Competition of norms

Competition between general and special norms

When there is competition between general and special norms, the general composition covers all its varieties provided for by criminal law. The special composition is one of the varieties of the general composition. Thus, in such cases there is reason to talk about differences in volume standards. In the example above, this type of competition occurs. Most often, a special norm provides for stricter liability than a general one. This is explained by the fact that, by highlighting the special elements of the crime, the legislator thereby differentiates responsibility and emphasizes the special significance and danger of precisely such attacks.

Competition of special norms

This type of competition most often occurs in cases where the legislator provides for liability for the same act in different articles, depending on the presence of aggravating or mitigating circumstances. If both are present, preference, as a general rule, should be given to privileged squads. The legislator himself does not decide this issue. However, the highest judicial authorities have repeatedly suggested that the courts should follow exactly this path. Thus, in paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)” oa”, “g”, “e”, “n” part 2 Art. 105 of the Criminal Code of the Russian Federation, as well as in circumstances that are usually associated with the idea of special cruelty (in particular, multiple injuries, murder in the presence of persons close to the victim), if it was committed in a state of sudden strong emotional excitement or when the limits of necessary defense were exceeded.”

However, in cases of competition between special rules with aggravating circumstances, preference is given to rules providing for liability for more serious crimes.

So, if a theft with penetration into a home (Part 2 of Article 158 of the Criminal Code) is committed by a person who has previously been convicted of theft two or more times (Part 3 of Article 158 of the Criminal Code), then everything committed will be qualified only under Part 3 of Art. 158 of the Criminal Code.

In such cases, competing norms turn out to be norms providing for liability for varieties of the same crime, characterized by different degrees of social danger. Such norms are usually contained in different parts of the same article. The dispositions of such parts are, as a rule, of a referential nature and refer to Part 1 of the article, which defines the characteristics of the main composition. In these cases, as already noted, the more serious attribute qualifying the act absorbs the less serious ones. There is no totality in such cases, since there is one crime.

In Russian criminal legislation, both before and now, there are no articles on competition of norms. This problem is developed by the theory of criminal law and is solved by law enforcement agencies in the process of their activities.

3.5

A set of crimes is the commission of any crimes in succession, if for none of which the person was convicted or released from the criminal code. Two types of aggregates: real and ideal.

Real totality - the commission of two or more crimes as a result of a corresponding number of independent acts separated by time intervals. The real totality is formed not only by completed crimes, but also by preparation for them or attempts to commit them.

The commission of a socially dangerous act as a method of committing another crime does not constitute a set of crimes. For example, when committing a theft with penetration into a home, the destruction of doors, locks, and glass in the windows by the thief during the penetration is not subject to independent qualification.

If a socially dangerous act acts as a qualifying feature, it also does not form a set of crimes. For example, theft of drugs with the use of violence dangerous to life and health is qualified only under paragraph “c” of Part 3 of Art. 229 of the Criminal Code of the Russian Federation, robbery in this case acts as a qualifying feature.

Ideal totality - one action (inaction) contains signs of crimes provided for by two or more articles of the Criminal Code of the Russian Federation

For example, indecent acts against a person under 16 years of age, committed with the use of official powers, must be qualified under the totality of Art. Art. 135 and 285 of the Criminal Code of the Russian Federation.

There is no ideal population in the following cases˸

If one of the acts acts as a stage of implementation or an integral part of another, more dangerous act, for example, causing minor harm to health during robbery is absorbed as a robbery, since it acts as one of the links in the process of violent theft of property.

If the act contains signs of different qualified elements of the same crime.

If the act contains signs of qualified and especially qualified elements of the same crime. In this case, the act is qualified according to the most stringent criminal law norm, but other qualifying criteria are also indicated in the final procedural document. It is necessary to take into account that in some cases an act may be qualified under several parts of the same article of the criminal law - if each part provides for a separate element of the crime, and not a qualifying feature of the main element.

Competition of norms - if there is a general and special norm, liability occurs according to the special norm (Article 105 and other murders).

The concept and types of aggregation of crimes. Distinguishing the ideal set from the competition of criminal law norms. - concept and types. Classification and features of the category “The concept and types of aggregate crimes. Distinguishing the ideal totality from the competition of criminal law norms.” 2015, 2017-2018.

Problems of classification of crimes. Monograph

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Ed. Obrazhieva K.V., Pikurova N.I.
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“Problems of classification of crimes. Monograph"

Ed. Obrazhieva K.V., Pikurova N.I.

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Genre:	Legal
Publisher:	Avenue
Date posted:	26.09.2018
ISBN:	9785392281589
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Text volume:	457 pp.
Format:	epub

Preface

Chapter 1. Concept, meaning, types, stages, subjects of qualification of a crime

Chapter 2. Principles and rules for qualifying crimes

Chapter 3. Legal basis for the classification of crimes

Chapter 4. Classification of crimes taking into account intersectoral connections

Chapter 5. Problems of qualification of crimes with evaluative criteria of composition

Chapter 6. Problems of qualification of crimes in the competition of criminal law norms

Chapter 7. Problems of distinguishing between complex single crimes and multiplicity of criminal acts

Chapter 8. Problems of qualification of unfinished crimes

Chapter 9. Problems of qualification of crimes committed in complicity

Chapter 10. Problems of qualification of crimes committed by several persons in the absence of signs of complicity

Chapter 11. Changing the classification of a crime: grounds and procedural order

Only part of the chapter is available for free reading! To read the full version you must purchase the book

Chapter 6. Problems of qualification of crimes in the competition of criminal law norms

The concept and types of competition of criminal law norms that arise when qualifying crimes

One of the most difficult problems of law enforcement practice is overcoming the competition of criminal law norms that arises in cases when two or more norms simultaneously claim to regulate one criminal legal relationship, one of which has priority.

Competition of criminal law norms can arise at various stages of the development of criminal liability: when determining its basis (i.e., when qualifying a crime), when exempting from criminal liability, when imposing punishment, when exempting from it. However, within the framework of this monograph, we are only interested in the competition of criminal law norms that arises when qualifying a crime.

Competition of criminal law norms in the classification of a crime occurs in the case when one criminal act gives rise to the application of several criminal law norms that are different in content or time period, but do not contradict each other, of which one has priority.

So, for example, the use of violence against a police officer in connection with the performance of his official duties, expressed in causing him moderate harm to health, can be qualified: under Part 1 of Art. 112 of the Criminal Code of the Russian Federation as intentional infliction of moderate harm to health; according to clause “b”, part 2, art. 112 of the Criminal Code of the Russian Federation as intentional infliction of moderate harm to health in relation to a person in connection with the performance of official activities by this person; according to Part 2 of Art. 318 of the Criminal Code of the Russian Federation as the use of violence dangerous to life or health against a government official in connection with the performance of his official duties. When qualifying this crime, the law enforcement officer needs to choose only one of the listed criminal law norms, since it is obvious that their simultaneous application (i.e., qualifying the offense as a set of crimes) contradicts the principle of justice (Part 2 of Article 6 of the Criminal Code of the Russian Federation).

It should be emphasized that the competition of criminal law norms when qualifying a crime is not an abstract concept, but a specific law enforcement situation. As rightly noted in the legal literature, “with competition between criminal law norms, one cannot pose the question in the abstract: “Which of the two norms is always subject to application?” The question should be formulated differently: “What standard does this crime fall under? Which of the norms should be applied in this case? In other words, “competition of criminal law norms does not arise in isolation from a specific situation, in isolation from the actual circumstances of the case.”

In particular, when qualifying the actions of a person who called on rally participants to commit terrorist acts, Art. 280 of the Criminal Code of the Russian Federation, which provides for liability for public calls for extremist activities, and Art. 205.2 of the Criminal Code of the Russian Federation, which recognizes as a crime public calls for terrorist activities. This is where competition arises. 280 and 205.2 of the Criminal Code of the Russian Federation, which in this particular case are correlated as general and special norms. If we need to qualify the public justification of terrorism, there is no competition between these norms, since liability for this crime is provided only by Art. 205.2 of the Criminal Code of the Russian Federation. Therefore, to say that Art. 280 and 205.2 of the Criminal Code of the Russian Federation compete with each other, it is possible only in relation to the criminal legal assessment of a specific crime.

Competing criminal law norms have different contents or time periods of action, but do not contradict each other, which makes it possible to clearly distinguish competition from conflicts of regulatory requirements. If a conflict (contradiction) of legal norms is an obvious defect in legislative technology that requires elimination, then the competition of criminal legal norms that arises when classifying crimes has objective prerequisites.

The most significant prerequisites for competition in criminal law norms include the following.

1. Differentiation of criminal liability, carried out through the construction of special norms, the allocation of qualified and privileged groups. For example, in addition to the general criminal law rules on liability for theft and extortion (Articles 158, 159, 160–163 of the Criminal Code of the Russian Federation), the legislator included in the criminal legislation special rules providing for more stringent sanctions for the theft of items of special value ( Art. 164 of the Criminal Code of the Russian Federation), theft or extortion of weapons, ammunition, explosives and explosive devices (Art. 226 of the Criminal Code of the Russian Federation), theft or extortion of narcotic drugs or psychotropic substances, as well as plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances (Article 229 of the Criminal Code of the Russian Federation). Therefore, when qualifying the secret theft of firearms, competition inevitably arises under Art. 158 and 226 of the Criminal Code of the Russian Federation; in the criminal legal assessment of fraudulent acquisition of especially valuable objects of art, one has to overcome the competition of Art. 159 and 164 of the Criminal Code of the Russian Federation.

2. Legislative construction of complex crimes that include signs of other criminal acts. Thus, the current criminal legislation provides for many elements of crimes that actually combine two criminal acts, one of which is a method of committing the other (in particular, these include all crimes the qualifying feature of which is the use of violence). Some offenses include socially dangerous consequences as a mandatory feature, the infliction of which is regarded as an independent crime (for example, part 4 of article 111, part 3 of article 123 of the Criminal Code of the Russian Federation). The commission of a crime provided for by these complex offenses simultaneously forms the corpus delicti of another crime, which gives rise to competition in criminal law norms. So, for example, residential burglary contains signs of a complex composition provided for in paragraph “a” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation (theft committed with illegal entry into a home), and at the same time forms a crime under Art. 139 of the Criminal Code of the Russian Federation (violation of the inviolability of the home), which forces the law enforcement officer to overcome the competition of relevant norms.

3. Dynamism of criminal legislation. For example, if, after the commission of a crime, the applicable article of the Special Part of the Criminal Code of the Russian Federation has undergone changes, then the so-called temporal competition of criminal law norms inevitably arises - the norm that was in force at the time the act was committed, and the norm in force at the time the crime was classified.

Thus, competition of criminal law norms is a very common situation in the classification of crimes.

The rules for overcoming competition in criminal law when qualifying a crime are differentiated depending on the type of competition. Taking into account the nature of the relationship between competing norms, it is necessary to distinguish between the following types of competition of criminal law norms when classifying crimes:

1) meaningful competition of criminal law norms, which arises between norms that have different content. It has three manifestations:

a) competition between general and special criminal law norms;

b) competition of special criminal law norms;

c) competition of criminal law norms that correlate as part and whole;

2) temporal competition of criminal law norms that arises between norms with different time periods of action.

Qualification of crimes in the context of meaningful competition of criminal law norms

2.1. Competition between general and special criminal law norms and how to overcome it in the classification of crimes

Competition between general and special criminal law norms arises in the case when a crime can simultaneously be classified according to two norms, one of which (general) formulates the elements of a crime in a generalized form, and the other (special) specifies one or more elements of a crime, specified in the general norm.

With such competition, general and special criminal law norms are in relation to subordination in volume. This means that the corpus delicti provided for by the special norm has all the features of the crime recorded in the general norm, but at the same time specifies one or more of them. In other words, the general criminal law provision provides for liability for a certain type of crime, and the special one for its particular manifestation.

So, for example, part 1 of Art. 105 of the Criminal Code of the Russian Federation establishes liability for murder, that is, intentionally causing the death of another person, and Part 2 of Art. 105 of the Criminal Code of the Russian Federation - for certain types of murder that have an increased public danger. At the same time, listed in Part 2 of Art. 105 of the Criminal Code of the Russian Federation, qualified types of murder have all the signs of the general composition of murder, which means that the criminal law norms on liability for murder with aggravating circumstances are special in relation to Part 1 of Art. 105 of the Criminal Code of the Russian Federation. Special criminal law provisions in relation to Part 1 of Art. 105 of the Criminal Code of the Russian Federation should also be considered the rules on liability for murder with mitigating circumstances (Articles 106–108 of the Criminal Code of the Russian Federation), since the crimes provided for by them (murder by a mother of a newborn child; murder committed in a state of passion; murder committed when the limits of necessary defense were exceeded or in excess of the measures necessary to detain the person who committed the crime) are fully covered by the general corpus delicti of murder.

The legislative construction of special criminal law norms can be carried out by specifying one or more elements of a crime.

For example, a special rule on liability for theft of items of special value (Article 164 of the Criminal Code of the Russian Federation) specifies the characteristics of the subject of the crime. If in the general offenses of theft (Articles 158, 159, 160–162 of the Criminal Code of the Russian Federation) the subject of the crime is any other person’s property, then the subject of the crime provided for in Art. 164 of the Criminal Code of the Russian Federation is only such property that has special historical, scientific, artistic or cultural value.

The specialization of the criminal law norm on liability for murder (Article 106 of the Criminal Code of the Russian Federation) by the mother of a newborn child was carried out by specifying several signs of the general composition of murder: signs of a victim of a crime (this can only be a newborn child); signs of the objective side (the crime must be committed during or immediately after childbirth or in a psychologically traumatic situation); signs of the subject of the crime (this is the mother of a newborn child who has reached the age of 16); signs of the subjective side (an alternative sign of a crime is its commission in a state of mental disorder that does not exclude sanity).

The relationship between general and special criminal law norms may include:

- criminal law provisions provided for by various parts of one article. For example, part 2 of Art. 126 of the Criminal Code of the Russian Federation, which provides for liability for qualified types of kidnapping, is a special rule in relation to Part 1 of Art. 126 of the Criminal Code of the Russian Federation, which establishes liability for kidnapping without aggravating circumstances. And part 3 art. 126 of the Criminal Code of the Russian Federation, which provides for liability for especially qualified types of kidnapping, is a special rule in relation to Parts 1 and 2 of Art. 126 of the Criminal Code of the Russian Federation;

— criminal law provisions contained in various articles of the Special Part of the Criminal Code of the Russian Federation. In particular, special in relation to paragraph “b” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation are Art. 277, 295 and 317 of the Criminal Code of the Russian Federation.

The rule for overcoming competition between general and special criminal law norms is formulated in Part 3 of Art. 17 of the Criminal Code of the Russian Federation - if a crime is provided for by general and special norms, there is no totality of crimes and criminal liability arises according to the special norm. In other words, when there is competition between general and special criminal law norms, the special norm has priority.

Unfortunately, when resolving competition between general and special criminal law norms, mistakes are often made in law enforcement practice.

For example, the Magadan Regional Court convicted Isichenko under Part 2 of Art. 303 of the Criminal Code of the Russian Federation and part 1 of Art. 285 of the Criminal Code of the Russian Federation. He was found guilty of falsifying evidence and abuse of power.

The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation changed the verdict, indicating the following. The materials of the case establish that on August 1, 2001, Isichenko accepted for his proceedings a criminal case initiated on the grounds of a crime provided for in paragraphs “c”, “d” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation. Without carrying out appropriate investigative actions, Isichenko deliberately prepared fictitious procedural documents, using them as evidence. In addition, Isichenko deliberately falsified evidence by partially falsifying it, making false additions to the original interrogation protocols regarding the circumstances of the theft of someone else's property, and, through the involvement of an unidentified person, making corresponding handwritten notes and signatures on behalf of these persons.

The court of first instance came to a reasonable conclusion that investigator Isichenko’s guilt in falsifying evidence was proven, correctly qualifying his actions under Part 2 of Art. 303 of the Criminal Code of the Russian Federation. At the same time, Isichenko is charged under Part 1 of Art. 285 of the Criminal Code of the Russian Federation should be considered excessively imputed and subject to exclusion from the sentence on the following grounds. Article 285 of the Criminal Code of the Russian Federation is a general rule providing for criminal liability for abuse of official powers. At the same time Art. 303 of the Criminal Code of the Russian Federation is a special rule that provides for the responsibility of a specific official for falsifying evidence, and therefore, in accordance with Part 3 of Art. 17 of the Criminal Code of the Russian Federation, if a crime is provided for by general and special norms, there is no totality of crimes and criminal liability arises according to the special norm.

A similar mistake was made by the court of first instance when qualifying the theft of narcotic drugs committed by robbery.

On February 4, 2005, Sh., with the threat of using violence dangerous to life and health, stole a narcotic drug from Zh., and on February 5, 2005, Sh. attempted to steal a narcotic drug on a large scale with the use of violence dangerous to life and health victim J.

According to the court verdict (taking into account the amendments made), Sh. was convicted under paragraph “c” of Part 3 of Art. 229, part 3 art. 30, paragraph “b”, “c”, part 3, art. 229, part 1 art. 162, part 3 art. 162 of the Criminal Code of the Russian Federation (as amended on December 8, 2003).

The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation changed the court decisions and excluded the indication of Sh.’s conviction under Parts 1 and 3 of Art. 162 of the Criminal Code of the Russian Federation (as amended on December 8, 2003) for the following reasons.

According to paragraph 26 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2006 No. 14 “On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and toxic substances,” theft or extortion of narcotic drugs or psychotropic substances committed with the use of violence dangerous to life or health, or with the threat of using such violence, is fully covered by the disposition of paragraph “c” of Part 3 of Art. 229 of the Criminal Code of the Russian Federation and additional qualifications under Part 1 of Art. 162 or art. 163 of the Criminal Code of the Russian Federation does not require it.

Thus, the highest court recognized that the criminal law rule on liability for theft of narcotic drugs is special in relation to the rule on robbery, and therefore the act should be qualified only under Art. 229 of the Criminal Code of the Russian Federation.

Apparently, the main reason for such qualification errors lies in the fact that the law enforcement officer was unable to recognize the emergence of competition between general and special criminal law norms and incorrectly determined the relationship between the norms applying for application.

Considering the relationship between general and special criminal law norms, it should be emphasized once again that the general norm fully covers all criminal acts that are provided for by the special norm(s). Therefore, the exclusion of a special criminal law norm from criminal legislation (or its loss of legal force) does not lead to the decriminalization of an act, but only “transfers” it to the scope of a general criminal law norm.

So, for example, Art. 159.4 of the Criminal Code of the Russian Federation, which acted as a special criminal law in relation to Art. 159 of the Criminal Code of the Russian Federation, was declared unconstitutional and lost legal force from June 12, 2015. After this, law enforcement agencies began to classify fraud in the field of entrepreneurial activity under Art. 159 of the Criminal Code of the Russian Federation, i.e., on the basis of the general criminal law norm on liability for fraud (except for cases when the crime was committed during the period of validity of Article 159.4 of the Criminal Code of the Russian Federation).

Federal Law No. 323-FZ of July 3, 2016 again included in the criminal legislation a special rule on liability for fraud in business activities, regulating the characteristics of the main and qualified elements of this crime in parts 5–7 of Art. 159 of the Criminal Code of the Russian Federation. Accordingly, fraud in the field of business activity is again classified according to a special norm (Parts 5–7 of Article 159 of the Criminal Code of the Russian Federation) taking into account the rules of operation of the criminal law over time.

Thus, if it is impossible to apply a special criminal law norm, a general norm that has a wider scope of application should be applied (of course, if there are signs of a crime provided for by the corresponding general norm). The application of this qualification rule can be illustrated by the following example.

P. was found guilty of the theft of reactive illumination and imitation cartridges and explosive packages, ammunition and explosive devices, committed by a group of persons by prior conspiracy, repeatedly, using his official position, and his actions were qualified as theft of ammunition under paragraph “a”, “ b", "c" part 3 art. 226 of the Criminal Code of the Russian Federation.

The Military Collegium of the Supreme Court of the Russian Federation reclassified P.’s actions related to the theft of reactive illumination and imitation cartridges and explosive packages as clauses “b”, “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation due to the fact that in accordance with the Federal Law of December 13, 1996 No. 150-FZ “On Weapons” and taking into account the clarifications of the Plenum of the Supreme Court of the Russian Federation contained in the resolution of June 25, 1996 “On Judicial practice in cases of theft and illegal trafficking of weapons, ammunition and explosives,” these items are neither ammunition nor explosive devices, since they do not contain explosives.

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Problems of classification of crimes. Monograph

The monograph is devoted to the problems of qualification of crimes. It examines the concept, types, meaning, legal basis of classification of crimes, its principles and rules, features of qualification of crimes with variable elements of composition, problems of qualification of crimes in the competition of criminal law norms, differentiation of complex single crimes and multiplicity of criminal acts, qualification of unfinished crimes and crimes committed by several persons, the grounds and procedural procedure for changing the classification of the crime are analyzed. The legislation is as of September 2022. The monograph is intended for researchers, teachers, practicing lawyers, students and graduate students of law universities and faculties.

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Ed. Obrazhieva K.V., Pikurova N.I. Problems of classification of crimes. Monograph

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Set of crimes. Its types. Difference from competition of criminal law norms.