Legal error
A legal error is an incorrect assessment by the perpetrator of the legal essence or legal consequences of the act committed. It is customary to distinguish the following types of legal errors:
- error in criminal law prohibition;
- imaginary crime;
- a person’s incorrect understanding of the legal consequences of the crime being committed.
Error in criminal law prohibition , i.e. an incorrect assessment by a person of the act he commits as not criminally punishable, whereas in reality it is recognized as a crime in accordance with the law. An error of this kind does not exclude intentional guilt, since ignorance of the law does not equate to a lack of consciousness of social danger and cannot serve as an excuse for a person who has committed an act prohibited by criminal law.
An imaginary crime is a person’s erroneous assessment of the act being committed as criminal, when in fact the law does not classify it as a crime. In such cases, the act does not have the properties of social danger and illegality, therefore criminal liability is excluded. For example, the “theft” of car tires discarded due to wear and tear is not criminal due to the absence of an object of attack, therefore there is no guilt in its criminal legal meaning.
A person’s misconception about the legal consequences of the crime being committed : its qualifications, the type and amount of punishment that can be imposed for committing this act. Such an error does not affect the form of guilt or criminal liability.
Subjective error, types, impact on qualifications.
In criminal law, a subjective error as Depending on the nature of the subject's misconceptions, a legal and a factual error are distinguished.
Legal error —
This is an incorrect assessment by the perpetrator of the legal essence or legal consequences of the act committed. It is customary to distinguish the following types of legal errors.
1. Error in the criminal law prohibition,
that is, an incorrect assessment by a person of the act he commits as not criminally punishable, whereas in reality it is recognized as a crime in accordance with the law. An error of this kind does not exclude intentional guilt, since ignorance of the law does not equate to a lack of consciousness of social danger and cannot serve as an excuse for a person who has committed an act prohibited by criminal law.
2. An erroneous assessment by a person of the act being committed as criminal, whereas in fact the law does not classify it as a crime (the so-called imaginary crime).-
In such cases, the act does not have the properties of social danger and illegality, therefore criminal liability is excluded. For example, the “theft” of car tires discarded due to wear and tear is not criminal due to the absence of an object of attack, therefore there is no guilt in its criminal legal meaning.
3. The person’s misconception about the legal consequences
the crime being committed: its qualifications, the type and amount of punishment that can be imposed for committing this act. Such an error does not affect the form of guilt or criminal liability.
A factual error is a person’s misconception about the actual circumstances of the act being committed. Of practical importance is only significant
a factual error that concerns circumstances that are an element of a crime.
Depending on the content of misconceptions, i.e. on the subject of incorrect perceptions and assessments, it is customary to distinguish the following types of factual error: in the object of the attack, in the nature of the action or inaction, in the severity of the consequences, in the development of a causal connection, in circumstances aggravating responsibility.
Error in object -
This is a person’s incorrect understanding of the social and legal essence of the target of the attack.
In the presence of this type of error, the crime must be classified depending on the direction of intent. It is necessary to distinguish from an error in the object an error in the subject
of the assault and in
the identity
of the victim. These types of errors do not affect either the form of guilt or the qualification of the crime (unless, of course, with the substitution of the subject of the attack or the identity of the victim, the object of the crime does not change).
Error in the nature of the action performed
(or inaction) can be of two kinds.
Firstly, a person incorrectly assesses his actions as socially dangerous, whereas they do not have this property. Such an error does not affect the form of guilt (the act remains intentional), but responsibility comes not for the completed crime, but for the attempted crime, since the criminal intent was not realized. For example, the sale of foreign currency, which the culprit mistakenly considers counterfeit, constitutes an attempt to sell counterfeit money (Part 3 of Article 30 and Article 186 of the Criminal Code of the Russian Federation).
Secondly, a person mistakenly considers his actions to be lawful, not realizing their social danger (for example, a person is convinced of the authenticity of the money he is paying with, but it turns out to be counterfeit). Such an error eliminates intent, and if an act is recognized as criminal only if it was committed intentionally, then criminal liability is also excluded. If an act is recognized as criminal even in the case of a careless form of guilt, then liability occurs only on the condition that the person should and could have realized the social danger of his act, i.e., in the event of a culpable mistake.
Error regarding socially dangerous consequences
may relate to either the qualitative or quantitative characteristics of this objective characteristic.
Error regarding quality
i.e., the nature of socially dangerous consequences, may consist in foreseeing such consequences that actually did not occur, or in not foreseeing such consequences that actually occurred. Such an error excludes liability for intentionally causing consequences that actually occurred, but may entail liability for causing them through negligence, if provided for by law. An act that entailed consequences other than those covered by the intent of the subject is qualified as an attempt to cause consequences foreseen by the perpetrator, and, in addition, as careless infliction of consequences that actually occurred.
An error regarding the severity of socially dangerous consequences means an error in their quantitative
characteristics. In this case, the actual consequences caused may turn out to be either more or less severe than those expected.
In cases where criminal liability depends on the severity of the consequences, a person who makes an error regarding this characteristic must be held liable in accordance with the intent.
For example, an attempt to commit residential theft on a large scale, which failed due to the inability to open a home safe, should be qualified under Part 3 of Art. 30 and paragraph “c”, part 3, art. 158 of the Criminal Code of the Russian Federation).
The occurrence of a more serious consequence than the subject had in mind excludes liability for its intentional infliction.
Error in the development of causality
means an incorrect understanding by the perpetrator of the cause-and-effect relationship between his act and the onset of socially dangerous consequences.
If a consequence covered by intent, although it actually occurred, was the result not of the actions with which the perpetrator intended to cause it, but of his other actions, an error in the causal connection entails a change in the classification of the act.
Error in aggravating circumstances
consists in the erroneous idea of the absence of such circumstances when they exist, or of their presence when in fact they are absent. In these cases, liability is determined by the content and direction of intent. If the perpetrator considers his act to have been committed without aggravating circumstances, then responsibility should arise for the main elements of the crime. Thus, “a person who did not know for certain that the victim was pregnant cannot be held liable under paragraph “g” of Art. 102 of the Criminal Code of the RSFSR"1 (clause "d" of Part 2 of Article 105 of the Criminal Code of the Russian Federation). Conversely, if the perpetrator was convinced of the presence of an aggravating circumstance, which in fact was absent, the act should be qualified as an attempted crime committed under aggravating circumstances.
Rejection of an action is outwardly similar to a factual error when, for reasons independent of the will of the perpetrator, harm is caused not to the person to whom the attack is directed, but to another person.
In criminal law, a subjective error as Depending on the nature of the subject's misconceptions, a legal and a factual error are distinguished.
Legal error —
This is an incorrect assessment by the perpetrator of the legal essence or legal consequences of the act committed. It is customary to distinguish the following types of legal errors.
1. Error in the criminal law prohibition,
that is, an incorrect assessment by a person of the act he commits as not criminally punishable, whereas in reality it is recognized as a crime in accordance with the law. An error of this kind does not exclude intentional guilt, since ignorance of the law does not equate to a lack of consciousness of social danger and cannot serve as an excuse for a person who has committed an act prohibited by criminal law.
2. An erroneous assessment by a person of the act being committed as criminal, whereas in fact the law does not classify it as a crime (the so-called imaginary crime).-
In such cases, the act does not have the properties of social danger and illegality, therefore criminal liability is excluded. For example, the “theft” of car tires discarded due to wear and tear is not criminal due to the absence of an object of attack, therefore there is no guilt in its criminal legal meaning.
3. The person’s misconception about the legal consequences
the crime being committed: its qualifications, the type and amount of punishment that can be imposed for committing this act. Such an error does not affect the form of guilt or criminal liability.
A factual error is a person’s misconception about the actual circumstances of the act being committed. Of practical importance is only significant
a factual error that concerns circumstances that are an element of a crime.
Depending on the content of misconceptions, i.e. on the subject of incorrect perceptions and assessments, it is customary to distinguish the following types of factual error: in the object of the attack, in the nature of the action or inaction, in the severity of the consequences, in the development of a causal connection, in circumstances aggravating responsibility.
Error in object -
This is a person’s incorrect understanding of the social and legal essence of the target of the attack.
In the presence of this type of error, the crime must be classified depending on the direction of intent. It is necessary to distinguish from an error in the object an error in the subject
of the assault and in
the identity
of the victim. These types of errors do not affect either the form of guilt or the qualification of the crime (unless, of course, with the substitution of the subject of the attack or the identity of the victim, the object of the crime does not change).
Error in the nature of the action performed
(or inaction) can be of two kinds.
Firstly, a person incorrectly assesses his actions as socially dangerous, whereas they do not have this property. Such an error does not affect the form of guilt (the act remains intentional), but responsibility comes not for the completed crime, but for the attempted crime, since the criminal intent was not realized. For example, the sale of foreign currency, which the culprit mistakenly considers counterfeit, constitutes an attempt to sell counterfeit money (Part 3 of Article 30 and Article 186 of the Criminal Code of the Russian Federation).
Secondly, a person mistakenly considers his actions to be lawful, not realizing their social danger (for example, a person is convinced of the authenticity of the money he is paying with, but it turns out to be counterfeit). Such an error eliminates intent, and if an act is recognized as criminal only if it was committed intentionally, then criminal liability is also excluded. If an act is recognized as criminal even in the case of a careless form of guilt, then liability occurs only on the condition that the person should and could have realized the social danger of his act, i.e., in the event of a culpable mistake.
Error regarding socially dangerous consequences
may relate to either the qualitative or quantitative characteristics of this objective characteristic.
Error regarding quality
i.e., the nature of socially dangerous consequences, may consist in foreseeing such consequences that actually did not occur, or in not foreseeing such consequences that actually occurred. Such an error excludes liability for intentionally causing consequences that actually occurred, but may entail liability for causing them through negligence, if provided for by law. An act that entailed consequences other than those covered by the intent of the subject is qualified as an attempt to cause consequences foreseen by the perpetrator, and, in addition, as careless infliction of consequences that actually occurred.
An error regarding the severity of socially dangerous consequences means an error in their quantitative
characteristics. In this case, the actual consequences caused may turn out to be either more or less severe than those expected.
In cases where criminal liability depends on the severity of the consequences, a person who makes an error regarding this characteristic must be held liable in accordance with the intent.
For example, an attempt to commit residential theft on a large scale, which failed due to the inability to open a home safe, should be qualified under Part 3 of Art. 30 and paragraph “c”, part 3, art. 158 of the Criminal Code of the Russian Federation).
The occurrence of a more serious consequence than the subject had in mind excludes liability for its intentional infliction.
Error in the development of causality
means an incorrect understanding by the perpetrator of the cause-and-effect relationship between his act and the onset of socially dangerous consequences.
If a consequence covered by intent, although it actually occurred, was the result not of the actions with which the perpetrator intended to cause it, but of his other actions, an error in the causal connection entails a change in the classification of the act.
Error in aggravating circumstances
consists in the erroneous idea of the absence of such circumstances when they exist, or of their presence when in fact they are absent. In these cases, liability is determined by the content and direction of intent. If the perpetrator considers his act to have been committed without aggravating circumstances, then responsibility should arise for the main elements of the crime. Thus, “a person who did not know for certain that the victim was pregnant cannot be held liable under paragraph “g” of Art. 102 of the Criminal Code of the RSFSR"1 (clause "d" of Part 2 of Article 105 of the Criminal Code of the Russian Federation). Conversely, if the perpetrator was convinced of the presence of an aggravating circumstance, which in fact was absent, the act should be qualified as an attempted crime committed under aggravating circumstances.
Rejection of an action is outwardly similar to a factual error when, for reasons independent of the will of the perpetrator, harm is caused not to the person to whom the attack is directed, but to another person.
Error and its criminal legal significance
An error is a person’s misconception about the actual nature of the act he committed and its consequences. The nature of the error may have an impact on establishing the subjective side of the crime. Depending on the nature of the error, legal and factual errors differ.
A legal error is a person’s incorrect understanding of the criminality or innocence of the act he has committed and its consequences, the legal qualification of his actions or inaction, and the type and amount of punishment that can be imposed for them. There are four types of legal errors. This is a person's misconception about:
1) the criminality of his actions, while the law does not classify these acts as criminal;
2) the act he committed as non-criminal, whereas in reality it is a crime;
3) legal qualification of the act committed by him;
4) the type and amount of punishment that may be imposed for the crime he has committed.
A factual error is a person’s incorrect understanding of the factual circumstances relating to the object and objective side of the crime he committed. Such errors include:
1) mistake in the object of the crime;
2) an error regarding the factual circumstances that form the objective side of the crime (a person’s misconception about the nature of the committed action or inaction; the occurrence of socially dangerous consequences; the development of a causal relationship).
The general rule regarding the meaning of a legal error comes down to the fact that the criminal liability of a person who is mistaken regarding the legal properties and legal consequences of an act committed occurs in accordance with the assessment of this act not by the subject, but by the legislator. In other words, such an error usually does not affect either the form of guilt, or the qualification of the crime, or the amount of the imposed punishment.
A factual error, on the contrary, takes into account the form of guilt and affects the qualification of the crime.
When committing a crime, a person may be mistaken in certain circumstances of the act he commits. An error can affect the content of guilt, and therefore the limits of criminal liability. Therefore, you need to know what an error is.
In the criminal law literature there are various definitions of the concept “error”. Their common disadvantage is that in these definitions the emphasis is placed on one of the aspects inherent in the error.
In its most general form, an error is a person’s misconception regarding the objective properties of a socially dangerous act that characterize it as a crime.
Hence, an error is a person’s misconception regarding the nature and degree of social danger of the act being committed and its criminal wrongfulness.
The first type of error is most often called a factual error, and the second is a legal error.
In turn, an error regarding the nature and degree of public danger (factual) and an error regarding illegality (legal) can be divided into subtypes.
Within the framework of a factual error, we can distinguish: an error in the object, the subject, the identity of the victim, the method of committing the crime, the means of the crime, the nature of the consequences, the causal connection, in qualifying (especially qualifying) circumstances.
An error in the object is a delusion when a person believes that he is encroaching on one social relationship, but in fact others are affected. This error does not change the form of guilt, but it predetermines its content. For example, a person believes that he is encroaching on the life of a law enforcement officer, but in reality the harm is being caused to an ordinary citizen. If there is an error in the object, the actions of the perpetrator are qualified based on his intentions.
An error in the subject of an encroachment is a misconception regarding the properties and materially expressed characteristics of objects within the framework of those social relations that the person has encroached upon. An error in an item can be: a) in relation to a missing item (opened the safe, and there was paper, not money), in this case the actions of the culprit are qualified as attempted theft; b) regarding the quality of the item (the error of this
kind occurs when there is an encroachment on an “unusable” object or on an object not in the volume or amount with which the legislator associates the limits of liability).
A mistake in the identity of the victim is that, by being mistaken, a person causes harm to another person. An error of this kind, as a rule, does not change qualifications. For example, what difference does it make if Sidorov is killed by mistake instead of Petrov? However, in some cases, when special conditions are associated with the identity of the victim, an error in relation to them excludes guilt and criminal liability. If the culprit made a mistake regarding the age of the involved accomplice, then he cannot be charged with Art. 150 CC.
An error in the method of committing a crime is that a person is mistaken about the characteristics of the techniques that he uses to commit a crime. Such an error sometimes changes the criminal legal assessment of the crime. For example, if a person believed that he was secretly seizing property, but those actually present saw that the property was being stolen. Qualification is carried out based on what method of seizure was covered by the consciousness of the perpetrator - theft.
An error in the means of crime is a misconception regarding the “instrumentation” with which the crime was committed. In the process of committing a crime, along with suitable means, absolutely (uses a large amount of table salt as a poison) or relatively (shoots from a long distance at the victim, and even with a weak charge) unsuitable means can be used by mistake. Because of this, the result did not come, the actions are qualified as an attempt or preparation. The use of insignificant means - whispers, spells, conspiracies - does not entail criminal liability.
An error in the nature of the consequences of a criminal act is a misconception regarding the presence or absence of criminal consequences. For example, a person believes that through his actions he is destroying or damaging someone else’s property, but in fact this does not happen. Such actions must be regarded as an attempt or preparation for the destruction of property.
A person’s error in causation is a person’s mistake in the development of a causal connection between an act and the resulting result. As a rule, an error in the development of a causal relationship does not change the qualification of the crime. Thus, for criminal law, it is indifferent that the beaten person died not from blows, as the culprit believed, but from asphyxia, after the culprit threw the victim from a bridge into the river.
An error in a causal relationship has a different meaning when, in the opinion of the culprit, the measures taken should prevent its development. This is especially true for frivolous calculations.
A person's mistake regarding criminal wrongfulness (legal mistake) is a mistake in the legal significance of the act. Within the framework of this error, we can distinguish: an error in the criminality or non-criminality of the act committed, its qualification, in relation to the type and amount of punishment for the act.
To summarize the above, it can be noted that in the theory of criminal law there are many points of view regarding the concept, types and classification of socially dangerous acts in the presence of a legal or factual error, which inevitably affects law enforcement practice. Therefore, it seems that scientists are right who propose to include in the Criminal Code an article defining the signs of a legal and factual error and the rules of qualification, if any, as is done in many foreign countries.
An error is a person’s misconception about the actual nature of the act he committed and its consequences. The nature of the error may have an impact on establishing the subjective side of the crime. Depending on the nature of the error, legal and factual errors differ.
A legal error is a person’s incorrect understanding of the criminality or innocence of the act he has committed and its consequences, the legal qualification of his actions or inaction, and the type and amount of punishment that can be imposed for them. There are four types of legal errors. This is a person's misconception about:
1) the criminality of his actions, while the law does not classify these acts as criminal;
2) the act he committed as non-criminal, whereas in reality it is a crime;
3) legal qualification of the act committed by him;
4) the type and amount of punishment that may be imposed for the crime he has committed.
A factual error is a person’s incorrect understanding of the factual circumstances relating to the object and objective side of the crime he committed. Such errors include:
1) mistake in the object of the crime;
2) an error regarding the factual circumstances that form the objective side of the crime (a person’s misconception about the nature of the committed action or inaction; the occurrence of socially dangerous consequences; the development of a causal relationship).
The general rule regarding the meaning of a legal error comes down to the fact that the criminal liability of a person who is mistaken regarding the legal properties and legal consequences of an act committed occurs in accordance with the assessment of this act not by the subject, but by the legislator. In other words, such an error usually does not affect either the form of guilt, or the qualification of the crime, or the amount of the imposed punishment.
A factual error, on the contrary, takes into account the form of guilt and affects the qualification of the crime.
When committing a crime, a person may be mistaken in certain circumstances of the act he commits. An error can affect the content of guilt, and therefore the limits of criminal liability. Therefore, you need to know what an error is.
In the criminal law literature there are various definitions of the concept “error”. Their common disadvantage is that in these definitions the emphasis is placed on one of the aspects inherent in the error.
In its most general form, an error is a person’s misconception regarding the objective properties of a socially dangerous act that characterize it as a crime.
Hence, an error is a person’s misconception regarding the nature and degree of social danger of the act being committed and its criminal wrongfulness.
The first type of error is most often called a factual error, and the second is a legal error.
In turn, an error regarding the nature and degree of public danger (factual) and an error regarding illegality (legal) can be divided into subtypes.
Within the framework of a factual error, we can distinguish: an error in the object, the subject, the identity of the victim, the method of committing the crime, the means of the crime, the nature of the consequences, the causal connection, in qualifying (especially qualifying) circumstances.
An error in the object is a delusion when a person believes that he is encroaching on one social relationship, but in fact others are affected. This error does not change the form of guilt, but it predetermines its content. For example, a person believes that he is encroaching on the life of a law enforcement officer, but in reality the harm is being caused to an ordinary citizen. If there is an error in the object, the actions of the perpetrator are qualified based on his intentions.
An error in the subject of an encroachment is a misconception regarding the properties and materially expressed characteristics of objects within the framework of those social relations that the person has encroached upon. An error in an item can be: a) in relation to a missing item (opened the safe, and there was paper, not money), in this case the actions of the culprit are qualified as attempted theft; b) regarding the quality of the item (the error of this
kind occurs when there is an encroachment on an “unusable” object or on an object not in the volume or amount with which the legislator associates the limits of liability).
A mistake in the identity of the victim is that, by being mistaken, a person causes harm to another person. An error of this kind, as a rule, does not change qualifications. For example, what difference does it make if Sidorov is killed by mistake instead of Petrov? However, in some cases, when special conditions are associated with the identity of the victim, an error in relation to them excludes guilt and criminal liability. If the culprit made a mistake regarding the age of the involved accomplice, then he cannot be charged with Art. 150 CC.
An error in the method of committing a crime is that a person is mistaken about the characteristics of the techniques that he uses to commit a crime. Such an error sometimes changes the criminal legal assessment of the crime. For example, if a person believed that he was secretly seizing property, but those actually present saw that the property was being stolen. Qualification is carried out based on what method of seizure was covered by the consciousness of the perpetrator - theft.
An error in the means of crime is a misconception regarding the “instrumentation” with which the crime was committed. In the process of committing a crime, along with suitable means, absolutely (uses a large amount of table salt as a poison) or relatively (shoots from a long distance at the victim, and even with a weak charge) unsuitable means can be used by mistake. Because of this, the result did not come, the actions are qualified as an attempt or preparation. The use of insignificant means - whispers, spells, conspiracies - does not entail criminal liability.
An error in the nature of the consequences of a criminal act is a misconception regarding the presence or absence of criminal consequences. For example, a person believes that through his actions he is destroying or damaging someone else’s property, but in fact this does not happen. Such actions must be regarded as an attempt or preparation for the destruction of property.
A person’s error in causation is a person’s mistake in the development of a causal connection between an act and the resulting result. As a rule, an error in the development of a causal relationship does not change the qualification of the crime. Thus, for criminal law, it is indifferent that the beaten person died not from blows, as the culprit believed, but from asphyxia, after the culprit threw the victim from a bridge into the river.
An error in a causal relationship has a different meaning when, in the opinion of the culprit, the measures taken should prevent its development. This is especially true for frivolous calculations.
A person's mistake regarding criminal wrongfulness (legal mistake) is a mistake in the legal significance of the act. Within the framework of this error, we can distinguish: an error in the criminality or non-criminality of the act committed, its qualification, in relation to the type and amount of punishment for the act.
To summarize the above, it can be noted that in the theory of criminal law there are many points of view regarding the concept, types and classification of socially dangerous acts in the presence of a legal or factual error, which inevitably affects law enforcement practice. Therefore, it seems that scientists are right who propose to include in the Criminal Code an article defining the signs of a legal and factual error and the rules of qualification, if any, as is done in many foreign countries.
PROBLEMS OF CLASSIFICATION OF CRIMES IN CONDITIONS OF FACTUAL ERROR
IN CONDITIONS OF FACTUAL ERROR V.N. KURCHENKO V.N. Kurchenko, Ph.D., Chairman of the Judicial Collegium for Criminal Cases of the Sverdlovsk Regional Court. There is no rule on errors in the current criminal legislation. Therefore, questions about the concept, types and meaning of criminal legal errors are developed in the theory of criminal law. An error in criminal law literature is characterized as a “misconception”, or “incorrect assessment”, or “a person’s misconception” regarding the legal or factual circumstances of the socially dangerous act he commits (or regarding the social danger and illegality of the act) <*>. ——————————— <*> Fatkullina M.B. Legal and factual errors in criminal law: Qualification problems: Dis. Ph.D. legal sciences. Ekaterinburg, 2001. P. 18. An error is a wrong action, wrong thoughts. Criminal law is interested in such an error in the consciousness of the perpetrator, which, when mobilizing the will to commit an act, leads to an incorrect result. In case of an error, a person compares reality with the meaning about it and perceives and evaluates it in his own way, and ultimately the knowledge turns out to be incorrect. The reasons for the error are mainly subjective, which is reflected in its criminal legal significance. An error is distinguished by awareness, that is, the ability and possibility of foresight (correct, correct representation) by a person of the chain of events (their sequence), as well as their final assessment. The issue of error is closely related to the principle of subjective imputation, since the content of guilt includes not only true, but also erroneous ideas of a person about the nature of the act committed and its social significance. A mistake is an incorrect assessment by the person who committed the crime of his behavior, its consequences or the actual circumstances of the case; misconception of a person regarding the nature and degree of social danger of the act committed by him and its illegality. In the legal literature there are several classifications of errors in law according to various criteria. So, according to the reasons for their occurrence, they are divided into excusable (innocent) and non-excusable (guilty); in terms of significance and impact on qualifications - into significant ones, which change the qualifications of the act, and non-significant ones, which do not affect this qualification in any way. But the main classification of errors is carried out by subject. According to this criterion, they are all divided into legal and factual (errors in the factual circumstances of the case). A legal error is a person’s incorrect understanding of the criminality and punishability of an act, its qualifications and the limits of criminal liability for the act. There are three types of it: an error in the criminality of the act, an error in qualifications and an error in the punishability of the act. A factual error is a person’s misconception about the actual circumstances of an act and its consequences. In the legal literature, four varieties are distinguished: error in the object of the attack; mistake in the subject of the crime; mistake in the identity of the victim; error in the signs of the objective side. The following errors are distinguished in the signs of the objective side: 1. Error by rejecting an action. 2. Error in means. 3. Error in the development of a causal relationship. 4. Error in optional features of the objective side. Let's consider the so-called action rejection error. This is a type of factual error when the implementation of a criminal intent in relation to another victim occurs not due to the fact that the perpetrator mistakenly takes him for a person whom, for example, he intends to take the life of, but due to some other reasons that do not depend on him. The mistake of rejecting an action is somewhat reminiscent of a mistake in the identity of the victim. Here, too, the harm is caused to a person other than the one harmed by the accused. But in contrast to this error in personality, in case of an error by deviating an action, two persons are simultaneously exposed to the danger of harm: the one on whom the attack was committed, and the one to whom the harm was actually caused. For example, the culprit shot at a person, but missed, because the victim stepped to the side at the moment of the shot, and the bullet hit another person who was also there, causing him moderate harm. In this case, what was done must be qualified as an attempt on the crime that the perpetrator wanted to commit, and as careless actual causing of harm. In judicial practice, there are other options for qualifying an error by rejecting an action. Thus, by the verdict of the Sverdlovsk Regional Court, Loginov was convicted of attempted murder for mercenary motives in a generally dangerous manner under Art. 15, paragraphs “a”, “d” art. 102 of the Criminal Code of the RSFSR and according to Part 1 of Art. 109 of the Criminal Code of the RSFSR for intentional infliction of harm of moderate severity. Loginov climbed onto the roof of the house and, waiting for Azanova to appear at the entrance of the house, fired a aimed shot from a carbine in order to kill the victim. However, with this shot Loginov hit not Azanova, whom he was aiming at, but her husband Kokorev, who was next to her at that moment. Kokorev suffered a through-and-through gunshot wound to the axillary region, which caused moderate harm to his health <*>. ——————————— <*> Archive of the Sverdlovsk Regional Court of 1995. Case No. 2-26. In this case, the correct application of paragraph “d” of Art. 102 of the Criminal Code of the RSFSR. The danger of the method of murder should be assessed not in the abstract, but in the specific situation of the crime. Targeted shooting with a carbine bullet at one of the two citizens at the entrance of the house, when Azanova was standing 0.5 meters from Kokarev, did not indicate the danger of murder for many people. The culprit pursued the goal of taking the life of a certain person (Azanova). A generally dangerous method of murder is understood as a method of intentionally causing death, which the perpetrator knows to pose a danger to the life of not only the victim, but at least one other person. In this regard, the murder in this case, committed by an aimed shot taking into account the quality of the bullet charge and the distance to the victim, did not create a danger to the life and health of other persons and cannot be qualified on this basis. The danger must be real, not imaginary. K. was convicted of reckless murder of Sh. and attempted murder of O. and K. It was established that O. and K. attacked K. on the street, beat him, and later came to his house, shouted, called him for reprisal, they broke the glass in the window. K. grabbed the gun, loaded it with one cartridge, ran out into the street and shot at O. and K. who were running away. At that time, a group of young people, among whom was Sh, was walking up the slope of the ravine towards K.’s house. She was killed by buckshot . According to the circumstances that are set out, K. did not foresee, but could and should have foreseen the death of not only O. and K., but also other persons. In this case, a deliberate act aimed at killing O. and K. resulted in the death of Sh. This death was the result of K.’s negligence. The crime he committed was correctly qualified by the court in this part under Art. 106 of the Criminal Code of the RSFSR <*>. ——————————— <*> Borodin S.V. Responsibility for murder: Qualification and punishment under Russian law. M.: Lawyer, 1994. P. 159. Therefore, with the so-called rejection of an action, the question arises of recognizing the deprivation of life committed through negligence. An error in the identity of the victim in a murder does not change the form of guilt and does not affect qualifications. So, the error of rejecting an action is not associated with a mistake in the person whom the culprit wanted to take life, but with the presence of some other reasons that do not depend on the culprit. There is no mistake in the identity of the victim in the given example in the Loginov case. Since the culprit absolutely knew his victim, he visually kept her under his control. However, he underestimated the possible behavior of the victim, the available factors, and the environment in which this act was committed. In other words, there was an underestimation of the situation in which the crime was committed. We can agree that V.A. Yakushin emphasizes that in such cases there is no deviation in the actions of the perpetrator himself; only the object of criminal influence (the victim) is deviated. According to this scientist, it would be more correct to talk not about the deviation in the action of the perpetrator, but about the deviation of the object of influence (the victim) <*>. We share the view that, in essence, these cases represent an error in assessing the development of a causal relationship <**>. ——————————— <*> Yakushin V.A. Error and its criminal legal significance. Kazan University Publishing House, 1988. P. 88. <**> Soviet criminal law: General part / Ed. M.A. Belyaev and M.I. Kovaleva. M.: Legal. lit., 1977. P. 200. Error in means. An error in means is expressed in the use by a person of a means other than what was planned to commit a crime <*>. ——————————— <*> Criminal law: General part: Textbook for universities / Rep. ed. AND I. Kozachenko, Z.A. Neznamova, G.P. Novoselov. M.: INFRA-M-NORMA Publishing Group, 1997. P. 210. By mistake, another means is used, which is equally suitable for achieving a criminal result. For example, if, with the intention of committing murder, the perpetrator used another poison instead of one poison. Such an error in means does not change the essence of the act and its qualifications. For criminal law, in principle, it makes no difference whether, for example, a murder was committed with poison or a pistol. To commit a crime, a means is used, the strength of which, in the erroneous view of the subject, appears to be underestimated. If a means is used, the strength of which is mistakenly underestimated by a person, the act is classified as careless infliction of harm. For example, wanting to cause bodily harm, the perpetrator shoots at the victim, confident that the gun is loaded with salt, although it actually contains a live charge, as a result of which the victim is mortally wounded <*>. ——————————— <*> Criminal law. Part General: In four volumes. Volume 2: Limits and types of differentiation of criminal liability / Rep. ed. AND I. Kozachenko. Ekaterinburg, 1992. P. 68. To commit a crime, a means that turns out to be unsuitable is used by mistake. Lopatina, based on personal hostility, decided to kill her friend Churikov. Implementing her intention, she armed herself with a gas revolver of the RG-9 brand, being sure that the weapon was military. She invited Churikov to lie down on the sofa, covered his head with a pillow to reduce noise and, with the aim of taking his life, fired a shot in the victim’s head. As a result of the shot, the pillow caught fire, after which Churikov disarmed Lopatina, snatching the gas revolver from her hand. Lopatina was unable to complete her intent to kill for reasons beyond her control, since the shot was fired through the pillow by the gas contained in the cartridge of a loaded revolver. The court found that Lopatina committed attempted murder. Due to her age (19 years) and life experience, she was aware that with a shot from a revolver she was depriving the victim of his life, she wanted this, but did not achieve a criminal result due to a misconception regarding the properties of the weapon used <*>. ——————————— <*> Archive of the Sverdlovsk Regional Court. 2000. Case No. 2-359. Means that are unsuitable for committing crimes and are mistakenly accepted by the subject as those with the help of which a criminal result can be achieved are called in the literature unsuitable means or an attempt with unsuitable means. The criterion for distinguishing between an attempt on an unsuitable object and an attempt with unsuitable means is in the nature of the reasons for not completing the crime. Many errors in judicial practice are caused by the understanding of an attempt on an unfit object, when, in particular, due to the special properties of the subject of the attack, the actions of the perpetrator do not encroach on the intended object of criminal legal protection and cannot actually cause harm to it. The peculiarity of such an unworthy attempt is that the crime cannot be completed due to a factual error made by the perpetrator. For example, if the culprit, while stealing a weapon unfit for functional use (ammunition, explosives), was mistaken about its quality, believing that it was serviceable, his actions constitute an attempted theft of a weapon. The option of a bad attempt is provided for in paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 of February 10, 2000 “On judicial practice in cases of bribery and commercial bribery.” If a person receives money or other valuables from someone, allegedly for transfer to an official or person performing managerial functions in a commercial or other organization, as a bribe or the subject of commercial bribery and, without intending to do so, appropriates them, what he has done should be qualified as fraud. The actions of the owner of valuables in such cases are subject to qualification as an attempt to give a bribe or commercial bribery <*>. ——————————— <*> Commentary on the Resolution of the Plenum of the Supreme Court of the Russian Federation (RSFSR) on criminal cases. M.: NORMA, 2001. P. 36. Defendants Shaulsky and Kuznetsov were police officers. Shaulsky held the position of senior investigator, Kuznetsov previously held the position of investigator in the same department, but then, by order of the head of the Internal Affairs Directorate of the city of Yekaterinburg, he was transferred to the position of senior inspector-programmer, but continued to remain in the investigation department. Shaulsky, believing that Kuznetsov was legally engaged in the investigation and was an official, entered into a criminal conspiracy with him to receive a bribe from Grachev, for whom he chose a preventive measure in the form of a recognizance not to leave. Kuznetsov, in violation of the criminal procedural law, conducted an inquiry into a criminal case charging Grachev under Part 1 of Art. 167 of the Criminal Code of the Russian Federation. Shaulsky, in agreement with Kuznetsov, demanded a bribe from Grachev in the form of money for the election of a recognizance not to leave. Grachev, in the presence of Kuznetsov, gave Shaulsky 1000 rubles. The Sverdlovsk Regional Court recognized that Shaulsky took part as an accomplice in receiving 1,000 rubles. He believed that Kuznetsov was an official and was lawfully conducting an investigation into Grachev’s criminal case. Shaulsky received the money as a bribe and handed it over to Kuznetsov. But the latter was not the investigator, therefore Shaulsky’s actions are qualified as attempted complicity in receiving a bribe under Part 3 of Art. 30, part 5 art. 33 and part 1 of Art. 290 of the Criminal Code of the Russian Federation. Kuznetsov performed procedural actions in relation to Grachev that were not within the scope of his official powers, was not an official and was not the subject of receipt
