Article 27 of the Criminal Code of the Russian Federation with comments and amendments for 2020-2021

The key feature characterizing the subjective aspect of a crime is guilt. It acts as a subjective prerequisite for criminal liability.

In accordance with Article 5 of the Criminal Code, a citizen can be punished only for such illegal actions/inactions and the consequences resulting from them for which his guilt has been proven. The law prohibits liability for innocent damage.

The essence of guilt

The concept of “guilt” reflects the mental attitude of the subject to the actions that he performs and the consequences that they entail. If we consider the social aspect, then this term characterizes the reaction of a citizen to the customs and rules formed in society and the demands placed on him. A negative attitude towards them is manifested in the commission of an illegal act.

When considering the content and social essence of guilt, domestic lawyers rely on a materialistic understanding of action and consciousness, responsibility and freedom. Accordingly, guilt is recognized as a phenomenon of reality that really exists.

Domestic criminologists oppose the evaluative understanding of the term, in which it is considered a reproach addressed to the subject who committed the act.

Guilt and other signs of the composition are assessed by the investigative authorities and the court. However, this does not turn guilt into an evaluative concept. It acts as a fact of objective reality and is studied together with other circumstances in the manner prescribed by criminal procedural norms.

Types of guilt

To find a subject guilty, it is not enough to establish that it was he who committed the attack. Otherwise, objective imputation will take place, i.e. the person will be held accountable only on the basis of a connection between him and the act. In practice, it may turn out that the citizen is not at fault. For example, a person will be convicted of rape based on a “victim” clause, although in fact the sexual contact was consensual.

Part 1 of Article 24 of the Criminal Code establishes 2 types of guilt - negligence and intent. The latter can be direct or indirect. Carelessness can be expressed as carelessness or thoughtlessness. In Art. 27 of the Criminal Code of the Russian Federation talks about a special category of acts - crimes with 2 forms of guilt. Let's consider their features.

Concept of double form of guilt

According to the Criminal Code, if, when committing a deliberate attack, grave consequences arose, entailing a more severe punishment by law, which were not covered by the intent of the subject, responsibility for them occurs only if the citizen foresaw the possibility of their occurrence, but, without sufficient grounds for this, arrogantly counted on their prevention. This provision is enshrined in Art. 27 of the Criminal Code of the Russian Federation. It also applies in cases where the subject did not foresee, but should have foreseen, grave consequences. This act is generally considered intentional and committed with double guilt.

Main features

The double form of guilt in criminal law is characterized by the following features:

There is an intentional act.
The crime committed entails consequences beyond the intent of the subject.
The consequences are severe and, accordingly, entail a more severe sanction.
The resulting harm and crime have a cause-and-effect relationship.
The subject's personal attitude to the consequences is expressed in frivolity or negligence.
Harm resulting from an assault is one of the mandatory elements of the committed act.

It is worth saying that the Criminal Code provides for quite a lot of crimes with double guilt. For example, intentional infliction of grievous bodily harm, rape, kidnapping, etc., through negligence, entail the death of the crime victim or other grave consequences.

Second commentary to Art. 27 of the Criminal Code of the Russian Federation

1. The real basis for the existence of crimes with two forms of guilt is laid in the unique legislative design of individual crimes. This uniqueness lies in the fact that the legislator seems to merge into one composition, i.e. legally combines two independent crimes, one of which is intentional and the other careless.

2. The coexistence of two different forms of guilt in one crime is due to the presence of two independent objects of the subject’s guilty attitude - intent (direct or indirect) is a subjective sign of the main element of the crime, and carelessness (in the form of frivolity or negligence) characterizes the mental attitude to the consequences, playing the role of a qualifying factor. sign.

3. There are few crimes with two forms of guilt in criminal law, and all of them are constructed according to one of two types.

4. The first type consists of qualified types of crimes, the main element of which is material, and the role of the qualifying feature is a more serious consequence than the consequence, which is a mandatory element of the main element. Thus, the intentional infliction of grievous bodily harm, which through negligence resulted in the death of the victim (Part 4 of Article 111 of the Criminal Code of the Russian Federation), is characterized by the intentional infliction of a primary consequence and a careless attitude towards a more serious consequence, to which the legislator assigned the role of a qualifying characteristic.

5. The second type of crimes with two forms of guilt is characterized by a heterogeneous mental attitude to an action or inaction, which is criminal regardless of the consequences, and to the qualifying consequence. This type includes qualified types of crimes, the main part of which is formal, and the qualified part includes certain grave consequences, for example, rape, which through negligence resulted in the infliction of grievous harm to the health of the victim (clause “b”, part 3 of article 131 of the Criminal Code).

Classification

The double form of guilt and the corpus delicti may imply consequences resulting from intentional and careless actions or only careless ones.

The first category should include, for example, the act provided for in Part 4 of Article 111 of the Criminal Code. When committing such an assault, the subject intentionally causes harm to the victim, as defined in part one of the same norm; the actions of the perpetrator entail the death of the victim - careless consequences of a criminal offense. In the main offense, the consequences are provided in the same way as in the qualified offense.

The second group includes intentional acts that are considered qualified in the event of careless consequences caused by its commission. For example, the subject committed rape, which negligently resulted in the death of the victim. In the main composition, the consequences are not established as a mandatory feature, unlike in the qualified composition.

Article 27 of the Criminal Code of the Russian Federation. Responsibility for a crime committed with two forms of guilt

1. In some crimes, a combination of two forms of guilt is possible: intent and negligence. A crime, like any phenomenon, takes a certain time. Due to the objective properties of consciousness, immediate changes introduced by a person into the surrounding world are more easily foreseen, and more distant ones are more difficult to foresee. Because of this, the elements of a crime that is complex in structure and relatively long in time may not be fully understood by the person committing it.

Thus, a situation may arise when part of the crime, the immediate consequence, is realized, but the distant consequence is not foreseen, although the person should and could have foreseen it. Such crimes are called dual-fault crimes. A typical example is the intentional infliction of grievous bodily harm resulting in death through negligence (Part 4 of Article 111 of the Criminal Code).

2. In the legal assessment of crimes with two forms of guilt, two practically important questions arise.

The first question concerns the establishment of such crimes and their delimitation from similar acts. In these acts, it is necessary to establish the presence, firstly, of several, secondly, consequences strictly specified in the law and, thirdly, their certain combination. Thus, in case of intentional infliction of grievous harm resulting in the death of the victim, it is necessary to record grievous harm and death.

Next, it is necessary to find out whether the death was the result of a further aggravating development of grave harm and whether it occurred in addition to the infliction of grave harm. In the latter case, there will be no element of intentional infliction of grievous harm resulting in death, since the death was the result of other circumstances.

However, this objective differentiation of the intentional infliction of grievous bodily harm resulting in death from crimes that include both consequences is not enough. For the above composition, a combination of intent and negligence is necessary, with intent for the immediate consequence, and negligence for the long-term. Otherwise, the crime will be classified either as reckless infliction of serious harm or death, or as intentional murder.

The second question is to determine guilt in general. This need arises due to the fact that differentiation of responsibility and individualization of punishment largely depend on the form of guilt. Thus, the presence of relapse, the severity of the crime and other issues of liability are determined by the intentional or careless nature of the crime.

The main focus here is the legal significance that the legislator gives to the consequences, i.e. which of the consequences is the main one in the structure of the composition. As part of the intentional infliction of grievous bodily harm resulting in death, such a consequence is grievous harm, and the occurrence of death is a sign not of the main, but of a qualified composition. Based on the fact that in crimes with two forms of guilt the main consequence is caused intentionally, the entire crime as a whole is recognized as intentional.

Difficulties in practice

The presence of criminal articles establishing punishment for acts with 2 forms of guilt gives rise to active discussion and entails many problems in qualification.

Crimes with double guilt have quite complex structures. This, in turn, entails many law enforcement errors.

The following points remain controversial at present:

The question of justifying the need for the existence of two different forms of guilt in one composition.
The problem of determining the age of the perpetrator of the crime provided for in the 4th part of Article 111.
Presence/absence of the possibility of attempting to commit acts with double guilt.
Questions about complicity in such crimes.

Another commentary on Article 27 of the Criminal Code of the Russian Federation

1. Any act that contains elements of a crime contains one or another form of guilt, i.e. committed intentionally or through negligence. Along with this, the Special Part of the Criminal Code contains complex elements of crime that include not one, but two consequences (see Part 4 of Article 111 of the Criminal Code). A person’s mental attitude to these consequences varies. In some cases, it is very difficult to prove the intent of the perpetrator in relation to long-term consequences. Although the question that the person could and should have foreseen such consequences does not raise any doubts. In this regard, in the science of criminal law, it was proposed to formulate some crimes with the so-called double, or mixed, form of guilt.

2. In judicial investigative practice, there are situations when the same act entails two consequences. At the same time, the subjective side of the crime is characterized by an intentional form of guilt in relation to the actions committed by the person, and the perpetrator treats the resulting consequences through negligence. This type of crime includes acts provided for in Part 3 of Art. 123 Criminal Code, Part 3, Art. 126 Criminal Code, Part 3, Art. 127 Criminal Code, Part 2, Art. 128 of the Criminal Code, paragraph “a”, part 4 of Art. 131 of the Criminal Code, paragraph “a”, part 4 of Art. 132 Criminal Code, Part 2, Art. 143 Criminal Code, Part 2, Art. 167 Criminal Code, Part 2, Art. 205 of the Criminal Code, etc. For example, intentional infliction of harm to health, resulting in the death of a person through negligence (Part 4 of Article 111 of the Criminal Code), is characterized by the fact that criminal harm is covered by intent, since the person is aware of the social danger of his action and anticipates causing harm to health. At the same time, the person may lack the desire and conscious acceptance of death. Nevertheless, he could and should have foreseen the onset of a remote criminal result, i.e. more serious consequences. In such a case, in general, an intentional action entails two consequences, the mental attitude to which is different for the perpetrator: in relation to harm to health - intentional, in relation to death - careless. Such a combination of two forms of guilt in the commission of one criminal act should be considered a crime with two forms of guilt.

3. Effect of the provisions of Art. 27 of the Criminal Code applies to cases involving a crime containing elements of reckless guilt in relation to the consequences of both frivolity and negligence. The combination in these cases of two forms of guilt in one crime does not turn such crimes into intentionally careless ones; such crimes are classified by the legislator as intentional. Crimes with two forms of guilt must not be mixed with careless crimes that have one consequence and one careless form of guilt.

4. The presence in the Code of articles on crimes with two forms of guilt is important for the correct qualification of socially dangerous acts, since it makes it possible to distinguish between intentional and careless crimes and prevent objective imputation.

Experts' explanations

According to a number of lawyers, abandoning the design providing for liability for crimes committed with two forms of guilt, i.e., in which there is a formal composition and a qualified one, presuming the occurrence of careless consequences, would be completely justified. First of all, experts believe, recognizing such attacks as generally intentional is illogical. Secondly, such recognition, in fact, does not have significant practical significance. Neither complicity nor preliminary activity in such crimes is possible. In addition, the presence of such complex structures has no forensic significance.

Commentary to Art. 27 Criminal Code

1. Crimes with two forms of guilt do not form a qualitatively different combination than intent and negligence. In themselves, these crimes represent only a certain method of legislative technique.

This technique is due to the fact that in real life, due to the natural and frequently occurring development of cause-and-effect relationships, when committing a number of acts, certain consequences occur that are not covered by the person’s intent, but in relation to which one can state his guilt in the form of negligence. As a general rule, such acts would form a combination of two crimes, but the legislator combines them into a single compound crime: an intentional crime and a more serious consequence, which is a careless crime.

Taken together, within the framework of one crime, these two crimes become a single complex crime - a crime with two forms of guilt (for example, part 4 of article 111, paragraph “a” of part 4 of article 131 of the Criminal Code).

2. According to the clause in the last sentence of the article, in terms of their criminal legal consequences (for example, in terms of recidivism (Article 18 of the Criminal Code), sentencing and release from punishment), crimes with two forms of guilt are considered as intentional crimes.

Delimitation of acts

As practice shows, most often law enforcement errors arise when classifying acts with double guilt, entailing careless and intentional consequences.

For example, the process of distinguishing between intentional infliction of grievous bodily harm (4th part of Article 111) and murder (105th Article of the Criminal Code) is accompanied by difficulties. In both the first and second cases, the victim is harmed, resulting in death. But in the first case, the assault falls into the category of crimes against health, and in the second - against life. As part of the act provided for in the 4th part of Article 111, the presence of any intent on the part of the perpetrator to cause the death of the victim is excluded.

An example of a miscarriage of justice

The perpetrator and the victim lived in an official marriage. The wife led an antisocial lifestyle, abused alcohol, often did not spend the night at home, drank her money away, and sold household possessions. All this led to quarrels between spouses.

One evening the victim came to a friend’s house, where they drank and went to bed. On the same day, the victim’s husband came to a friend’s house, pulled her out of bed and began beating her, striking various parts of her body with his feet and hands. He continued to beat her on the way home, then dragged her into the corridor and continued to strike her. Then the husband went to bed.

When he tried to wake up his wife in the morning, it turned out that she had died. The husband who beat his wife was found guilty of murder. However, this sentence is not justified, since he did not have the intention to cause the death of his wife.

Article 7.27. Petty theft

Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 26, 2017 N 44-UD17-34 Naidin’s arguments that the theft of other people’s property in the amount of 400 rubles and 170 rubles, for which he was convicted by the verdict of June 25, 1998, are also untenable years, are administrative offenses, since, contrary to Naidin’s arguments, in accordance with the requirements of the law, the theft of someone else’s property was recognized (based on the value of the stolen property, not exceeding 5 minimum wages) as an administrative offense, that is, petty theft under Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, only in cases where there were no qualifying features provided for in parts 2, 3 and 4 of Art. 158 of the Criminal Code of the Russian Federation. Meanwhile, these thefts committed by Naidin were also qualified on the basis provided for in Part 2 of Art. 158 of the Criminal Code of the Russian Federation - “a group of persons by prior conspiracy”, which excluded their recognition as administrative offenses - petty theft.

Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 27, 2018 N 44-UD18-16

Also in accordance with Art. 7.27 of the Code of Administrative Offenses of the Russian Federation (as amended by Federal Law No. 326-FZ of June 3, 2016) theft of someone else’s property, the value of which does not exceed two thousand five hundred rubles, by theft in the absence of signs of a crime provided for in parts two, three and four of Article 158 of the Criminal Code of the Russian Federation applies to petty theft and entails administrative liability.

Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 20, 2018 N 49-UD18-19

Merzlyakov A.N., having been subjected to administrative punishment on January 30, 2022 for petty theft under Part 2 of Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, found guilty of committing three petty thefts of property by stealing from the Pyaterochka store, located at 10 on the street. Chapaev in the city of Oktyabrsky of the Republic of Bashkortostan (April 15, 2022 at about 18:45 for the amount of 1 thousand 774 rubles 80 kopecks, April 19, 2022 at about 19:16 for the amount of 2 thousand 22 rubles 80 kopecks and on the same day at about 20:52 for the amount of 721 rubles 23 kopecks) under the circumstances set out in the verdict

Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 06.06.2019 N 31-UD19-4

Meanwhile, Federal Law of July 3, 2016 N 323-FZ, N 326-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation on improving the grounds and procedure for exemption from criminal liability”, which came into force at the time of consideration of this case by the Presidium of the Supreme Court of the Chuvash Republic, Art. 7.27 of the Code of Administrative Offenses of the Russian Federation is set out in a new edition, according to which the theft of someone else’s property by theft, fraud, misappropriation or embezzlement, worth more than 1000 rubles, but not more than 2500 rubles, in the absence of other qualifying signs of crime, refers to petty theft and is recognized as an administrative offense.

Determination of the Constitutional Court of the Russian Federation dated September 27, 2018 N 2135-O

At the same time, based on the systemic regulation of public legal liability for crimes and administrative offenses encroaching on property, it does not contain signs of a crime punishable under Article 159.2 of the Criminal Code of the Russian Federation, petty theft by fraud of someone else’s property worth no more than two thousand five hundred rubles ( part 2 of article 7.27 of the Code of Administrative Offenses of the Russian Federation).

Resolution of the Supreme Court of the Russian Federation dated June 23, 2017 N 10-AD17-2

Judge of the Supreme Court of the Russian Federation V.P. Merkulov, having considered the complaint of G.A. Gudovskikh. on the decision of the magistrate of judicial district No. 70 of the Leninsky judicial district of Kirov dated July 28, 2016 and the decision of the deputy chairman of the Kirov regional court dated January 31, 2017, issued in relation to G.A. Gudovskikh, which entered into legal force. in a case of an administrative offense provided for in Part 1 of Article 7.27 of the Code of the Russian Federation on Administrative Offences,

Resolution of the Supreme Court of the Russian Federation dated August 21, 2017 N 41-AD17-20

Judge of the Supreme Court of the Russian Federation V.P. Merkulov, having considered the complaint of G.I. Kaliberda. on the decision of the judge of the Bataisky City Court of the Rostov Region dated November 3, 2016 N 5-111/2016, the decision of the judge of the Rostov Regional Court dated January 10, 2017 N 7.1-2/2017 and the decision of the Deputy Chairman of the Rostov Regional Court dated March 30, 2017 N 4-a- 376/2017, issued in relation to Kaliberda G.I. (hereinafter referred to as G.I. Kaliberda) in the case of an administrative offense provided for in Part 2 of Article 7.27 of the Code of the Russian Federation on Administrative Offences,

Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 01/09/2020 N 49-UD19-21

Khaidarov R.R. found guilty and sentenced for attempted petty theft of property belonging to JSC "...", and for petty theft of property belonging to LLC "...", committed by a person who had previously been subjected to administrative punishment for petty theft under Part 2 of Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, under the circumstances set out in the verdict.

Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 23, 2020 N 46-UD20-9

At the same time, the cassation court ignored the fact that the criminal amount of the stolen goods in Part 1 of Art. 158 of the Criminal Code of the Russian Federation, taking into account the provisions of Part 2 of Art. 7.27 Code of Administrative Offenses of the Russian Federation, exceeds 2500 rubles. and is recognized by the legislator as socially dangerous, i.e. criminal. The resolution does not provide the arguments on the basis of which the court came to the conclusion that the excess of the specified amount of the stolen goods was over 1000 rubles. under the factual circumstances of the case established by the court, it indicates the absence of a sufficient degree of public danger of what Troitsky did.

Resolution of the Supreme Court of the Russian Federation dated May 17, 2021 N 51-AD21-6-K8

Judge of the Supreme Court of the Russian Federation Nikiforov S.B., having considered the complaint of Alexander Olegovich Nepomnyashchikh against the ruling of the judge of the Eighth Cassation Court of General Jurisdiction dated October 30, 2022, issued against Alexander Olegovich Nepomnyashchikh (hereinafter referred to as A.O. Nepomnyashchikh) on a case of an administrative offense provided for in Article 7.27 of the Code of the Russian Federation on Administrative Offences,

Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 27, 2021 N 75-UDP21-8-K3

The absence in Chepikov’s actions of the qualifying feature provided for in paragraph “a” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation, the court of cassation argued that, according to Art. 32 and part 2 of Art. 35 of the Criminal Code of the Russian Federation, which explains the concepts of complicity and the commission of a crime by a group of persons by prior conspiracy, only persons who have reached the age of criminal responsibility and are sane can be participants in a preliminary conspiracy. Taking into account the fact that Chepikov’s actions do not contain the qualifying sign of committing theft by a group of persons by prior conspiracy, and the amount of property stolen in the course of each crime does not exceed 1000 rubles, the cassation court came to the conclusion that what he did constitutes an administrative offense. offense under Art. 7.27 Code of Administrative Offenses of the Russian Federation.

Mental attitude as a sign of composition

The external manifestation of a particular crime can be complex. An act may include one or more actions. In some cases, dangerous consequences of varying severity and nature arise. Consequently, the subject’s mental attitude towards the actions/inactions committed by him can manifest itself in different ways. A citizen, for example, may wound a victim in the leg with a knife and be careless about the death that occurs as a result.

It follows from this that in practice, situations are quite possible when the reaction to a crime and to the consequences differ. The concept of an assault with a double form of guilt is based on such a discrepancy.

This manifestation of the subject’s mental attitude occurs in acts in which the purpose of the action/inaction does not coincide with the consequences that occurred. When analyzing a crime and establishing a person’s guilt, one must take into account his subjective reaction to what is happening.

conclusions

In a number of cases, when determining the degree of responsibility for a crime, the norms of the Criminal Code take into account several consequences, the subjective attitude of the perpetrator to which is not the same. An example would be the act provided for in Part 4 of Article 111 (which was already mentioned above) and Part 3 of Norm 123 of the Code (illegal abortion resulting in the death of the victim). In these situations, the attitude of the perpetrator to different consequences will indeed be different. When intentionally causing serious damage to health, the subject may be careless (careless or frivolous) about the occurrence of another consequence - the death of the victim of the assault.

The definition of two forms of guilt is of particular practical importance, since it allows one to distinguish acts from related offenses in each individual case.

Taking into account subjective characteristics, it is possible to differentiate between intentional damage to health resulting in the death of a person (4th part of article 111) and murder (105th norm) on the one hand, and on the other hand, from causing careless death (art. 109).

If the intent of the perpetrator included not only causing harm, but also depriving the victim of life, the actions should be classified as murder. If a citizen did not have the intention of causing serious damage to health, and his mental attitude towards the death of the injured person is characterized by negligence, the act is considered as causing a careless death.

Third commentary to Article 27 of the Criminal Code of the Russian Federation

1. Any act that contains elements of a crime contains one or another form of guilt, i.e. committed intentionally or through negligence. Along with this, the Special Part of the Criminal Code contains such complex elements of crime that include not one, but two consequences (see Part 4 of Article 111 of the Criminal Code of the Russian Federation). A person’s mental attitude to these consequences varies. In some cases, it is very difficult to prove the intent of the perpetrator in relation to long-term consequences. Although the question that the person could and should have foreseen such consequences does not raise any doubts. In this regard, in the science of criminal law, it was proposed to formulate some crimes with the so-called double, or mixed, form of guilt.

Mutual guilt

The Code does not indicate the consequences of committing an act in the presence of guilt not only of the causer of the damage, but also of the victim. This concept is usually used in civil law. Meanwhile, in investigative practice situations often arise when mutual guilt is seen in a crime. In these cases, we talk about the actions of the victim and their impact on the limits of liability for the causer of damage.

Mutual guilt is the subjective attitude of persons participating in a criminal event to what happened, in which they intentionally or carelessly commit illegal actions. For example, two people who were intoxicated started a fight. As a result, they both caused serious or moderate harm to each other’s health, insulted each other, etc.

According to many lawyers, it is advisable to consolidate the concept of mutual guilt. It is also necessary at the legislative level to disclose the content of this term, to determine the degree of its influence on the limits of liability of the subjects participating in the criminal event.