Criminal omission
Unlike a criminal act, which consists of active actions and body movements aimed at causing harm, inaction consists of passive behavior, failure to perform actions that a person should have performed.
During the period of criminal legal inaction, a person can act, but his actions are neutral for criminal law. So, if an airport dispatcher, instead of monitoring the radar readings and directing the takeoff and landing of aircraft, had a telephone conversation with his friend, he was inactive from the point of view of criminal law.
“Criminal inaction is not a vague “dangerous state” of the criminal, but specific behavior that has certain boundaries in time and space.
The main features of criminal inaction (as well as actions) are its social danger and the resulting illegality, which are considered in the specific circumstances of the place, time and situation in which the crime was committed.”
Thus, inaction
in the criminal legal sense, this is the failure to perform those actions that a person should and could have committed, or the failure to prevent the occurrence of such consequences that the person was obliged to prevent.
“The social and legal meaning of inaction is a type of human intervention in objective processes: by “unleashing” the harmful forces of nature, or by condoning the antisocial actions of others, or, finally, by using technical means.”
In social life, when people's behavior is interconnected and conditioned, a harmful result can be caused not only by active actions, but also by inaction. Thus, a train crash can occur due to the driver exceeding the speed limit, driving through a prohibitory semaphore signal, or due to the fact that the railway station dispatcher did not move the switch in a timely manner and took the train onto the occupied track.
We cannot agree with the opinion of Professor M.D. Shargorodsky, who wittily stated that “inaction is nothing, and nothing can give birth to something.” Corresponding Member of the USSR Academy of Sciences, Professor A.A. rightly pointed out. Piontkovsky: “Under certain conditions, a person’s inaction is not “nothing”, but is a definite behavior.
The inaction of one person can in a certain way determine the behavior of another person, force him to remain inactive or take any active actions.” Thus, an airport dispatcher, having instructed the plane to land, ceases to control the situation for some time, being distracted by personal matters. At this time, the plane, which occupied the runway and was supposed to take off, remained on the runway due to an engine stop.
Since the controller was inactive and did not give the command to the descending aircraft to gain altitude and enter the second approach, the aircraft continued its descent and an accident occurred.
Professor A.A. Piontkovsky also Fr.
“Human inaction is not a zero in the world of reality and not a purely internal act of mental activity, but a material factor, the passive behavior of people objectified externally.”
. Pure and mixed inaction: criminal legal concept
RANEPA (Moscow)
Criminal law recognizes that, unless otherwise provided in the Criminal Code of the Russian Federation, a crime can be committed either by action or by inaction. In turn, inaction is usually divided into pure and mixed.
The division of inaction as a form in which a crime can be committed into “pure” and “mixed” is confirmed in the norms of the current legislation. So, in Art. 124 (Failure to provide assistance to a patient), Art. 125 (Leaving in danger) of the Criminal Code of the Russian Federation establishes criminal liability for a crime committed by pure inaction. At the same time, committing crimes such as murder (Articles 105 - 108 of the Criminal Code of the Russian Federation), recklessly causing death by negligence (Article 109), causing harm to health (Articles 111 - 115 of the Criminal Code of the Russian Federation), etc. , if we are talking about inaction, it is possible only with its mixed nature. In this regard, the question arises about the concept of pure and mixed inaction and the differences between them.
Pure inaction
can be defined as omission (delictum omissionis). The omission is exhausted by the very fact of the inaction of the guilty person, the failure to fulfill the duties assigned to him. Thus, with pure inaction, criminal liability is associated not with the fact that the guilty person caused the consequences specified by law, which are provided for in the objective side of the crime, but with omissions in the absence of a direct cause-and-effect relationship between inaction and criminal consequences.
Thus, inaction when not providing assistance to a patient, according to Art. 124 of the Criminal Code of the Russian Federation, does not cause, but “involves causing” harm to the health of the patient. In this case, “to bring about causing” means to create the possibility, but not to cause, generate, cause. The law emphasizes that a person guilty of failure to provide assistance to a patient is not guilty of causing harm, but of an omission due to which such harm, although it occurs, is due to other reasons. For example, if a patient does not receive the necessary treatment, the consequences are the result of the disease. In the event that the inaction of a person obliged, in accordance with the law or with a special rule, to provide assistance to a patient, causes harm, that is, is mixed, the crime must be qualified using the relevant rules on causing harm due to improper performance by a person of his professional duties (h 2 Article 108, Part 2 Article 118 of the Criminal Code of the Russian Federation).
Mixed inaction
(delictum commissionis per omissionem) is an inaction by which the guilty person not only allows the consequences to occur, but directly causes (creates) them. As a result, a crime committed with mixed inaction receives a different qualification than a crime committed with pure inaction. We can say that mixed inaction creates consequences incriminated to the guilty person, then pure inaction only does not prevent them.
In the criminal law literature, mixed inaction is often defined as “causing”, “material” []1, 118]. Mixed inaction, for example, occurs in cases where a mother does not feed a newborn child, who as a result dies of exhaustion, or when a person obliged to care for a paralyzed patient does not feed the patient, which leads to death.
As an example of mixed inaction, he cites the provisions of Art. 339 of the Criminal Code of the Russian Federation (Evasion of military service duties) [1, 119]. It's hard to agree with this. According to the requirements of the law, the elements of this crime provide that this crime is committed by actions that are directly indicated as such in Art. 339 of the Criminal Code of the Russian Federation. This is a serviceman pretending to be ill, causing himself any harm (self-mutilation), or forgery of documents. Avoidance of military service duties is the purpose of such actions, and therefore refers to the signs of the subjective side of the composition. On this basis, it is legitimate to conclude that the inaction of a military serviceman cannot, in accordance with the requirements of the law, be qualified as evasion from the performance of military service duties, provided for in Art. 339 of the Criminal Code of the Russian Federation.
With mixed inaction, o [3, 365]. It can also be said that with mixed inaction, in contrast to pure inaction, consequences are generated by it.
Pure inaction, by its very nature, is such that it cannot give rise to those consequences that are provided as a sign of the objective side of the elements of a crime involving pure inaction. For example, in case of negligence (Article 293 of the Criminal Code of the Russian Federation), liability arises not for causing the consequences specified in the law by non-fulfillment or improper performance by an official of his duties, but for their very non-fulfillment or improper performance. An official omission in itself cannot give rise to such consequences. The consequences specified in the law - major damage, significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, etc. - are not caused by official omission, but arise as a result of such omission. In other words, there is pure inaction here.
The difference in the nature of mixed and pure inaction has a number of important practical consequences in criminal law and law enforcement. Thus, a crime committed by mixed inaction is distinguished by a greater social danger in comparison with a crime committed by pure inaction. In addition, the necessary defense is impossible against crimes committed with pure inaction, but with mixed intentional inaction, it is possible.
Criminal liability for pure inaction is also recognized by international law. Thus, in 1946, the Tokyo International Military Tribunal (for the Far East) found the Japanese General Matsui guilty of a crime of pure inaction, which was expressed in the fact that he did not intervene and protect the people of Nanjing from the massacre. “He could have, but he didn’t, and that’s a duty!” read the court verdict [2, 70 - 71].
Literature:
1. Criminal inaction. – St. Petersburg: Publishing house “Legal Center Press”. 2003. – 320 p.
2. The concept of crime. - St. Petersburg: Publishing house "Legal Center Press", 2004. - 819 p.
3. ,
International criminal law. M.: Spark, 1999. - 287 p.
Types of inaction
Inaction can manifest itself as:
- failure to perform a socially useful action: evasion of military duty, etc.;
- lack of action to prevent damage to existing benefits: harm to the environment, etc.
Inaction can also be active or passive. Passive inaction is manifested in abstaining from certain actions, and active inaction can be expressed in the commission of certain actions to evade obligations (for example, some individuals invent various illegal schemes to circumvent taxes and mandatory payments). In such cases they speak of mixed inaction.
Inaction can be one-time or ongoing. One-time is a single act, for example, the inaction of a doctor in relation to an admitted patient. Continuing omission is a repeated act or act over a period of time, for example, tax evasion, possession of a weapon.
What is called mass media?
Author of the question: Vladimirov K. Created: 02/15/22
“mass media” means a periodical printed publication, online publication, television channel, radio channel, television program, radio program, video program, newsreel program, other form of periodic dissemination of mass information under a permanent name (name); a periodical printed publication means a newspaper, magazine, almanac, bulletin, or other publication that has a permanent name (name), current issue and is published at least once a year;
Answered by: Emelyanov N. 02/17/22
Failure to provide medical care
If, without serious reasons, medical assistance was not provided to a person, while the person was obliged to provide it in accordance with regulations, then criminal liability arises in accordance with Art. 124 of the Criminal Code of the Russian Federation.
Important!
Doctors have a special responsibility - people's lives are in their hands. This is why medical negligence is not forgiven. The Criminal Code of the Russian Federation does not forgive them either - medical negligence can result in imprisonment for up to 7 years.
In a situation where failure to provide medical care resulted in moderate harm to the victim, the punishment may be as follows:
- A fine of up to 40,000 rubles or the total income of the offender for three months.
- Mandatory work lasting up to 360 hours.
- Correctional labor for up to twelve months.
- Arrest for a period of four months.
If failure to provide assistance led to the death of the victim or serious harm to his health, but the punishment will be more severe:
- Forced labor for up to 4 years.
- Imprisonment for up to 4 years
In this case, according to a court decision, the perpetrator may lose the right to engage in certain activities for three years.
CAUSATION IN CRIMINAL LAW: CONCEPT, ESTABLISHMENT CRITERIA AND MEANING
A prerequisite for the criminal liability of a person is the existence of a causal connection between the action (inaction) and the harmful consequences that occur.
Rules for establishing a causal relationship between an action (inaction) and a socially dangerous consequence:
1) the objectivity of the cause-and-effect relationship presupposes its study regardless of guilt. First, the existence of an objective connection between the action and the consequence is established, and only then is guilt established in the form of intent or negligence in an intellectual-volitional relationship to the causal consequence;
2) the cause and condition for the occurrence of a criminal consequence is solely the action or inaction of the subject of the crime.
An action as a condition or cause must have signs of volition, motivation and purposefulness.
The subject of the action (inaction) must have the necessary criminal legal properties of a person who has committed a crime: be sane, reach the required age of responsibility;
3) the action (inaction) of a person must be antisocial, containing a certain risk and the possibility of harmful consequences. If the action was socially useful or socially neutral, it is excluded from further establishment of a causal relationship;
4) it is necessary to establish whether a lawful or immoral act was a necessary condition for the occurrence of harmful consequences;
5) it is necessary to recognize whether the act that fulfilled the role of a necessary condition was actually the cause of the consequences.
The study of causality goes through the following stages:
– the first link in the chain of causality: cause – a specific action or inaction of the subject;
– a consequence as the last link of a causal relationship – socially dangerous consequences;
– the action (inaction) must precede the onset in time;
– the action (inaction) must be unlawful or grossly immoral, containing a certain risk of harm;
– the act must fulfill the role of a necessary condition in the chain of determination;
– the act must be recognized not just as a necessary condition, but also as the cause of the consequences, and not in general, but in the specific situation of its commission;
– we must not allow confusion between the causal, always objective connection between an action (inaction) and the consequence and the culpable connection between them in the form of intent or negligence. Theories of causation:
- equivalent - the cause of criminal consequences is any action (inaction) that was a necessary condition for the occurrence of a criminal result. In this case, all conditions are assessed as equivalent, without distinguishing between main and secondary ones (hence the name of the theory “equivalent”);
– adequate – distinguishes between causes and conditions, recognizing as causes only those determinants that, by their adequacy and compliance with the consequences, were capable of producing them. Random, atypical, non-standard actions were excluded from the list of causes, although in fact they caused the result.
