible to establish which relationships act as the object of a crime (military personnel, officials, etc.).

3. Social connection. It determines the content of social relations - this is the main link between the subject composition and the subject of the crime.

Meaning of the object of the crime:

1. Object – a necessary element of the crime; it forms the basis of criminal liability.

2. The object allows you to determine the legal nature of a specific crime.

3. The correct definition of the object allows you to distinguish between crimes that are similar to each other (delimitation from related offenses - part 1 of article 105 and part 4 of article 111 of the Criminal Code of the Russian Federation).

Classification of objects

Common object (Article 2 of the Criminal Code) à

Generic (section Special parts) à

Species (chapter Special Part) à

Direct (main) (Article Special Part) àAdditional (Article 162, 317) àOptional (Clause G, Part 2 of Article 161)

The general object is the totality of all relations and benefits protected by criminal law from criminal attacks.

The criterion for dividing a special part of the Criminal Code into sections is a generic object - a group of homogeneous and interconnected relations protected by criminal law. The generic object is identified by the section name. Generic object value:

1. Makes it possible to arrange legislative material according to a certain system;

2. Allows you to classify crimes into certain groups;

3. Helps to understand the nature of the public danger of criminal acts included in each group.

The criterion for dividing a section into chapters is a specific object - a narrower group of relations protected by law. In those sections where there is no division into chapters, the generic object may coincide with the immediate one.

The direct object is a specific social relationship or benefit protected by criminal law, which is directly caused or may be damaged as a result of a criminal act. According to the direct object, the Special Part within the chapter is divided into articles. At the level of the direct object, a horizontal classification is carried out into basic, additional and optional.

The main object is a relationship or benefit that the legislator, when creating a norm, specifically sought to place under the protection of criminal law. The main direct object is located in the same plane with the generic (species) object and coincides with it in content.

An additional object is a good or social relation that is inevitably placed in danger of harm along with the main object. Add. the object is present in two-object or multi-object crimes. Add. an object lies in the plane of another generic or specific object. Add. the object is a mandatory feature of the relevant crimes.

An optional object is a social relationship (good), causing harm to which when committing a given crime is not necessary. If, as a result of a crime, damage is caused to such an object, then this does not require additional qualification under another article of the Criminal Code.

Subject of the crime

The subject of a crime is a material thing in connection with or regarding which a crime is committed. By influencing the subject of the crime, the criminal causes harm to social relations. In this case, the subject of the crime is the subject of social relations regarding which a public connection has been established. Thus, the subject of the crime in these cases is a special structural part of the object. The subject of the crime has the meaning of a crime element only where certain objects are directly indicated in the article of the special part. In theft, the subject of the crime is someone else’s property, and the object of the crime is the property relationship. Unlike the object, the subject of the crime does not suffer harm, with the exception of its destruction or damage.

The difference between the subject of a crime and the instruments and means of committing a crime

The main distinguishing feature is the nature of the use of things and objects in the process of committing a crime. The subject of the crime performs a passive function, i.e. a crime is being committed against him.

Crime instruments are material objects that enhance the physical impact of committing a crime. Sometimes, in this understanding, means of committing a crime can be used.

The means of committing a crime are material objects and documents that have a mental impact on the victim.

The concept of the objective side

Any human activity can be divided into two components:

1. Intellectual-volitional. It consists in making a certain decision, in understanding the ways and means of achieving goals.

2. Effective - translating the decision into reality through specific behavior. This activity is usually called “objective”.

The objective side of a crime is a set of factual circumstances reflecting the external process of a criminal attack. It occurs in certain conditions, place and time and has a number of individual characteristics.

The objective side of the crime is a set of signs established by criminal law that characterize an act of criminal behavior.

In terms of volume and content, the objective side of the crime is wider than the objective side of the crime, because it characterizes a specific crime as an individually determined phenomenon.

The objective side of the crime contains only such signs that are sufficient:

1. To describe an act as socially dangerous;

2. To differentiate from other elements of crime.

Structure of the objective side of the crime:

1. Mandatory sign – criminal act (action or inaction)

2. In material compositions, three signs are required - action, consequences, causation; optional features - time, place, method, weapon, means and setting of the crime.

Criminal act

A criminal act is a socially dangerous and illegal action or inaction. A criminal act is considered in two aspects:

1. Psycho-physiological, i.e. criminal activity. It can be expressed in a single body movement, in a set of movements (by performing sequential actions (Article 117)).

2. Social – the action must be conscious and volitional, i.e. the person must be aware of the socially dangerous nature of the act and its illegality.

Awareness and purposefulness of the act are absent in three situations:

1. When a reflex action takes place;

2. When the act is committed by an insane person;

3. When the act was committed by a person who has not reached the age of criminal responsibility.

There are situations when a conscious act is not an expression of the will of the person who committed it:

1. Force majeure - it arises as a result of objective or subjective factors. Objective: forces of nature, human behavior, incl. illegal. Subjective: state of war, local military conflict, crowd behavior. Force majeure deprives a person of the physical ability to act at his own discretion. If an act is committed under the influence of force majeure, the person is not subject to criminal liability.

2. Physical and mental coercion (circumstance of Chapter 8 of the Criminal Code of the Russian Federation): in this case, the issue of criminal liability of a person who committed an act under the influence of physical or mental coercion is decided according to the rules of Art. 40 and 39 of the Criminal Code of the Russian Federation (“extreme necessity”)

Limits of criminal inaction:

1. On the physical side - abstaining from a precisely defined action.

2. From the mental side - an objective manifestation of the will of the guilty person.

3. From the legal side - failure to perform legally binding, objectively necessary and realistically possible actions that could have prevented the onset of consequences.

A crime in the form of omission can only be committed by a special subject (a person who has a legal duty to act). The obligation to perform certain actions may arise from the law and regulations, from professional or official functions, from a contract, from previous actions of the person himself (Article 125).

Limits of liability for inaction:

1. It is necessary to establish that there is a duty to act.

2. Having a real opportunity to act, i.e. the ability of a given person in a particular situation to act in a certain way is taken into account.

In some cases, criminal liability arises for the very fact of inaction (Article 125), in others, liability is established for the inaction that caused the consequences.

Subject of the crime

1. The subject of the crime and its signs

2. Types of subjects (special subject)

The subject of a crime is a person who has committed a socially dangerous act and is capable of bearing criminal liability in accordance with the law.

General characteristics of the subject:

1. Individual

2. Sane person

3. Reached the age of criminal responsibility

Sanity and insanity

Sanity is a state of a person’s psyche in which, at the time of committing a crime, he is able to realize the nature of the actions being performed, their social significance and manage them. Sanity is a legal concept and it is presumed (assumed) and not specifically proven.

Art. 21 of the Criminal Code contains a legislative definition of insanity and to disclose this content, two criteria are used:

1. Medical – four signs:

1. The presence of a chronic mental disorder is a group of diseases that are long-term in nature and tend to progress (paranoia, schizophrenia, manic-depressive psychosis).

2. Temporary mental disorder - diseases develop quickly, last a short time and end with complete recovery (acute psychoses in common infectious diseases - typhus, reactive states - twilight narrowing of consciousness - pathological affect, pathological intoxication).

3. Dementia – three degrees: 1. Debility (oligophrenia); 2. Imbecility; 3. Idiot.

4. Another painful state of the psyche - severe forms of psychopathy, acute hallucinatory-delusional states (glitches), abstinence - drug hunger (withdrawal).

2. Legal – two signs:

1. Intellectual – a person’s lack of ability to recognize the nature and danger of his actions.

2. Strong-willed – the inability of a person to direct his actions.

To recognize a state of insanity, two criteria together are necessary - medical and legal.

If a person has committed a crime in a state of insanity, he is not subject to criminal liability and compulsory medical measures may be applied to him (Article 97-104 of the Criminal Code of the Russian Federation).

Limited (reduced) sanity – Art. 22 of the Criminal Code. A person who committed a crime in a state of mental disorder in which he could not fully understand the actual nature of his actions or control them is also recognized as sane.

Medical criteria in Art. 22 of the Criminal Code are not specified.

Age

The age at which criminal liability begins is, as a general rule, set at 16 years of age. For a certain closed list of crimes, the age is set at 14 years (Part 2 of Article 20 of the Criminal Code of the Russian Federation).

Age Determination:

1. If the exact date of birth is known, then the person is considered to have reached this age from 00:00 the next day.

2. If the date of birth is unknown, then a forensic examination is ordered. Age is the minimum age specified in the examination report, and birthday is the last day of a given year - December 31.

Part 3 art. 20 of the Criminal Code of the Russian Federation - a special type of exemption from criminal liability for minors (“Mowgli syndrome”). A minor who has reached the age of criminal responsibility may be released from it if it is established that, due to mental retardation not associated with a mental disorder, the teenager, at the time of committing the crime, could not fully understand the actual nature and danger of his actions (inconsistency of physiological development intellectual development)

Forms and types of guilt

Depending on the combination of intellectual and volitional moments, two forms of guilt are distinguished: intent and negligence, each of which is divided into two types.

Intent

1. Direct.

Content:

1. Intellectual moment

A) the person is aware of the socially dangerous nature of his actions

B) the person foresees the inevitability of socially dangerous consequences

2. Volitional moment

A) the person actively desires the occurrence of socially dangerous consequences

2. Indirect (eventual)

Content

1. Intellectual moment

A) the person is aware of the socially dangerous nature of his actions

B) the person foresees the real possibility of dangerous consequences, i.e. the perpetrator understands that any consequences may occur from his actions committed at the moment

2. Volitional moment

A) the person does not want dangerous consequences to occur, but consciously allows them, i.e. treats them indifferently

Direct and indirect intentions differ in the degree of anticipation of consequences (intellectual moment) and volitional moment.

Types of intent not specified in the law:

1. By formation time:

1. Premeditated - an intention implemented after a significant period of time after its occurrence

2. Suddenly arising - an intention that arises under the influence of a life situation and is implemented after a short period of time after its occurrence

A) affected (Articles 107, 113) – a type of sudden intent; its peculiarity lies in the psychological mechanism of the emergence of intent; the reason for its occurrence is the unlawful behavior of the victim himself

2. According to the direction of intent:

1. Specific (concretized) – intent in which the perpetrator is aware of all the objective signs of the crime

A) simple – intent in which the perpetrator foresees the occurrence of only one specific result; certain intent is the determining criterion for qualifying a crime in the event of a subjective error or unfinished criminal activity; in these cases, the desired result for the perpetrator does not occur and the action is qualified as an attempt on the crime that was planned

B) alternative - intent in which a person is aware of approximately the same possibility of the occurrence of two specific results

2. Vague (unspecified) - intent in which a person is aware only of the general signs of a crime and does not specify for himself the degree of harm (direct vague intent)

Qualification rules: with alternative and uncertain intent, the actions of the perpetrator are qualified according to the actual consequences that occurred

There are several ways to describe intentional crimes in the law:

1. The article directly refers to the intentional form of guilt (Part 1 of Article 105)

2. The disposition of the article provides for a special purpose or motive for the crime (clause “k”, part 2 of article 105, article 277, part 2 of article 360)

3. The article indicates the knowledge or maliciousness of the act (Article 125, Article 177)

4. The legislator indicates the illegal or unauthorized nature of the actions (Articles 222, 228, 256, 258, 330)

5. The act is characterized as evasion of duties (Articles 157, 194, 199, 338)

Carelessness

1. Frivolity

Content:

Intellectual moment:

A) the person is aware of the dangerous nature of his actions or the danger of his behavior

B) the person foresees the abstract possibility of the occurrence of dangerous consequences, i.e. the culprit understands that dangerous consequences may generally arise from his actions, but believes that at the moment they will not occur

Volitional moment:

A) the person does not want the occurrence of dangerous consequences, but relies on objective factors that, in his opinion, will be able to prevent the occurrence of dangerous consequences; experience, knowledge, professionalism and behavior of the victim - this is what the perpetrator hopes for

2. Negligence

Content:

Intellectual moment:

A) negative - the person does not realize the dangerous nature of his actions and does not foresee the occurrence of dangerous consequences

B) positive – the person should have and could have foreseen the onset of dangerous consequences; to reveal this characteristic, two criteria are used (negligence criteria): 1. Objective criterion – the obligation of a person to foresee the possibility of dangerous consequences while observing the precautions obligatory for this person; such an obligation, as a rule, is of a normative nature, i.e. enshrined in rules, instructions, etc. ("MUST!"); 2. Subjective criterion (“COULD!”) – the personal ability of a person in a specific situation, taking into account individual qualities, to foresee the possibility of dangerous consequences.

Volitional moment:

A) the person does not want dangerous consequences to occur and does not make the necessary volitional efforts to correctly assess his actions if there is a need and an objective opportunity to make such an assessment.

In material compositions, both direct and indirect intent are possible, and in careless ones, frivolity and negligence.

In formal compositions, only direct intent is possible, because the consequences are not included in the objective side of the crime and therefore it is not necessary to establish their anticipation. In careless crimes with a formal element, only negligence is possible.

Concept of stages of crime

Criminal activity in its development goes through the following stages:

1. The emergence of intention and its formation is a thought process, i.e. idea of ​​crime

2. Detection of intent - external expression to commit a crime by any means. The simple detection of intent (bare intent) is not aimed at the object of the attack and does not put him in danger of causing harm, therefore, these actions are devoid of the main sign of a crime of public danger. If the discovery of intent takes the form of a threat, then this becomes an independent crime (Articles 119,296,321,163). The purpose of the threat is to intimidate the victim or change his behavior. If, after uttering a threat, a person begins actions to implement it, this does not require additional qualifications. The deed is qualified according to the final result.

3. Preparation for a crime is the creation of conditions for committing a crime in the future.

4. Attempt – actions directly aimed at carrying out a crime.

5. Completed crime - the commission of actions containing all the elements of a crime provided for by the Criminal Code.

The stages of committing a crime are:

1. Preparation

2. Assassination

3. Completed crime

The stages of committing a crime are stages of development of an intentional crime that are identical on the subjective side and qualitatively different on the objective side. There are no stages in careless crimes.

Assassination attempt. Concept and types.

Signs of an assassination attempt (Part 3, Article 30):

1. These actions are fully or partially included in the objective side of the crime.

2. The crime remains unfinished.

3. The crime is not completed for reasons beyond the control of the perpetrator.

An attempt is always possible in the material elements of a crime.

An assassination attempt in formal compositions occurs in the following cases:

1. When the objective side is complex, i.e. consists of several actions (Article 131 - the objective side includes sexual intercourse (a mandatory sign), and the second sign in the law is indicated alternatively - the use of violence, the threat of violence or the use of a helpless state; rape is completed from the moment the sexual intercourse begins, therefore the use of violence or threats forms the stage of assassination).

2. When the objective side involves the commission of successive actions by several persons (bribery (all three articles); receiving and giving a bribe is considered completed from the moment the official accepts the reward).

3. In compositions where the objective side extends over time (Article 306 – false denunciation)

Types of assassination attempt:

1. Depending on the degree of completion of the actions, the following are distinguished: a) Completed attempt - characterized by the fact that the perpetrator did everything necessary for the criminal result to occur, but it did not occur for reasons beyond his will. B) Unfinished attempt - that is, objectively and subjectively, the crime remains imperfect, because the guilty person understands that he did not do everything necessary for the criminal result to occur.

The Constitution of the Russian Federation as a source of criminal law

The Constitution of the Russian Federation occupies a priority position in relation to criminal law, as it has supreme legal force and direct effect. If a conflict is established between the norms of the Criminal Code of the Russian Federation and the Basic Law of the country, it is necessary to apply the provisions of the Constitution of the Russian Federation.

The Constitution is the fundamental law of the Russian state. It constitutes the legal basis of all branches of Russian law, the entire legal system of the Russian Federation. The Constitution of the Russian Federation, as proclaimed in paragraph 1 of Art. 15, has the highest legal force, direct effect and is applied throughout the territory of the state. Laws and other legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation.

If the norms of the Criminal Code of the Russian Federation contradict the provisions of the Constitution of the Russian Federation, the latter are subject to application. The Plenum of the Supreme Court of the Russian Federation in Resolution No. 8 of October 31, 1995 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice” indicated the following:

“... all constitutional norms have supremacy over laws and by-laws, due to which courts, when considering specific court cases, must be guided by the Constitution of the Russian Federation.”

And further:

“... when considering cases, courts should evaluate the content of the law or other normative legal act regulating the legal relations considered by the court, and in all necessary cases apply the Constitution of the Russian Federation as an act of direct action.”

The Criminal Code of the Russian Federation in all its sections, chapters, individual institutions and their provisions is fully based on the provisions of the Constitution of the Russian Federation. First of all, this relates to the definition of the hierarchy of social values ​​of society, placed under the protection of criminal law, the first place in which is occupied by the rights and freedoms of man and citizen (Article 2 of the Criminal Code of the Russian Federation). This provision of the Criminal Code of the Russian Federation is fully consistent with Chapter. 2 of the Constitution of the Russian Federation “Rights and freedoms of man and citizen”, Art. 18, which solemnly proclaims: “The rights and freedoms of man and citizen are directly applicable. They determine the meaning, content and application of laws, the activities of the legislative and executive powers, local self-government and are ensured by justice.”

The effect of criminal law in space, time and persons

The operation of criminal law in space and time is determined in Chapter 2 of the Criminal Code of the Russian Federation. Russian criminal law in this matter adheres to two basic principles: territorial and the principle of citizenship. The territorial principle means that, according to Russian criminal law, persons who have committed crimes on the territory of Russia are subject to liability (Article 11 of the Criminal Code of the Russian Federation). The concept of the territory of Russia is defined in the law of the Russian Federation “On the State Border of the Russian Federation” dated April 1, 1993. The territory of the Russian Federation is the land within the state borders of Russia, the water space of internal seas, lakes and rivers. The territory of Russia also includes territorial waters in cases where the land comes into contact with the waters of the ocean or external sea. The width of Russian territorial waters is set at 12 nautical miles, calculated from the low tide line. The Criminal Code also applies to crimes committed on the continental shelf or in the exclusive economic zone of the Russian Federation. In accordance with the Federal Law “On the Continental Shelf of the Russian Federation” dated November 30, 1995, the continental shelf includes the seabed and subsoil of underwater areas located outside the territorial sea of ​​the Russian Federation to a certain depth. The exclusive economic zone of the Russian Federation is established at 200 miles in maritime areas located outside the territorial waters of the Russian Federation and adjacent to them.

The territory of military water vessels and aircraft also falls under the jurisdiction of Russia.

If the crime is ongoing, then liability for it occurs under the Criminal Code of the Russian Federation both in the case of the commission of the act itself on its territory, and in the event of its consequences occurring here.

The criminal law (Part 4 of Article 11 of the Criminal Code of the Russian Federation) provides for an exception to the territorial principle, expressed in the presence of legal immunity in relation to diplomatic representatives of foreign states, as well as heads of state, members of government and members of their families. Immunity also applies to the territory of embassies and diplomatic missions. Practice shows that if a person belonging to these categories commits a crime, he is declared persona non grata and expelled from Russia.

The principle of citizenship (Article 12 of the Criminal Code of the Russian Federation) means that citizens of Russia are subject to the provisions of the Criminal Code of the Russian Federation, no matter where they committed a crime. Stateless persons and foreigners are responsible for crimes committed on the territory of Russia, as well as against the interests of Russia or its citizens. The latter involves, for example, the murder of a Russian citizen, espionage, and the supply of substandard products to Russia. In this case, it is important that two conditions exist: a) in the state in whose territory the act was committed, it is criminally punishable; b) the person has not been convicted of this crime in a foreign country. Otherwise, this would contradict the constitutional principle of justice, enshrined in Part 2 of Article 6 of the Criminal Code of the Russian Federation: “No one can be held criminally liable twice for the same crime.”

Relations between states regarding the extradition of criminals are regulated by the Criminal Code of the Russian Federation, as well as international treaties. As a general rule, Russian citizens are not extradited to foreign countries.

Military personnel serving on the territory of a foreign state and committing a crime there are liable under the Criminal Code of the Russian Federation.,

unless otherwise provided by an international treaty.

As a general rule, law enforcement agencies and the court are obliged to apply the criminal law in force at the time the crime was committed (Part 1 of Article 9 of the Criminal Code of the Russian Federation).

Since criminal liability arises both for a completed crime and for one interrupted at the stage of preparation or attempt, the rules for the operation of criminal law over time also apply to an unfinished crime. The time of commission of a crime is determined by the moment of the act, and not the onset of consequences (Part 2 of Article 9 of the Criminal Code of the Russian Federation).

This rule has exceptions that constitute the principle of retroactive force of the law, which applies if the new law mitigates the punishment or eliminates responsibility or otherwise softens the situation of a person (for example, changes the type of correctional colony). A law that increases or introduces liability does not have retroactive effect.

This applies to any stage of the criminal process. When an act is decriminalized (i.e., excluded from the list of criminal offenses), the proceedings on the case are terminated. The punishment imposed for a crime for which criminal liability has been reduced by the new law is subject to reduction.

It is not always possible to unambiguously answer the question in which direction the position of the person who committed the crime has changed with the adoption of the new law. This is explained by the fact that in addition to the sanction, other legal consequences may also change, such as the categorization of the crime, the procedure for parole, the rules for expunging and expunging a criminal record, etc. In these cases, when deciding on the application of the principle of retroactive force of the law, one should be guided by the interests of the perpetrator.

Principles and norms of international law as sources of criminal law

In paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 N 5 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation” definitions of the concepts of generally recognized principles and norms of international law are given:

“ The generally accepted principles of international law should be understood as the fundamental peremptory norms of international law, accepted and recognized by the international community of states as a whole, deviation from which is unacceptable.

The generally recognized principles of international law include, in particular, the principle of universal respect for human rights and the principle of faithful fulfillment of international obligations.

A generally accepted norm of international law should be understood as a rule of conduct accepted and recognized by the international community of states as a whole as legally binding.”

Generally recognized principles and norms of international law are not, in the strict sense of the word, sources of criminal law; they are of a universal, not criminal, nature and can be applied when they are included in the Criminal Code of the Russian Federation.

In accordance with Part 4 of Art. 15 of the Constitution of the Russian Federation and Art. 5 of the Federal Law of July 15, 1995 N 101-FZ “On International Treaties of the Russian Federation”, international treaties of the Russian Federation, along with generally accepted principles and norms of international law, constitute an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty apply. Thus, we can say that the norms of international law are a unique source of Russian criminal law.

However, international law does not have sanctions . Most often, they contain provisions on the inclusion of certain norms of international law in national legislation. Therefore, on the basis of the direct norms of international law, it is impossible to bring to criminal liability or impose punishment. The provisions of these norms must be implemented into the criminal legislation of Russia.

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 5 of October 10, 2003 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation” indicated the following:

“When the court considers civil, criminal or administrative cases, an international treaty of the Russian Federation is directly applied, which has entered into force and become binding for the Russian Federation and the provisions of which do not require the issuance of internal acts for their application and are capable of generating rights and obligations for subjects of national law. International treaties, the norms of which provide for elements of criminal offenses, cannot be applied by courts directly, since such treaties directly establish the obligation of states to ensure the fulfillment of treaty obligations by establishing the punishability of certain crimes by internal (national) law (for example, the Single Convention on Narcotic Drugs of 1961 ., International Convention against the Taking of Hostages 1979, Convention against the Unlawful Seizure of Aircraft 1970).

Based on Art. 54 and paragraph “o” of Art. 71 of the Constitution of the Russian Federation, as well as Art. 8 of the Criminal Code of the Russian Federation, a person who has committed an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation is subject to criminal liability in the Russian Federation.

In this regard, international legal norms that provide for elements of crimes must be applied by the courts of the Russian Federation in cases where a norm of the Criminal Code of the Russian Federation directly establishes the need to apply an international treaty of the Russian Federation (for example, Articles 355 and 356 of the Criminal Code of the Russian Federation) »

Norms of criminal law, their structure, types of dispositions and sanctions

Rule of law

is a general rule of behavior established by the state that regulates public relations. Criminal law rules list types of illegal behavior. A legal norm consists of a hypothesis, a disposition and a sanction.

Hypothesis

— conditions for applying the norm. It is reflected in the General Part of the Criminal Code. For example, Art. 20 of the Criminal Code of the Russian Federation reveals the age at which criminal liability begins.

Disposition

— a description of the act in the Special Part of the Criminal Code, where each article contains one or more dispositions. Dispositions are usually divided into four types: simple, descriptive, blanket and reference.

In simple dispositions, an act is called without disclosing its characteristics, for example, Art. 126 of the Criminal Code - “Kidnapping”. Such compositions are not often found in the Criminal Code of the Russian Federation.

Descriptive dispositions are characterized by the fact that the definition of a crime is accompanied by a more or less detailed listing of its characteristics, for example, Part 1 of Art. 105 - “Murder, that is, intentionally causing the death of another person.” Descriptive dispositions are especially often used by the legislator when formulating compositions that are relatively new to our criminal law. So, for example, Art. 196 “Intentional bankruptcy, that is, the deliberate creation or increase of insolvency, committed by the head or owner of a commercial organization, as well as an individual entrepreneur in the personal interests or interests of other persons, causing large damage or other grave consequences.”

Blanket dispositions do not contain all the necessary characteristics of the crime. In these cases, rules are called, the violation of which entails liability, i.e. reference should be made to other regulations. For example, Art. 264 “Violation of traffic rules and operation of vehicles.” The rules are provided for by another branch of law (administrative, labor, civil).

The reference dispositions contain references to other articles of this Criminal Code. For example, Art. 158 in a note explains the concept of large size and repetition for a number of articles of the Criminal Code of the Russian Federation .

Sometimes dispositions, along with a description of the signs of a crime, contain references to other articles of the Criminal Code or other regulations. Such dispositions can accordingly be called descriptive-referential or descriptive-blanket, as well as descriptive-referential-blanket. For example, Art. 194 “Evasion of customs duties levied on organizations or individuals” describes some signs of the act, such as types of payments by entity (individuals and legal entities), as well as the amount of unpaid payments. The concept of “payment evasion” is contained in customs legislation. And finally, the concept of “a person previously convicted of committing crimes provided for in this article, as well as articles 198 and 199 of this Code” requires reference to these articles of the Criminal Code of the Russian Federation.

Sanction

- this is the punishment, namely its type and size. Each disposition has a corresponding sanction. Each article of the code contains one or more sanctions. The sanction expresses the legislator's assessment of the nature and severity of the acts. It is no coincidence that the main criterion for the categorization of crimes reflected in Art. 15 of the Criminal Code of the Russian Federation, is its punishability or sanction. Historically, Russian criminal law knew three types of sanctions according to the degree of their certainty.

There are no absolutely vague sanctions in the current Criminal Code of the Russian Federation. They would open the way to the arbitrariness of the court and were previously expressed in the formulation “punished to the fullest extent of the law.” This meant the possibility of applying any punishment in any amount provided for in the criminal law within the lower and upper limits of each punishment.

The other extreme in the construction of sanctions is manifested in their absolutely definite design. This means a precisely defined punishment. The 1996 Criminal Code of the Russian Federation does not contain such sanctions.

In the Criminal Code of the Russian Federation, all sanctions are relatively specific. In this case, only the maximum penalty can be provided - this is a relatively specific sanction with an upper limit (imprisonment for up to 5 years). If only a minimum penalty is provided, then this is a relatively specific sanction with a lower limit (imprisonment for a term of at least 3 years). There are no such sanctions in current legislation.

In cases where the limits are not specified, one should be guided by the norms of the General Part of the Criminal Code. For example, imprisonment is imposed for a period from 6 months to 20 years, for a total of crimes - up to 25 years, for a total of sentences - up to 30 years. These deadlines are the maximum for those sanctions in which otherwise is not specified. Most often, both the minimum and maximum penalties are specified. Such a sanction is relatively specific with lower and upper limits.

On another basis, sanctions can be alternative or non-alternative. Non-alternative sanctions include such as, for example, for murder (Part 1 of Article 105), rape (Parts 1, 2 and 3 of Article 131), ecocide (Article 358), which are punishable only by imprisonment. Most sanctions are alternative. That is, for the same crime, the court has the opportunity to assign a primary or primary and additional punishment to choose from among several provided for in the sanction. For example, the sanction of Art. 119 “Threat of murder or infliction of grievous bodily harm” is punishable by restriction of liberty for a term of up to two years, or arrest for a term of four to six months, or imprisonment for a term of up to two years.

Resolutions of the Plenum of the Supreme Court of the Russian Federation as sources of criminal law

Among the sources of criminal law, a special place is occupied by the decisions of the Plenum of the Armed Forces of the Russian Federation on the application of criminal law, which are not formally recognized as normative legal acts of criminal law content.

The Constitutional Court of the Russian Federation recognizes the role of decisions of the Plenum of the RF Supreme Court in ensuring the principle of legal certainty, indicating that the requirement for certainty of legal regulation can be ensured with the help of explanations given by the RF Supreme Court on issues of judicial practice, the purpose of which is to eliminate the uncertainty of the norm, ensure its unambiguous interpretation and uniform application, including, if necessary, adequate and timely adaptation of the regulatory role of the norm in the unity of its letter and spirit to a particular sphere of social relations in their dynamics.

Following from Art. 126 of the Constitution and specified in the Federal Constitutional Law of 02/07/2011 N 1-FKZ “On Courts of General Jurisdiction in the Russian Federation”, the power of the Plenum of the Supreme Court of the Russian Federation to give explanations to the courts on the application of the legislation of the Russian Federation in order to ensure the unity of judicial practice is aimed at maintaining uniformity in interpretation and application of rules of law by courts of general jurisdiction and is one of the elements of the constitutional mechanism for protecting the unity and consistency of the Russian legal system, the implementation of which in procedural regulation is ensured by the statutory possibility of canceling court decisions, including in the event of their discrepancy with the decisions of the Plenum of the Armed Forces of the Russian Federation, containing explanations on issues of judicial practice.

After the adoption of a resolution of the Plenum of the RF Armed Forces, which explains the meaning of a particular rule of law, the application by the courts during the consideration of a case of specific legal norms must be correlated with the explanations given in the resolution of the Plenum of the RF Armed Forces; otherwise, this may indicate a judicial error made during the resolution of the case .

The concept of criminal law

Rule of law
A rule of law is a generally binding, formally defined rule of behavior, established or sanctioned by the state, aimed at regulating social relations and ensured, if necessary, by measures of state coercion.

A criminal law norm is a rule of conduct established by the state that provides participants in public relations with legal rights and imposes legal obligations on them. Violation or non-compliance with these norms entails the use of state coercive measures in the form of criminal penalties.

Criminal law norms are reflected (formulated) in the articles of the Criminal Code.

Purpose of the criminal law:

1. establishment (determination) of criminal liability and punishment;
2. exemption from criminal liability and punishment (including in the case of infliction in the presence of certain circumstances, for example, a state of necessary defense, etc.).

In general, the legal norm includes:

• hypothesis;
• disposition;
• sanction.