- The concept and signs of the objective side of the crime
- Socially dangerous act. The importance of force majeure, physical and mental coercion for resolving the issue of criminal liability
- Socially dangerous consequences
- Causality
- Other optional signs of the objective side of the crime
In every human act, external and internal signs can be distinguished. External signs are the manifestation of human behavior in objective reality. Internal are mental processes that occur in a person’s mind and determine his behavior. These signs form a psychophysical unity. And although the division of human behavior into external (objective) and internal (subjective) sides is quite arbitrary, this approach is important for the legal analysis of the nature and degree of social danger of the committed act, its specific characteristics, and, ultimately, for establishing the crime.
Elements of the crime
The corpus delicti of any crime consists of four groups of characteristics, which are called elements of the crime. These include:
- object of crime;
- the objective side of the crime;
- the subjective side of the crime;
- subject of the crime.
The first two elements of the crime are formed by objective signs that characterize the external aspect of the crime. Subjective signs characterize the internal side of the crime, i.e. its subjective side and subject.
Legal meaning
From a legal point of view, the classification of crimes according to their severity is important not only in the context of the severity of punishment, but also in some other legal aspects. For example, men sentenced to imprisonment for committing serious crimes, who have not previously served imprisonment, are assigned a general regime penal colony as a correctional institution, and men who have committed a particularly serious crime (even for the first time) are sent by the court to serve their sentence in a maximum security colony (Art. 58 of the Criminal Code of the Russian Federation).
Also, for especially serious crimes, the law establishes a longer period for expunging a criminal record after serving the sentence. In accordance with Art. 56 of the Criminal Code of the Russian Federation it is 10 years.
The concept of the objective side of the crime
Mandatory signs of the objective side for all elements of a crime are the commission of an action or inaction that encroaches on an object protected by law, and for material elements - also the occurrence of harmful consequences and a causal relationship between the act and the consequences. For certain elements of a crime, the criminal law recognizes other (optional) features as mandatory: the method of committing the crime, time, place, instruments, etc.
The objective side of a crime is an external act of human behavior that causes or is capable of causing harm to objects protected by criminal law, and includes a socially dangerous act (action or inaction), socially dangerous consequences (criminal result), causation, as well as place, time , situation, method, instruments and means of committing a crime.
Second commentary to Art. 14 of the Criminal Code of the Russian Federation
1. A crime is always an act. Neither thoughts, nor intentions, nor goals of a person that have not found their outer expression and are not embodied in action can be considered a crime. An act as an objectified act can be expressed in one of two forms: in action (active behavior) or inaction (passive behavior). The act acquires criminal legal significance, i.e. becomes a crime only if it has all four characteristics specified in the law.
2. Social danger is an integral objective property of a crime, meaning the ability to cause significant harm to social relations placed under the protection of criminal law.
If the harm caused to social relations is not significant, then the act is considered minor. The issue of recognizing an act as insignificant is decided by the bodies of inquiry, investigation or court, taking into account the actual circumstances.
An act recognized as minor and therefore not criminal may entail administrative, disciplinary, civil or other legal or moral liability.
3. Unlawfulness means that only an act that is directly prohibited by the norm of the Special Part of the Criminal Code can be recognized as a crime.
Social danger and illegality are two inseparable and interrelated characteristics (social and legal) of a crime, none of which, in isolation from the other, can characterize an act as criminal and criminally punishable.
4. Guilt as a constructive feature of a crime directly follows from the principle of guilt enshrined in Art. 5 of the Criminal Code. Based on the principle of subjective imputation, Russian criminal legislation prohibits objective imputation, i.e. criminal liability for innocent (committed without intent or negligence) causing harm.
5. Punishability is the possibility of imposing punishment provided by law. This possibility is not realized in all cases of crime. Firstly, not every crime is recorded by law enforcement agencies. Secondly, not every recorded crime is solved. Thirdly, on the grounds and in cases provided for by law, a person who has committed a crime may be released from punishment.
Formal and material elements of the crime
According to the design of the objective side, it is customary to distinguish between formal and material elements of crimes.
If the norm of the Special Part of the Criminal Code of the Russian Federation describes harmful consequences, such compounds are called material . In material compositions, the harm caused by the crime is a sign of the objective side of the crime. If the corpus delicti is of a material nature, the crime is completed at the moment of the onset of socially dangerous consequences. If there is a material element of a crime, then it is necessary to establish a causal relationship between the action or inaction and the socially dangerous consequences that occur. An example of a crime with a material element is theft (Article 158 of the Criminal Code of the Russian Federation), fraud (Article 159 of the Criminal Code of the Russian Federation) and a number of other crimes against property, the end of which is associated with the completion of the process of taking possession of someone else’s property.
If the norm of the Criminal Code of the Russian Federation does not indicate harmful consequences, the crime is formal . In formal offenses, harm is taken outside the scope of the crime and, as a general rule, does not affect the qualification of the offense. If the corpus delicti is of a formal nature, the crime is completed at the moment the unlawful act is committed, regardless of the consequences of the act. In the case of a formal composition, there is no need to establish a causal relationship. An example of a crime with a formal element is extortion (Article 163 of the Criminal Code of the Russian Federation), desertion (Article 338 of the Criminal Code of the Russian Federation), evasion of military service duties (Article 339 of the Criminal Code of the Russian Federation).
Nevertheless, even in crimes with formal elements, the harm caused (the threat of causing it) is taken into account when assessing the danger of the act when applying Part 2 of Art. 14 of the Criminal Code of the Russian Federation.
Causality
Causality in criminal law is a mandatory sign of the objective side of the material elements of crimes and is necessary for the imputation of socially dangerous consequences.
Causality is objective, i.e. existing outside and independently of human consciousness, the connection between the phenomena of the material world, which characterizes their genesis - the relationship between the generating (cause) and generated (effect) phenomena. Cause and effect are philosophical categories that reflect one of the forms of universal objective connection, interdependence and interdependence of objects, phenomena and processes occurring in nature and society. A cause is understood as a phenomenon that naturally, with internal necessity, gives rise to another phenomenon, considered as a consequence.
The criminal law concept of causation is based on this philosophical concept, but has some specifics. In philosophy, both cause and effect can be various phenomena and processes. In criminal law, a socially dangerous act of a person is always considered as a cause, and socially dangerous consequences provided for by criminal law are always considered as a consequence. Therefore, a causal connection in criminal law is not necessarily a connection between events that are “neighboring” in external sequence. Let us explain this with a simple example. If a person is bitten by a dog, then from a philosophical point of view we can consider the dog bite as the cause, and the injury to the victim as the consequence. But from the point of view of criminal law, a dog as a cause of harm in itself cannot interest us. Therefore, it is necessary to examine why the dog bit the victim. If, for example, the owner set the dog on the victim, then the cause of the injury will be considered a socially dangerous action of the specified person. Taking into account the above, in criminal law there is a direct causal relationship (between neighboring phenomena, for example, property damage as a result of theft) and a causal relationship complicated by the intervention of external forces.
The first monographic study of the problem of causation in criminal law was undertaken by Professor T.V. Tsereteli, who pointed out: “A judge examining the issue of causation in the aspect of criminal liability interrupts his research where unlawful and guilty behavior can no longer be assumed, i.e. when the study of further links of causation cannot be of interest for the practical purposes of criminal law.” Unfortunately, establishing a causal relationship often causes significant difficulties in the course of law enforcement activities.
It seems necessary to highlight the so-called criteria (stages) for determining a causal relationship.
- Studying a specific action (inaction) of a subject for social danger and illegality in a specific time and situation.
- The action must precede the result in time.
- The act must create a danger of causing harm to the object. The act must create a danger of causing harm of the same nature as the harm that occurred.
- The action must serve as a necessary condition.
- The act must be not just a necessary condition, but the cause of harmful consequences, taking into account all the features of the situation and the forces involved.
A causal connection in criminal law is such an objective connection between a socially dangerous act of a person and the socially dangerous consequences that occur, in which the act precedes the consequence in time, prepares and determines the real possibility of its occurrence and is a necessary condition causing the onset of the consequence. Until now, the problem of causation in criminal law is debatable2. We emphasize that to establish a causal relationship, the presence of all the criteria discussed above should be analyzed.
Truncated formulations and hazardous formulations
These types of crimes can be classified as a type of formal crimes , since their characteristic feature is that the legislator transfers the end of the crime to an earlier stage. An example of a truncated composition in which the moment of the end of the crime is moved to the stage of attempt - robbery (Article 162 of the Criminal Code of the Russian Federation); at the preparation stage - the creation of a gang (Article 209 of the Criminal Code of the Russian Federation).
For example, Article 105 of the Criminal Code of the Russian Federation contains the material elements of a crime, which will be completed from the moment of death. At the same time, Article 295 of the Criminal Code of the Russian Federation, which provides for punishment for an attack on the life of a person carrying out justice or a preliminary investigation, contains a truncated clause , since the crime is completed from the moment the attack is committed, regardless of the consequences in the form of the death of the victim.
The elements of danger include those crimes, to describe the objective side of which, an indication not only of the act is used, but also of the presence of a threat of socially dangerous consequences, although the consequences themselves are not signs of the objective side of the crime. An example of the corpus delicti may be the corpus delicti provided for in Part 1 of Art. 122 of the Criminal Code of the Russian Federation “Infection with HIV infection”. The objective side of this crime is formed only by the act of putting in danger. But the consequences themselves in the form of infection are outside the scope of the composition under consideration, for the presence of which only an act and a threat of harm is necessary and sufficient.
Commentary to Art. 14 Criminal Code
1. Part 1 contains a formal and material definition of the concept of “crime”, containing four features that characterize it: prohibition, public danger, guilt and punishability.
2. Any crime is an act expressed in the form of active (action) or passive (inaction) behavior. Prohibition is the main formal (normative) sign of a crime. The legal structure of a criminal law prohibition is a legislative structure, which is a system of normatively established features that describe all possible options (models) of criminal behavior recognized as unlawful in accordance with criminal law. A ban as a legal regulation identifies an act as a crime. The sign of legality directly follows from the principle of illegality. The prohibition of an act is a special variant of illegality, inherent only to crimes, which in turn acts as a sign of all offenses (for example, it is directly indicated in the definition of an administrative offense (Article 2.1 of the Code of Administrative Offenses of the Russian Federation)).
Public danger is the main material (social) sign of a crime. Social danger is an objective property of a crime, expressed in its ability to cause significant harm or create a threat of causing such harm to an individual, society or state. But the criminalization of acts is based on the legislator’s subjective assessment of their social danger. Social danger has qualitative and quantitative characteristics. The nature of the public danger, its qualitative characteristics (its content), depends on the significance of the object of the attack. The degree of public danger, its quantitative characteristics (its measure), depends on many factors on the nature and magnitude of the damage caused by the crime (consequences), the form of guilt, the method of committing the act, etc.
Guilt is an independent sign of a crime, consisting in the fact that a socially dangerous act is recognized as a crime only taking into account the mental attitude of the sane person to the act committed in the form of intent or negligence. According to the principle of guilt, objective imputation is not allowed.
Punishability is an independent formal sign of a crime. Punishability as a sign of a crime must be understood as the potential possibility of applying state coercive measures imposed by a court verdict to a person who has committed a crime. The term “punishment” in the definition of a crime is subject to a broader interpretation in comparison with its legal concept. The sign of punishability legitimizes the possibility of criminal legal action; defines its boundaries within the framework of the provisions enshrined in the Criminal Code (not only in the sanctions of the articles of the Special Part of the Criminal Code); performs a certain preventive role.
3. Part 2 of the article provides a definition of a minor act. It is not a crime due to the fact that it does not pose a public danger (according to its quantitative criterion) due to its insignificance, although formally it contains signs of any specific act provided for in the Special Part of the Criminal Code. The issue of recognizing the insignificance of an act falls within the competence of the investigation and the court. A criminal case for minor acts is not initiated or is subject to termination. The commission of an act recognized as minor may be qualified as an administrative or other offense.
Differences between especially serious crimes and other crimes
Particularly serious crimes according to the Criminal Code of the Russian Federation:
- solely intentional
- encroach on the most important and carefully protected goods: life, health, sexual integrity of a person, as well as world security.
The high degree of danger of this category of crimes is emphasized by the fact that liability for them is possible already at the preparation stage (Parts 1, 2 of Article 30 of the Criminal Code of the Russian Federation). However, this does not invalidate Art. 31 of the Criminal Code of the Russian Federation on voluntary refusal, entailing release from liability, which applies to particularly serious crimes in full .
You may also be interested in the article on the ConsultantPlus website “Is it advisable to exclude crimes of a grave category from the special procedure for judicial proceedings provided for by Chapter 40 of the Code of Criminal Procedure of the Russian Federation?” If you do not yet have access to the ConsultantPlus system, you can obtain it free of charge for 2 days.
