ST 33 of the Criminal Code of the Russian Federation.
1. Along with the perpetrator, the organizer, instigator and accomplice are recognized as accomplices to the crime.
2. A perpetrator is a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by this Code. .
3. An organizer is a person who organized the commission of a crime or supervised its execution, as well as a person who created an organized group or criminal community (criminal organization) or supervised them.
4. An instigator is a person who persuaded another person to commit a crime by persuasion, bribery, threat or other means.
5. An accomplice is recognized as a person who assisted in the commission of a crime by advice, instructions, provision of information, means or instruments for committing a crime or removing obstacles, as well as a person who promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, and equally a person who promised in advance to purchase or sell such items.
Comments on Article 32 of the Criminal Code of the Russian Federation
The commission of a crime by several persons, as a general rule, facilitates the achievement of a criminal result and concealment of traces of the crime, often complicating the work of law enforcement agencies in searching for criminals and exposing them. Some crimes can only be committed by the association of several persons, for example: banditry, organization of a criminal community and participation in it, violent seizure of power, armed rebellion and other crimes.
The concept of complicity, enshrined in Art. 32 of the Criminal Code of the Russian Federation, indicates its four main features:
1) two objective signs : participation in a crime of two or more persons and joint participation; 2) two subjective characteristics : intentional participation and participation in a deliberate crime.
Objective signs include quantitative and qualitative characteristics.
Participation in a crime of two or more persons
The first objective (quantitative) sign of complicity assumes that two or more persons who have reached the age of criminal responsibility (Parts 1 - 2 of Article 20 of the Criminal Code of the Russian Federation) and are recognized as sane (Part 1 of Article 21) are involved in the commission of a crime. Criminal Code of the Russian Federation).
The commission of a crime using a person who is not subject to criminal liability due to age or insanity does not create complicity.
At the same time, in judicial practice, crimes committed by two or more persons, of which only one has the characteristics of a common subject of the crime, are also considered as group crimes. Thus, in the Ruling of the Supreme Court of the Russian Federation of May 18, 2006 N 35-o06-14 it is stated that the position according to which the actions of the perpetrator cannot be considered committed by a group of persons by prior conspiracy in connection with the recognition of the second person as insane, is not based on the law. Thus, the qualifying features “group of persons”, “group of persons by prior conspiracy”, “organized group” can be imputed even in the absence of complicity in the strict sense of the word, if only one of the participants in the act is brought to criminal liability, and the other participants are not liable due to age or insanity.
Commentary to Art. 33 Criminal Code
1. The criminal law knows three types of performers.
The first of them is the perpetrator who directly commits the crime, i.e. who single-handedly carried out the entire objective side of the crime.
The second type of perpetrator is a co-perpetrator, who is directly involved in the commission of a crime together with other persons. All these persons are called co-perpetrators, since together they perform the objective side of the crime. In this case, to establish co-perpetrators, it is enough that each of the co-perpetrators fulfilled at least part of the objective side of the crime.
The third type of performer is the “mediocre performer.” In this case, a subject who can bear criminal liability uses to commit a crime a person who, for any reason, is not subject to criminal liability. At the same time, the subject capable of incurring criminal liability does not directly participate in the implementation of the objective side of the crime and actually plays the role of an organizer (accomplice, instigator). However, by virtue of the law, he is considered as a mediocre perpetrator of a crime committed by a person not subject to criminal liability.
2. According to Art. 33 of the Criminal Code of Russia, from the definition of an organizer given in Part 3, four types of organizational activities can be distinguished.
Firstly, the organizer of a crime is the person who organized the commission of the crime, i.e. preparing the commission of a crime in whole or in large part by developing a plan for committing a crime, finding accomplices, instruments and means of committing a crime, training accomplices, etc.
Secondly, the organizer is the person who led the execution of the crime, i.e. a person who organizes the activities of accomplices in the direct commission of a crime both at the place of its commission and outside it.
Thirdly, the organizer is the person who created an organized group or criminal community (criminal organization), i.e. a person whose activities result in finding accomplices, instruments and means of committing a crime, developing plans for committing crimes, etc. was the creation of an organized group or criminal community (criminal organization).
Fourthly, the organizer is the person who led an organized group or criminal community (criminal organization), i.e. a person who heads an organized group or criminal community (criminal organization) already created by himself or another person.
3. According to Article 33 of the Criminal Code of the Russian Federation, an instigator is a person who persuaded another person to commit a crime by persuasion, bribery, threat or other means. The inducement to commit a crime must be of a specific nature, i.e. cause in an individually determined person a desire to commit a certain crime and be aimed at inciting such a desire, although this does not require clear details of criminal actions.
4. Depending on the nature of the accomplice’s activity, aiding is divided into two types: intellectual and physical.
Intellectual assistance includes giving the perpetrator advice, instructions and providing other information that significantly facilitates the commission of a crime and contains informative information. Intellectual complicity also includes a promise made in advance to hide a criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, as well as a promise given in advance to acquire or sell such objects. The only exception known to judicial practice, when in the absence of a pre-given promise to purchase or sell items obtained by criminal means, such actions can be recognized as complicity, is based on their systematic commission in the past, allowing the perpetrator of the crime to count on similar assistance in committing a crime in the future ( Clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 7, 2015 No. 32 “On judicial practice in cases of legalization (laundering) of funds or other property acquired by criminal means, and on the acquisition or sale of property known to be obtained by criminal means”) .
Physical assistance includes providing means or instruments for committing a crime or removing obstacles. Physical complicity is possible through both action and inaction and must provide the perpetrator with significant assistance in committing the crime.
Joint actions of partners
The second objective (qualitative) sign of complicity presupposes the joint actions of the accomplices , i.e. the focus of actions on committing a crime common to the accomplices, interdependence and complementarity of actions. Each of the participants makes his own “contribution”, “share” to the common “piggy bank” of complicity, the withdrawal of which would, under the given circumstances, lead to a failure to achieve this result. The degree of participation of each accomplice may vary:
- a) all participants fully perform actions (inaction) that characterize the objective side of the crime;
- b) the actions of one participant complement the actions of another person;
- c) the actions of one participant create conditions for the commission of actions by other persons.
An important sign of compatibility is the presence of a causal connection between the actions of all participants; they are aimed at committing a common crime and achieving a common socially dangerous consequence.
Intentionality of complicity
The first subjective sign of complicity presupposes the intentionality of complicity . Intent must cover the fact of joining forces (joint actions) with other persons. Therefore, it is impossible to participate in a careless crime when, as a result of the conscious actions of several persons, consequences unforeseen by them occur.
Deliberate participation not only means a person’s awareness of the fact of participation in a crime and a strong-willed focus on committing it, but also presupposes a minimal two-way subjective connection between the accomplices, their awareness of the fact of committing a crime in complicity, i.e. the fact of assistance (help) of other accomplices.
For complicity, it is sufficient that the accomplice knew about the criminal activity of at least the perpetrator, even if he was not aware of the role of other accomplices (for example, an accomplice may not know about the actions of the instigator or another accomplice). The intent of the accomplice must necessarily include the activity of the performer, since the qualification of the actions of other accomplices depends on it.
The type of intent with which accomplices act, according to some scientists, can only be direct, while others believe that complicity in a crime is possible with indirect intent. The latter point of view is preferable. For example, two people beat a third together, realizing that serious harm to the victim’s health may occur, and deliberately allow it to happen, being indifferent to it.
The motives and goals with which accomplices act may coincide, but this is not obligatory. One of the participants acts, for example, for selfish reasons, the other out of revenge, but with joint efforts they strive for a single criminal result. Damaging someone else's motorcycle, one of the teenagers does it out of revenge, and the other out of envy. Both are co-perpetrators of intentional damage to someone else's property. When the motives and goals of a crime are indicated as signs of its composition, responsibility for complicity is possible only if the person is aware of such a motive or goal.
There may be exceptions to this provision
1. In the cases formulated in Part 2 of Art. 67 of the Criminal Code of the Russian Federation, and also if the same crime is provided for in different compositions: simple, qualified or privileged. Such compositions may be provided for in different parts of one article of the Criminal Code or in different articles (for example, murder, Art. 105 - 108 of the Criminal Code). Since the mitigating or aggravating circumstances provided for in these offenses may not characterize all accomplices, it is quite possible that their actions will be qualified under different parts of the same article or under different articles of the Criminal Code.
2. If the performer is released from liability for personal reasons, for example due to a serious incurable illness, then this basis does not apply to accomplices. At the same time, if the crime is proven, but the identity of the perpetrator is not established, or the latter was acquitted due to an alibi or other circumstances, and the fact of complicity and the guilt of the accomplices is proven, then the latter are liable according to the rules of complicity.
3. Different criminal legal assessments are possible in cases of competition between general and special rules, qualified by any circumstances that can be imputed to only one accomplice. For example, an attack on the life of a state or public figure (Article 277 of the Criminal Code of the Russian Federation) is possible only if one knows that the victim is a state or public figure. If any of the accomplices, acting together with other persons, is not aware of this circumstance, his actions, unlike other accomplices, should not be qualified under Art. 277, and according to Art. 105 of the Criminal Code of the Russian Federation (“Murder”).
Recognizing the independent responsibility of accomplices also does not mean that all accomplices must necessarily be held criminally liable. Regulations of Part 2 of Art. 14 of the Criminal Code also applies to cases of complicity in a crime. If the actions of one or another accomplice were insignificant, that is, they did not and could not play a significant role in achieving the criminal result, then he should not be held criminally liable.
Based on their principle of accessory, guided by Art. 11–13 of the Criminal Code of the Russian Federation, the issue of criminal liability of accomplices whose actions were committed outside the country, but the criminal result or the act itself, is resolved on its territory.
The qualification of complicity in crimes with a special subject is regulated by Part 4 of Art. 34 of the Criminal Code. “A person who is not the subject of a crime specifically specified in the relevant article of the Special Part of this Code, who participated in the commission of a crime provided for by this article, bears criminal liability for this crime as its organizer, instigator or accomplice.”
A special subject is a person who, in addition to the general characteristics (age of criminal responsibility and sanity), in accordance with the law, is endowed with additional legally significant characteristics.
In complicity with a special subject, other persons who do not meet the characteristics of a special subject can be neither performers nor co-executors. What they did requires a mandatory reference to the relevant part of Art. 33 of the Criminal Code (organizer, instigator, accomplice). At the same time, situations of complicity in a crime with a special subject should be distinguished from cases where the perpetrator has not reached the age of criminal responsibility or is insane. Since in these cases we will no longer be talking about complicity, but about mediocre causing, to the extent that the provisions of Part 4 of Art. 34 of the Criminal Code does not apply to them. The corresponding provision is reflected in paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 7 “On judicial practice in cases of juvenile crimes” dated February 14, 2000: “It must be borne in mind that the commission of a crime using a person not subject to criminal liability in due to age (Article 20 of the Criminal Code of the Russian Federation) or insanity (Article 21 of the Criminal Code of the Russian Federation), does not create complicity. At the same time, when a crime is committed by a minor who is not subject to criminal liability on the grounds stated above, the person who involved the minor in committing this crime, by virtue of Part 2 of Art. 33 of the Criminal Code of the Russian Federation bears responsibility for the act as a perpetrator through indirect infliction.”
Responsibility for failed complicity. In Part 5 of Art. 34 of the Criminal Code stipulates two types of liability.
The first is that the perpetrator does not complete the jointly conceived crime due to circumstances beyond his control, his actions are qualified as preparation or attempted crime, and the actions of the organizer, instigator and accomplice under the relevant parts of Art. 33, 30 of the Criminal Code and the article of the Special Part of the Criminal Code.
The second type of liability is associated with the criminal legal assessment of cases where a person, due to circumstances beyond his control, failed to persuade other persons to commit a crime. This is failed complicity, or, in the words of M.I. Kovalev, consequenceless complicity[99]. It can be expressed as follows:
a) the perpetrator agreed, but then refused to commit the crime;
b) the instigator tried to induce the perpetrator to commit a crime;
c) the organizer attempted to organize a crime, but the perpetrator(s) refused to commit it;
d) the accomplice provided the perpetrator with the instruments of the crime or gave advice on how to commit it, but the perpetrator took advantage of neither;
e) the instigator and accomplice did everything to commit the crime, but the perpetrator could not commit it, for example, due to his death, loss of sanity, etc.
In case of failed complicity, in contrast to the first version of the legal assessment, either there is no crime at all, or there is no objective connection between the actions of the perpetrator and other participants in the crime. The actions of the organizer, instigator and accomplice remain ineffective. Their actions themselves turn into execution, as it were, when accomplices try to carry out a crime, creating the necessary conditions for this. Therefore, cases of unsuccessful incitement, aiding and organizing activities of a person cannot be qualified as complicity. Their responsibility, according to Part 2 of Art. 30 and part 5 art. 35 of the Criminal Code of the Russian Federation, occurs only for preparation for a serious or especially serious crime.
Voluntary refusal of accomplices is regulated by Art. 31 of the Criminal Code of the Russian Federation and has its own specifics. For accomplices, in addition to the general conditions for exemption from criminal liability provided for in Parts 1–3 of Art. 31 of the Criminal Code of the Russian Federation, special requirements also apply.
The peculiarities of the voluntary refusal of organizers, instigators and accomplices (Part 4 of Article 31 of the Criminal Code) are that this refusal should lead to the elimination of the opportunity created by them to commit a crime, if this opportunity has not yet been realized by the perpetrator. Voluntary refusal of accomplices is possible before or at the very beginning of the performer’s activity, that is, always before the criminal result occurs. To do this, they must take active steps and prevent the impending crime.
The organizer of a crime and the instigator of a crime are not subject to criminal liability if they promptly informed the authorities or through other active measures prevented its completion.
for an accomplice to take all measures within his power to prevent the commission of a crime, even if these measures were not successful and the perpetrator brought it to the end. In a word, to avoid criminal liability, the accomplice must neutralize what he contributed to the perpetrator.
If, despite the measures taken, the accomplices (organizer, instigator) were unable to prevent the perpetrator from committing the crime, the refusal is considered unsuccessful. Failed voluntary refusal of accomplices does not exclude their criminal liability, although it may be taken into account as a mitigating circumstance when assigning punishment (Part 5 of Article 31 of the Criminal Code).
Excess of the performer. The term “excess” usually denotes an extreme manifestation of something. Article 36 of the Criminal Code of the Russian Federation states: “The excess of the perpetrator is the commission by the perpetrator of a crime that is not covered by the intent of other accomplices. For the excesses of the perpetrator, other accomplices in the crime are not subject to criminal liability.”
According to the degree of deviation of the performer from the agreement of the accomplices, two types of excesses of the performer are distinguished - quantitative and qualitative excesses.
With quantitative excess, the crime is similar to the one that was intended. Despite the known deviations, it does not interrupt the causal connection. At the same time, accomplices cannot be held responsible for the crime committed by the perpetrator, since it was not covered by their foresight. They are responsible only for the crime in which they participated and for which they authorized the perpetrator. For example, an instigator who persuaded the perpetrator to commit extortion will be held liable for complicity in extortion, even though the perpetrator committed a robbery. The same will happen if the perpetrator committed a less serious crime.
The situation is different with qualitative excess , when the crime committed is not homogeneous to that intended by the accomplices. In this case, the absolute incommensurability of the two crimes (planned and committed) interrupts the causal connection between the actions of the accomplices and the perpetrator. Therefore, the former cannot be held responsible for complicity in something that did not happen. They must be responsible for preparing for the intended crime, if it was intended to be serious or especially serious (Part 2 of Article 30 of the Criminal Code).
Thus, the general limits of criminal liability of accomplices are determined by the act of the perpetrator, but the result of this act is a joint effort of his accomplices, therefore they are liable taking into account the guilt, degree and nature of participation of each of them.
Topic 12. MULTIPLICITY OF CRIMES
1. The concept of multiple crimes. The difference of multiplicity
from isolated complex crimes.
2. The totality of crimes.
3. Recidivism of crimes.
1. In the cases formulated in Part 2 of Art. 67 of the Criminal Code of the Russian Federation, and also if the same crime is provided for in different compositions: simple, qualified or privileged. Such compositions may be provided for in different parts of one article of the Criminal Code or in different articles (for example, murder, Art. 105 - 108 of the Criminal Code). Since the mitigating or aggravating circumstances provided for in these offenses may not characterize all accomplices, it is quite possible that their actions will be qualified under different parts of the same article or under different articles of the Criminal Code.
2. If the performer is released from liability for personal reasons, for example due to a serious incurable illness, then this basis does not apply to accomplices. At the same time, if the crime is proven, but the identity of the perpetrator is not established, or the latter was acquitted due to an alibi or other circumstances, and the fact of complicity and the guilt of the accomplices is proven, then the latter are liable according to the rules of complicity.
3. Different criminal legal assessments are possible in cases of competition between general and special rules, qualified by any circumstances that can be imputed to only one accomplice. For example, an attack on the life of a state or public figure (Article 277 of the Criminal Code of the Russian Federation) is possible only if one knows that the victim is a state or public figure. If any of the accomplices, acting together with other persons, is not aware of this circumstance, his actions, unlike other accomplices, should not be qualified under Art. 277, and according to Art. 105 of the Criminal Code of the Russian Federation (“Murder”).
Recognizing the independent responsibility of accomplices also does not mean that all accomplices must necessarily be held criminally liable. Regulations of Part 2 of Art. 14 of the Criminal Code also applies to cases of complicity in a crime. If the actions of one or another accomplice were insignificant, that is, they did not and could not play a significant role in achieving the criminal result, then he should not be held criminally liable.
Based on their principle of accessory, guided by Art. 11–13 of the Criminal Code of the Russian Federation, the issue of criminal liability of accomplices whose actions were committed outside the country, but the criminal result or the act itself, is resolved on its territory.
The qualification of complicity in crimes with a special subject is regulated by Part 4 of Art. 34 of the Criminal Code. “A person who is not the subject of a crime specifically specified in the relevant article of the Special Part of this Code, who participated in the commission of a crime provided for by this article, bears criminal liability for this crime as its organizer, instigator or accomplice.”
A special subject is a person who, in addition to the general characteristics (age of criminal responsibility and sanity), in accordance with the law, is endowed with additional legally significant characteristics.
In complicity with a special subject, other persons who do not meet the characteristics of a special subject can be neither performers nor co-executors. What they did requires a mandatory reference to the relevant part of Art. 33 of the Criminal Code (organizer, instigator, accomplice). At the same time, situations of complicity in a crime with a special subject should be distinguished from cases where the perpetrator has not reached the age of criminal responsibility or is insane. Since in these cases we will no longer be talking about complicity, but about mediocre causing, to the extent that the provisions of Part 4 of Art. 34 of the Criminal Code does not apply to them. The corresponding provision is reflected in paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 7 “On judicial practice in cases of juvenile crimes” dated February 14, 2000: “It must be borne in mind that the commission of a crime using a person not subject to criminal liability in due to age (Article 20 of the Criminal Code of the Russian Federation) or insanity (Article 21 of the Criminal Code of the Russian Federation), does not create complicity. At the same time, when a crime is committed by a minor who is not subject to criminal liability on the grounds stated above, the person who involved the minor in committing this crime, by virtue of Part 2 of Art. 33 of the Criminal Code of the Russian Federation bears responsibility for the act as a perpetrator through indirect infliction.”
Responsibility for failed complicity. In Part 5 of Art. 34 of the Criminal Code stipulates two types of liability.
The first is that the perpetrator does not complete the jointly conceived crime due to circumstances beyond his control, his actions are qualified as preparation or attempted crime, and the actions of the organizer, instigator and accomplice under the relevant parts of Art. 33, 30 of the Criminal Code and the article of the Special Part of the Criminal Code.
The second type of liability is associated with the criminal legal assessment of cases where a person, due to circumstances beyond his control, failed to persuade other persons to commit a crime. This is failed complicity, or, in the words of M.I. Kovalev, consequenceless complicity[99]. It can be expressed as follows:
a) the perpetrator agreed, but then refused to commit the crime;
b) the instigator tried to induce the perpetrator to commit a crime;
c) the organizer attempted to organize a crime, but the perpetrator(s) refused to commit it;
d) the accomplice provided the perpetrator with the instruments of the crime or gave advice on how to commit it, but the perpetrator took advantage of neither;
e) the instigator and accomplice did everything to commit the crime, but the perpetrator could not commit it, for example, due to his death, loss of sanity, etc.
In case of failed complicity, in contrast to the first version of the legal assessment, either there is no crime at all, or there is no objective connection between the actions of the perpetrator and other participants in the crime. The actions of the organizer, instigator and accomplice remain ineffective. Their actions themselves turn into execution, as it were, when accomplices try to carry out a crime, creating the necessary conditions for this. Therefore, cases of unsuccessful incitement, aiding and organizing activities of a person cannot be qualified as complicity. Their responsibility, according to Part 2 of Art. 30 and part 5 art. 35 of the Criminal Code of the Russian Federation, occurs only for preparation for a serious or especially serious crime.
Voluntary refusal of accomplices is regulated by Art. 31 of the Criminal Code of the Russian Federation and has its own specifics. For accomplices, in addition to the general conditions for exemption from criminal liability provided for in Parts 1–3 of Art. 31 of the Criminal Code of the Russian Federation, special requirements also apply.
The peculiarities of the voluntary refusal of organizers, instigators and accomplices (Part 4 of Article 31 of the Criminal Code) are that this refusal should lead to the elimination of the opportunity created by them to commit a crime, if this opportunity has not yet been realized by the perpetrator. Voluntary refusal of accomplices is possible before or at the very beginning of the performer’s activity, that is, always before the criminal result occurs. To do this, they must take active steps and prevent the impending crime.
The organizer of a crime and the instigator of a crime are not subject to criminal liability if they promptly informed the authorities or through other active measures prevented its completion.
for an accomplice to take all measures within his power to prevent the commission of a crime, even if these measures were not successful and the perpetrator brought it to the end. In a word, to avoid criminal liability, the accomplice must neutralize what he contributed to the perpetrator.
If, despite the measures taken, the accomplices (organizer, instigator) were unable to prevent the perpetrator from committing the crime, the refusal is considered unsuccessful. Failed voluntary refusal of accomplices does not exclude their criminal liability, although it may be taken into account as a mitigating circumstance when assigning punishment (Part 5 of Article 31 of the Criminal Code).
Excess of the performer. The term “excess” usually denotes an extreme manifestation of something. Article 36 of the Criminal Code of the Russian Federation states: “The excess of the perpetrator is the commission by the perpetrator of a crime that is not covered by the intent of other accomplices. For the excesses of the perpetrator, other accomplices in the crime are not subject to criminal liability.”
According to the degree of deviation of the performer from the agreement of the accomplices, two types of excesses of the performer are distinguished - quantitative and qualitative excesses.
With quantitative excess, the crime is similar to the one that was intended. Despite the known deviations, it does not interrupt the causal connection. At the same time, accomplices cannot be held responsible for the crime committed by the perpetrator, since it was not covered by their foresight. They are responsible only for the crime in which they participated and for which they authorized the perpetrator. For example, an instigator who persuaded the perpetrator to commit extortion will be held liable for complicity in extortion, even though the perpetrator committed a robbery. The same will happen if the perpetrator committed a less serious crime.
The situation is different with qualitative excess , when the crime committed is not homogeneous to that intended by the accomplices. In this case, the absolute incommensurability of the two crimes (planned and committed) interrupts the causal connection between the actions of the accomplices and the perpetrator. Therefore, the former cannot be held responsible for complicity in something that did not happen. They must be responsible for preparing for the intended crime, if it was intended to be serious or especially serious (Part 2 of Article 30 of the Criminal Code).
Thus, the general limits of criminal liability of accomplices are determined by the act of the perpetrator, but the result of this act is a joint effort of his accomplices, therefore they are liable taking into account the guilt, degree and nature of participation of each of them.
Topic 12. MULTIPLICITY OF CRIMES
1. The concept of multiple crimes. The difference of multiplicity
from isolated complex crimes.
2. The totality of crimes.
3. Recidivism of crimes.
Complicity in a deliberate crime
The second subjective sign of complicity is closely related to the intentionality of complicity and means that complicity is possible only in an intentional crime . Externally, the joint commission of a careless crime is called reckless co-infliction; the actions of each of the co-causers are qualified separately under the relevant article of the Special Part of the Criminal Code of the Russian Federation.
Careless co-infliction of harm is not complicity , although it is possible that the same consequences were imputed through negligence to all co-causers (for example, a car collision that resulted in the death of a person was due to the fault of two drivers, each of whom crossed the road marking line separating oncoming lanes, — both drivers may be held liable for traffic violations that resulted in the death of the victim).
In a crime with two forms of guilt, complicity is excluded , since in relation to harmful consequences in this case only careless guilt is possible. For example, if as a result of a joint beating through negligence the death of the victim occurred, the act cannot be recognized as intentional infliction of grievous harm to the health of a person, which through negligence resulted in his death, committed in complicity.
Forms of complicity (Article 35 of the Criminal Code of the Russian Federation)
Article 35 of the Criminal Code of the Russian Federation refers to the commission of a crime by a group of persons. In the theory of criminal law, it is called a form of complicity. From the commented article it follows that the forms of complicity are: a group of persons; a group of persons by prior conspiracy; organized group; criminal community (criminal organization).
Forms of complicity are distinguished depending on the method of joint commission of a crime and the degree of coordination of the actions of the accomplices. The method of committing a crime and the coordination of the actions of accomplices are interrelated features. The lower the degree of consistency, the simpler the method. And vice versa, higher consistency and agreement on the actions being performed predetermine a more perfect method of committing a crime.
1. A crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement.
The method of interaction between co-perpetrators is limited either to their spontaneous acts, or to the joining of one person to the beginning of the criminal activity of another.
A group of persons is characterized by two characteristics: it includes only co-executors; there is no prior agreement between them. Co-perpetrators as accomplices must have all the characteristics of a subject of a crime, at least two of them. Other accomplices who provide any assistance to a group of persons are not included in the group and are not its participants. For example, two teenagers met their enemy and, without saying a word, began to beat him. At this time, their friend was passing by, who invited the teenagers to come to him, “get themselves in order,” wash off traces of blood, change clothes and destroy the bloody clothes. In this case, the group of persons is formed only by teenagers who have committed the objective side of the crime, i.e. those who beat. The third is an accomplice who promised in advance to hide traces of the crime. The accomplice is not a member of the group of persons. Preliminary conspiracy is understood as an agreement between co-perpetrators to commit a crime, reached before the commission of the crime, i.e. at the cooking stage. A conspiracy that took place already in the process of committing a crime is not considered preliminary. Such joint activity of co-executors forms a group of persons. When a group of people has accomplices, the crime as a whole is committed with a distribution of roles, i.e. the form of complicity is a group of persons, and its type is complicity with the distribution of roles.
Crimes are often committed by a group of people. The Criminal Code provides for a group of persons as a qualifying feature of murder (clause “g”, part 2 of article 105 of the Criminal Code), intentional infliction of grievous harm to the health of the victim (clause “a” of part 3 of article 111 of the Criminal Code).
2. A crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who agreed in advance to jointly commit a crime.
A group of persons in a preliminary conspiracy is characterized by two characteristics: the participation of only co-principals; the presence of a prior agreement. Other accomplices (organizer, instigator or accomplice), who did not simultaneously perform the functions of a co-principal, are not included in the group of persons by prior conspiracy. Their actions should be qualified with reference to the relevant part of Art. 33 of the Criminal Code.
Unlike the first group, the co-perpetrators are not directly named as only one member of the group of persons by prior conspiracy. In this case, we are talking about the participation of persons who have agreed in advance to jointly commit a crime. This formulation was the reason in the theory of criminal law for different understandings of the composition of a group of persons in a preliminary conspiracy. There are statements that a group of persons by prior conspiracy can also be characterized by a distribution of roles. Only co-principals can be members of a group of persons by prior conspiracy.
3. A crime is recognized as committed by an organized group if it is committed by a stable group of persons who have united in advance to commit one or more crimes.
An organized group is characterized by prior agreement and stability. A preliminary agreement may relate to several or to one act. The agreement must be preliminary. Stability as a sign of an organized group consists in the establishment of close ties between participants, repeated contacts for detailing and elaboration of future actions. An organized group may consist of co-executors, or may include other accomplices.
4. A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a structured organized group or a union of organized groups operating under a single leadership, whose members are united for the purpose of jointly committing one or more grave or especially grave crimes in order to obtain directly or indirectly financial or other material benefits.
The basis of a criminal community is formed by an organized group. A criminal community, in addition to the characteristics related to an organized group, is also characterized by cohesion, the creation of a community for the purpose of committing serious or especially serious crimes. Cohesion as a sign of a criminal community means unity, cohesion of accomplices. A criminal community differs from an organized group in its hierarchical structure. Everyone in it knows their place and function.
A criminal community is created for the purpose of committing grave or especially grave crimes. The law does not specify what grave or especially grave crimes the criminal community plans to commit.
The commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) entails a more severe punishment on the basis and within the limits provided for by the Criminal Code of the Russian Federation.
Performer's kurtosis
The excess of the perpetrator is the commission by the perpetrator of a crime that is not covered by the intent of the other accomplices. For the excesses of the perpetrator, other accomplices to the crime are not subject to criminal liability (Article 36 of the Criminal Code of the Russian Federation).
2 types of excess of the performer:
1. Quantitative excess of the perpetrator - the crime committed by the perpetrator is similar to the one that was intended by all accomplices.
For example, an instigator who persuaded the perpetrator to commit extortion will be liable under Article 163 of the Criminal Code, even though the perpetrator committed robbery. The same applies if the instigator persuaded the perpetrator to commit robbery, but he limited himself to open theft of someone else’s property without the use of violence (Article 161 of the Criminal Code). Or, for example, instead of simple rape, the perpetrator commits it with the threat of murder.
2. Qualitative excess of the perpetrator - the crime committed by the perpetrator is not homogeneous to that which is covered by the intent of all accomplices.
Article 35 of the Criminal Code of the Russian Federation refers to the commission of a crime by a group of persons. In the theory of criminal law, it is called a form of complicity. From the commented article it follows that the forms of complicity are: a group of persons; a group of persons by prior conspiracy; organized group; criminal community (criminal organization).
Forms of complicity are distinguished depending on the method of joint commission of a crime and the degree of coordination of the actions of the accomplices. The method of committing a crime and the coordination of the actions of accomplices are interrelated features. The lower the degree of consistency, the simpler the method. And vice versa, higher consistency and agreement on the actions being performed predetermine a more perfect method of committing a crime.
1. A crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement.
The method of interaction between co-perpetrators is limited either to their spontaneous acts, or to the joining of one person to the beginning of the criminal activity of another.
A group of persons is characterized by two characteristics: it includes only co-executors; there is no prior agreement between them. Co-perpetrators as accomplices must have all the characteristics of a subject of a crime, at least two of them. Other accomplices who provide any assistance to a group of persons are not included in the group and are not its participants. For example, two teenagers met their enemy and, without saying a word, began to beat him. At this time, their friend was passing by, who invited the teenagers to come to him, “get themselves in order,” wash off traces of blood, change clothes and destroy the bloody clothes. In this case, the group of persons is formed only by teenagers who have committed the objective side of the crime, i.e. those who beat. The third is an accomplice who promised in advance to hide traces of the crime. The accomplice is not a member of the group of persons. Preliminary conspiracy is understood as an agreement between co-perpetrators to commit a crime, reached before the commission of the crime, i.e. at the cooking stage. A conspiracy that took place already in the process of committing a crime is not considered preliminary. Such joint activity of co-executors forms a group of persons. When a group of people has accomplices, the crime as a whole is committed with a distribution of roles, i.e. the form of complicity is a group of persons, and its type is complicity with the distribution of roles.
Crimes are often committed by a group of people. The Criminal Code provides for a group of persons as a qualifying feature of murder (clause “g”, part 2 of article 105 of the Criminal Code), intentional infliction of grievous harm to the health of the victim (clause “a” of part 3 of article 111 of the Criminal Code).
2. A crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who agreed in advance to jointly commit a crime.
A group of persons in a preliminary conspiracy is characterized by two characteristics: the participation of only co-principals; the presence of a prior agreement. Other accomplices (organizer, instigator or accomplice), who did not simultaneously perform the functions of a co-principal, are not included in the group of persons by prior conspiracy. Their actions should be qualified with reference to the relevant part of Art. 33 of the Criminal Code.
Unlike the first group, the co-perpetrators are not directly named as only one member of the group of persons by prior conspiracy. In this case, we are talking about the participation of persons who have agreed in advance to jointly commit a crime. This formulation was the reason in the theory of criminal law for different understandings of the composition of a group of persons in a preliminary conspiracy. There are statements that a group of persons by prior conspiracy can also be characterized by a distribution of roles. Only co-principals can be members of a group of persons by prior conspiracy.
3. A crime is recognized as committed by an organized group if it is committed by a stable group of persons who have united in advance to commit one or more crimes.
An organized group is characterized by prior agreement and stability. A preliminary agreement may relate to several or to one act. The agreement must be preliminary. Stability as a sign of an organized group consists in the establishment of close ties between participants, repeated contacts for detailing and elaboration of future actions. An organized group may consist of co-executors, or may include other accomplices.
4. A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a structured organized group or a union of organized groups operating under a single leadership, whose members are united for the purpose of jointly committing one or more grave or especially grave crimes in order to obtain directly or indirectly financial or other material benefits.
The basis of a criminal community is formed by an organized group. A criminal community, in addition to the characteristics related to an organized group, is also characterized by cohesion, the creation of a community for the purpose of committing serious or especially serious crimes. Cohesion as a sign of a criminal community means unity, cohesion of accomplices. A criminal community differs from an organized group in its hierarchical structure. Everyone in it knows their place and function.
A criminal community is created for the purpose of committing grave or especially grave crimes. The law does not specify what grave or especially grave crimes the criminal community plans to commit.
The commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) entails a more severe punishment on the basis and within the limits provided for by the Criminal Code of the Russian Federation.
Performer's kurtosis
The excess of the perpetrator is the commission by the perpetrator of a crime that is not covered by the intent of the other accomplices. For the excesses of the perpetrator, other accomplices to the crime are not subject to criminal liability (Article 36 of the Criminal Code of the Russian Federation).
2 types of excess of the performer:
1. Quantitative excess of the perpetrator - the crime committed by the perpetrator is similar to the one that was intended by all accomplices.
For example, an instigator who persuaded the perpetrator to commit extortion will be liable under Article 163 of the Criminal Code, even though the perpetrator committed robbery. The same applies if the instigator persuaded the perpetrator to commit robbery, but he limited himself to open theft of someone else’s property without the use of violence (Article 161 of the Criminal Code). Or, for example, instead of simple rape, the perpetrator commits it with the threat of murder.
2. Qualitative excess of the perpetrator - the crime committed by the perpetrator is not homogeneous to that which is covered by the intent of all accomplices.
