Commentary to Art. 8 of the Criminal Code
1. The corpus delicti is a set of objective and subjective characteristics provided for by criminal law that characterize a socially dangerous act as a crime. Its presence in a specific socially dangerous act serves as a necessary and sufficient basis for bringing to criminal responsibility the person who committed this act.
2. The signs that form the corpus delicti are grouped according to the elements of the crime. In total, the crime consists of four elements: 1) the object of the crime; 2) the objective side of the crime; 3) the subjective side of the crime and 4) the subject of the crime.
3. The object of the crime is those social relations protected by criminal law that the crime encroaches on.
4. The objective side means the external manifestation of the crime in reality. It includes the following features: an act, socially dangerous consequences, a causal relationship between the act and its socially dangerous consequences, time, place, setting, method, instruments and means of committing a crime.
5. The subjective side of a crime is understood as the mental activity of a person directly related to the commission of a crime. The content of the subjective side of the crime is characterized by such legal features as guilt, motive and purpose.
6. The subject of a crime is a person who has committed a criminal offense and, in accordance with the law, is capable of bearing criminal liability for it.
Article 8. Grounds for criminal liability
Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 5, 2018 N 126P18 By virtue of Art. According to the Criminal Code of the Russian Federation, the basis for criminal liability is the commission of an act containing all the elements of a crime provided for by this Code. Article 159 of the Criminal Code of the Russian Federation defines fraud as the theft of someone else's property or the acquisition of rights to someone else's property through deception or abuse of trust.
Determination of the Constitutional Court of the Russian Federation dated May 25, 2017 N 1013-O
According to the article of the Criminal Code of the Russian Federation, the basis of criminal liability is the commission of an act containing all the elements of a crime provided for by this Code. Consequently, when qualifying an act, including under Article 163 of the Criminal Code of the Russian Federation, it is necessary to establish both objective and subjective elements of the crime. In this case, the explanations given by the Plenum of the Supreme Court of the Russian Federation in the Resolution of December 17, 2015 N “On judicial practice in cases of extortion (Article 163 of the Criminal Code of the Russian Federation)”, which draws the attention of the courts to the fact that under the information, disgracing the victim or his relatives, one should understand information that discredits their honor, dignity or undermines their reputation (for example, information about the commission of an offense, an immoral act); in this case, it does not matter whether the information under the threat of dissemination of which extortion is committed is true; other information, the dissemination of which may cause significant harm to the rights or legitimate interests of the victim or his relatives, includes, in particular, any information constituting a secret protected by law; dissemination during extortion of knowingly false information discrediting the honor and dignity of the victim and (or) his relatives or undermining his (their) reputation, illegal dissemination of information about the private life of a person that constitutes his personal or family secret, disclosure of the secret of adoption against his will adoptive parent, illegal disclosure of information constituting commercial, tax or banking secrets, form a set of crimes provided for in the relevant parts of Articles 128.1, 137, 155 or 183 and Article 163 of the Criminal Code of the Russian Federation (clause 12); if the demand for the transfer of property or the right to property or the commission of other actions of a property nature is lawful, but is accompanied by the threat specified in part one of Article 163 of the Criminal Code of the Russian Federation, then such actions do not entail criminal liability for extortion (clause 13).
Determination of the Constitutional Court of the Russian Federation dated September 28, 2017 N 2170-O
According to the article of the Criminal Code of the Russian Federation, the basis of criminal liability is the commission of an act containing all the elements of a crime provided for by this Code. Consequently, it is mandatory to establish both objective and subjective elements of a crime when qualifying an act, including under Article 160 of the Criminal Code of the Russian Federation, which provides for liability only for such an act that causes damage to the owner or other owner, which is committed with selfish purpose and intent, aimed at taking possession of property (its appropriation) or alienation of property (its embezzlement). Illegal gratuitous circulation of property entrusted to a person for one’s own benefit or for the benefit of other persons, causing damage to the owner or other legal owner of this property, must be qualified as misappropriation or embezzlement, provided that the stolen property was in the lawful possession or control of this person, who, by virtue of official or other official position, contract or special assignment exercised powers to dispose, manage, deliver, use or store in relation to someone else’s property (rulings of the Constitutional Court of the Russian Federation dated June 21, 2011 N 851-О-О, dated May 28, 2013 N 707-O, dated December 23, 2014 N 2829-O, dated March 29, 2016 N 640-O, etc.); at the same time, the possibility of bringing to criminal liability persons who carry out lawful civil transactions is not assumed (Determination of the Constitutional Court of the Russian Federation of July 2, 2009 N 1037-О-О).
Determination of the Constitutional Court of the Russian Federation dated October 26, 2017 N 2257-O
2.2. The basis for criminal liability is, according to an article of the Criminal Code of the Russian Federation, the commission of an act containing all the elements of a crime provided for by this Code. The socially dangerous consequences of the crime committed - depending on the design of its composition: material or formal - may or may not be included among its mandatory features (Resolution of the Constitutional Court of the Russian Federation of April 7, 2015 N 7-P). At the same time, the absence of indications of such consequences in the disposition of the corresponding article of the Special Part of this Code as an element of the crime envisaged by it does not mean that the commission of this crime does not entail causing harm or a real threat of causing it. In the Russian legal system, a crime - unlike other offenses - is characterized by a criminal social danger, in the absence of which even an act that formally falls under the criteria of a criminal offense cannot be considered as such due to its insignificance (part two of Article of the Criminal Code of the Russian Federation).
Determination of the Constitutional Court of the Russian Federation dated December 19, 2017 N 2895-O
According to the article of the Criminal Code of the Russian Federation, the basis of criminal liability is the commission of an act containing all the elements of a crime provided for by this Code. This legal provision is a norm of the General Part of the Criminal Law, is subject to interrelation with the provisions of its Special Part, including the provisions of Article 159 of the Criminal Code of the Russian Federation, does not contain any uncertainty and cannot be regarded as violating the rights of the applicant.
Determination of the Constitutional Court of the Russian Federation dated January 30, 2020 N 240-O
As for the contested K.V. Vagin of Articles , and 290 of the Criminal Code of the Russian Federation, then, contrary to paragraph 2 of Article 97 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation,” the presented documents do not confirm the completion of the criminal proceedings against him.
Determination of the Constitutional Court of the Russian Federation dated January 30, 2020 N 212-O
Contested A.P. Bautina’s norms not only do not violate the rights and legitimate interests of a person convicted of committing a crime, but, on the contrary, are a guarantee of imposing criminal liability only if all the elements of a crime provided for by criminal law are present (Article of the Criminal Code of the Russian Federation), and do not contain uncertainty or any exceptions from the established procedure of evidence in criminal cases, and therefore cannot be regarded as violating the rights of the applicant in the aspect indicated by her, which is why her complaint, as not meeting the criterion of admissibility of appeals to the Constitutional Court of the Russian Federation, cannot be accepted by the Constitutional Court Russian Federation for consideration.
Determination of the Constitutional Court of the Russian Federation dated March 26, 2020 N 793-O
Since the indication of the illegal nature of specific acts in the sphere of circulation of certain items, characteristic of the blanket dispositions of articles of the criminal law, means that the legal prerequisite for the application of the relevant criminal law norms is non-compliance with the rules in force in this area (despite the fact that the basis for criminal liability, by virtue of the article of the Criminal Code of the Russian Federation, the presence in the committed act of all the signs of a crime provided for by this Code), insofar as the solution to the question of the presence of signs of a crime provided for in Article 226.1 of the Criminal Code of the Russian Federation, involves identifying a violation of the rules of cross-border movement of objects that encroaches on customs relations protected by law, as well as establishing the belonging of illegally moved items to the number of contraband items mentioned in this article (Determination of the Constitutional Court of the Russian Federation of October 10, 2022 N 2647-O).
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 29, 2017 N 37-UD17-1
In accordance with Art. According to the Criminal Code of the Russian Federation, the basis for criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation. According to Part 4 of Art. 302 of the Code of Criminal Procedure of the Russian Federation, a conviction cannot be based on assumptions and is decided only on the condition that during the trial the defendant’s guilt in committing a crime is confirmed by the totality of evidence examined by the court.
Determination of the Constitutional Court of the Russian Federation dated September 29, 2020 N 2027-O
The above legal provisions must be applied taking into account the article of the Criminal Code of the Russian Federation, by virtue of which the basis for criminal liability is the commission of an act containing all the elements of a crime provided for by this Code, from which it follows that when qualifying an act, including when qualifying certain actions in in accordance with part four of Article 159.1 of the Criminal Code of the Russian Federation, it is necessary to establish both objective and subjective elements of the crime (Definition of the Constitutional Court of the Russian Federation of May 29, 2014 N 1191-O).
Determination of the Constitutional Court of the Russian Federation dated September 29, 2020 N 2030-O
As noted by the Constitutional Court of the Russian Federation, since the indication of the illegal nature of specific acts in the sphere of circulation of certain items, characteristic of the blanket dispositions of articles of the criminal law, means that the legal prerequisite for the application of the relevant criminal law norms is non-compliance with the rules in force in this area (despite the fact that the basis criminal liability by virtue of an article of the Criminal Code of the Russian Federation is the presence in the committed act of all the signs of a crime provided for by this Code), insofar as the solution to the question of the presence of signs of a crime provided for in Article 226.1 of the Criminal Code of the Russian Federation involves identifying a violation of the rules of cross-border movement of objects that encroaches on protected customs relations by law, as well as establishing that illegally moved items are among the contraband items mentioned in this article (definitions dated October 10, 2022 N 2647-O and dated March 26, 2020 N 793-O).
Second commentary to Art. 8 of the Criminal Code of the Russian Federation
1. The corpus delicti of a crime is a set of objective and subjective characteristics established by the Code that characterize a socially dangerous act as a crime. The element of a crime is understood as a generalized legally significant property specified in the law, inherent in all crimes of this type. The norms of the Special Part describe the characteristics that reflect the specifics of a particular crime; in the norms of the General Part of the Criminal Code - signs characteristic of all crimes without exception (the age at which criminal liability begins and sanity). The signs characterizing a specific crime form a system; the absence of at least one of them means the absence of the crime as a whole.
Thus, the corpus delicti allows us to determine the legal structure of a socially dangerous act and conclude that the latter is a crime provided for by the norm of the Special Part of the Criminal Code.
Clause “b”, part 3, art. 242 of the Criminal Code of the Russian Federation, paragraph “d”, part 2 of Art. 242.1 of the Criminal Code of the Russian Federation: interpretation and judicial practice
The publication was prepared according to the state of Russian legislation as of January 1, 2017 and is based on the established law enforcement, as well as the personal practice of the author, lawyer Pavel Domkin. The material presented is not a sufficient basis for taking independent legal action. Use of the contents of the publication is permitted by the author provided there is an active link to the source.
The established practice of investigating criminal cases related to the illicit trafficking of pornographic materials on the Internet is everywhere accompanied by the unconditional incrimination of the accused by paragraph “b” of part 3 of Article 242 of the Criminal Code of the Russian Federation or paragraph “d” of part 2 of Article 242.1 of the Criminal Code of the Russian Federation, that is, the filing of charges of committing a crime “using the media, including information and telecommunication networks (including the Internet).” Moreover, representatives of the prosecution (investigators, prosecutors) regard such practice as undeniable, based on the significant number of court decisions that have entered into legal force. It can be assumed that the appearance of court decisions that confirmed the legality of imputation of paragraphs “b” and “d” of these articles is the consequences of the accused persons’ blind recognition of the charges brought in full and their choice of a special procedure for the consideration of a criminal case by the court in order to minimize the imposed punishment.
Despite the established order of things, the author of this publication proposes to once again address the issue of the legality of incriminating these qualifying characteristics, if the crime of illegal distribution of pornographic materials, including with the participation of minors, was actually committed using Internet resources.
A detailed analysis of the provisions of the criminal law clearly shows that the disposition of Articles 242 and 242.1. The Criminal Code of the Russian Federation presupposes the possibility of applying the qualifying feature in question only in the case when an unlawful act was committed using Internet resources registered as mass media.
From the literal interpretation of the content of clause “b”, part 3, article 242 of the Criminal Code of the Russian Federation and clause “d”, part 2, art. 242.1 of the Criminal Code of the Russian Federation it follows that when constructing the norms of the law between the phrases “using the media” and “information and telecommunication networks (including the Internet)”, the legislator used an adjunct phrase with the conjunction “including”, which, in accordance with according to the rules of interpretation of the Russian language, it is used when attaching a member of a sentence that is part of the whole, which is spoken of in the first part of the sentence (See the explanatory dictionary of Efremova T.F.).
Thus, the phrase “information and telecommunication networks (including the Internet)” is part of the whole , that is, an integral part of the phrase “mass media”. From the above it follows that clause "b" part 3 of article 242 of the Criminal Code of the Russian Federation and clause "d" part 2 of art. 242.1 of the Criminal Code of the Russian Federation is applicable in the criminal classification of acts only in cases where illegal actions were committed using sites that are mass media.
According to Article 2 of the Law of the Russian Federation dated December 27, 1991 No. 2124-1 “On the Mass Media,” periodical printed publications, television channels, radio channels, online publications, etc. are recognized as such. In turn, an online publication means a website on the Internet information and telecommunications network, registered as a mass media outlet in the manner prescribed by law.
Statistics show that the vast majority of crimes related to the illegal trafficking (distribution) of pornography are committed without any direct or indirect use of Internet resources registered as mass media. From the explanatory provisions contained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2010 N “On the practice of application by courts of the Law of the Russian Federation “On the Mass Media””, it follows that persons who have committed violations of the law when distributing mass information through sites on the Internet are not registered as mass media bear criminal , administrative, civil and other liability in accordance with the legislation of the Russian Federation without taking into account the specifics provided for by the legislation on mass media.
The illegality of the accusation under paragraph “g” of Part 2 of Art. 242.1 of the Criminal Code of the Russian Federation
The stated position of the author of the publication is confirmed in the private opinions of senior representatives of the judiciary. Thus, from the content of official review No. 3-ВС-4225/15 dated 07/08/2015 by Deputy Chairman of the Supreme Court of the Russian Federation V.A. Davydov it follows that the qualifying feature provided for in paragraph “d” of Part 2 of Article 242.1 of the Criminal Code of the Russian Federation in the current edition - “using the media, including information and telecommunication networks (including the Internet)” applies only to those Internet resources that are registered as media.
Taking into account the above, the investigative bodies’ incrimination of paragraph “b” of Part 3 of Article 242 of the Criminal Code of the Russian Federation and paragraph “d” of Part 2 of Article 242.1 of the Criminal Code of the Russian Federation is based on the erroneous understanding that committing a crime using Internet resources is an alternative qualifying feature for committing a crime with using the media. Such an interpretation of the law is applicable only in cases where such a possibility is directly provided for in the disposition of the criminal law. For example, in Part 2 of Article 280 of the Criminal Code of the Russian Federation, the legislator established a qualifying feature - “using the media or information and telecommunication networks, including the Internet.” Wording of a qualifying characteristic similar in content is contained in Part 2 of Article 205.2 of the Criminal Code, Part 2 of Article 280.1 of the Criminal Code of the Russian Federation, Article 282 of the Criminal Code of the Russian Federation.
Lawyer Pavel Domkin
Acquittal under Article 242.1. Criminal Code of the Russian Federation
Practice of application of Article 242.1 of the Criminal Code of the Russian Federation
Criminal liability under Article 242 of the Criminal Code of the Russian Federation
Criminal liability for distributing pornography on the Internet
Blocking sites with pornographic content. Risks of bringing the website owner to criminal liability
