Differences between extreme necessity and necessary defense.

Differences between extreme necessity and necessary defense.

The circumstances under consideration that exclude the criminality of an act have some similarities, but they also have significant differences.

1. In case of necessary defense, the source of danger is always a human act, and if absolutely necessary, the source of danger can be any (not only humans, but also animals, any mechanisms, consequences of an accident, natural disasters, etc.).

2. In case of necessary defense, harm is caused to the attacking person, and, if absolutely necessary, to third parties.

3. The legality of necessary defense is not lost even if the defender had a real opportunity to avoid danger in another way. If absolutely necessary, causing harm to third parties is the only way to save a legally protected interest.

4. Harm caused in a state of necessary defense may be equal to or even greater than the harm prevented. If absolutely necessary, the harm caused to third parties must necessarily be less than the harm prevented.

5. Damage caused in a state of necessary defense is not compensated. Whereas damage caused when absolutely necessary entails civil liability.

Question 5. Execution of an order or instruction

The provisions of Article 42 of the Criminal Code determine that it is not a crime to cause harm to interests protected by criminal law by a person acting in pursuance of an order or instruction that is binding on him.

Under the order (instruction)

refers to a mandatory requirement made by a superior to his subordinates. An order (instruction) can be given orally or in writing, transmitted either directly by the boss or through other persons. The act of a person executing a lawful order (instruction), resulting in harm to legally protected interests, is not considered a crime.

Since an order or instruction is a strong-willed, mandatory requirement of a higher-ranking superior, its legality is implied. At the same time, situations may arise in which a person carries out an illegal order from a superior and in doing so causes damage to legally protected interests. Who in this case will bear responsibility for the harm caused? For a correct criminal legal assessment of such cases, it is important to clearly define the concept of “illegality of an order (instruction)”, and also to establish whether the subordinate was aware of the illegality of the order being executed. Illegality of the order (instruction)

may manifest itself in one of the following properties:

- if it directly contradicts any law or regulation;

— does not correspond to the goals and objectives of this institution or organization;

- given by an unauthorized person (exceeds the competence of the person from whom the order came);

- given in non-compliance with the form established by law.

A person who has caused harm to legally protected interests, in pursuance of an illegal order (instruction) and knowingly aware of its illegality, is subject to liability along with the person who gave this order. In this case, the superior is considered as the organizer or instigator, and the subordinate is considered the perpetrator of the crime.

Failure to comply with a knowingly illegal order or instruction excludes criminal liability for a subordinate.

It is more difficult to assess a situation in which a person causes harm to legally protected interests by executing an illegal order (instruction), but at the same time believes that the order is legal. In such a situation, the executor of the order is not liable if the following conditions are met:

- an illegal order (instruction) came from an appropriate person, i.e. the person who had the right to give it away;

- the executor of the order was obliged to carry it out;

- the executor of an illegal order believed that the order was legal and at the same time could not and should not have realized the illegality of the order. This is a very important condition. It means that the executor was in good faith mistaken about the order being executed and considered it to be completely legal.

If, under the specified conditions, the executor believed that he was executing a lawful order, but due to the circumstances of the case he should and could have realized its illegality, then for intentionally caused harm that arose during the execution of the order, liability arises as for careless infliction of harm.

Conclusion

At the end of the lecture, we will once again dwell on the content of the material that students should know after mastering this topic.

Circumstances that exclude the criminality of an act are actions (inactions) that are externally similar to crimes, but in reality represent acts of lawful behavior, aimed, as a rule, at achieving socially useful goals.

Necessary defense is understood as lawful protection from a socially dangerous attack by causing harm to the attacker.

The conditions for the legality of necessary defense are:

1. The offense in respect of which protection is being carried out must be socially dangerous.

2. The encroachment must be present.

At the same time, it is important to know that if the threat of attack is real, then the right to the necessary defense arises.

3. The encroachment must be valid (real).

4. In case of necessary defense, it is permissible to cause harm only to the person who commits a socially dangerous attack.

5.

Defense must not exceed the limits of necessary defense. Although the right to choose the method and means of defense against the encroachment committed remains with the defender himself, their choice must be determined by the current situation. In particular, the method of protection used must more or less correspond to the nature of the attack and the degree of its social danger.

In accordance with Part 2 of Art. 37 of the Criminal Code, intentional actions that clearly do not correspond to the nature and danger of the attack are considered to be exceeding the limits of necessary defense.

The actions of the defending person do not exceed the limits of necessary defense if this person, due to the surprise of the attack, could not objectively assess the degree and nature of the danger of the attack.

Causing harm to a criminal during his arrest excludes the criminality of the act. However, in order for causing harm to a detainee to be considered lawful (excluding criminal liability), a number of conditions must be met:

1. Causing harm is permissible only to a person who has committed a socially dangerous unlawful act and is capable of bearing criminal liability for it.

2. When detained, harm can only be caused to an obvious (obvious) criminal.

3. Harm to a detainee may be caused solely for the purpose of bringing him to the authorities to stand trial or for the purpose of preventing the possibility of him committing new crimes. Causing harm to the offender for other purposes is not permitted. For example, out of revenge for a crime committed.

4.

Causing harm to a detainee is permissible only if there is a real danger of his evading criminal liability.

5.

The harm caused to the detainee must more or less correspond to the danger of the crime he committed. 6. It is not allowed to cause unnecessary (excessive) harm to the detainee that is not justified by the conditions of the specific situation of detention.

If the considered conditions are not met (at least one of them), there is an excess of the measures necessary to detain a person who has committed a crime entailing criminal liability. It is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, i.e. to eliminate a danger that directly threatens the personality and rights of a given person or other persons, as well as the legally protected interests of society or the state, if this danger could not be eliminated by other means and the limits of extreme necessity were not exceeded (Part 1 of Article 39 UK).

The provisions of Article 42 of the Criminal Code determine that it is not a crime to cause harm to interests protected by criminal law by a person acting in pursuance of an order or instruction that is binding on him.

Failure to comply with a knowingly illegal order or instruction excludes criminal liability for a subordinate.

LITERATURE

Normative legal acts:

1. Constitution of the Russian Federation: [Electronic resource] – electronic data. – Information support program for Russian science and education // legal reference systems ConsultantPlus: Higher School. – 2016. – Access mode: http//www.co№sulta№t.ru.

2. Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ: [Electronic resource] – electronic data. – Information support program for Russian science and education // reference legal systems Consultant Plus: Higher School. – 2016. – Access mode: http//www.co№sulta№t.ru.

3. Federal Law “On Police” No. 3-FZ of February 7, 2011 // SZ RF. 02/14/2011. No. 7. Art. 900.

4. Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 No. 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime.”

Scientific and methodological literature

1. Criminal law of Russia. Parts General and Special: Textbook /ed. A.V. Brilliantova. – M.: “Prospect” 2015 /// reference legal systems Consultant Plus: Higher School. – 2016. – Access mode: http//www.co№sulta№t.ru.

2. Criminal law of Russia. Part General and Special Textbook / Under general. edited by A.I. Raroga. – M.: Prospekt, 2016.

[1] See: On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime: Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19.

Crimes

Civil law allows us to determine the differences between the concepts described above. The situations are quite similar, because there is a dangerous circumstance in which it is necessary to break the law. Let's say self-defense is needed, because of which the criminal will suffer. The legality of the actions will be justified if self-defense was truly necessary. Let's look at the table to make it clearer what the difference between the concepts is.

The table briefly shows how these situations will differ. The civil law differences between these definitions are obvious. As the characterization shows, the other is the basis for protection, as well as the purpose. Otherwise the situations are similar.

Classification of measures

The actions taken by the subject in relation to the violator may be different. However, in practice, the following types of measures are distinguished:

1. Related to the fulfillment of obligations at the expense of the debtor. The general rules regarding this measure are provided in Art. 397 Civil Code. In accordance with the norm, if the debtor fails to fulfill the obligation to manufacture and provide a thing, perform some work/provide a service, the creditor can entrust the execution to a third party for a fee within a reasonable time or do it himself, unless otherwise provided by the agreement, the essence of the relationship, or the law. or other regulations. At the same time, he has the right to demand from the obligated person compensation for incurred costs and other losses.
2. Concerning the provision of consideration. The rules regarding the application of this measure are formulated in Art. 395. The norm stipulates that a creditor who has an item that is subsequently to be transferred to the debtor or a citizen indicated by him may, in the event of failure to fulfill the obligation to reimburse the costs of storage or to pay for it, withhold it until the terms of the agreement are implemented.

Specifics of the attack

Necessary defense and extreme necessity take place in specific conditions. The law stipulates that the actions of the subject can be recognized as lawful in the presence of a serious attack or danger. In this case, it is meant that the threat must appear, exist and not end. In the event of a completed or probable future attack or danger, necessary defense and extreme necessity cannot arise. For harm to be lawful, the threat must be real. It must exist not only in the imagination of the person defending himself or acting in extreme necessity, but also in objective reality.

Penalties provided

If a person exceeds the permissible limits, he may be subject to criminal prosecution. Because a citizen must remember that his actions must be proportionate to the danger. If he forgets about this, then he will have to answer according to the article.

Exceeding permissible self-defense may result in correctional or forced labor or imprisonment for one year. A similar punishment is applied if serious harm was caused to the health of the attacker. If, during the arrest of the criminal, he was harmed, defined as grave or moderate, then the term will increase to two years.

Note that if the defense led to death, then the victim can be imprisoned for up to two years. A similar penalty applies if the killing occurred in response to a minor threat.

Right and duty

Necessary defense and extreme necessity appear as states that, in the general case, do not oblige the subject to anything. Every citizen has the opportunity to exercise their right. However, the legislation does not establish any liability for refusal. Meanwhile, there are a number of exceptions. Certain categories of persons are obliged to exercise this right in appropriate cases. This, in particular, applies to fire service employees, military, police, employees of other departments of the internal affairs department and other citizens whose professional activities are related to situations in which they must ensure the protection of someone else’s and their own interests.

Limits of implementation of the right

Protection, both in case of emergency and in case of necessary defense, must coincide with the encroachment or threat in time. The framework for the implementation of the right is determined by the initial and final moment of danger. Late or premature defense has nothing to do with circumstances excluding the illegality of the act. One of the key common features of the conditions under consideration is the concept of going beyond the scope of extreme necessity and necessary defense. The defense will be valid if the limits have not been exceeded. There is a clause in the legislation. The norms say that intentional actions committed in the process of defense are exceeding the limits.

Difference between concepts

The general characteristics of necessary defense and extreme necessity were discussed above. The differences between these concepts, however, are quite significant. One of them concerns the source of danger. In case of necessary defense, they are represented by the actions of another subject. There is a direct reference to this in the legislation. As for extreme necessity, here the sources of threat are not only the actions of people. It can be:

1. Natural forces, elements, objective processes occurring in natural conditions (avalanches, snowfalls, hurricanes, earthquakes, floods, and so on), creating a danger to property, health, and life of the population.
2. Animal attacks.
3. Mechanism malfunction.
4. Pathological, physiological processes (illness, hunger). For example, a person lost in the forest kills an animal or bird, which is prohibited to hunt, in order to feed himself.
5. Collision of dangers. For example, a witness summoned to court remains with a sick relative.

Comparative analysis

Additionally, we will conduct a comparative analysis to make it clear by what criteria one can determine the necessary defense and extreme necessity.
Let us emphasize that self-defense can only be used against a person who threatens health and life. If absolutely necessary, the cause of danger can be a citizen in an inadequate state, or an animal, a mechanism or an emergency situation. Let's continue the comparison, and now we'll figure out how to eliminate the threat. In self-defense, the main condition is to cause harm exclusively to the criminal. In case of urgent need, damage may be caused to both persons and objects or animals. For example, they will demolish someone else’s barn so that the fire does not spread through it to another house.

Similar rules apply to both Russia and Ukraine. Therefore, citizens should remember these points. Otherwise, you may fall under the article if the permissible measures to eliminate the threat are exceeded.

Key Features

First of all, operational measures are considered law enforcement. They can only be applied if the obligated entity has committed any violation. For example, a person has not taken appropriate actions on time, regularly delays payments, and so on. It should be noted that the measures provided for in legislation are always unilateral. The party whose interests are violated does not need to seek help from competent structures. This is precisely what determines their name - operational. The unilateral nature also determines the specifics of guarantees for the correct application of measures. In the first place, they can only be used when they are expressly provided for by agreement or regulations. At the same time, the application of measures does not exclude the possibility of the obligated entity to challenge their application in court.